Zoning laws are generally set by local governments and establish permissible uses for properties within certain areas. For instance, properties may be zoned commercial, industrial or residential and different behaviors and activities will be allowed in each different zone. Sometimes, however, the zoning rules for a particular area change over time as an area evolves. When this occurs, properties may be permitted to continue to persist in a behavior or activity they were doing prior to the zoning change or properties may be permitted to maintain their existing structure even if it would not currently be permitted. This is referred to as a "non-conforming use" since the property is legally permitted to be used for something that would not be permitted under current zoning regulations or to exist in a manner that would not otherwise be permitted.
Rules for Non-Conforming Use Properties
The rules for a non-conforming use can vary from location to location, since each local zoning board or zoning ordinance may have its own rules and regulations. In general, however, property or landowners will only be permitted to use or maintain a property that is non-conforming if they were already using the property in that manner before a zoning change or shift. For instance, if someone was using a building as a coffee shop before the zoning laws changed and prohibited commercial businesses in the area, the individual would be permitted to continue operating his coffee shop in his location and it would be considered a non-conforming use. However, a person who had not yet opened a coffee shop would not be eligible for a non-conforming use variance. In most case, this is true even if the person had been planning to open a coffee shop before the zoning laws changed.
In order to get a non-conforming use variance, you also must show that your previous use of the property was permitted under zoning laws at the time, and you must continue to use the property in the same manner. If it was never permitted for you to run a coffee shop, for example, then the fact you were illegally running one in violation of zoning laws would not entitle you to a non-conforming use zoning variance. Likewise, if you decided to close your coffee shop and open a bakery instead after the zoning rules changed, this would not be considered a non-conforming use because you would not be using the property in the same way as you were before the zoning rules changed.
Seeking a Non-Conforming Use Variance
If you are interested in using your property for a non-conforming use, you must be officially granted permission by the zoning board. You cannot simply continue to do the activity prohibited under the new zoning regulations unless you seek the variance and prove your eligibility. An experienced lawyer who specializes in zoning and land use issues can help you to obtain this permission.
Operating Under a Non-Conforming Use
When you operate or maintain a building under a non-conforming use variance, not only must you keep the structure of the activity or building the same, but you also must comply with new zoning rules if you wish to develop or expand. In other words, you cannot grow or change your business, operation, expand the building, or use of the building in any new way under a non-conforming use variance unless your new actions are permitted under the new zoning laws. This is true even if your actions would have been permitted under the original zoning requirements when your use of the property began.
Destruction of a Non-Conforming Use
Your non-conforming use variance should remain valid as long as you continue to use or maintain the property for the same purpose as you were using it prior to the zoning change. If you discontinue or abandon your non-conforming use of the property for a period of time (usually around 6 months), then you may lose your variance and no longer be eligible to use your property for the non-conforming use. If you show intent to abandon or discontinue your use, in some states, your variance may also be ended.
Many zoning boards will let you resume the non-conforming use, even if abandoned, if you seek permission to do so again within a set period of time. For example, according to the Department of Planning in the city of San Jose, if you discontinue your non-conforming use of the property for more than six months but less than 18 months, you can resume your use of the property by obtaining a "special use" permit.
Other reasons your non-conforming use may end, depending on state law, are if the property value is entirely depleted on the property or if the non-conforming use property suffers damage or destruction that causes it to lose at least 50 percent of its value. In such cases, some zoning boards will require that the property be rebuilt in a manner that complies with new guidelines and permitted uses.
If you have concerns about potential destruction of your non-conforming use, an experienced attorney can assist you in understanding your local laws and protecting your right to use your property.