Non-Conforming Use Exception in a Zoning Ordinance

Non-conforming use is a variance of an existing zoning ordinance, permitting the use of land which was allowed prior to the current ordinance. How the zoning law responds to continued non-conforming use protection depends on the zoning ordinance, the zoning authority, and the effect of the use itself.

Being Granted a Non-Conforming Use

You must show your actual use of the property conformed with, or was otherwise allowed under the prior zoning law, to successfully demonstrate your allowance of non-conforming use protection. Although it depends on the local zoning law, you usually cannot get permission for a non-conforming use which was only in the planning stage before the current ordinance, nor expect to be able to change from one non-conforming use to another. You must be able to show you were using the property in the same manner before and after the zoning change. For instance, if the property is a vacant lot, you must leave it as a lot. 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. 

Destruction of a Non-Conforming Use

Your non-conforming use status may be terminated if you demonstrate your intent to discontinue or change your non-conforming use for a long period of time. Intent can be shown if the property owner 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, the zoning ordinance allows the local zoning authority to determine the value of the non-conforming property when the zoning regulations making the use illegal first went into effect. As the property ages, the value of the property goes down, and when the value has depleted entirely, the non-conforming use is no longer permitted. In addition, if a non-conforming use is destroyed to the point where more than 50% of its value is lost, it may not be rebuilt in the same manner. Knowing that your non-conforming use protection may be lost by a possible zoning revocation and labeling as a destruction of a non-conforming use, is an awareness the owner of non-conforming property may need to address. For a better understanding of protection of your non-conforming use status and your rights as an owner of non-conforming property, contact a local attorney familiar with local zoning classifications.