Nonconforming Uses and Noncomplying Structures

A use must be continuously maintained in order to qualify for nonconforming status. This means that a use must be operated without interruption, or at least on a regularly recurring basis. Each situation is evaluated individually, but a brief interruption in a use is usually not considered abandonment.

As it relates to state building code requirements, a “completed noncompliant structure” is a building or other structure that was constructed and completed without obtaining a building permit, passing inspections, or being certified for occupancy.

State law restricts cities and counties from using the fact of a completed noncompliant structure as the basis for requiring or withholding certain permits or approvals under certain circumstances.

First, permits or approvals may always be required for a completed noncompliant structure that poses a health, life, or safety concern, regardless of how long it has been on the property. However, for those completed noncompliant structures that do not pose any health, life, or safety concern, a city or county may not:

• Require additional permitting, engineering, or inspections for a completed noncompliant structure itself where it has been in place on a property for at least 10 years; or
• For completed noncompliant structures that have been in place for at least 5 years, use that as a basis to withhold some other permit or project approval for a construction project on the same property that is unrelated to and not affected by the completed noncompliant structure

A nonconforming use may be terminated if the use is determined to be abandoned. Generally, if a use is discontinued for at least one year, it is presumed to be abandoned. If the use is terminated, any future uses on the property must conform to current zoning ordinances.

A noncomplying structure is considered abandoned if the structure is voluntarily removed, or deteriorates to the point of being unusable. A structure that is involuntarily destroyed (by a fire or other disaster) is not considered abandoned. If a noncomplying structure is terminated, any new structures must comply with current zoning standards.

Expansion or enlargement of a nonconforming use should be discouraged. However, a local government’s ordinances may provide how and when a use or structure could be altered, or expanded. Repairs and maintenance of a noncomplying structure are usually allowed, especially if the repairs do not make the structure be “more noncomplying.”

A local government may require that a nonconforming use be eliminated, or “amortized” over a set period of time. The time allowed for amortization is based on what would be reasonably necessary for the owner to recover any investment in the use.

For the most part, a local government may require changes to a noncomplying structure needed to protect public safety, if the changes are reasonable and do not require extensive remodeling of the building. In particular, if the noncomplying structure is used for rental housing, reasonable changes are permitted only if needed for public safety.

Gibbons & Reed Co. v. North Salt Lake City (1967) - doctrine of diminishing assets allows nonconforming gravel pits to expand and use the entire property, not merely the existing area of operations.

M&S Cox Investments, LLC v. Provo City (2007) - during the amortization period, the owner may continue the use.

Vial v. Provo City (2009) - an owner established the existence of a legal nonconforming use but failed to rebut a presumption that it had since been abandoned.

Carlsen v. Board of Adjustment of the City of Smithfield (2012) - substantial evidence supported a decision of a municipal board of adjustment to recognize an existing nonconforming animal rights use.

Daines v. Logan City (2012) - a nonconforming right is a defense and burden is upon the party claiming it. In addition to proving historical use, owner must prove it was legally established.

Hatch v. Kane County (2013) - the court assumes, while not deciding, that nonconforming use principles apply to nonconforming lots.