What is Nonconforming Land Use?

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  2. What is Nonconforming Land Use?
What is Nonconforming Land Use
Real Estate

Zoning ordinances and regulations significantly affect property and how property owners can legally use their property, including the approval of nonconforming land use. Local officials have a great deal of power in determining changes and variances to these zoning ordinances, which can be a complex process. In turn, zoning plays a large role in many real estate transactions. When zoning matters arise in Arizona real estate law, you need an Arizona real estate lawyer to assist you with the many issues it can create. Call Provident Law® at (480) 388-3343 to set up a time to talk with us about your options for resolving your real estate zoning issue.

Understanding Zoning and Nonconforming Land Use

Zoning ordinances and regulations generally dictate how you can use a particular parcel of land or a building. However, when a municipality or county adopts new zoning ordinances, existing property owners generally have the legal right to continue using their property just as they have been lawfully using it, even if it now conflicts with the new zoning ordinance. Now, although their use of the property is illegal under the new zoning ordinance, they can continue the same use of the property. This ability to continue the land’s legal “nonconforming use” includes the right to make reasonable alterations and repairs.

Obtaining Nonconforming Land Use

When a zoning ordinance changes so that your current use of the property will be illegal, you will typically need permission from the local governing body to establish your current use of the property as a nonconforming use. The burden of proof is on you to show that you have been using the land in a previously lawful manner for a continuous period for a certain amount of time. The government entity will determine whether to grant you lawful nonconforming use based on the information and proof you supply.

Losing Nonconforming Use

Despite lawful nonconforming use, property owners may lose that right if they make major changes to the property after the new zoning law goes into effect. For example, the property owner cannot add two more stories to a three-story building. Doing so would be a major expansion that would eliminate the nonconforming use of the building.

Property owners also can lose the right to lawful nonconforming use in other ways, either intentionally or unintentionally, such as through negligence or inadvertence. Another possible way to lose nonconforming use is through civil or criminal misconduct that the property owner knows or should know could lead to involuntary closure.

For instance, if a property owner’s business is shut down by a court order for an unrelated reason for one year, the property owner likely would lose their nonconforming use of the building. Likewise, the right to nonconforming use may be lost if a property owner voluntarily shuts down a business for six months. Furthermore, if a fire or other natural disaster destroys most of a building structure so that major renovations would be necessary to rebuild it, the nonconforming use likely would no longer be available.

The loss of nonconforming use is also an issue to look out for when purchasing real estate. For example, you may want to purchase a certain building to house your business. The building, which housed a previous business, has been empty for the past year, so it needs renovations. You purchase the property, renovate it, and prepare to open it for your business. However, you quickly discover that zoning laws have changed, and the previous business was operating under a nonconforming use. The building lost its nonconforming use when it sat empty for so long, so now you have purchased and renovated a property you cannot use for your business.

We Are Here to Assist You with Your Arizona Real Estate Matter

Our goal is to help you understand nonconforming land use or any other type of real estate issue that might arise. We will advocate on your behalf as we work to solve your real estate matter. Contact the offices of Provident Law® today at (480) 388-3343 or online and schedule an appointment to speak with an Arizona real estate attorney about your legal matter.

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