What it means
Cornell's Legal Information Institute explains that local governments sometimes change zoning laws and let existing property keep some exemption from the new rules. City governments write nonconforming use clauses into zoning laws to avoid forcing closures.
The protection has limits. Wex says nonconforming property often may not expand its nonconforming use or change the use unless it meets the new rules.
In some cases the use is allowed for only a limited time, and an owner may be barred from going back to a nonconforming use once the property conforms. The municipal code of San Leandro, California, is one worked example, and other places differ.
It says a use that lawfully occupied a site when the rule changed is deemed a nonconforming use and may continue. The chapter states its purpose as limiting the number and extent of such uses by prohibiting enlargement, re-establishment after abandonment, and restoration after destruction.
That code says a nonconforming use may not be expanded, and it counts an expansion of the hours of operation as an expansion. A minor alteration, such as tenant improvements, may be approved if it does not increase the area or degree of nonconformity.
On abandonment, the San Leandro code says a nonconforming use substantially discontinued for 180 calendar days or more may not be re-established. It says discontinuance counts as cessation regardless of intent to resume the use.
The operator carries the burden of proving it was discontinued for less than 180 days. The code also separates a nonconforming use from a nonconforming structure.
A structure that breaks yard, height or floor area standards may be maintained, but it may not be enlarged in a way that increases the discrepancy. If the cost of an alteration, plus other work in the prior 36 months, exceeds 50 percent of the cost of rebuilding the building, it is not allowed unless the change makes the building conform.
In practice
Real-world examples.
Example
A fictional hardware shop has operated for 30 years on a street that was commercial. The city rezones the block as residential only. The shop may continue as a nonconforming use, but it cannot add a second building for storage, and it must not start selling a different kind of goods that the code treats as a change of use.
Example
A fictional bakery closes for illness and stays shut for 200 days. Under a rule like the San Leandro 180-day limit, the use may not be re-established, whatever the owner intended. The site must then follow the current district rules, and the owner would carry the burden of proving the closure was shorter than the code allows.
Example
A fictional workshop under such a code extends its opening hours from 6 pm to 10 pm. The code in the example treats longer hours as an expansion of the use, so the extension needs approval that the code may not give. The owner restores the earlier hours rather than risk losing the protected status.
Formula
Calculation
Some codes use a cost ratio for alterations to a nonconforming building: cost of the proposed work, plus other permitted work in a look-back window, divided by the cost to rebuild the whole building. In the San Leandro example, the window is 36 months and the limit is 50%. For a fictional building that would cost $400,000 to rebuild, with $120,000 of work already permitted in the window, a new $90,000 alteration gives ($90,000 + $120,000) / $400,000 = 52.5%, which is over the limit.
Discontinuance is a day count. Days discontinued = date of test - date the use ceased. If a fictional bakery stops trading on 1 March and has not reopened, day 180 falls on 28 August (31 + 30 + 31 + 30 + 31 days to 1 August is 153, plus 27 more days). A code that counts from the date the use ceased would then treat the use as lost, whatever the owner intended, so owners should check how their code counts days.Case study
Seen in the real world.
Fictional and illustrative. A family has run a small machine shop since before their city rezoned the area for homes. A buyer offers to purchase it and double the floor area. The buyer learns that the shop is a nonconforming use, so the zoning office will not approve an expansion of the use.
Before closing, the buyer asks the seller to show that the shop has operated continuously, since a gap of 180 days would end the right in a code like San Leandro's. The buyer closes at a price that reflects a shop that can continue but not grow. Two years later the buyer carries out routine repairs and replaces worn machinery with similar equipment, which the zoning office accepts as maintenance rather than expansion. The buyer keeps dated records of operations and permits, because proof of continuous use is the asset that makes the lower price worthwhile.
Watch out
Common mistakes.
- Assuming a nonconforming use can be expanded freely, when many codes bar enlargement and some count longer hours as expansion.
- Letting the use lapse, since a code may end the right after a set period of discontinuance regardless of intent to resume.
- Confusing a nonconforming use with a variance, which is an exception granted by the governing board rather than a right based on prior lawful use.
Questions
People also ask.
What is a nonconforming use?
It is a lawful use that existed before a zoning change and does not fit the new rules. It is usually allowed to continue with limits.
Can I expand it?
Often not. Wex says nonconforming property often may not expand its use, and the San Leandro code in the example bars expansion except in listed cases.
Can I lose the right?
Yes. The San Leandro code says a use discontinued for 180 days or more may not be re-established, and some codes set a time limit on the use.
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