Agenda - Planning Commission - 01/07/2010

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Distinguishing Between Detrimental and Benign Nonconformities By V. Gail Easley, FAICP, and David A. Theriaque Local governments routinely adopt new or revised zoning regulations to establish minimum standards for the use of land and standards for development on the land. 65' meets required minimum lot width . With the adoption of new standards for use and development, many existing uses, struc- tures, site design features, and lots may no longer meet the current sta[1dards. The concept of nonconformities arises from adopting new codes for areas that already have some, development, which is the case for almost every jurisdiction in the country. When land is used for activities that are no longer permissible under the zoning regulations, the local government typically allows the preex- isting use to continue if it was permissible when it was first established. Likewise, when development is in place and the provisions of the zoning regulationsrenderthe lot or one or more site design features out of compliance , with current standards, the local government typically "grandfathers" the development if it was in compliance when first established. Grandfatheringis another word used to de- scribe nonconformities, which means the local government is granting legal status to the use or development, but with limitations. '5A nonconforming lot meets required minimum lot width @A nonconforming lot does not comply with current dimensional standards such as minimum area, width, depth, or frontage. An existing use or development that was n'ot in compliance when a local government enacts new regulations is not eligible for grand- fathered status. Indeed, each claim otgrandfa- thered status must meet this threshold ques- tion: Was the use or development in compliance with the existing regulations? If not, such use 'or development is not entitled to any protection from the new regulations. Rather, it is subject to code enforcement proceedings to bring it into compliance with the newly adopted regulations. This issue of Zoning Practice addresses legal nonconformities of use and development standards, but does not address signs. There are many issues pertaining to signs, including FirstAmendment rights, which are too complex to include in this article. Code.enforcement of unlawful uses is also a topic for another iss~e. WHY DO LOCAL GOVERNMENTS GRANDFATHER USES AND STRUCTURES? When zoning w'as in its infancy, planners ex- pected that there would be few nonconformi- ties and those that existed would naturally go away overtime. Because of the nonconformi- ties' protected status as grandfathered uses, however, they continued to prosper due to the prohibition on other such uses in that zoning district. In essence, such nonconforming uses were provided with monopolies. Additionally, zoning was perceived as 11 prospective matter that would not apply to uses which were already in existence. Moreover, in light of the uncertainty regarding whether the courts would uphold zoning regulations, any attempt to apply the new zoning regulations to existing uses and development Was perceived as increasing the likelihood that a court would inval- idate such regulations. Allowing nonconformities to continue also reduced the amount of public opposition to the concept of zoning regulations. . These concerns hold true today. From a publicpolicy perspective, local govemments are rightfully concemed about the public outcry that would occur if graridfathered status was notap- plied to existing uses and development. Imagine ZONINGPRACTICE 11.09 AMERICAN PLANNING ASSOCIATION Ipage 2