What is a non-conforming use?

Non-conforming use is a variance of an existing zoning ordinance, permitted because the use of the land was legal before the ordinance was passed. How the law reacts to a non-conforming use depends on the zoning ordinance, the zoning authority, and the effect of the use itself. If faced with a non-conforming use, consult your local zoning ordinance and an attorney familiar with zoning law.

Being Granted a Non-Conforming Use

In order to successfully demonstrate that you should be allowed a non-conforming use, you must show that your actual use of the property conformed with, or was otherwise allowed by, prior zoning law. Although it depends on local zoning law, typically you cannot get permission for a non-conforming use that you simply planned prior to the change, and you cannot change from one non-conforming use to another. You must be able to show that you were using the property in the same manner before and after the zoning change; so if the property is, for example, a vacant lot you must leave it as a lot or, if you decide to develop it, you must do so in conformance with the new zoning ordinance unless otherwise permitted.  Furthermore, you must demonstrate your prior and unchanged use to the zoning board and be officially granted the non-conforming use as an exception for your property. For questions about being granted a non-conforming use, contact a local attorney familiar with the process.

Destruction of a Non-Conforming Use

If you as an owner of a non-conforming use demonstrates, or significantly indicates, that you have intent to discontinue or change a non-conforming use for a long period of time, then your exception may be terminated. Intent can be recognized if the landowner changes the structure or purpose of the non-conforming use, or leaves the property alone without taking advantage of the non-conforming use for a certain number of years. In some states, and for some uses, zoning law allows the local zoning authority to determine the value of the non-conforming property at the time the zoning law making it illegal goes into effect. As the property ages, the value of the property will go down, and when the value has depleted entirely the non-conforming use will no longer be permitted.

Finally, it is generally true that if a non-conforming use is destroyed to the point where more than 50% of its value is lost, then it may not be rebuilt in the same manner. Destruction of a non-conforming use is an important, and not always straightforward affair, so it is important to be aware of your rights as the owner of a non-conforming property.