Nonconforming Uses, Buildings and Lots in Plain English
What is a Nonconforming Use/Structure/Lot?
A nonconforming use is a use or activity that met the applicable zoning code requirements in effect at the time it was established, but which is no longer allowed in the zone district under the current code. For example, a commercial office use that was a legally-established use under an earlier zoning code becomes a (legal) nonconforming use when the property is rezoned for residential use. A nonconforming use doesn't necessarily involve a structure - a land use, such as outdoor storage, may become nonconforming when zoning is changed. A nonconforming structure is a structure or building that met zoning code requirements when the structure was constructed, but which doesn't comply with the current size, setback, height, lot coverage, density, or building configuration regulations. A nonconforming lot is a lot that met zoning code requirements when the lot was created, but that no longer complies with the current lot area, width, depth or street frontage regulations of its zone district.
Nonconforming uses, structures, and lots are different from illegal uses, structures and lots that do not conform to the current zoning code and did not conform to the code when they were established. Local jurisdictions may require removal of an illegal use or structure through a code enforcement action, and should not recognize an illegal lot as available for development.
Nonconformity Regulation as Applied in Washington
Washington's statutes do not provide specific direction for the regulation of nonconforming uses, structures, or lots. Washington local governments are free, within limits, to establish their own standards. Most jurisdictions allow nonconforming uses, structures, and lots to continue as exceptions to the permitted uses allowed, and to the standards required, under the new code. To retain its nonconforming status, a use must be continuously maintained in the nonconforming use. Similarly, a nonconforming building must not be abandoned. Generally, nonconforming structures and uses may not be expanded or enlarged so as to increase the nonconformity, although repairs may be allowed. The courts have generally upheld limitations or even the termination of nonconforming uses or structures, as long as the hardship to the owner is balanced by sufficient public benefit. Despite the intent that such limitations might eliminate nonconforming uses over time, they have tended to persist. Some jurisdictions have established amortization periods at the end of which the nonconforming use must cease. This allows an owner to recoup some or all investment value before the use is terminated. Amortization may be politically unacceptable for other jurisdictions. As mixed use development gains in popularity, some jurisdictions are focusing on standards to improve compatibility, rather than the elimination of dissimilar uses.
When people live or work close to the essentials that they need on a day-to-day basis, they can reduce the time and travel required. Walking and cycling become practical means of travel, rather than having to drive to services in separate zones. A complementary mix of uses is of key importance - the uses must support each other. For instance, a restaurant or day care center could serve needs of industry employees. There must also be direct, safe, and convenient connections between the uses (sidewalks, bike paths, or transit between mixed use projects or nodes) to accomplish reduced traffic congestion. Combining uses that attract activity at different times of day allows efficient use of streets and utilities. Since their use is spread out throughout the day rather than occurring primarily at peak rush hours, the total need for road capacity can be reduced, saving taxpayer dollars. Similarly, uses such as offices, and movie theaters, churches, or restaurants can share parking spaces when peak hours do not overlap.
Compatibility between different uses is addressed through standards that limit noise or other undesirable features, transitions between uses such as landscape screening, gradual transitions in height or density, and careful site and building design, rather than by separating uses into single use zones.
Resources
- Nonconforming Uses, Structures, and Lots - Regulations, MRSC - Includes selected court decisions and local ordinances.
- Pigs in the Parlor or Diamonds in the Rough? - A New Vision for Nonconformity Regulation (
), by Arthur Ientilucci, PAS Memo, APA, MRSC, 04/2003.