Beware of Zoning Changes: Protecting Your Non-conforming Use

Local zoning codes established by a town, village, or city control and establish what you can do with your property, as well as the size and boundaries of structures. Those codes can change over time, resulting in potential problems for property owners. This is increasingly an issue for many owners as localities look to prohibit certain uses of property because of growing concerns of conservation, exposure risks, etc. However, owners are often protected from a change that makes a pre-existing use illegal because they are considered to have a “prior non-conforming use.”

If a property owner wishes to use his/her property for a purpose which is prohibited by the zoning code (i.e. the person wants to run a business in an area limited to residential use), the owner must obtain a use variance from the local zoning board of appeals. This process can be timely, difficult, and expensive. However, if the zoning code is modified in a manner which would prohibit a use which had previously been permissible, the property may continue to be used in the same way if it is a prior non-conforming use.

Zoning codes typically protect prior non-conforming uses due to the potential violation of a property owner’s Constitutional property rights if the government were to simply require owners to discontinue a property use which was perfectly acceptable prior to a zoning code amendment. As a result, localities will often protect the right to continue a use as a “prior non-conforming use,” but they usually only provide bare minimum protections.

The rules regarding non-conforming use typically include the following:

• Require that the use continue. You cannot stop the use you were making of the property and then start it again later. You must keep using the property in the same fashion, but you aren’t required to add additional uses.
• Prohibit expansion of use. Typically, you can’t build a bigger building or use more of your property than you were already using. However, there are exceptions, which commonly arise in activities such as mining, landfills, and similar situations where property owners will not be prohibited from continuing to utilize the remaining portions of the property.
• Prohibit rebuilding. If a non-conforming building is destroyed by fire or otherwise, the owner cannot rebuild.
• May allow a phase-out. Localities can require that the non-conforming use be phased out over time. How much time is permissible is fact-specific.

Because the rules governing non-conforming uses are limited, property owners who receive notice of a potential zoning change which impacts their use of the property should take several important steps:

• Assemble evidence of the prior use. You want to establish that your use preceded a change in the zoning code. Gather photographs, newspaper clippings, prior permit filings, etc. that show that you were using the property in a particular way.
• Act quickly while your use is still permitted. If you have been issued a permit for a use which may become prohibited in the future, then get to work. If the zoning code changes before your construction is done, you could lose your rights under the permit. Generally, owners need to show substantial progress in a construction project in order to avoid being deprived of the permitted use.
• Pay attention to notices of zoning changes. Prior to passing a code change, the locality must send a notice of hearing to affected property owners. If you receive one, review the proposed change and how it will affect you. It is much easier to object to a change before it is passed, then to try to challenge it afterwards. Generally, once the code goes into effect, the only way to get it repealed is to argue the board acted arbitrarily and capriciously, it violated the law or it’s unconstitutional.

If you already have a prior non-conforming use and you are considering ceasing a use, renovating or replacing structures, or making other property changes, beware of giving up your non-conforming status. Consult with a land use attorney before taking any steps which may impact your rights.

This post does not constitute legal advice or establish an attorney-client relationship.