Nonconformity in Land Use

Nonconformity is an issue that has come up quite a bit in my time practicing land use law in Maine. It is also a concept that commonly leads to a lot of confusion. Nonconformity refers to a condition on property that does not comply with the land use regulations in place. Nonconformity is important because, generally, nonconforming conditions are allowed to continue after an ordinance is enacted rendering the use, lot, or structuring nonconforming. This is commonly referred to as “grandfathering”.

Pre-existing nonconformities are allowed to continue despite their regulatory status as a way to prevent constitutional takings claims (Similar to the rationale behind variances discussed here).    With grandfathering can come tricky rules that govern expansions, reconstruction or changes in a nonconformity.  For example, commonly an ordinance will require a nonconforming structure that is destroyed to be rebuilt within a certain time frame or else the grandfathered status will be lost.

Another commonly misunderstood piece of nonconformity is the distinction between nonconforming uses, nonconforming structures, and nonconforming lots. While it is easy to think this distinction does not matter and is just a matter of semantics. There can be some practical differences when talking about what events will trigger the loss of grandfathered status depending on if you’re talking about uses, structures or lots.

Nonconforming use refers to a use of property that is not permitted in the zone where it is located. A common example would be a commercial activity in a residential zone. Many ordinances will address whether one conforming use may be switched to another use. Sometimes changes of use will be allowed if the applicant can show that the change does not increase the adverse impacts of the nonconformity, such as traffic or noise. 

A nonconforming structure refers to a building or structure that does not meet the standards of the ordinances. Commonly this would be a home or other building which is located within the setback area of a lot. Ordinances will commonly allow additions to nonconforming structures so long as the addition does not increase the nonconformity. If a non-conforming structure is demolished or destroyed by natural disaster, the structure will often need to be replaced within a certain period of time to prevent losing grandfathered status. For example, Brunswick’s Zoning Ordinance requires a building permit to be obtained within three years. Brunswick Zoning Ordinance § 1.6.4

Nonconforming lots are lots that do not meet minimum dimensional or density requirements of an ordinance. Usually this will be a lot that was divided prior to the zoning being enacted. One big issue that arises from nonconforming lots, is whether a lot is merged with an abutting lot if acquired by its owner. The Maine Supreme Court has upheld merger clauses as applied to undeveloped lots. See Farley v. Lyman. Further, the grandfathered status of a merged nonconforming lot may also be lost when a lot is illegally divided. Day v. Town of Phippsburg

To conclude, these are just some of the issues to look out for when planning changes or expansions on nonconforming property. Consult with an attorney or other professional to determine the possible consequences of your plans beforehand.  


*Blog posts are meant to be brief introductions to legal issues. All posts are for educational purposes and are not a substitute for direct consultations with an attorney regarding your situation.