— continued from Part 1

Tools that Accommodate Nonconforming Uses

Even 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:

• Allowing the use to expand with a variance from the Board of Zoning Adjustment.

This provides some community oversight, but also requires proof of hardship. This test is usually difficult to meet, and focuses the case on economic rather than planning issues.

• Allowing the use to expand with discretionary review, such as a special exception (typically approved by the Board of Zoning Adjustment) or a conditional or special use permit.

As with variances, this provides community oversight, and is tied more directly to comprehensive planning and neighborhood issues. The downside is that it can be expensive for the applicant, uncertain for the applicant and neighbors, and take up valuable staff and decision maker time.

• Providing that nonconforming uses are treated as conforming for purposes of continuance or expansion, while providing for the termination of the nonconforming use if it is changed (to another kind of use), abandoned, or destroyed and not rebuilt during a given time period.

This allows the nonconforming use to remain economically viable. However, if it discontinues — and neighbors make investments without knowing about the prior nonconformity –those investments are protected. In addition, the party who owns the nonconformity has advance notice that they cannot leave the nonconformity dormant for an indefinite time period.

• Setting out clear rules about the degree of expansion.

Zoning regulations can provide clear, numeric limits for the expansion of nonconformities, and zoning administrators can approve the expansion without requiring a hearing before the board of zoning adjustment, planning commission, or elected officials. To work well, the rules should be clear, and the community should consider tailoring them to given nonconforming uses that implement plan policies.  Examples may include small commercial uses that provide services to residential neighborhoods, multi-family units that provide housing opportunities, social service uses, and similar categories.

The downside of each of these approaches is that the use continues its nonconforming status. This can become an issue with lenders, who are usually reluctant to extending financing to businesses that are defined as illegal by local ordinance.

Tools that Can “Circumvent” the Nonconforming Use Question

There are also ways by which a community can avoid defining uses no longer allowed in the district as conforming, while ensuring that they comply with local planning policies. This approach — what you might call tools that circumvent the nonconforming use question — includes:

• Spot zoning, which places the use in a zone that allows it.

There are clear disadvantages to this approach. While spot zoning is not usually per se illegal, it does expose the zoning map to litigation and, perhaps, resolution of the matter by judges rather than by planners. However, clear planning policies that recognize that benefits of non-residential uses in residential neighborhoods, for example, are typically respected by the courts. For example, as far back as 1943 the Utah Supreme Court upheld a Salt Lake City zoning map that provided small commercial “utility zones” in residential zoning districts, recognizing that close access to these goods and services was a legitimate public purpose (Marshall v. Salt Lake City, 105 Utah 111, 141 P.2d 704 (Utah 1943). ¹

• Defining preexisting uses as conforming.

For example, in a single-family district, townhouses that were in place before a given date could be defined as a permitted use. This allows those uses to continue, or expand, at their existing location. However, it does prohibit their establishment in other parts of the district.

• Establishing rules that allow a given number of uses, or spacing of uses, in a district.

This would simply recognize the existence of uses that are not typically allowed in the district, but ensure that they do not proliferate in a way that undermines the district’s character. For example, a community could provide that up to two corner grocers are allowed in a residential district, limit them to one per block, or provide that they must be spaced at least 400 feet apart. This would limit the number of corner grocers and avoid the establishment of a de facto commercial district, while giving neighborhoods access to food and necessities in nearby, perhaps walkable, locations.

Summing Up:

Nonconforming uses are a sticky wicket in zoning regulations. They can undermine plan implementation, and perpetuate uses that are incompatible with neighborhood character. However, planners are increasingly recognizing that in certain situations they can be  assets for a neighborhood. With modern comprehensive plans recognizing “smart growth” and “sustainable” principles such as walkable streets and neighborhoods with a rich fabric of uses, communities may want to rethink the traditional approach to nonconformities.

Mark 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.