Nonconforming Uses

I've written previously about certain topics on the subject of zoning that are showing up with greater frequency on the MBE and on the MEE. This post will dig a bit deeper into one of those topics: nonconforming uses.

The purpose of a zoning ordinance is to prevent certain land uses within the zoned area. These ordinances are generally enacted by municipalities to control and direct the development of property within their borders. But even those ordinances that prohibit a given use may allow others to continue the now-prohibited use of their property if they were using their property in the now-prohibited way prior to the ordinance taking effect.

These uses that are allowable notwithstanding the zoning ordinance are known as nonconforming uses and are said to be justified both on grounds of fairness and practicality. The goal of the nonconforming use doctrine is to protect prior investments. Problems arise when a person attempts to take a prior use and change it in such a way that in effect a new investment is created.

The takeaway here is to remember that a nonconforming use cannot be extended or intensified in ways that constitute a substantial change to the property. In contrast, insubstantial changes are allowable and in general repairs to the property that render the property practicable for current purposes will be deemed as insubstantial changes. Doubts as to whether a change is substantial or insubstantial are generally resolved against the change, however.

The basis for disallowing substantial changes to the property that is claiming protection under the nonconforming use doctrine is that the policy behind allowing nonconforming uses is aimed at protecting investments undertaken prior to the zoning ordinance. But when the property undergoes substantial change, it's more likely that the nature of the investment is changed in such a way that the changes are intended to protect a future investment rather than a prior one. And because the protection of future investments was never a policy driven by the doctrine, the use of that property with the substantial changes will lose its status as a protected nonconforming use and may then violate any zoning ordinance in place at that time.