Non-Conforming Uses

In its most basic form, a nonconforming use is the use of a property which is no longer a permitted use under current zoning regulations but was permitted under prior zoning (or, in some cases, before there was zoning). In effect, a prior permitted use is grandfathered in despite the current zoning status. For instance, imagine the neighborhood where you run a business is rezoned as a residential area. Does this mean you have to shut your doors? No. Non-conforming uses play a key role in real estate development as a creative solution to promote urban infill through reuse of existing properties, as it may allow a use that is not otherwise permissible

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There are two catches to non-conforming uses. The first catch is that the non-conforming use cannot substantially change the nature of the use in a more intense fashion. For instance, if an office building as non-conforming use has ten stories, the owner of the building cannot add two more stories to the building. The non-conforming use must be of the same type and intensity. The building owner could likely remove two stories from the building, making it an eight-story building. Once the building has been reduced, however, the building owner cannot then build two stories back on to the building, making it a ten-story building again. Once the non-conforming use has been reduced, it cannot be expanded again back to prior form.  In other words, non-conforming uses are a one-way street – you can stay where you are or de-intensify, but you can never expand.

The second catch is that the non-conforming use typically must be continuous. In Lexington, Kentucky, for instance, if a non-conforming use is discontinued for a year or more, the non-conforming use may not be resumed. If the non-conforming use becomes a permitted use, it cannot then revert to a non-conforming use.

The practical upshot of non-conforming use is that land use attorneys can help businesses identify properties with non-conforming uses that are ripe for reuse. For instance, a legal non-conforming restaurant may find new life from a new proprietor, and the practical effect of the updated zoning precludes other restaurants from setting up shop in the immediate area. Non-conforming use is a practical and creative way to give new life to existing structures even after zoning regulations change. The attorneys of McBrayer can help identify potential properties with legal non-conforming uses for businesses and other organizations ready to expand in otherwise inconveniently-zoned areas.

Jacob C. WalbournJacob C. Walbourn is an associate in McBrayer’s Lexington office. Mr. Walbourn focuses his area of practice on planning and zoning law handling a wide variety of land use matters for clients in the private sector. His responsibilities include attending Planning Commission and Board of Adjustment hearings and working with developers, business owners, and government agencies on land use applications, zoning ordinance text amendments, comprehensive plan updates and other land use issues. He can be reached at jwalbourn@mmlk.com or (859) 231-8780, ext. 102.