Zoning Under Non-Conforming Use and Special Use Permits

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 activities will be allowed in each different zone. However, the zoning rules for a particular area can change over time as an area evolves. When this occurs, properties may be permitted to continue the activity they were engaging in prior to the zoning change, or properties may be permitted to maintain their existing structure, even if not currently allowed. This continued use 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 allowed.

Rules for Non-Conforming Use Properties

The rules for non-conforming use can vary, since each local zoning board and zoning ordinance may have its own rules and regulations. However, property owners are allowed to use or maintain a property that is non-conforming only if they were already using the property in that same manner before a zoning change. 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 this location under a non-conforming use variance. A person who had not yet opened a coffee shop would not be eligible for this variance. And he would remain ineligible even if the person had been planning to open a coffee shop before the zoning laws changed.

Seeking a Non-Conforming Use Variance

You must be officially granted permission by the zoning board to get a non-conforming use variance. You cannot simply continue the activity prohibited under the new zoning regulations. You must prove your eligibility. You must show the board that the previous use of the property was permitted under zoning laws at the time, and you are continuing to use the property in the same manner. If it was never permitted for you to run a coffee shop, 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 justify the issuance of a non-conforming use variance, because you would not be using the property in the same way as you were before the zoning rules changed.

Operating Under a Non-Conforming Use Variance

When you operate or maintain a building under a non-conforming use variance, not only must you keep the activity or building the same, but you must also comply with new zoning rules if you wish to develop or expand. You cannot grow or change your business operation, or use 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 end. However, many zoning boards will let you resume the non-conforming use, even if abandoned, if you seek permission to begin 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. Your non-conforming use may also end 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 questions about obtaining a permit, or concerns about the potential destruction of your non-conforming use, a land use attorney can assist you in protecting your right to use your property.

Case Studies: Zoning Under Non-Conforming Use and Special Use Permits

Case Study 1: Continuing a Non-Conforming Use

Michael owned a commercial property that was zoned for industrial use (M). However, the local zoning laws changed, and the area was rezoned for residential use only. Michael had been operating his manufacturing business in the same location for several years before the zoning change. Fortunately, he was eligible for a non-conforming use variance, allowing him to continue his industrial activities on the property.

Michael sought legal assistance from a land use attorney to ensure he complied with the new zoning regulations while maintaining his non-conforming use.

Case Study 2: Obtaining a Special Use Permit

Sarah wanted to open a bed and breakfast in a residential zone (R1). However, operating a lodging business in this zone was not allowed under the current zoning regulations. Sarah consulted a land use attorney to explore her options. The attorney informed her that she could apply for a special use permit, allowing her to operate a bed and breakfast as a non-conforming use in the residential zone.

With the attorney’s guidance, Sarah successfully obtained the necessary permit and opened her bed and breakfast while complying with specific conditions set by the zoning board.

Case Study 3: Protecting Non-Conforming Use Rights

Alex owned a commercial property located in a mixed-use zone (MX). After a fire caused significant damage to the building, Alex had to decide whether to rebuild the property in a manner that complied with the new zoning guidelines or seek approval to maintain the non-conforming use status. Uncertain about the best course of action, Alex sought legal advice from a land use attorney.

The attorney helped Alex understand the potential consequences of each option and guided him through the process of applying for a variance to continue the non-conforming use. Thanks to the attorney’s assistance, Alex was able to protect his right to operate the commercial property despite the zoning changes.