Nonconforming Uses and Noncomplying Structures

NOTE:  This summary is very simplified, and is provided for informational purposes.  Any questions on this topic should be directed to The Office of the Property Rights Ombudsman.

What is a Nonconforming Use? 

A nonconforming use is a land use that was established when allowed by a zoning ordinance, has been maintained continuously, but which would no longer be allowed due to an ordinance change.  Nonconforming uses are sometimes nicknamed “grandfathered” uses, and are allowed to continue, even after the ordinance change.   (See Utah Code § 10-9a-103(32)) & § 10-9a-511; and § 17-27a-103(36) & § 17-27a-510).  Please note that different rules apply to nonconforming billboards. 

What does Continuously Maintained Mean?

A use must be continuously maintained in order to qualify for nonconforming status.  This means that a use must be operated without interruption, or at least on a regularly recurring basis. Each situation is evaluated individually, but a brief interruption in a use is usually not considered abandonment.

What is a Noncomplying Structure?

A noncomplying structure is a building or other artificial structure which complied with a zoning ordinance when it was built, but which would no longer comply due to ordinance changes.  A structure can be noncomplying due to such things as setback or height requirements. A noncomplying structure may remain, even after the ordinance change.

How is a Nonconforming Use Terminated?

A nonconforming use may be terminated if the use is determined to be abandoned. Generally, if a use is discontinued for at least one year, it is presumed to be abandoned.  If the use is terminated, any future uses on the property must conform to current zoning ordinances. 

How is a Noncomplying Structure Terminated?

A noncomplying structure is considered abandoned if the structure is voluntarily removed, or deteriorates to the point of being unusable.  A structure that is involuntarily destroyed (by a fire or other disaster) is not considered abandoned. If a noncomplying structure is terminated, any new structures must comply with current zoning standards.

May a Nonconforming Use be Expanded or Enlarged?

Expansion or enlargement or a nonconforming use should be discouraged.  However, a local government’s ordinances may provide how and when a use or structure could be altered, or expanded.  Repairs and maintenance of a noncomplying structure are usually allowed, especially if the repairs do not make the structure be “more noncomplying.”

May a Local Government Force Abandonment of a Use?

A local government may require that a nonconforming use be eliminated, or “amortized” over a set period of time. The time allowed for amortization is based on what would be reasonably necessary for the owner to recover any investment in the use. 

May a Local Government Regulate Nonconforming Uses? 

Even though a nonconforming use may continue despite a zoning change, it is still subject to health and safety regulations, just like any other property use.  

May a Government Force Changes to a Noncomplying Structure?

For the most part, a local government may require changes to a noncomplying structure needed to protect public safety, if the changes are reasonable and do not require extensive remodeling of the building.  In particular, if the noncomplying structure is used for rental housing, reasonable changes are permitted only if needed for public safety.

Cases on Nonconforming Uses and Noncomplying Structures

Carlsen v. Board of Adjustment of the City of Smithfield–Discusses how nonconforming uses are established and proven by a land owner

Daines v. Logan City–Discusses the “legally established” requirement for a nonconforming use

M&S Cox Investments, LLC v. Provo City–Discusses amortization of nonconforming uses

Vial v. Provo City–Rebutting a presumption of abandonment of a nonconforming use

Click HERE to Access Advisory Opinions on Nonconforming Uses

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