Non-Conforming Users
SERIES I: Basic Tools and Techniques, Issue Number 4
DEFINITION
A nonconforming use is created when a zoning provision is adopted or amended to prohibit a particular use that lawfully existed prior to the enactment or amendment. Nonconforming land uses are not defined by New York state statutes but are defined in most local zoning codes. A typical local ordinance may state, for example: "a nonconforming use is any use, whether of a building or tract of land or both, existing on the effective date of this chapter, which does not conform to the use regulations of the district in which it is located." Nonconforming use issues arise when the zoning code is first adopted. When a district is zoned residential, for example, all existing nonresidential uses in that district are rendered nonconforming. Later amendments to the zoning ordinance may have the same effect.
When property owners propose the improvement, expansion, rebuilding or other change to their nonconforming property, they must be certain to comply with local regulations governing those matters. Normally, these regulations are found in a discrete article of the local zoning code, entitled "Nonconforming Uses." The nonconforming use article of the zoning code may prohibit or limit changes in buildings and lot uses that are nonconforming and provide in a variety of ways for the termination of nonconforming uses, such as limiting their expansion or enlargement; prohibiting the reconstruction of damaged structures; disallowing the reestablishment of nonconforming uses after they have been discontinued for a time; or simply terminating them after the passage of a stipulated amount of time.
PURPOSE
The policy of allowing nonconforming uses to continue originated in concerns that the application of zoning regulations to uses existing prior to the regulations' enactment might be construed as confiscatory and unconstitutional. It was assumed that, by limiting their enlargement and reconstruction, they would disappear over time. The allowance of nonconforming uses has been characterized by the courts as a "grudging tolerance" of them; the right of municipalities to adopt reasonable measures to eliminate them has been recognized. The ultimate goal of the zoning code is to achieve uniformity of property uses within each zoning district which can only be accomplished by the elimination of uses that do not conform to the specifications of district regulations.
WHEN
Normally, nonconforming use provisions are included in the zoning code when it is originally adopted. They are contained, typically, in a separate section, or article, of the code. Such provisions afford protection against judicial findings that, without them, the zoning ordinance might be deemed to be confiscatory as applied to existing development and as a method of obtaining popular support for zoning in general.
AUTHORITY
The state statutes that delegate to local governments the authority to adopt zoning regulations implicitly authorize local legislatures to adopt reasonable measures to protect the legitimate investment expectations of owners of developed land. There is no express reference, however, in these authorizing statutes to the authority of local legislatures to allow the continuation of nonconforming uses.
IMPLEMENTATION
There is obvious tension between protecting the investment of the owners of nonconforming uses and achieving uniformity of land use within zoning districts. To achieve this latter goal, a variety of provisions have been added to zoning codes to discourage the continuation of nonconforming uses over time. These include provisions that limit an owner's right to reconstruct such use after substantial damage, expand or enlarge the nonconforming use, change the property's use to a different nonconforming use, and may require the termination of the use after a specified period of time.
Reconstruction and Restoration
The local zoning ordinance may prohibit the restoration of a nonconforming structure that suffers significant physical damage and require that any reconstruction conform to the zoning ordinance. Significant physical damage is usually defined as damage that exceeds a certain percentage of the structure's value. Typical standards range from 25% to 50%. These provisions are premised on the theory that owners do not have a right to reconstruct a nonconforming building after it suffers significant damage because their property rights were destroyed by the disaster, rather than by the ordinance. The owner, therefore, is in a situation similar to the owner of a vacant lot and must comply with the applicable zoning restrictions.
Restrictions on reconstruction can raise interesting issues of interpretation. For example, if one of two separate apartment buildings that are operated as a single enterprise is damaged by fire, how would a local ordinance be applied that prohibits reconstruction if the nonconforming use is damaged by 50% or more. If the damage to one of the buildings exceeded the 50% standard, but the damage to the enterprise did not, could the locality prohibit the reconstruction of the heavily damaged building? New York courts tend to look at the economic and functional interdependence of the properties in such a case and have held that the locality must permit reconstruction, in this case because the enterprise was not damaged by 50% or more.
Enlargement, Alteration or Extension
Local ordinances often prohibit the enlargement, alteration or extension of a nonconforming use. To allow such activity would defeat the underlying policy of eliminating nonconforming uses. Normally, such prohibitions do not extend to structural maintenance and repair, or internal alterations that do not increase the degree of, or create any new, noncompliance with the locality's zoning regulations. In some cases, the restrictions do not extend to improvements needed to modernize a nonconforming business, even when the number of customers served will be increased.
Courts have upheld prohibitions on the construction of an awning over a courtyard outside a restaurant, on the theory that it would create additional space for patrons to congregate and, in this sense, increase the degree of the nonconforming use. Similarly, the prohibition of the conversion of seasonal bungalows to year-round residences has been upheld as an acceptable method of preventing the enlargement of a nonconforming use.
Where nonconforming business operations are proposed to be expanded, the case law is somewhat less clear. Where roads and structures built on a parcel used as a gravel mining operation exhibited the owner's intention to use the entire parcel, the court held that expanding the mining operation to another location on the property was permitted. The addition of a body-toning operation to the premises containing a nonconforming beauty parlor, however, was considered a prohibited extension of the prior nonconforming use. The court's interest in protecting the owner's demonstrated investment in the gravel mining operation could explain the difference between these cases.
These provisions may vary considerably from one locality to another. A municipality, particularly intent on eliminating nonconforming uses may prohibit any physical expansion of a building; another may favor property use by allowing, for example, the construction of an additional story because it does not increase the footprint, or lot coverage, of the structure.
Changing to Another Nonconforming Use
The property owner's right to continue a nonconforming use does not allow the owner to change to a materially different use. The important question here is what constitutes a material change. The consequence of a finding that a material change in use has occurred is to deem the prior nonconforming use abandoned and, therefore, terminated. The property owner could argue that the change of a nonconforming use from one commercial use to another, for example, should not be prohibited by the zoning ordinance: to change a building's occupancy from a dairy plant to a business that rents machinery simply shifts the type of nonconformance from one commercial category to another. It has been held, however, that it is not only a change in the volume of business conducted but in the character of that business that determines whether one business use is a continuation of another. This is true despite the generic similarity between the old and new proposed use.
Occasionally, courts hold that changes from one use to another within the same category of use are permitted. In one case, for example, the owner was allowed to establish a storage business in a building that had been occupied as a nursery and florist enterprise. Determinations in these cases depend on the particular facts involved, the court's interpretation of how material the change will be, and the specific language of the local ordinance that regulates changes in nonconforming uses.
Abandonment
A property owner's right to continue a nonconforming use may be lost by abandonment. Local zoning ordinances frequently stipulate that any discontinuance of the nonconforming use for a specified period constitutes abandonment. Where the established period is reasonable, discontinuance of the use for that time amounts to an abandonment of the use. It has been held that local discontinuance periods apply even when the owner can prove that he did not actually intend to abandon the nonconforming use.
Amortization
Some local ordinances require certain nonconforming uses to be amortized over a specified period at the end of which they must be terminated. The term "amortization" is used to describe these provisions because they allow the owner some time during which to recoup his investment in the nonconforming use. The Court of Appeals has upheld such provisions "where the benefit to the public has been deemed of greater moment than the detriment to the property owner." The courts have said that the test for when an amortization period is reasonable is "a question that must be answered in the light of the facts of each particular case. Certainly, a critical factor is the length of the amortization period in relation to the investment. The critical question, however, is whether the public gain achieved by the exercise of the police power outweighs the private loss suffered by the owners of the nonconforming uses."
Contexts in which amortization provisions are likely to be upheld are:
1. When the common law of nuisance would allow neighboring property owners to enjoin the continuation of a nonconforming use. For example, a gravel pit, auto wrecking operation, or junkyard, harmful to children in a developing residential area might be enjoined under a private nuisance action. Likewise, a zoning ordinance can legally require such a nonconforming use to be terminated in an appropriate case. If an amortization provision is challenged, the municipality can show that the owner's property interest is slight because of his vulnerability to a nuisance action. In this context, however, the label "amortization" is inappropriate. The grace period, if any, allowed by the local statute is gratuitous if, in fact, the owner's use may be enjoined as a nuisance.
2. When the nonconforming use is somewhat noxious and the owner has little investment in it. For example, a provision requiring the owner to cease raising pigeons on the roof or to remove an old outdoor sign will withstand challenge because of the minimal nature of the owner's investment and the significant harm done to the zoning scheme if the owner's activity is allowed to continue. Harder cases are presented when the owner has a larger investment in the use and the public interest in removing it is clear but where the threat to public health and safety is not imminent.
LIMITATIONS AND CONCERNS
Noncomplying Buildings
The local legislature, in adopting zoning regulations, is most concerned with the separation of incompatible uses among zoning districts. When a building that preexisted the zoning requirements is out of compliance with set-back, area, or height restrictions, it is not a nonconforming use in the technical sense; it is simply out of compliance with the dimensional requirements of zoning: a noncomplying building. Since noncomplying buildings do not offend the legislative policy of separation of incompatible uses, zoning provisions often do not constrain their enlargement or reconstruction as severely. A typical zoning provision may require, for example, that no enlargement or reconstruction of a noncomplying building can increase the degree of noncompliance or create any new noncompliance.
Awarding Use Variances
Some municipalities extend the life of nonconforming uses by awarding use variances thereby allowing the nonconforming use to be enlarged, expanded or reconstructed. This can occur when an owner is denied a building permit to enlarge or reconstruct a nonconforming use. The owner can apply to the zoning board of appeals for a use variance and, if the owner can show that the statutory criteria are satisfied, the board can award the requested variance. Although the board can impose reasonable conditions on the use of the property, the award of a use variance frees the property from the provisions of zoning that limit nonconforming uses. The effect of a variance is to declassify the use as nonconforming.
The property owner seeking a use variance must prove that the variance, if granted, will not alter the essential character of the neighborhood. The property owner must also show by competent financial evidence that he cannot realize a reasonable return by using the property under any use allowed in the district or by continuing the nonconforming use in its unaltered condition. This financial requirement makes it very difficult for most owners of existing nonconforming uses to prove that they are entitled to a use variance.
Interpretations of Provisions
Another local practice that influences the continuation of nonconforming uses is the interpretation of the building inspector as to what types of building improvements are prohibited by the language of the local zoning code. Usually, the provisions permit the repair and maintenance of nonconforming uses, or improvements that do not "enlarge or expand" the nonconforming use. Some building inspectors take a broad view of what repair and maintenance is and have a limited view of what constitutes an expansion or enlargement of the nonconforming use. By awarding building permits to improve nonconforming uses, the building inspector indirectly encourages their continuation.
Although allowing the expansion and reconstruction of noncomplying buildings, granting variances to allow the expansion of nonconforming uses, and issuing building permits to improve nonconforming uses do not advance the policy of discontinuing nonconforming uses, they allow the municipality flexibility in accommodating the needs of nonconforming use property owners while mitigating and protecting the community.
CITATIONS
1. Cave v. Zoning Bd. of Appeals of Village of Fredonia, 49 A.D.2d 228, 373 N.Y.S.2d 932 (4th Dep't 1975), establishes that the purpose of zoning provisions limiting the expansion, alteration or restoration of a nonconforming use are intended to encourage the disappearance of nonconforming uses in zoning districts.
2. In Darcy v. Zoning Board of Appeals of the City of Rochester, 185 A.D.2d 624, 586 N.Y.S.2d 44 (4th Dep't 1992), the court upheld a local determination that a nonconforming use was abandoned when evidence showed discontinuance for at least 20 months, well beyond the six month period specified in the ordinance.
3. Two Court of Appeals cases that articulate the tests used to determine the purpose and validity of requiring the termination of nonconforming uses over time are: Harbison v. City of Buffalo, 4 N.Y.2d 553, 559, 176 N.Y.S.2d 598, 600, 152 N.E.2d 42, 44 (1958) and Modjeska Sign Studies, Inc. v. Berle, 43 N.Y.2d 468, 402 N.Y.S.2d 359, 373 N.E.2d 255, 262 (1977).