Conforming Use or Non Conforming Use

[YankeeFan]

OK...I have a question I would like to hear some comments on...I've read a lot of the zoning/ building permit/no building permit issues/responses presented in a prior thread in this forum but this is my question. If I have a property built "legally" in the 1950's and in "conformity" with all building codes at the time...but....fast forward to 2012 with many new building codes and construction expectations and requirements this property is still a "legal" use in this zoning district but "conforming use" requirements/definitions have changed due to new egress window height requirements, firewall requirements, electrical service amperage minimums increased requirements, window "natural" light area requirements have increased. This property type is still a legally compliant zoning use, that hasn't changed, as this property type is allowed legally in this zoning district, but has the "conforming" use changed and does this have to be disclosed in the report and commented on with cost to cures for each of these potential issues? Does a client for a federally related transaction need to know if the electrical service needs to be updated to meet "conforming" use status, or the basement bedroom windows don't meet 44" sill heights to meet present "conforming" use status, or there is no firewall separation between units which is required to meet present "conforming" use status, (ie duplex), or that duplex units now require two separate forced warm air furnaces to presently be considered "conforming" use status. Where does it end??? I know...Scope of Work...if the client wants to know this...then provide it but...do I have an obligation to provide this information regardless so as not to be misleading to the client? Does this "conforming" use status have anything to do with the "zoning" aspect of our forms subsequent to year built dates? There it is...fire away with your thoughts...I really want to read what everyone thinks.

 

[The Warrior Monk]

"Use" refers to "property use," not building code compliance. A property improved with single-family residence built in the 1950s is still a legal use if permitted by zoning. FWIW, I personally distinguish between property use and dimensional/setback issues in my reports.

The building itself can obviously be out of compliance with current building codes. That is a separate issue. How that is handled is going to depend on a whole host of factors, such as client requirements, if the building is so antiquated that it affects value (e.g., 30-amp service in a 3,000 sq.ft. house), etc.

 

[Elliott]

Yankee asked, "Does a client for a federally related transaction need to know if the electrical service needs to be updated to meet "conforming" use status, or the basement bedroom windows don't meet 44" sill heights to meet present "conforming" use status, or there is no firewall separation between units which is required to meet present "conforming" use status, (ie duplex), or that duplex units now require two separate forced warm air furnaces to presently be considered "conforming" use status. Where does it end???"

No. Duh.

 

[J Grant]

You are mixing up concepts.

Legal use, is subject legal per zoning, or granfathered in as legal.

Conforming use is a neighborhood question, re, does the subject "conform" to the neighborhood in style, appeal, building type, size, etc...re, if your subject is a 6000 sf new mansion in a neighorhood of older 1200 sf homes, no it does not conform.

Construction/condition: You are talking about building codes which have changed and gotten more stringent since an older home was built. Our job is to determine value, do buyers accept that an older home may lag behind latest building codes, and if so, what are they paying for these older homes.

Condition of subject is to be disclosed and discussed in report so lender /client gets a picture of "what is", unless we see a condition that is a fire or safety hazard, it is not our job to decide if a home needs to be updated to current building codes.

 

[hglenbetts]

In my area, most (all) municipalities have zoning codes that cover the size of the lot, the type and quality of improvement, and the use of the lot and improvement. The codes tell us if the lot and subject "Conform" to the current codes, and if they do not, are they still considered legal based upon "Grandfathering".

One example is a file I completed just two days ago. The subject is a residential house on a 40 ft lot. The zoning use is small business and the required lot size is 70 front feet minimum. The lot was created prior to the 70 ft requirement, so the municipality permits the continued "enjoyment" of the lot. This is Legal, non-conforming.

The residential use is permitted because the use also pre-dated the zoning.

The conforming to code and legality of a property and it's improvements needs to be reported on, just as the conformity to the neighborhood, and it's effects on marketability and value.

Two different issues and both need to be analyzed.

 

[CANative]

You are mixing up concepts.

Legal use, is subject legal per zoning, or granfathered in as legal.

Conforming use is a neighborhood question, re, does the subject "conform" to the neighborhood in style, appeal, building type, size, etc...re, if your subject is a 6000 sf new mansion in a neighorhood of older 1200 sf homes, no it does not conform.

Construction/condition: You are talking about building codes which have changed and gotten more stringent since an older home was built. Our job is to determine value, do buyers accept that an older home may lag behind latest building codes, and if so, what are they paying for these older homes.

Condition of subject is to be disclosed and discussed in report so lender /client gets a picture of "what is", unless we see a condition that is a fire or safety hazard, it is not our job to decide if a home needs to be updated to current building codes.

Disagree J. If you have a 75 year old hamburger stand on a site that doesn't allow commercial uses after zoning finally came in in the 1970's but the use was allowed to continue, that is a non-conforming use.

There are endless examples of legal, non-conforming uses.

You're neighborhood conformity argument is one of harmonious uses in the context you are describing.

 

[Pittsburgh Pete]

You are mixing up concepts.

Legal use, is subject legal per zoning, or granfathered in as legal.

Conforming use is a neighborhood question, re, does the subject "conform" to the neighborhood in style, appeal, building type, size, etc...re, if your subject is a 6000 sf new mansion in a neighorhood of older 1200 sf homes, no it does not conform.

Construction/condition: You are talking about building codes which have changed and gotten more stringent since an older home was built. Our job is to determine value, do buyers accept that an older home may lag behind latest building codes, and if so, what are they paying for these older homes.

Condition of subject is to be disclosed and discussed in report so lender /client gets a picture of "what is", unless we see a condition that is a fire or safety hazard, it is not our job to decide if a home needs to be updated to current building codes.

You are mixing up concepts as well.

Relative to zoning a use can be legal and not conforming (not to be confused with the concept of conformity that you reference above). The conformity relates to bulk and area requirements in the zoning District--i.e. front yard, lot coverage, side yard, minimum required lot area, etc.

So a dwelling may be a legal use. Howevever, if its site is smaller than required in the zoning district, the property is legal non-conforming. It does not conform to zoning requirements.

That is how we've always addressed and interpreted such matters.

 

[J Grant]

Yes, I recognize in zoning that conforming is an issue as well as conforming in neighborhood. An example such as given is always welcome.

I was trying to separate some of the concepts for the OP who was mixing in the concept of conforming use with construction and building codes.

 

[Ken B]

Who's on first?


I would refer the applicable Land Development Code and/or Comprehensive Plan. What it says about a subject in my area may not be the same as it says about the topic in your area.

 

[Terrel L. Shields]

After reading the above, I hail the wisdom of Houston for never imposing an idiot solution called "zoning" to property. It speaks of a wisdom lost upon the remainder of the nation apparently.