Nonconforming Use

A land use or structure that was legally established under prior zoning regulations but no longer complies with the current zoning code, also known as a legally nonconforming use or grandfathered use.

What is a Nonconforming Use?

A nonconforming use is a land use or structure that was legally established and operating in compliance with the zoning regulations in effect at the time, but that no longer conforms to the current zoning code due to subsequent changes in the regulations. For example, a gas station that was built when the area was zoned commercial may become nonconforming if the area is later rezoned to residential.

Legal Protections and Limitations

Most zoning codes protect the right of nonconforming uses to continue operating, recognizing that it would be unfair to require immediate compliance with new regulations. However, this protection comes with limitations. Nonconforming uses typically cannot be expanded, intensified, or changed to a different nonconforming use. If a nonconforming use is abandoned for a specified period (often 6-12 months) or if the structure is substantially destroyed, the right to continue the nonconforming use may be lost.

Nonconforming Uses and Property Transactions

For developers and investors, understanding the nonconforming status of a property is critical during due diligence. A property with a valuable nonconforming use (such as a commercial property in a residential zone) may carry a premium, but the limitations on expansion and the risk of losing nonconforming status add complexity. Any renovation or modification must be carefully evaluated against the applicable nonconforming use regulations.