Issues in Land Use Law & Zoning

Nonconformities: Dealing With Uses, Part 1

October 4th, 2013

nonconforming-egg-smallNonconformities are a thorny issue when updating or administering zoning regulations. In most communities, there are uses or situations predating zoning or other land development regulations that do not conform to the current standards.

Nonconformities come in different categories. For example:

  • A use that is no longer allowed in the zoning district is a “nonconforming use."
  • A recorded lot that no longer complies with minimum lot area requirements is a nonconforming lot.
  • A building that encroaches into a required yard or exceeds maximum building heights is a nonconforming structure.
  • A development with insufficient parking or landscaping, or buildings that do not comply with current design standards, is a nonconforming situation.

Nonconformities are normally protected in zoning ordinances to varying degrees, but are not favored because they interfere with the implementation of plans and zoning regulations. As a result, communities have a developed a variety of tools to control -- or eliminate -- nonconformities.

But what about nonconformities that are an asset to their locations? For example, a nonconforming grocery store in a residential zoning district could give residents the ability to walk to the store. A nonconforming restaurant in an industrial district could give employees a place to eat lunch. What if the store or restaurant wants to expand or change its operations? How can a community allow these uses to exist without impairing neighborhood character, or without taking up land needed for industrial uses?

This article focuses on the issue of nonconforming uses. Most land use decisions deal with nonconforming uses, and there are well-established tools to control or eliminate the uses. However, the article also addresses ways to accommodate nonconformities -- or to avoid the issue altogether -- in ways that respect planning policies and neighborhood character.

Tools that Control Nonconforming Uses

The law assumes that nonconforming uses are a necessary evil. Communities must recognize them, but can keep them from getting out of control. If a community is happy with its zoning districts and wants them fully implemented, it can control or eliminate nonconforming uses by –

  • Prohibiting their expansion,
  • Providing that any change in the use must conform to the new district regulations,
  • Providing that, if the use changes, it can never change back to the nonconforming use, or
  • Specifying that the nonconforming use is terminated if it is abandoned (for example, ceasing operations for one year or knocking down the building) or destroyed by natural causes (such as a fire, flood, or similar involuntary conditions).

Communities can also get more aggressive, adopting tools to proactively terminate nonconforming uses. These include:

  • Amortization requirements, which provide that the use must end within a given time period after it becomes nonconforming -- for example, within one year after it is no longer allowed in the district, and
  • Certification or registration requirements, which require the owner to register the use within a given time period after it becomes nonconforming, or cease operations. This requirement gives property owners a written verification that their nonconformity is protected. At the same, when the deadline to register expires, planners have a way to tell where, and the degree to which, nonconformities exist at given locations. This provides useful information when considering regulatory changes, such as changing the zoning map or removing uses from a district.

These more aggressive tools are not allowed in some states. For example, Missouri considers amortization a taking of property. However, Missouri does allow communities to require registration, and also puts a heavy burden of proof on property owners to document when their nonconforming uses were established and that they were lawful when established. Consult with your municipal attorney about your state’s enabling laws and judicial decisions.

 Go to Part 2 for a look at Tools that Accommodate Nonconforming Uses

photo of Mark WhiteMark White is an attorney and urban planner whose practice emphasizes drafting zoning, subdivision and land development codes. He has completed over 150 development code updates, zoning regulations, and comprehensive plan/smart growth implementation projects for local governments in 36 states.

White has also published over 22 books and articles on planning issues, including the American Planning Association’s model land development code. He is a member of the North Carolina and Missouri Bars, AICP, and the American Planning Association. White holds a JD and Master of Regional Planning from the University of North Carolina at Chapel Hill.