Issues in Land Use Law & Zoning

Nonconformities: Dealing With Uses, Part 2

October 4th, 2013

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-- continued from Part 1

Tools that Accommodate Nonconforming Uses

Graphic showing one red cup next to a pyramid of white cupsEven if your state law allows an aggressive approach to terminating nonconforming uses, is that a good idea? An aggressive approach can face stiff political resistance, and can eliminate some uses that, while not complying with the letter of zoning district regulations, are a benefit to the neighborhood or even consistent with plan policies.

What’s more, some of the traditional approaches to nonconforming uses may create a perverse incentive for the use to stay. For example, a provision that a nonconforming use cannot revert back if the use is changed to a conforming use may discourage a property owner from bringing their property into compliance with the zoning district regulations. This is because they are giving up a right that that cannot get back. If the property owner is free to restore the nonconformity, they need not fear that coming into compliance with the zoning terminates their existing rights.

If your community wants a more flexible approach to nonconformities, there are several ways to accommodate them. One is to continue to characterize such uses as nonconforming, but allow them to continue or expand. This is based on the theory (described by Michael Brough in American Planning Association’s 1985 model Unified Development Ordinance) that “nonconforming uses do not fade away -- they simply become more run-down and shabby looking.” Allowing them to continue enables the business or development to continue to invest in property maintenance, and provide jobs, goods, and services to the neighborhood.

Solutions that recognize, but accommodate, nonconformities include:

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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.

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