Lawful Non-Conforming Uses :: Grandfathered Property and Zoning Law

Clients often call to ask if the property they are selling is subject to “new” zoning regulations which were adopted after they bought the property and which regulations would disallow the current use if they were requesting it for the first time. The question is usually phrased in the form of a statement: “my property is ‘grandfathered’ and they can’t change it”.

For the most part the client who adopts that view is correct. If the use is already established before a zoning change, and the use is lawful under the old zoning, it is a “lawful prior non-conforming use” or in the common idiom “grandfathered” use. That use may continue even under a new owner since it is the status of the land and not ownership which controls. In other words, you can transfer the property to a new owner without losing the right to the existing use.

However, the doctrine of prior non-conforming use comes with several caveats. First, the doctrine assumes that the use will gradually come to an end. For example, if you have a factory established in a residential zone, generally you may NOT upgrade the factory in order to continue the use beyond its expected span of life.

Second, you may NOT EXPAND the use by making it larger with greater capacity.

Third, you may NOT change uses and later go back to the non-conforming use. Once ended, the non-conforming use is no longer available to the property owner.