Landowners in New Hampshire have protections against local governments retroactively banning their lawfully existing use of property. These legal, non-conforming uses are considered “grandfathered”. They generally are allowed to continue indefinitely despite not conforming to newly enacted zoning requirements.
In the zoning and land use context, grandfathered uses are those that existed prior to a change in zoning. Most local zoning codes refer to these grandfathered uses as nonconforming uses. In addition, sometimes planners and attorneys add the caveat the use is “legally” or “lawfully” nonconforming. This is to distinguish from situations where an illegal use remains illegal after a zoning change.
Nonconforming uses are protected by:
- Local zoning ordinances.
- State law, including RSA 674:19, RSA 674:39, and Part I, Articles 2 and 12 of the New Hampshire Constitution.
- The Fifth Amendment’s Takings Clause.
Types of Nonconformity
Local zoning ordinances commonly group the types of nonconformity into nonconforming uses of land, nonconforming structures, and nonconforming lots. Regardless, the same general test applies, with the landowner having the burden to prove that the use, structure, or lot:
- Lawfully existed prior to the zoning change; and
- Has been permanent and continuous on the property since the zoning change.
RSA 674:19 specifically protects nonconforming uses and prevents new zoning ordinances from impacting all lawfully existing uses. Nonconformity protections apply both to principal and accessory uses of property.
This issue arises most often when a town first enacts new zoning districts, administratively rezones an entire area or neighborhood, or makes significant text amendments to the zoning ordinance limiting or prohibiting the current use of the property.
To qualify for protection, the desired use must have actually been in use at the time of enactment of the zoning amendment. An intent to use the land for a given purpose, without actual use, is not enough to qualify for nonconformity protection.
The use must also have been lawfully established at the time of the zoning change. This typically means a prior version of the local ordinances specifically allowed the use. If it is unclear whether the use was previously allowed by the local government, other factors such as the government’s awareness of the use and tacit consent (such as issuing building permits for the property) are useful in proving the use’s legality. Generally, the longer the use has been established on the property, the easier it is to prove the lawfulness of the use.
Once the nonconforming status of a land use is established, the use can be passed on to new owners of the property. The use will be allowed to continue so long as it is not abandoned.
RSA 674:19 similarly protects nonconforming structures lawfully existing at the time of adoption of a zoning change. Both principal and accessory structures qualify for protection. Often, structures become nonconforming due to their size or location on the lot.
Local zoning codes sometimes require nonconforming structures to come into compliance with the current code if they are voluntarily moved on the lot or become almost entirely destroyed. In addition, RSA 674:19 does not protect structures altered and used for a substantially different use than before the alteration. For example, an older mobile home that is a nonconforming structure due to its location inside of a setback most likely could not be gutted and used as a storage building without having to meet current code requirements.
Nonconformity provisions also protect historical subdivisions of land. Older subdivision plats may have created lots that do not meet the current minimum area and width requirements. Also, they may have configurations not allowed under the existing ordinance. Without nonconformity protections, the owner of the lot would be precluded from obtaining building permits or selling the property as an independent lot.
In addition to historic subdivisions of land, nonconformity protections also prevent local governments from revoking more recently approved subdivisions. RSA 674:39 specifically protects approved subdivision plats or site plans for a period of 5 years after the date of approval if:
- Active and substantial development or building has begun on the site within 24 months of the approval, or in accordance with the terms of the approval.
- The development is in compliance with health regulations.
- The subdivision plat or site plan conforms to the local regulations in effect at the time of approval.
In addition, once the landowner has substantially completed the improvements shown on the plat, all lots, including unbuilt lots, are grandfathered. This means the town cannot thereafter increase the minimum lot size or required road frontage of the subdivision
Abandonment of Nonconforming Uses
A nonconforming use can lose its lawful status if the use is abandoned. This issue often arises when a new owner of property wishes to use property for a historic purpose.
Abandonment of a nonconforming use requires both an intention to abandon or relinquish the use and some overt act or failure to act which carries with it an implication that the owner neither claims nor retains any interest in the use. The question is whether or not the circumstances surrounding the cessation of use are indicative of an intention to abandon the use.
In addition, zoning ordinances also may state if a nonconforming use is not used for a specific period of time (such as six consecutive months), the nonconforming use is deemed abandoned; however, disputes often arise as to whether or not the nonconforming use actually is abandoned. For example, in Pike Industries, Inc. v. Woodward, the New Hampshire Supreme Court overruled a zoning board of adjustment’s decision an asphalt manufacturing plant abandoned its nonconforming use because it did not produce asphalt for almost two years. The court found the use was not abandoned. The company had maintained the plant in a state of readiness by performing maintenance of equipment, advertising, and soliciting bids. This is despite the fact that it had no customers with orders suitable for the plant during that time.
Paul J. Alfano
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