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What Happens When Zoning Laws Change?

What Happens When Zoning Laws Change? How Can It Affect The Use of Your Property?

Ms. Homeowner (“Ms. H”) has owned 50 acres of land for over 45 years. When she bought the property in 1955, it had a 2 bedroom home, a one-car garage and was zoned for agricultural uses. In the early years, she applied for and received building permits for a barn, an airplane hanger, and two mobile homes. For years, she has also stored a small number of vehicles (10-12) in a corner of the property; some vehicles were hers and her families’, while some belonged to neighbors who paid rent.

Recently, the property has been re-zoned such that her property is now in a residential zone. Her barn, hanger, mobile homes, and parked cars are no longer approved “uses” within the new zoning classification. However, both one- and two- car garages are currently allowed “uses” in her zone. Ms. H wants to apply to expand her one- car garage to a two- car garage. What will happen?

Zoning laws change all the time. Accordingly, situations where a homeowner wants to change their property in some way after the zoning laws have changed also occur all the time. Whether or not the homeowner will be allowed to make that change, or whether that change should be made, depends on each specific situation. However, a general overview of the law in this area is instructive.

In the above example, there are two issues: Ms. H’s application for the two car garage, and the status of her other now “non-conforming” activities (e.g. her barn, hanger, mobile homes, and parked cars). Let’s look at each issue in turn.

The first question regarding whether Ms. H can build the two-car garage is generally resolved by asking what “uses” are currently allowed by the zoning for the property. Is the property zoned for one bedroom residential units only, or are apartments allowed? Is a home office okay? How about livestock or regular house pets? In the above example, it is assumed that we know what “uses” were once allowed and are now prohibited. However, in the real world, you won’t know that what “uses” are allowed until you do the research.

In terms of what is allowed zoning-wise, Ms. H will be allowed to construct a two-car garage because her property is zoned such that two-car garages are allowed. (Note there are typically building code and other requirements that must also be met which are not addressed here). Nevertheless, in this situation it may be a good idea if Ms. H decided NOT to build the two-car garage. This is because if Ms. H builds the garage, she will probably be required to remove all of the “non-conforming uses” on her property.

The general rule is that if you have approved “uses” on your property when the zoning laws change, you typically will not be required to change your property to come into compliance with the new zoning laws. This status is called “non-conforming”, or the property is said to have a “non-conforming use” or “uses” on it. Despite the terminology, “non-conforming uses” are legal uses under certain conditions.

There are many reasons for allowing non-conforming uses, one of them being a matter of practicality. If you had to remove structures every time the zoning laws changed, the effect would be highly burdensome. Another reason is that most zoning codes have sections which allow for the continuation of non-conforming uses. However, it is the United States Constitution that provides the ultimate legal protection for property owners. This right comes from Courts interpreting the Constitution, ruling that a vested legal nonconforming use is a property right that cannot be taken away.

Keep in mind, however, that this protection is far from ironclad. For example, this protection of non-conforming uses does not necessarily last forever. Also, as illustrated by our example, the stated protections do not apply once you decide to voluntarily change the “use” made of your property. Thus, if you have legal “non-conforming uses” on your property, as we assume Ms. H does with her barn, hanger, mobile homes and parked vehicles, these “uses” can continue so long as the “use” made of the of the property is not expanded or changed.

Once a “use” of the property is expanded or changed, the constitutional protections given to the property owner for their nonconforming uses ends. Thus, Ms. H’s expansion of the “use” of her property from a one-car to a two-car garage would typically terminate her right to continue her “non-conforming uses.” So, while Ms. H can legally expand her garage, the practical decision would probably be to forgo the expansion project in order for her to preserve the legal “non-conforming” status for her nonconforming uses.

In closing, note that every situation is different and that there are many exceptions and nuances that may and probably will exist for your particular situation. This article provides interesting, but only general information. If you have specific questions about zoning laws or nonconforming uses, or if you are dealing with a specific situation, nothing can substitute for the pointed analysis of an attorney.

For questions, please contact attorney Jordan May.

Christopher Rottler is no longer with the law firm of Frascona, Joiner, Goodman and Greenstein, P.C.
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