Zoning requirements have constantly changed over the years in the state of New Hampshire. However, there are multiple structures, lots, and land that do not need to follow the current zoning guidelines. Those items are considered nonconforming uses and are grandfathered into the local zoning codes. Most attorneys like to add the word legally, or lawfully, before nonconforming uses, to ensure everyone knows that those properties are following the local laws as they were written. This easily distinguishes them from those properties who are illegally using a piece of property after a local zoning change.
All nonconforming uses in New Hampshire are protected by local zoning ordinances, state law, and the Fifth Amendment takings clause.
Different Types of Nonconformity
While all local zoning ordinances group their types of nonconformity into land, lots, and structures, they all follow the same guidelines to obtain their nonconforming use. With that being said, the different types of nonconformity include those lots, land, and structures that lawfully existed before the latest zoning change and has continued to be permanent after the zoning change took place.
All lawfully existing uses are protected when new zoning ordinances are put in place. The protections include not only the principal use of the property, but also the accessory uses. Most of the time, nonconforming issues arise when new zoning districts are set up or an entire area is rezoned. There can even be an amendment to current zoning laws that now limits or prohibits the current use of any property.
Any property owner who wants to obtain protection from new zoning ordinances, must have land, a lot, or a structure that was in use when the new zoning laws were enacted. If the owner intended to use the land, lot, or structure for something, but hadn’t yet, their property will not be protected for nonconformity.
The usage of the land, lot, or structure must have also been lawful when the zoning law was changed. Most of the time, this lawful usage is clear, especially if the property had been established for many years. When the lawfulness is unclear, other factors will need to be considered prior to nonconformity protection being issued.
The good news is that new owners can obtain nonconformity status, as long as the usage continues without a long closure.
All principal and accessory structures are covered under nonconforming uses. Most of the time, structures are considered nonconforming due to their size or their actual location. Normally, the only time the nonconforming use will be removed is if the structure is moved or is practically destroyed. During those times, local zoning laws may be enforced. Any structures that are renovated may also need to meet local code requirements.
Historical subdivisions of land and older subdivision lots that are smaller are also given nonconformity protection. Without this protection, any owner would not be able to obtain building permits or sell the property as an individual lot.
Any subdivision lots or site plans that have been approved for up to five years cannot be revoked if zoning ordinances change once construction has begun. The development must be in compliance with all health regulations though, and the plans must conform to all of the local regulations that were in effect when the plans were approved.
Once the subdivision is in place, all the units are grandfathered in. That means the municipality cannot make any changes to the road frontage or even the minimum lot size in the future for those neighborhoods.
Abandonment of Any Nonconforming Uses
Any land, lot, or structure can lose their nonconforming use status if it is abandoned. As soon as the owner abandons the property, it is considered that they lack the interest in using it in the future.
Certain local zoning ordinances may also state that if a non conforming property is not used within a specific period of time, the property is then deemed abandoned.
There are many different things you must be aware of when you are trying to obtain nonconforming use status for your property. But if your property qualifies, you will benefit from that status long into the future.
Do you have questions about nonconforming uses for your property? Contact the office today.