Legal Nonconforming Uses
It sometimes happens that a property is rezoned for a use other than that for which it is presently being used.
For example, a property previously zoned for single-family residential use with 100-foot frontage may be rezoned to require a 200-foot frontage. Another example: a property may have 2 rental units, but a rezoning allows only 1 rental unit.
If a property is being used for something other than what the property is presently zoned for, it is referred to as a “nonconforming use.” A legal nonconforming use is one that lawfully existed prior to the enactment or amendment of a zoning ordinance. An illegal nonconforming use is a property use by an owner that was never lawful to begin with and does not conform to the current zoning ordinance. Illegal nonconforming uses, if discovered, are subject to an enforcement action by local government for their removal.
Most legal nonconforming uses can be “grandfathered.” In other words, the nonconforming use will generally be permitted to continue so long as the owner can show that the land was lawfully used prior to the ordinance’s adoption and the use continues. However, if a nonconforming use is discontinued for whatever time period specified in the local zoning ordinance, the use will be abandoned and cannot be reestablished.
For example, current zoning does not allow for a rental unit in a primary owner-occupied property. A retiree had a legal residential non-conforming use that allowed a rental apartment. The retiree moved to an assisted living residence, the tenant moved out and the property was vacant. If the owner decides to sell the property as a residence with a rental unit after the period of time specified in the ordinance, they can’t. The nonconforming use was discontinued for the period of time specified in the zoning ordinance, so the non-conforming use is abandoned and cannot be reestablished.
Examples of other non-conforming uses are new zoning features such side, rear, or front setbacks in areas that include older properties. A new city zoning ordinance requires a 10-foot side setback for all improvements. An old tool shed sat right on the line. If the tool shed burns down and the owner wants to build a new toolshed, the new tool shed has to conform to the new zoning and be set back 10 feet from the sideline. (Of course, the owner could apply for a variance to the new zoning. Without extraordinary circumstances, however, a variance would not likely be granted.)
Weissman, Seth. The Red Book on Real Estate Contracts in Georgia (pp. 209-213).
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