When Do Grandfathered Nonconforming Land Uses Terminate?

In North Carolina, a grandfathered nonconforming land use is a land use that was in effect prior to a ordinance or law that made that land use no longer allowable. As one example reported in a North Carolina judicial decision, a landowner with lakefront property was operating a boat repair business. Then, the local municipality passed an Ordinance that re-zoned all of the lakefront property as residential only. Thus, no commercial businesses were allowed to operate. However, because the landowner's boat repair business pre-dated the Ordinance, his use of the land was "grandfathered" even though his use of the land was now nonconforming.

So, when and how do grandfathered nonconforming uses terminate? The answer depends on the county or municipal Ordinance. Even though North Carolina law protects existing land use, local government ARE allowed to enact regulations, restrictions and limitations on such grandfathered nonconforming uses. If a landowner violates any of the regulations, restrictions or limitations, then the grandfathered nonconforming use can be terminated. Here are a few examples.

Continuous operation or use is one example of a requirement for allowing a nonconforming use to continue. We can see an example from this Ordinance enacted by Morehead City, North Carolina. Section 8-6.2 of the Ordinance states:

"Any nonconforming use which has been visibly discontinued, unused, abandoned or ceased for a continuous period of one hundred eighty (180) days or more is not allowed thereafter to resume or restart."

So, in Morehead City, a grandfathered nonconforming use must be continuous and cannot be "discontinued, unused, abandoned or ceased..." for more than 180 days. The Ordinance has a provision for granting a one-time extra 180 period if the property in question has been put up for sale. Beyond that, the land in question will have to thereafter comply with the zoning Ordinance.

However, as one would expect, local Ordinances and laws will differ. Thus, in Vance County, the Ordinance allows non-use or abandonment for up to a year. See Vance County Ord., §5.2 ("If such nonconforming use is discontinued for a continuous period of more than one year, everyfuture use of said land shall be in conformity with theprovision of thisOrdinance.")

Another example of a permissible limitation is that the nonconforming use not expand or extend beyond what it was prior to the new land use statute. Buncombe County has an Ordinance with such a provision. See Bunc. County Ord., Sec. 78-657(5) which states:

"A nonconforming use may not be extended or enlarged, nor shall a nonconforming structure be altered except as follows:

1. Structural alterations as required by law or ordinance to secure the safety of the structure are permissible.
2. Maintenance and repair necessary to keep a nonconforming structure in 1774 sound condition are permissible.
3. Expansion of a nonconforming use of a building or structure into portions of the structure which, at the time the use became nonconforming, were already erected and arranged or designed for such nonconforming use is permissible.
4. Alterations or expansions of an existing structure designed to improve the safety, function, or the appearance of the structure are permissible. The square footage of any expansion shall be no greater than the square footage of the existing structure.

Vance County has a similar provision. See Vance County Ord., §5.2 ("... no such nonconforming use shall be extended to occupy a greater area ofland thanoccupied by such use at the time of the passage of this Ordinance.") By contrast, Morehead City chose to allow nonconforming uses to be expanded or extended if the Board of Adjustment gave approval. See §8-7 ("The expansion, extension or alteration of a nonconforming use may be permitted if the Board of Adjustment issues a special use permit pursuant to Section 3-7.2.")

As a final example, local ordinances and laws may invalidate a grandfathered nonconforming if there is a change from one nonconforming use to another. Morehead City allows this upon approval of a special use permit. By contrast, Vance County does not allow a nonconforming use to be changed to another nonconforming use. Vance County Ord., §5.3 ("A nonconforming use shall only be changed to a use listed as permittedor permitted withconditions for the zonein which such a nonconforming use is located."

For more information, and to schedule a confidential consultation with experienced and dedicated zoning and land use attorneys in Charlotte, contact Arnold & Smith, PLLC. Use our “Contact” page or give us a call at 704-370-2828. We handle land use, zoning and condemnation legal matters in Mecklenburg County and elsewhere in North Carolina. We have offices in Charlotte, Lake Norman, and Union County.