What is Legal Non-Conforming Use?
The term legal non-conforming use means that the property may be used in a manner not consistent with the current zoning, but that had been used in an inconsistent manner prior to the regulation prohibiting such use. Essentially, the use is "grandfathered" under the previous zoning and remains valid. These provisions are usually found in the text portion of a zoning ordinance.
A legal non-conforming use is allowed to continue, provided that the use is not expanded or modified beyond what existed at the time of enactment of the zoning ordinance. A property may be legally non-conforming, but the right to continue that use may be regulated by the municipality with respect to maintaining certain standards, requiring a permit, obtaining a special use or by certain time table regulations, including one otherwise commonly known as a amortization period, which is essentially a period of time defined in the Zoning Ordinance where an otherwise legal non-conforming use must cease.
A legal non-conforming use may also be a use conditionally permitted under the Ordinance’s terms . Again, a conditional use is allowed generally within a district, but requires review, approval and conditions that reduce any negative impact that the use may have on surrounding properties. See Zoning Basics.
Properties may be "grandfather" because they came into existence prior to the regulation, but then continued thereafter without regard to the regulation in place. A typical example is where an informal "flea market" may exist on the site for some period of time that may be used by a limited number of vendors and patrons and where no one complained. The ordinance then comes into existence prohibiting the use of that property in that manner or prohibiting the activity in the district altogether. The use may be "grandfathered" from the standpoint say of having existed for a number of years in that location. However, the standards(s) that apply may be stricter than a normal legal non-conforming use, such as the permit requirement, hours of operation, size of the structure, signage, renovation compliance and so forth.
Evolution of Grandfathered Use
The use of the term "grandfathered" in legal contexts has its origins in the turn-of-the-century. Developed in a drafting convention—often called the "grandfather clause"—intended to protect the integrity of the codification of titles in the nineteenth century, the term "grandfathered" as used today is the result of more than a century of elaboration.
Elizabeth C. Thornberry notes at Texas Southern University Law School Library Special Projects: "A ‘grandfather clause’ is a provision that provides that the enactment of a new statute does not affect the prior enforcement of the new statute."
Early "grandfather clauses," dating back to the 1870s, were used as statutory exceptions to the terms of a law otherwise applicable in a particular instance. By the mid-1900s, it became common to refer to a "grandfathered" land use as one considered to be "non-conforming" under new zoning regulations.
As various doctrines emerged to address the status of legally established land uses regardless of current conforming requirements, the term "non-conforming use" became the common parlance, and "grandfathered use" fell out of common use.
Today, the term "grandfathered" is a classic term used in real property law to describe the rights associated with a land use that predated a new and more restrictive legal regime. In 1957, the Restatement of Property defined a use as "grandfathered" if it "was lawful when made . . . even though such use may be prohibited by later enactment." In 1964, Becker & Jacobs described as a "grandfathered" use one existing "in an area where [a] zoning ordinance was adopted which would have precluded location of such use . . . ."
Building on these early legal conventions, the common law has developed a multi-tiered approach to determining land use rights. A wide range of lawful land use rights have been adopted for various jurisdictions, effectively codifying the idea that property owners cannot be retroactively prevented from engaging in activities that were once lawful under the laws, and/or zoning codes, that existed at the time they began to engage in those activities; thus, the concept of "grandfathered" uses.
In a broad sense, a "grandfathered" use is any use that predates a new law (such as a city ordinance), and thus is generally excepted from that law’s application. Such a use may require that the use "non-conforms" to a new legal regime, but the term "non-conforming use," is not synonymous with "grandfathered use."
Nonetheless, today, "grandfathered" property refers to any property that has uses or structures that existed prior to adoption of a new zoning ordinance or other law that would otherwise regulate such use or structures. "Grandfathered" use encompasses any lawful land use that is exempt from new standards.
Requirements for Grandfathered Use
In order to qualify for grandfathered non-conforming use, the use must meet a number of specific criteria. These criteria include that the land use satisfies most State requirements for an existing nonconforming use and that the use has not been abandoned or discontinuity for a period which varies by jurisdiction.
While there is no single test used nationally for determining whether a property meets the criteria for this designation, courts have taken the position that the land use must be in actual operation and use of the property without nonconformity at the time of the adoption or amendment of the zoning regulation. Courts and municipalities have created further tests for qualifiers, effectively narrowing the definition. For instance, a majority of courts hold that the use must have been in operation preceding the enactment of the ordinance granting the grandfathered non-touch status. However, some courts and municipalities also impose the requirement that the use must have had some continuity throughout its existence even if it was not continuous. Thus, the use must have existed prior to the enactment of the ordinance conferring non-conformity and must likewise have some continuity.
Effects of Zoning Changes on Grandfathered Properties
When municipal zoning changes occur, permanent restrictions may be placed on properties that had legal non-conforming uses. In such instances, it is quite possible that those uses ceased to be permitted. The question then becomes: if a municipal zoning ordinance change precludes a use or reduces the extent of those uses, does the owner of properties with grandfathered status have a claim against the municipality for the loss of that use? Based upon recent Pennsylvania Supreme Court case law, the answer could quite likely be yes.
In a case entitled In re: Kiskiminetas Township Board of Supervisors, a former gravel removal operation operated its business lawfully for many years under a153-page conditional use approval. Eventually, however, the Township changed the zoning ordinance, which rendered the gravel removal operations illegal. Moreover, the Township did not permit the gravel removal operation to continue out of compliance with the new restrictions. The gravel removal operation made various attempts to use the changes in the use to seek relief from the new restrictions, but were rebuffed.
The gravel operation filed a Complaint, alleging that the new restrictions rendered their gravel operation valueless and sought just compensation from the Township. The Court of Common Pleas ultimately ruled in favor of the Township. The Court of Common Pleas concluded that the gravel operation had no property rights that were taken as a result of the enactment of the new restrictions. In reaching that conclusion, the trial court reasoned that the gravel operation had no vested property rights that would be lost when the zoning ordinance was enacted by the Municipality. The Court of Common Pleas held that the gravel operation’s right to conduct its business on that property is not a property right. The Court opined that the use is only a license or privilege. Because of that, the gravel operation cannot rely upon any common law protections generally afforded to existing businesses for unfair or inequitable application of an amended zoning ordinance. The Township’s decision to expand the areas where gravel removal operations are limited or precluded was lawful, reasonable and indeed was in the public’s best interest.
This case eventually made its way to the Pennsylvania Supreme Court, which returned the matter back to the Commonwealth Court for further consideration in light of recent developments in the law involving the taking of property.
In the landmark case of Cohen v. Township of Newtown, the Pennsylvania Supreme Court recognized the right to compensation under the Pennsylvania Constitution where an amendment to the zoning ordinance extinguished an existing land use that would otherwise have been allowed, thereby subjecting the landowner to a regulatory taking. Notably, the Supreme Court of Pennsylvania reversed a decision on appeal from the Commonwealth Court, which ruled that the developer’s land use was merely a license or privilege and that the developer had acquired no rights in the land at all. The Supreme Court also stated that because zoning ordinances may now operate in a manner that creates a right to compensation, municipalities must now define "[e]stablished individual rights" through statutory enactment. Subsequently, the General Assembly adopted the following legislative addition to PA’s Municipal Planning Code: The existing lawful uses of land or structures shall not be invalidated by the enactment or amendment of an ordinance. (emphasis added)
What constitutes an existing lawful use of land? Does that language continue to limit standing to challenge the constitutionality of an otherwise lawful environmental ordinance? How permissive will the Pennsylvania Supreme Court be going forward and how much deference will it grant to municipalities that enact zoning ordinances that would otherwise extinguish an otherwise lawful usage? The Pennsylvania Supreme Court’s decision on this issue may not yet be written but it will provide helpful guidance to property owners in future cases involving the changes in the zoning ordinance. If you have a recently-passed amended zoning ordinance in your community, it may be advantageous to reevaluate your options and available remedies now.
Advantages and Drawbacks of Grandfathered Use
When a property is established under a non-conforming use, certain benefits and limitations apply. These standards include both regulatory advantages for property owners and potential legal restrictions on the property.
For example, one of the principal benefits that would apply to a property under non-conforming use includes the right to continue operating the property as it has historically done so. While some municipalities impose limitations on non-conforming uses, in general property owners can continue to operate the property within the manner it is historically used. This is particularly true if the ordinance that required the non-conforming use was passed after the property began operating. On this point, certain courts hold that the property owner has a vested right to continue its operations, even if the non-conforming use is only slightly different than what the municipality permits under its current zoning ordinance. The practical effect of this rule requires municipalities to treat older non-conforming uses differently than more recent ones.
Further, depending on the circumstances, non-conforming uses generally are not subject to new zoning ordinances that may be passed in the future. This principle is distinguishable from what happens when the property owner would try to modify the property to bring the building or its associated uses into conformity with the newly adopted ordinance. In those situations, a more stringent standard may apply (e.g. a "hardship") . However, when the property is operating within the scope of its historical use, the property is entitled to regard that as its legal right unless it substantially expands the nature of its underlying business. This essentially grants a form of de facto legal status.
However, there are important limitations that can apply to a non-conforming use limitation when it comes to bringing a property into full compliance with the ordinances. As noted above, the common law holds that non-conforming use generally is not subject to the importation of any new zoning standards. As a result, municipalities cannot adopt policies that prohibit non-conforming uses that are legally operating.
Despite this, a municipality can exercise substantial power over whether a property can expand or adapt its operations. This applies to activities that might be interpreted as a potential extension of its non-conforming use. For example, a property owner who wants to add a new sign that is at least 25 feet from where the original sign was added could be one example. In such a case, the property owner may face significant challenges in applying for the variances needed to add the sign. Likewise, a property owner that wants to build a new addition could face many obstacles.
Finally, a third limitation relevant to this discussion applies to the extent that a municipal ordinance can require that the property come to a full compliance, after the state’s minimum requirement, based on the "amortization" method. In general, the amortization method permits a municipality to require a non-conforming use to eventually come into compliance, as long as it does so within a reasonable period of time.
Examples of Legal Non-Conforming Use
A few significant cases demonstrate how the legal non-conforming use doctrines are applied. For example, in a 1978 issue of the Municipal Lawyers Journal, Jean L. Broadwater discusses the case of Kluge v. Board of Supervisors, 29 App. Div. 2d 464, 285 N.Y.S.2d 823 (N.Y. 1964). The Kluge court, she says, was concerned with a "non-conforming feed store which had, in addition to the legal and permissible sale of animal feeds, also sold alcoholic beverages." Kluge owned a corner store in the town of Scarsdale, New York. The store sold animal feed and fertilizer, which was permitted in its zone, "as well as beer, wines, liquors and food products," which were not. The town board attempted to force the owner to discontinue the "illegal sale of packaged liquor" in the store by refusing to renew his permit for a food store. The board ruled that he could obtain a special permit valid for only six months. However "the board did not find that the sale of beer, liquor and wine would constitute an illegal use." Rather, it appeared that the board "was forced to proceed on the theory that the sale of liquor and the sale of the feed, fertilizer and the like were a single principal use." Broadwater notes that the appellate division found that the zoning ordinance had actually allowed not only grocery stores, but also "the sale of limited lines of dry and canned groceries as an accessory use." Therefore, the court in Kluge found that the store’s owner had a right to operate a non-conforming grocery store since the sale of groceries was a lawful use in the residential zone. And, because the shop sold animal feed and fertilizer along with groceries, the court said its "grant of a variance for a single non-conforming use of grocery products was not a valid denial of the variance" for the sale of animal feed and fertilizer. Brown also discusses a 1963 Connecticut case, Cohen v. King. 196 Conn. 532, 492 A.2d 1219 (Conn. 1985). In Cohen, the municipality had passed a zoning regulation that prohibited the construction of residences in one zoning district and allowed the continued existence of non-conforming dwellings that were already substantial. The court, however, distinguished between legal non-conforming uses (prohibited), and so-called non-conforming non-conforming uses (allowed), which is how it would define the non-conforming use in Cohen. First, the court said that Kluge dealt with the difference between the "sale of an item which also may be used for a generally permitted use versus the incorporation of a prohibited use into a generally permitted use." The court then referred to Steeplechase Apartments, Incorporated v. Town of Cromwell, 153 Conn. 381, 386-89, 216 A.2d 424, 427-29 (Conn. 1965) for establishing a distinction between the sale of one product in a store that sells both permitted and non-conforming uses and the use of land for a non-conforming purpose.
The Future Of Grandfathered Zoning Rights
As we move forward, many expect to see more efforts to limit or reduce the length of "grandfathered use." One can expect to see changes in the law and some municipalities have already modified their zoning ordinances to limit grandfathered use. For instance, in the case where River Vale NJ’s Board of Health announced five years ago that the Board intended to end a non-conforming use, which had existed for 53 years, as of December 31, 2016, but with a "compromise" in which they agreed not to enforce further proceedings until December 31, 2020. Further complications occur when a temporary grandfathered use, which is allowed to continue until a permanent non-conforming use is established (under the presumption that it will not take excessive time), stretches for years . If there is a material change in circumstances within the interim period, even a period of that length, judges have interpreted the period to have expired. Moreover, municipalities can charge fees or taxes on commercial use of property, even if that property is not developed. While postponements, continuances, and lapse periods will certainly apply to the law of grandfathered uses, one can expect that any owner of such property will be coerced into developing that property. If the municipality makes it too difficult to maintain a temporary grandfathering, it may be unconstitutional (as unaffordable). This is an area of law that will be rapidly changing.