Zoning Practice — December 2009

Ask the Author

Here are reader questions answered by V. Gail Easley, FAICP, and David A. Theriaque authors of the November 2009 Zoning Practice article "Distinguishing Between Detrimental and Benign Nonconformities"

Question from Amelia McCulley, AICP:

I have a concern about treating a nonconformity differently based on what would be a somewhat subjective determination of whether it is "benign" or "detrimental." It makes sense. However, I think there would be legal challenges because the law doesn't seem to show that same distinction. In addition, I'm not comfortable with these types of subjective determinations, even though I've been the Zoning Administrator in my locality for 20 years.

My question is this: can a nonconforming use change from one use category to another, if it is not an intensification of use? For example, it is legally nonconforming as an eating establishment. A retail operation comes along and wants to locate there. One the one hand, the retail operation may possibly have less impacts and the premise of protecting nonconforming uses would seem to lean towards allowing a conversion to another commercial use. However, it does seem like a stretch to go from one use category to an entirely different use category. It seems to result in giving the nonconforming use more rights than even a conforming use (i.e., the ease of changing from one use to another with limited process/approval). I know the case law leans towards changes which significantly change the character and the change I've outlined may not do that. What do you think?

Answer from author V. Gail Easley, FAICP:

First, let me point out that one of the authors is an attorney who has practiced in the area of land use and zoning for more than two decades. He is very comfortable with this approach, which, as we point out in the article, is not completely new. 

I hope you are clear on our suggestion. We think that planners and decision-makers can certainly identify those uses which, if found to be nonconforming, would be benign in their impact. This distinction is not case-by-case, but is part of the organization of the nonconformity regulations. There probably would be different groups of benign uses in residential areas and commercial areas. However, you decide "up front" what uses or design situations would be de minimis or benign. 

In your example, the question is whether the retail use is permissible in the zoning district where the nonconforming eating establishment is located. If the retail use is not permissible, then it certainly could not replace the eating establishment. (If it could not be located as a new use on a vacant lot, it could not replace another use.) However, if the retail use is permissible and the eating establishment is nonconforming because of the design of the structure or lot (such as a parking deficiency or a setback encroachment), then there are two possible results. 

First, if you had provided regulations for nonconformities to state that a setback encroachment of — say — 5 percent of the otherwise required setback would be considered benign, the change from an eating establishment to a retail establishment would be allowable without requiring the retail establishment to make structural changes to meet the setback standard.

On the other hand, if you have not determined which uses or situations would be benign, the change of use in the above example could not be permissible unless the new user of the site could correct the nonconformity. If a situation is not classified as benign, the premise of the nonconformity regulations is that the situation will ultimately be eliminated.

In your question, you mentioned the affect on neighborhood character. This would be part of the basis for creating regulations that separate benign nonconformities from detrimental nonconformities. 

I suggest you look at some of the nonconformity regulations for the jurisdictions mentioned in the article. In particular, those that create a list of exceptions to the nonconformity requirements are essentially determining that some uses are benign.

Question from Berry E. Farrington, AICP:

In your recommendations for regulating changes to benign nonconformities, you state that a variance should not be used, because "the justification for granting a variance is different than the justification for changes to benign nonconformities." Could you please expand on this? Are there local ordinances that provide for this type of process that is similar to, but separate from, a variance process?

Answer from author V. Gail Easley, FAICP:

The fundamental premise for a variance is that when the zoning regulations are applied to a parcel of land with a unique condition there is no reasonable use available for the parcel. A variance is requested in order to modify regulations that would otherwise apply to the development of the parcel, before such development is approved or built. A variance is intended to restore equity where a property owner could not obtain reasonable use due to zoning regulations.

In the case of nonconformities, development already exists, but the regulations changed, resulting in some degree of noncompliance for a development that was in compliance when it was established.

Our suggestion is to treat the benign nonconformity procedurally in a similar manner as the procedure for requesting a variance. This would mean that the property owner would make an application; demonstrate that the use or site standards that are not in compliance are, indeed, benign according to the regulations that the local government established for benign nonconformities; and would be considered during a quasi-judicial hearing by the board of adjustment or another body that hears variances and special exceptions. This procedure does more than "grandfather" the use or site design that is not in compliance with current standards. This procedure grants specific approval, recognizes the nonconformities as benign, and sets the stage for the property owner to request expansions or other changes that would be prohibited for detrimental nonconformities.

Most states and local jurisdictions have procedures for hearing variances and special exceptions. We think this procedure would be appropriate for benign nonconformities.