A lawfully pre-existing nonconforming property is a use,
structure, or lot that existed lawfully prior to the enactment of
the zoning ordinance. These properties have to have been
continuously maintained since the effective date of that ordinance,
even though it doesn’t meet the standards the ordinance for its
particular zoning district. But what does this really mean?
Let’s say you’re looking to buy an old store located in
a sea of tightly packed single-family homes in a gentrifying
neighborhood just outside downtown – what better location for a
fancy cheese shop or brewery, right? Or perhaps you see an
advertisement in Uncle Henry’s for a former campground on a
cherished Maine lake now surrounded by homes straight out of Dwell
Magazine on lots so big you don’t have to feign niceties with
your neighbor. So, besides being places this blogging attorney
would rather be right now, what exactly do these hypothetical
properties have in common?
Well, typical (and arguably outdated!) zoning ordinances in
Maine do not allow commercial uses right in the middle of a
residential neighborhood or permit the old-school campgrounds full
of small cabins and trailers packed next to each other right up on
the water’s edge. So these two hypothetical properties would
probably only be legal if they existed before the zoning law that
prohibited such uses was enacted. In this case, they would be
allowed to continue as “legally nonconforming” or
What someone looking to buy or sell such a property can or
can’t do with a nonconforming property depends greatly on the
specific zoning ordinance at issue, but there are some general
rules and some recurring situations.
The General Rule
Generally, if you have a nonconforming structure or use, you can
continue to use it as it always has been, but you can’t change
or expand that use unless you can meet the standards for whatever
exceptions the zoning ordinance allows for changing, expanding, or
relocating a nonconforming property. This general rule makes sense
if you consider the competing policy goals at issue here, which the
Maine Supreme Court summed up succinctly in Day v. Town of
“The policy of zoning is to abolish nonconformi[ties]
as speedily as justice will permit. In light of this policy, zoning
provisions that restrict nonconformities are liberally construed,
and zoning provisions that allow nonconformities are strictly
construed. A grandfather clause, which allows the limited
continuance of nonconformities, is included in zoning ordinances in
order to avoid takings challenges. It is designed to strike a
balance between a municipality’s interest in abolishing
nonconformities and the interests of property owners in maintaining
land uses that were allowed when they purchased their
Here are some common issues that arise with these
Is it a nonconforming lot, structure, or use?
First, it is important to know whether you are dealing with a
nonconforming lot, structure, or use. It may seem obvious, but the
distinction can be critically important. A nonconforming use may
not be able to change to another use without losing its
nonconforming status, but a nonconforming lot will remain a
nonconforming lot no matter how it is used (.usually).
Can the nonconforming use change?
Ordinances often allow some change in use, such as increasing
the intensity of an existing use. But many ordinances (and courts)
will draw the line when the change is so great that it alters the
property’s character. For example, it would probably not be
permissible to renovate a nonconforming boathouse into a bunkhouse
and put it on Airbnb because this new use would fundamentally
change the quality and character of the old use. But, by
comparison, it’s doubtful a town or court could shut down a
nonconforming business that just got more successful over time.
Can a nonconforming structure be expanded?
Maybe. Again, it depends on the ordinance. For example, the
Mandatory Shoreland Zoning Act requires municipalities to enact
land use controls for all “shoreland areas” that meet
certain minimum requirements. A 2015 amendment to the model
shoreland zoning guidelines for how the footprint of nonconforming
structures may be expanded was a hot topic a few years ago. See our
blog about it here. Generally, depending on
the structure’s location in relation to the normal high-water
line of the water body, the footprint may be expanded no more than
the greater of 30% larger than the existing footprint or than a
specified number of square feet that differs depending on the
distance from the normal high-water line of the shore.
Can a nonconforming property be sold?
Nonconforming status follows the property, not the owner. So
long as there is no gap in time or other significant change, like a
change in use, a property can be transferred from seller to buyer
without being stripped of its nonconforming legal status
Nonconforming rights not used continuously can be
Ordinances commonly provide that a nonconforming use that is
discontinued for a certain period of time cannot be resumed and
must now conform to the current law.
Watch out for a merger!
Most ordinances have a “merger clause,” which states
that when abutting undeveloped, undersized lots come under common
ownership, the nonconforming status of each lot is permanently and
irreversibly lost and the lots are forever merged into one.
Lightning strikes! – Can you rebuild a destroyed
Usually, an ordinance will provide that a nonconforming
structure that is destroyed or damaged to a certain degree may be
rebuilt. However, to replace the existing structure and avoid
having to meet the new ordinance standards, an owner must often
start and finish the construction within a certain time period and
match the footprint of the old structure.
The bottom line when it comes to nonconforming lots,
structures, and uses
In short, these issues can be tricky and can wind up in court.
Whether you are a buyer or seller of what you think may be a
nonconforming property, it is important to take a close look at the
applicable ordinances to determine what may or may not be allowed.
Rudman Winchell’s Land Use Practice Group is available to
* Author’s note: use of the term
“grandfathered” is disfavored because the word originates
from racist efforts by southern states in the 19th century to
create various laws to keep blacks for exercising their right to
vote. See this NPR article for more information.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.