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What is a Nonconforming Use?

In the last article we explained "Zoning Conformance" and explained the below zoning technical terms. Here we will explain zoning nonconforming use with examples, remedies and documents from 2 municipalities.

Terms related to zoning conformance status explained earlier

  • Legal Conforming
  • Legal Nonconforming
  • Nonconforming

Nonconforming Use

  1. The project does not conform to current zoning requirements, and did not conform to the requirements in place at the time of construction.
  2. In the event of destruction of any percentage or value, the project will required to be re-constructed according to the requirements of the current zoning ordinance.
  3. The Nonconforming Rebuildability Clause of the zoning ordinance will not apply to a nonconforming project because the site does not have a legal status.

What Will Cause My Property to Become "Nonconforming" ?

  • A Change of Use (retail to restaurant), without Approvals, which Requires Additional Parking
  • Illegal Use (retail in residence)
  • Re-striping of the Parking Lot which Causes Spaces to be Lost
  • Removal of Landscaping to Accommodate Additional Parking or Structures
  • Conversion of Apartment, Hotel or Nursing Home Units that Exceed the Total Number Approved at the Time of Construction
  • A Structure Built Closer to the Property Line than What was Originally Approved.
  • Construction Error

Hotel Example

This hotel was constructed in 1988 according to the specifications of an approved Site Plan EXCEPT, conformity to the required number of parking spaces per the Site Plan was contingent upon the construction of 43 parking spaces on an adjacent property owned by the hotel owner at the time of construction. When PZR® performed zoning analysis as part of the lenders due diligence, it was discovered the parking spaces were never constructed and the land for the proposed parking spaces is now under different ownership. This resulted in a parking deficiency of 43 spaces. Because the parking lot was not constructed as proposed, the hotel does not enjoy a legal status. In the event of destruction of any kind, the hotel must construct 43 parking spaces on a parcel of land that cannot accommodate additional parking spaces. Also, the hotel may not expand or do major renovations or remodeling until the parking is brought into conformance.

Assisted Living Center

Upon reviewing the conditional use permit, it was identified that the CUP restricted the assisted living facility to 85 beds. The property owner illegally converted rooms to accommodate

95 beds, thus, causing the property to be in violation of the CUP.

Multi Family Site in GA

This apartment complex was developed on 30 acres. The property owners decided to sell 10 acres without going through the appropriate subdivision procedure, resulting in an illegal subdivision. Thus creating deficiencies in landscaping, open space and density.

What Are My Remedies if the Project is Nonconforming?

  1. Fix the Problem
    • Stripe more spaces
    • Move the encroaching accessory building
  2. Apply for a Variance or Special Use Permit
  3. Draw up a Reciprocal Parking Agreement with the Adjoiner
  4. Purchase Land from the Adjoiner
  5. Apply for a Change in the Zoning District
Here are 2 documents from the City of Boise, Idaho and City of San Jose, CA explaining nonconforming use, remedies and consequences.

A. Grandfather Rights – Establishing Rights for Non-Conforming Uses – City of Boise, Idaho

B. Legal Nonconforming Uses – City of San Jose, CA

As you see every jurisdiction has different laws, definitions, remedies and solutions to mitigate nonconforming use. So for complex commercial real estate transactions and multi location properties clients partner with us. As Zoning Expert and Advisory firm we help them navigate through the complex zoning laws to ensure the project may continue and the property use will be in accordance zoning law
The Planning & Zoning Resource Company
America"s Leading Zoning Consultant
1300 South Meridian Avenue, Suite 400, Oklahoma City, OK 73108
Call Toll-Free: (800) 344-2944
Canada: (405) 840-4344 x4475
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