Zoning laws, like any other laws, can change from time to time. What happens if your structure, lot, or use is permitted under an existing law, but the law changes in a way that your structure, lot, or use is suddenly no longer consistent with the law? There is a significant amount of infrastructure work occurring or anticipated, which requires taking of property by local governments, the State, or even private condemnors. What happens if the structure, lot, or use was perfectly conforming to the local laws but a taking of a portion of the property suddenly renders the structure, lot, or use inconsistent with the law? This is a common situation, especially in growing counties and municipalities. The resulting structure, lot, or use is a “nonconformity”. How a nonconformity is treated depends on the local laws, and most zoning or development ordinances in North Carolina are going to address nonconformities in some way. Generally speaking, there are three main options for the local treatment of a sudden nonconformity: immediate termination of the nonconformity, grandfathering, and continuation of the nonconformity, or amortization of the nonconformity.
First, let’s quickly dispense with immediate termination. As a general matter, the law in North Carolina does not favor nonconformities. However, requiring the sudden compliance of all nonconforming structures, lots, and uses is neither economically nor politically practical. Therefore, immediate termination is rare. In fact, absent some significant public health and safety concern, immediate termination of a nonconformity is virtually unheard of anymore.
This brings us to amortization. Amortization allows a nonconformity to remain for a specified grace period, perhaps a few months or a couple of years. After the grace period ends, the nonconformity must be brought into compliance with the new law (or removed, if compliance is not possible). The amortization concept is most often seen applied to roadway advertising signs or billboards. State laws address certain amortization requirements for specific industries often targeted by amortization requirements in local laws – advertising signs and adult uses, for example – and should be consulted as to options.
Lastly, and most commonly, we must talk about grandfathering and continuation of the nonconformity. The grandfathering and continuation of the nonconformity is basically what it says: the suddenly nonconforming structure, lot, or use is “older” than the new law (it’s a grandpa!) and so it is allowed to continue under the new law subject to certain restrictions. Grandfathering and continuation are governed by the local laws. The typical restrictions found in local laws on grandfathered and continuing nonconformities are: (1) restrictions on the expansion, enlargement, or intensification of the nonconformity, (2) restrictions on the repair or replacement of the nonconformity, (3) a change in the nonconformity, and (4) abandonment or discontinuation of the nonconformity.
So, if the local laws applicable to your structure, lot, or use change, you must first determine whether the change in laws renders your structure, lot, or use a nonconformity. If not, great news. If so, however, you must then determine in what way your structure, lot, or use is nonconforming and in what way the local laws treat your resulting nonconformity. There are also private consequences – mortgage issues, and so forth – that can result from a nonconforming situation, as well. In other words, the cascading issues resulting from changes in local laws will require scrutiny of your investment and, dare we say, legal help.
Finally, a word about the distinction between vested rights and the grandfathering and continuation of a nonconformity. Generally speaking, a vested right (whether statutory or common law in nature) governs the development of a structure, lot, or use without interference by a sudden change in local law. By contrast, again, generally speaking, nonconformity laws govern the manner in which a completed structure, lot, or use is able to persist in its existence after the sudden change in local law. So, if you are developing a structure, lot, or use and the law changes, you would look to vested rights laws; if you own or operate an existing structure, lot, or use and the local law suddenly changes, however, you would look to nonconformity laws.
Next time, we’ll get into more detail about the mechanics of the common restrictions applicable to grandfathering and continuation of a nonconforming structure, lot, or use. Much ink has been spilled over this issue – both at the local government level and at the judicial level – which will require some helpful analysis.