In a prior blog post, we discussed the application of grandfathering, or “nonconformity”, provisions to existing uses of property that are subsequently banned by the local government. Nonconformity provisions essentially allow the current use to continue indefinitely on the property, even though it does not conform to the new code requirements.
However, expanding nonconforming uses can be problematic. For example, the owner of a nonconforming corner store in a residential area wanting to build an addition to double the size of the store and increase parking likely would receive pushback from the neighbors and the local code enforcement office. While there is not a general prohibition on expanding nonconforming uses, New Hampshire law requires a review of the proposed expansion on a case-by-case basis.
Expansion of Nonconforming Use Standards
Local governments in New Hampshire generally allow nonconforming uses to expand if there is no substantial change in the use’s effect on the neighborhood. This means the landowner can increase the volume, intensity, or frequency of the nonconforming use so long as these increases do not result in new, substantial impacts on the area. See Town of Hampton v. Brust, 122 N.H. 463, 469 (1982).
This standard reflects the realities of natural changes in use over time due to technological and demographic advances; however, because nonconforming uses violate the spirit of zoning laws, any enlargement or extension must be carefully limited to promote the purpose of reducing them to conformity as quickly as possible. Granite State Minerals, Inc. v. City of Portsmouth, 134 NH 408 (1991).
Determining Whether an Expansion is a “Substantial Change”
Whether a different use of the property results in a “substantial change” turns on the facts and circumstances of the particular case. Conforti v. City of Manchester, 141 N.H. 87, 82 (1996). When determining the degree to which a nonconforming use may be expanded, courts consider:
1) the extent to which the new use reflects the nature and purpose of the existing nonconforming use;
2) whether the challenged use is merely a different manner of using the original nonconforming use or whether it constitutes a different use; and
3) whether the challenged use will have a substantially different impact on the neighborhood.
See New London Land Use Association v. New London Zoning Board, 130 N.H. 510, 516-17 (1988).
The burden is on the landowner to establish that the expanding use is fundamentally the same use – and not an completely different or impermissible one. See New London v. Leskiewicz, 110 N.H. 462 (1970).
When asserting that a nonconforming use should be allowed to expand, the landowner needs a way to quantify the change in use. Remember, an expanded nonconforming use can legally create new impacts on the neighborhood – so long as these changes are not substantial. For this reason, the landowner should draw parallels between the expanded use and the current nonconforming use while downplaying any new off-site impacts.
Common considerations for this determination include:
- The degree to which the use’s footprint is expanded on the property or within a structure.
- The degree to which a nonconforming structure is physically altered or relocated on the property.
- The change in volume and type of traffic entering and leaving the property. An increase in traffic, in and of itself, may not be enough to preclude the expansion of a nonconforming use. Additional considerations include traffic impacts on neighboring roadways and whether the use would change the level of service.
- The number of employees at the property.
- Any new noise, vibrations, noxious smells, or light emanating from the property.
- Changes in site access, such as new driveway connections to public roadways and any associated changes in traffic flow.
- Whether an accessory use has converted into the principal use of the property.
- The types of new equipment, accessory structures, and vehicles stored on the property.
Landowners seeking to expand a nonconforming use also may consider taking steps to legitimize the use without having to fully meet the current code requirements. For example, if the property owner obtains variances for nonconforming structures built within a setback and special exceptions or conditional use permits for nonconforming uses, it may make the property more marketable, aid in obtaining new financing, and avoid litigation.
Paul J. Alfano