The Neighbor’s House Doesn’t Meet Zoning – Why Should Yours?
A likely reason that buildings in any given zoning district might not conform to the current zoning regulations of that district is because they were constructed before the current regulations existed. In the case of a neighbor’s house, or even in the case of your own house, any portion that existed prior to the current zoning is allowed to remain as-is, in perpetuity, as long as it is not altered. If not altered, it will maintain its status as a pre-existing non-conforming structure.
Many believe that if a neighbor’s house violates zoning standards, then that sets a “precedent” for everyone else, who can now replicate the violation. Rather, a violation is only allowed if it existed before the zoning regulation existed.
Pre-existing Non-conformance is the Opposite of Precedent
Unlike precedent, which would (but in zoning never does) give basis for replicating an offense, pre-existing non-conformance gives permission to non-conforming properties to continue their offenses, for now. The term may likely be defined using different words from one municipality to the next, but the concept is the same: let the built environment catch up with evolving zoning regulations over the course of time. Only let regulations come to bear on a pre-existing non-conformity when a building alteration that affects it is occurring through the owner’s self actions, not through an untimely order or mandate of newly installed regulations. And then, only require the portion being altered to comply.
In the town of Essex, CT, touted for the charming, antique building fabric of it’s historic colonial era village, the preamble to the zoning regulation has only two paragraphs. one explains the general purpose of the regulations, and the other explains the intent of the regulations with regard to non-conformities.
The non-conformity paragraph reads (emphasis placed by me):
“It is hereby declared that nonconforming uses, improvements and characteristics are incompatible with and detrimental to permitted uses, improvements and characteristics in the Districts in which they are located; they cause disruption of the comprehensive land use pattern of the Town; they inhibit present and future development of nearby properties; and they confer upon their owners and users a position of unfair advantage. It is a fundamental principle of zoning law that non-conformities are not to be expanded and that they should be abolished or reduced to conformity as quickly as the fair interests of the parties will permit. This principle is declared to be the intent of these regulations. It is the further intent of these regulations that existing non-conformities shall not cause further departures from these regulations and therefore the existence of any present nonconformity anywhere in the Town shall not in itself be considered grounds for the grant of a variance in respect of any other property.
Paragraph 10B of the Town of Essex, CT Zoning Regulations
The concept of evolving zoning standards is not so different from Darwin’s theory of evolution. In order to promote and further a standard that is reasoned to be good and desirable in the built environment, the standards of the past that are deemed ineffective or detrimental are not permitted to carry forward.
And so your house addition must be smaller than you’d like it to be, so that you will not exceed the total permitted lot coverage, while your neighbor’s house that was built under a previous regulation, when permitted coverage was more generous, enjoys a larger house. And you must respect the forty foot front yard setback requirement, even though your next door neighbor’s house sits just ten feet off the road. Because your neighbor’s house was built in the 19th century, and close proximity to the road was valued in the way people lived at that time.
One day, it may be tomorrow or it may be fifty years from tomorrow, someone may treat that house as a tear-down. At that time, the new house will be required to conform with the zoning regulations that are current to its day. And until that day, the occupants of the current house can live with the hope that a horseless carriage does not careen off the road and into their home.
As Quickly as Fair Interests Will Permit
For the most part, zoning regulations are reasonable, and they change over time, with reason, in order to support the evolving interests of the community they serve. In fact, it would be very unreasonable to require all buildings in a district to be altered each time a new version of the zoning regulation happened to create occurrences of non-conformance in the existing built environment.
Except in cases of extreme natural disaster or a community wide construction project, or Napoleon III reconstructing Paris, or other similarly atypical events, the built environment changes very slowly, over time. A community that has interest in shaping the built environment for the betterment of itself, its property owners, its residents and its visitors has a vested interest to ensure that the evolution of its local regulations is oriented toward a positive way forward.
Regulations can be burdensome, but is the burden always unnecessary? Most would say a burden on the public is not unnecessary if the good of the public welfare is involved, which is what regulations are meant to be about, after all. Additionally, as a person who addresses zoning regulations regularly, it’s been rare in my experience to have come across a zoning regulation that could be considered unreasonable.
Would it be unfair if suddenly the height restriction on buildings was changed to a lower height, and owners of previously conforming buildings were forced to lower their structures? I think so! For a municipality to mandate remedial construction in each instance of a non-conformance would be an enormously undue burden. On the other hand, should anything newly constructed be waived from compliance, just because it is attached to something that’s “grandfathered”? Where would the line be drawn? People would simply maintain a small piece of the existing building so they could build a basically new building using old regulations that the public has already elected to discard.
The fact of the matter is that zoning regulations take the long view when considering what’s already been built; the majority of the built environment will ultimately come into better standards, over time, drip by drip, by drip. Zoning regulations are a tool for planning the built environment, with special provision built in for executing the plan within reason. That provision is the concept of pre-existing non-conformance.
Proving that a building existed before zoning regulations
The proof that your house existed before zoning regulations is on record at the building department, where the original building permit should be on file. If the building was constructed before records were kept, chances are there was not a zoning regulation at that time, either. Usually when it comes to the proof, it is regarding proof that a building or a portion of it was built with proper permits. An earlier un-permitted addition is not a pre-existing non-conformity – it is an illegal construction and upon discovery will be required to be removed or otherwise brought into conformance.
Can you rebuild something that was pre-existing non-conforming after it is gone?
In short, no. But there are exceptions.
If a portion of your house was carried away in a flood or demolished by some disaster of nature, then you have a possibility to repair that damage or loss if the going market cost of doing that construction work does not exceed a value threshold that is defined in the regulation – very often 50% of the appraised value of the entire building. If the entire house was destroyed, your re-build would be subject to the current regulations.
If you had demolished a part of your house some years ago, or if a prior owner demolished a part of the house that appears in historic photographs, and now you’d like to rebuild it as it was for whatever reason, your chances of getting a zoning permit as-of-right are slim to none, with the slim end of the spectrum being the chance a valid hardship is present on which to obtain a zoning variance.
It is not out of some nod to or appreciation of antiquity that the concept of pre-existing non-conformance exists. That is the duty of Historic Districts and Registers. Again, the purpose here is to nudge the built environment into alignment with the current established standards, one building project at a time, in a reasonable but not overly permissive way.
In What Circumstances Can You Extend a Non-conformity?
Generally speaking, there are no circumstances in which you can extend a non-conformity.
For instance, if your house extends into the area of a required setback, you cannot extend it further. Furthermore, the extent of the non-conformance cannot be considered the new setback distance, like a precedent. In other words, if a portion of your house comes to within five feet of your side property line when the regulation calls for ten feet, anything you construct that is attached to the non-conforming portion will not be permitted to get closer than ten feet to the property line, even a second floor addition onto the non-conforming portion.
Another example: let’s say you enjoy 30% lot coverage where only 25% is permitted and you want to make alterations to the house that would reconfigure its footprint. If you believe you are entitled to the extra 5% because it’s “grandfathered”, you could be correct, or not.
If you intend to remove 15% of coverage and put it back, reconfigured, you may or may not be allowed. Be very careful to check. Some municipalities will treat the construction period as a time of suspended zoning rules, and if the result matches the start, then all is good. But others will treat things differently. Because the project will at some point, by virtue of demolition, technically reduce coverage to a temporary conforming status, some zoning officials will deem the reconstitution of the building to the previous coverage as a zoning violation.
Zoning regulations are subject to all kinds of interpretations, and if you find yourself in a difference of opinion with a zoning official, it will very likely be the official’s interpretation that prevails. With regard to replicating a neighbor’s pre-existing non-conformity in your new addition project, it’s my hope that this article has oriented you to a proper alignment with zoning official’s interpretation, before you bring your application for a zoning permit.