Last time, we introduced you to the concept of nonconformity laws in North Carolina. This time, we’ll spend some energy discussing the most common (and legally charged) aspect of nonconformity laws: how local laws restrict grandfathered nonconforming structures, lots, or uses while allowing the nonconformity to continue.
Probably the most common local restriction on a grandfathered nonconformity is the restriction on the expansion, enlargement, or intensification of the nonconformity. In some instances, the “expansion, enlargement, or intensification” is clear: adding space to a nonconforming structure, expanding the space utilized by a nonconforming use within a structure, adding structures to or otherwise intensifying the use of a nonconforming lot. More often, it is less clear what constitutes “expansion, enlargement, or intensification” of a nonconformity. While the local law is the first place to look, the North Carolina courts have held the following to be an expansion, enlargement, or intensification of a nonconformity: nonconforming campground addition of campsites to parcel already in use as a campground, nonconforming mobile home park addition of spaces to acreage already permitted for mobile home spaces, nonconforming gas station replacement of a 3,000 gallon storage tank with a 9,000 storage tank, nonconforming asphalt plant replacing old equipment with new equipment that would increase production, nonconforming hotel adding parking deck over parking lot to increase utilization, nonconforming topless bar and restaurant turning restaurant portion into lingerie sales and adult bookstore, nonconforming use turning open air storage space into storage building.
Another local restriction on a grandfathered nonconformity is the limitation of the repair or replacement of a nonconforming structure. It is common for local law to allow repair within a defined paradigm, usually based on the cost of repair as a percentage of the fair market value of the nonconformity. Replacement is rare and is often prohibited. As far a repair is concerned, the language of the local law is, again, critical. In those cases where repair is permitted within a certain percentage, the repairing party is wise to take careful steps in order to make its case. After all, if the structure is nonconforming, it is likely the plea to repair will be met with scrutiny, if not resistance.
Yet another restriction is the change from one nonconforming use to another nonconforming use. Generally speaking, local laws will commonly require that a nonconforming use change, if at all, into a conforming use.
Lastly, we’ll discuss restrictions on the abandonment or discontinuation of the nonconformity. This is basically what it sounds like. First, if a nonconforming use is discontinued by the owner/operator for a specified period of time – usually a couple months – the legal nonconforming status is lost, such that only a conforming use can then be employed. Second, though less frequently, if the nonconforming use is abandoned – which is not tethered to a period of time, but depends on the proven intent of the owner/operator of the use – then, similarly, the legal nonconforming status is lost. Again, it is critical to pay attention to the local laws.
If it is determined your structure, lot, or use is a nonconformity, and there is no way around the determination, you must pay attention to the applicable restrictions. And why the “applicable restrictions” within the local laws may be clear on the face, it is important to understand the pages of caselaw interpreting these laws in order to determine your best course of action. Indeed, there are instances in which a nonconforming situation is an advantageous business outcome if thought through.