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.
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.
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.
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.
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.
Expansion or enlargement of 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.”
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.
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.
M&S Cox Investments, LLC v. Provo City (2007) - during the amortization period, the owner may continue the use
Vial v. Provo City (2009) - an owner established the existence of a legal nonconforming use but failed to rebut a presumption that it had since been abandoned
Carlsen v. Board of Adjustment of the City of Smithfield (2012) - substantial evidence supported a decision of a municipal board of adjustment to recognize an existing nonconforming animal rights use
Daines v. Logan City (2012) - a nonconforming right is a defense and burden is upon the party claiming it. In addition to proving historical use, owner must prove it was legally established
Hatch v. Kane County (2013) - nonconforming use principles apply to nonconforming lots