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<br />
<br />the uproar that would occur if all existing non con-
<br />. forming uses were required to cease immediately
<br />upon the adoption of new zoning regulations.
<br />Similarly, even though the concept ofzon-
<br />ing is well established in the court system, the
<br />courts protect existing uses and development
<br />from immediate compliance with the adoption
<br />of new zoning regulations through various legal
<br />doctrines such as takings law, vested rights,
<br />and concepts of equity and justice.
<br />Despite these good reasons to allow non-
<br />conformities to continue, nonconformities of-
<br />ten undermine what a .community is seeking to
<br />achieve when it establishes specific allowable
<br />uses and development standards for a zoning
<br />district. Therefore, it is important to determine
<br />the best way to eliminate, reduce, or continue
<br />nonconforming situations.
<br />
<br />UNDERSTANDING THE JARGON
<br />In order to be clear about the concepts, a few
<br />terms pertaining to nonconformities are ex-
<br />plained here:
<br />Nonconforming use. Use means the
<br />activity carried out on the land. When a use is
<br />nonconforming, it means that the existing use
<br />is not authorized for the zoning district in which
<br />it is located. However, even when the use is
<br />nonconforming, the structure housing the
<br />use is not necessarily nonconforming. In fact,
<br />there may be no structures involved at all. For
<br />example, a field in ana&ricultural zone might
<br />be used for parking although parking is not an
<br />authorized principle use.
<br />
<br />A review of the Planning Advisory Service
<br />Report 521/522, A Planners Dictionary, reveals
<br />that many local governments include struc-
<br />tures, lots, and site designfeatures within the
<br />definition of nonconforming use. However,
<br />we make a clear distinction between use and
<br />site design or development standards when
<br />
<br />. accessory structures, such as dumpsters,
<br />pools, pool enclosures, sheds, recreational
<br />facilities, or greenhouses.
<br />When new design standards are adopted
<br />to govern the location, height, dimensions;
<br />number, or other design requirements, existing
<br />development may no longer conform to one
<br />
<br />
<br />applying the term nonconformity. We believe
<br />it is important to distinguish between the
<br />activity (use) and the design standards that
<br />apply to buildings, structures, site features,
<br />and lots.
<br />Nonconforming development standards.
<br />Site development standards pertain to~
<br />. lots, meaning the area or dimensions;
<br />. structures, primarily the principal building(s)
<br />on a site;
<br />· required design features, such as parking
<br />lots, loading areas, or stormwater facilities; and
<br />
<br />@A nonconforming structure fails to
<br />comply with current dimensional
<br />standards such as setbacks, lot
<br />coverage, or height.
<br />
<br />or several standards. Local governments often
<br />define a series of terms, such as nonconform-
<br />ing lots, nonconforming parking, nonconform-
<br />ing dimensional requirements, and so forth.
<br />The key factor is that all such nonconformities
<br />pertain to development or design standards, as
<br />distinguished from use.
<br />Detrimental nonconformities. Many people
<br />believe that nonconformities are inherently
<br />detrimental or cause harm in some way. How-
<br />ever, based on our experiences and discussions
<br />with practitioners overthe last several years, it
<br />seems clear that non conformities mayor may
<br />not be detrimental. Consequently, we believe
<br />that nonconformities should be separated into
<br />two categories-"detrimental" and "benign."
<br />
<br />ZONINGPRACTICE 11.09
<br />AMERICAN PLANNING ASSOCIATION Ipage 3
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