Protecting Nonconformities from New Zoning Restrictions - dummies

Protecting Nonconformities from New Zoning Restrictions

By Alan R. Romero

When a zoning ordinance is adopted or amended, it generally allows preexisting structures and uses of property to continue even if they don’t comply with the new restrictions. Such preexisting uses that aren’t consistent with the otherwise applicable zoning restrictions are called nonconformities, or nonconforming uses. For example, if an area is rezoned to a single-family residential zoning designation, an existing apartment building in that zone would be a nonconformity.

Zoning ordinances protect nonconformities because lawmakers feel that compelling a property owner to immediately terminate an existing use or destroy an existing structure is unfair to those who have relied on the previous state of the law.

Lawmakers also fear that doing so may be considered a taking of private property for public use, meaning the ordinance may unfairly deprive an owner of so much of the property’s value that it would require just compensation under the Fifth Amendment.

By definition, nonconformities are inconsistent with the zoning around them and therefore interfere with zoning objectives. Zoning ordinances consequently may restrict nonconformities in a number of ways, both to minimize the negative effect on the surrounding area and ultimately to eliminate the nonconformities. Here are some of the most common restrictions:

  • The nonconforming use of the property may not be changed to a different nonconforming use. Any new use of the property must comply with the requirements of the zoning district.

  • Nonconforming structures may not be enlarged.

  • The owner may not rebuild the nonconforming structure or resume the nonconforming use if the structure is destroyed.

  • The owner may not resume the nonconforming use after a specified period of nonuse, such as one year.

  • The owner must discontinue the nonconforming use after a specified period of time. Such provisions are commonly called amortization periods. Courts generally allow amortization periods if they’re reasonable based on how the property is used and the financial impact on the property owner.