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Thread: Will passage of time ever convert nonconforming use to legal use?

  1. #1
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    Will passage of time ever convert nonconforming use to legal use?

    I have a client who has conducted business for almost 20 years in the same location, but the type of business does not conform to the use requirements of the local zoning code. He has not had any problems or complaints from anyone during that period and has developed considerable "brand identity" in this particular location, but he would like to know that the zoning situation will not cause a problem if he decides to sell the business. The use is not "grandfathered" as a legal nonconforming use because it was started after the zoning regulations were approved. As a general rule local officials will not enforce the zoning requirements unless a neighbor complains or the nonconforming landowner applies for a city land use permit. The business in this case is located approximately 200 feet from another zone where the use would be permitted, but because there is another business between my client's nonconforming use and the proper zone a zone change on the zoning map could be difficult to achieve. Here's the question: Is there any legal principle, perhaps akin to equitable estoppel or a statute of limitations, that would hold that city officials are prohibited from enforcing the zoning code or denying a city land-use permit based solely on the fact that the noncompliance has continued without objection for many, many years? Thanks.

  2. #2
    Cyburbian Cardinal's avatar
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    Short answer, no. The only way it can become conforming is to: 1) change the zoning code to include the use within the existing zone, or 2) change the zoning of the property. The fact that your client initiated the use after the zoning was already in effect is especially problematic. Selling the property/business could be a problem in a couple regards. It could alert the city to an illegal nonconformity, if they are not already aware of it, and cause the city to initiate enforcement. It can also be a problem for the buyer in obtaining financing from a bank, if they determine that the business does not have a legal right to operate at that location. The best bet may be to attempt to rezone the property, and if that fails, to be prepared to move the business to a conforming property.
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  3. #3
    NIMBY asshatterer Plus Richmond Jake's avatar
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    Quote Originally posted by MTlawyer View post
    ...... Is there any legal principle, perhaps akin to equitable estoppel or a statute of limitations, that would hold that city officials are prohibited from enforcing the zoning code or denying a city land-use permit based solely on the fact that the noncompliance has continued without objection for many, many years? Thanks.
    Latches. If the jurisdiction was aware of the illegal (not non-conforming in my view), use, but did nothing to enforce their ordinance, they (the jurisdiction), could be in trouble. May need a judge's action to perfect the decision.
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  4. #4
    Cyburbia Administrator Dan's avatar
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    Quote Originally posted by Richmond Jake View post
    Latches. If the jurisdiction was aware of the illegal (not non-conforming in my view), use, but did nothing to enforce their ordinance, they (the jurisdiction), could be in trouble. May need a judge's action to perfect the decision.
    Came here to say this. The difficulty in using laches as a defense is showing that the jurisdiction knew of the use, and knew it was illegal, but did nothing to enforce their zoning code. If the jurisdiction has a policy of pursuing zoning violations on a reactive basis only, it may be a viable defense.

    Reliance-based estoppel may come into play if the use was established with the assurances of the jurisdiction that it was legal,

    Although the illegal use (agree with RJ) may have been ongoing for some time, many states have established a statute of limitations that applies to building permits and/or use approvals, either through case law or statute. If the use was formally approved, either through a business registration that was reviewed and approved by a government agency that administered zoning and its restrictions, or a more formal review process that was approved by an appointed or elected body, you may have a shot.

    As always, your mileage may vary, especially in Louisiana and Quebec.
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