Preexisting use, also referred to as nonconforming use, describes a scenario in land use and real estate where a property’s use does not align with current zoning regulations but is permitted to continue because it was established prior to the enactment of the zoning code. Zoning codes are rules or laws that define how property in specific geographic zones can be used.
Definition
Preexisting use is a land use condition allowed to persist even though it does not conform to new zoning regulations implemented after the use began.
Legal Parameters
Allowance and Limitations
- Continued Use: The existing use is allowed to continue despite conflicts with current zoning laws.
- Restrictions on Development: Typically, the continuation is subject to limitations on improvements and rebuilding of existing structures. This may include restrictions on expansion, modernization, and sometimes even basic repairs.
- Termination Conditions: The nonconforming use can sometimes be terminated if the property is abandoned, destroyed, or undergoes a use change.
Types of Nonconforming Uses
- Nonconforming Structures: Buildings that do not meet current zoning requirements for height, size, or location on a property.
- Nonconforming Land Uses: Uses of land that do not conform to the current zoning ordinances, such as a commercial operation in a newly-zoned residential area.
Examples
- Commercial in Residential Zone: A small retail shop operating in a neighborhood recently rezoned for residential use.
- Industrial Use in Agricultural Area: A factory existing in an area newly designated for agricultural purposes.
Historical Context
Zoning codes were first developed in the early 20th century as a method to organize and control urban development. The concept of preexisting, or nonconforming, use emerged as a way to grandfather in existing conditions, acknowledging the challenges of immediate conformity while striving toward planned development.
Comparisons and Related Terms
- Variance: A permitted deviation from a standard zoning code requirement, usually granted under specific conditions.
- Spot Zoning: A specific parcel of land being rezoned in a way which deviates from its surrounding area.
- Conditional Use Permit: Permission granted for a particular type of use in a zoning district, which is not typically allowed under current zoning laws.
FAQs
Q: Can a nonconforming use be expanded? A: Generally, expansions are restricted to prevent intensification of nonconforming uses, though some jurisdictions might allow limited expansions under special conditions.
Q: How is abandonment of a nonconforming use determined? A: Abandonment is typically determined by a predefined period of non-use specified by local ordinances, usually ranging from six months to a year.
Q: Can nonconforming use rights be transferred to new owners? A: Yes, nonconforming use rights generally run with the land and can be transferred to new owners unless specified otherwise by local zoning regulations.
References
- Rathkopf’s The Law of Zoning and Planning.
- “American Planning Association (APA) Documentation on Nonconforming Uses.”
Summary
Preexisting use, or nonconforming use, represents an enduring aspect of land use planning which allows structures and land uses that do not meet current zoning laws to continue operating. Governed by specific legal frameworks, this concept balances the need for updated regulation with acknowledgment of historical land use patterns. Understanding nonconforming uses is vital for stakeholders navigating zoning changes and real estate developments.
