Zoning codes determine and restrict certain uses of property. Zoning laws can change over time to become more strict and prevent some activities on land. Property owners may have their rights at risk. There is a reason why some of the most bitter legal disputes involve property. People take their property rights extremely seriously, and they will not hesitate to litigate when their rights are being compromised.

At the same time, the government may also regulate in a way that can take away some property rights of the owner. Usually, these regulations will apply to future property owners, but they can also apply to someone who already owns the land. Zoning laws are a prime example of how a government may regulate to the detriment of individual property owners. These laws may benefit a neighborhood as a whole, but they can fall squarely on an individual property owner.

Your existing property rights may still be respected when a new zoning law is passed, but there may be numerous legal issues related to this “nonconforming use.” You may still face some restrictions and challenges. Always contact a real estate attorney expert in zoning laws to understand what restrictions may apply to your property and to participate in the legal process. You are entitled to due process and the right to be heard, and you can file a lawsuit if your property rights are being violated. However, there is always an open question of whether the government’s power to regulate in the name of health and safety may trump your own individual property rights.

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Some Property Rights May Be Grandfathered After Zoning Laws

Many people are familiar with the description of something being “grandfathered.” This term comes from post-Civil War laws that were intended to strip African Americans of their right to vote. Anyone whose grandfather was eligible to vote at a certain point in time would be exempt from poll taxes. The term is meant to describe a situation where someone is allowed to keep doing what they were in the past, even after a change in the law.

In the land use context, everyone else who purchases property after the date of the law change may be prohibited from taking certain actions. However, those who already owned the property, and were doing an action that is now prohibited, may continue to do so. These rights recognize that it may not be fair to take something away from someone who already had it just because the government wanted to change the way that it regulated. Fundamental fairness is always a consideration in legislating.

What Is a Nonconforming Use?

Zoning laws have been known to change over time. There may be a new zoning board that reflects different priorities in the area. Alternatively, the conditions in the area may have changed. For example, the area may have been previously industrial, but it is shifting to residential uses. The prior zoning rules may not be effective to provide for uniformity in the area.

However, there may be a property owner in the area who already has property rights that were not circumscribed under the prior rules. In theory, if a zoning regulation goes too far to take away from them what they already had, it can even be considered a regulatory taking, which will open up the government to a lawsuit. The property owner may even be able to seek compensation for what they lost in a taking.

A nonconforming use is a structure or property that does not comply with the new zoning regulations, although it was in conformance with the prior rules. Previously, this structure was legal, but if the new rules are applied to everyone, it will be illegal. The new zoning laws will have to address the circumstances that face the owners of properties with nonconforming uses. The law must outline the conditions that will allow existing property owners to continue to use the property in the way that they were before the new rules were passed.

The Policy Reasons for a Nonconforming Use

Here, a property owner will have a vested right that cannot be taken away from them just because the law changed. That right cannot be immediately terminated because someone chose to change a law or regulation later in time.

There are competing interests at play. Zoning laws are intended to provide uniformity in structures in a certain area. There are aesthetics at stake, and property value can benefit when structures are relatively the same or certain uses have been prohibited. Zoning laws are part of the police power of the state, where the government can act to protect residents in a number of ways.

However, property owners also have rights that the law endeavors to recognize. While zoning laws are part of the state’s police powers, the law also does not want to take away property owners’ existing rights. The nonconforming use doctrine recognizes that taking away certain property rights may violate the United States Constitution. There is still some fundamental fairness that needs to be shown to the property owner. The law also wants to encourage the usage of land. However, the use of the land should not be in a way that can potentially decrease the value of neighboring properties.

Nonconforming uses present a number of problems for both owners and policymakers. The law generally does not favor nonconforming uses, but it also acts in the spirit of protecting property rights. While the existing property owners have a right to continue the current usage under certain circumstances, and they do not have to repair their property to follow the rules, there is also a concern that a property may become run down and be a detriment to the area. Given the zoning changes, the owners may not want to make the necessary investment into the property and pay for repairs and maintenance.

Some Limitations on Nonconforming Uses

The fact that there are limits on the nonconforming use doctrine also respects the police power of the state and the role that it plays in preserving the health, safety, and welfare of other property owners in the area. Even though property rights are a broad concept under the Constitution, police power is also entrenched, and it is often given a wide berth.

Nonconforming uses are limited to what existed at the time that the zoning ordinance was passed. The owner may not take advantage of their status by building or expanding on the existing nonconforming use or structure. However, there is nothing to say that an owner with a nonconforming right is completely prohibited from building anything on their property. Sometimes, if the imposed law is too strict, it can be considered a taking, triggering the obligation to pay compensation to a property owner.

Since nonconforming uses are not favored in law, the right exists only to the extent that it did before any new rules. For example, if an area was changed from commercial to residential zoning, a store owner whose business is allowed to stay cannot enlarge or expand their business in that current location. The store may remain open because closing it would have been considered a taking requiring compensation for the owner. However, the owner cannot make drastic changes to or enlarge the structure. Nonetheless, the store owner can make repairs and perform maintenance to keep the property from becoming blighted.

Further, the nonconforming use may cease to exist if it has not been used for a certain amount of time. A property owner may be unable to resume the usage after the right and structure are abandoned. If the property has gone unused for a certain period of time, there is a presumption of abandonment.  However, determining whether a property is abandoned depends on the facts and circumstances of a situation.

In addition, the nonconforming use does not have to be unlimited in time. Just because an owner has the right to a nonconforming use now does not mean they will have it forever. Some states allow the law to set a phase-out or sunset period. The property owner with the grandfathered rights can lose them after a certain amount of time. The owner may have a period in which they will need to comply with the law. Some jurisdictions have the ability to phase out nonconforming uses in the law within a year after it is passed.

Local Governments Can Still Regulate Nonconforming Uses

Just because there is a grandfathered property right does not mean the local government entirely loses the power to regulate. They can still protect the health, safety, and welfare of other property owners in the area. Even if the nonconforming use is not prohibited, it may still be regulated. There may be later enacted local building regulations that still apply to a property with a valid nonconforming use. Your overall rights will apply, but there may be other later established regulations that may still be allowed to take effect that may require you to do certain things with your property, such as have a certain grade to it.

Why You Need a Property Lawyer to Assist with Zoning Matters

As an existing property owner, zoning laws may impact your constitutional property rights. If the government has gone too far in its regulation and has deprived you of beneficial use of your land, you can file a lawsuit seeking compensation. Some attempts to regulate cross the line to a regulatory taking. If the court finds that the regulation has gone this far, you will be entitled to compensation for your property rights based on the fair market value of the land.

The government will often deny that their regulation consists of a taking. They will almost always refuse to pay you compensation at first. Your zoning law attorney may need to file a lawsuit against the government in court, forcing them to compensate you for the effects of the law. The government may eventually reach a settlement agreement to compensate you for a taking. Alternatively, a court may order the government to pay you. In regulatory takings cases, there are often disputes and challenges with properly valuing the land. Your zoning lawyer may enlist the help of valuation experts because the government’s figures will almost certainly be lower.

In addition, you can get involved with zoning laws before they are passed. Zoning determinations allow you due process and the right to be heard. You can present your case to the city before a zoning ordinance is passed and prior to when a determination is made about your own property. If there is an adverse determination about your land, you can challenge the individual matter in court if the zoning board will not consider and grant your point of view.

Zoning regulations present significant challenges and policy issues. The government receives a fair amount of deference from the courts, but you also have your individual property rights. It is essential that you deal with these matters with the help of a zoning lawyer. A zoning law attorney can do the following for you:

• Review laws and regulations and advise you on how they apply to you
• Representing you in front of local zoning boards
• Helping you determine whether a zoning regulation goes too far and is considered a regulatory taking
• Defending you when you are accused of a violation of zoning law
• Advising you on the extent of your grandfathered property rights
• Challenging a potential regulation on your behalf before it is enacted
• Reviewing other property regulations to determine whether they take your rights away from you
• Advising you before you want to develop your property

It is always better to hire a real estate lawyer early in any legal process, perhaps before one even begins. Your real estate attorney can interface with local authorities on your behalf and provide you with strong legal advocacy.

Contact A Real Estate Attorney Today to Protect Your Land Rights

Don’t leave the fate of your land use rights to chance – hire a real estate attorney to fight for you.

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