Non-Conforming Rights (Grandfather Rights)

Non-Conforming Rights Determination Handout

A non-conforming use is defined as any lawful use of a building, structure, or land which does not conform to the zoning regulations where it is located. Non-Conforming uses usually occur when the use conformed to zoning regulations when it was originally established became non-conforming due to a zoning change or annexation.

In most cases, if you are able to establish that the property’s current use began before zoning changes made it non-conforming, you have a right to continue that use. That right is sometimes referred to as a “Grandfather Right.”

Uses that have been in existence, but never were lawfully permitted are not legal non-conforming uses.

Obtaining proof of a pre-existing non-conforming use can be done in several different ways.

• First you must establish when the use became in existence
• Second you must establish that the use was a permitted use per the laws at the time it was established. 

The following is a list of some (but not all) of the types of records which are accepted as proof of the use’s existence:

• A permit issued clearly identifying use at the subject address.
• If the property is rented, receipts showing dates of use.
• Receipts showing services or goods provided if the use is a type of business.
• Tax records.
• Statements from utilities, such as power, water or gas, which indicate time and amount of use.
• Notarized statements from neighbors who have observed the non-conforming use over the required period.

Not quite. Under certain circumstances, a non-conforming use will cease to exist, and cannot be reestablished. The most common reasons are:

• The Non-Conforming use is discontinued for a continuous period of one year without submitting intent to continue the use to the City.
• Another use has been established on the property.
• It is clear that the owner intended to abandon the non-conforming use, even if the elapsed time is less than stated above.
• Buildings or structures are damaged to an extent of 50% or more of their current assessed taxable value.
• Buildings or structures are deemed dangerous.

If you lose a non-conforming use, it cannot be re-established. In such a case, the property may only be used for the purposes specified by ordinance. The non-conforming use must be either discontinued or moved to a property which has the correct zone.

Garden City has a, Non-Conforming Status Determination Application, where the City Planner and/or the Legal Department will review your materials and provide an analysis of the documentation provided.

Nonconforming uses cannot be enlarged or expanded without a Conditional Use Permit approval. Changes to structures for routine maintenance may be required to be brought to current standards.

Applications are required to be submitted on the city approved form(s).  A link to the current forms is located here: link

The applications and forms most commonly associated with this application are:

 Non-Conforming Status Determination Application

For information regarding current fee amounts, please see the Fee link.