Nonconforming Uses: Legal Grandfathering in Claremont

Rules change. Buildings do not move. When a city adopts a new standard, some existing properties no longer comply, and the law does not generally require them to be torn down. They become LEGAL NONCONFORMING: lawful when built, out of step with the current code, and allowed to continue under conditions.

This is one of the most misunderstood concepts in local land use, and the misunderstanding costs buyers real money.

Two very different situations

Legal nonconforming. The use or structure complied with the rules in force when it was established, and it is permitted to continue.

Unpermitted. The work or the use was never lawful. It is not grandfathered by the passage of time, and it remains subject to enforcement.

People use the word "grandfathered" for both. Only the first is a legal status. The second is a defect wearing a friendly word, and it can surface as an enforcement case, a lender objection, an insurance problem, or a demand to remove work at the owner's cost.

The distinction is documentary, and the documents live at the building and planning counters. Our guide to what to ask for covers the requests that separate the two.

Nonconforming what, exactly

Codes usually distinguish several kinds, and the rules differ for each.

A nonconforming USE is an activity no longer permitted in the zone. A nonconforming STRUCTURE complies as to use but not as to dimension, such as a building sitting inside today's required setback. A nonconforming LOT is a parcel smaller or narrower than the current minimum. A nonconforming SITE FEATURE is something like a parking count or a driveway width below current standards.

A property can be nonconforming in one respect and fully conforming in others. Ask which applies rather than accepting a general label.

How the status is lost

This is the part that matters and the part nobody checks until it is urgent. Typical provisions terminate the status upon:

• Abandonment or discontinuance. Many codes end a nonconforming use after a continuous period of non-use, sometimes regardless of intent.
• Destruction beyond a threshold. If the structure is damaged beyond a stated share of its value, rebuilding as it was may not be permitted. This is the provision that surprises owners after a fire.
• Expansion or intensification. Enlarging a nonconforming use or extending a nonconforming structure further into a required setback is generally prohibited without a discretionary approval.
• Change to another nonconforming use. Usually not allowed, or allowed only to a use the code judges no more intense.
• Amortization, where a code sets a period after which certain nonconformities must end. Less common for housing, more common for signs and some commercial uses.

Each of these has a factual test and a paper trail. None should be assumed.

Why buyers get hurt

Three recurring scenarios.

A buyer purchases a property with an income-producing use, discovers the use is nonconforming, and then discovers the vacancy that occurred during escrow may count toward discontinuance.

A buyer plans to remodel a home that sits in today's setback, and learns that the addition cannot follow the existing wall line, which changes the entire design premise.

A buyer relies on a seller's word that an addition is grandfathered, and finds no permit record. Age does not legalize unpermitted work.

All three are avoidable with questions asked before removing contingencies. The dimensional standards behind the second are covered in our piece on setbacks, height, and lot coverage.

The questions to ask

1. Is the use, the structure, or the lot nonconforming, and in which specific respect?
2. What does the code say about repair, maintenance, and alteration of that nonconformity?
3. What is the discontinuance provision, and how is the period measured?
4. What happens if the structure is substantially damaged?
5. Is there permit history establishing that the condition was lawful when created?

Five questions, asked at the counter, against the parcel number. The last one is the one that separates a legal status from a hopeful assumption.

Repair, maintain, and the line between them

Nearly every code allows ordinary repair and maintenance of a nonconforming structure. The disputes arise over where maintenance ends and reconstruction begins.

Replacing a roof covering is maintenance. Replacing the roof structure may not be. Replacing siding is maintenance. Removing and rebuilding a wall that sits in the setback is frequently treated as reconstruction, and reconstruction can trigger the requirement to comply with current standards.

The practical protection is sequencing and paperwork. Ask before the wall comes down, not after, and get the answer in writing from the counter. A demolition discovered mid-project is the expensive version of a question that costs nothing to ask in advance.

Living with it

Legal nonconforming status is not a defect in itself. Plenty of well-loved older homes sit closer to a line than today's code would allow, and nothing about that is a problem until someone wants to expand, rebuild, or finance against an assumption that turns out to be wrong.

The realistic posture is to know exactly what the status is, know how it ends, and plan around those provisions rather than discovering them under time pressure. If your plans require relief, the mechanism is usually a discretionary approval, and the findings for that are covered in our piece on variances.

The rule

Never accept "it's grandfathered" as an answer. Ask for the record that proves it was lawful when created and the code section that governs its continuation.

Verify at the city rather than from a listing remark, a seller's memory, or an article like this one. Start at the City Development hub for how the surrounding approvals work.

Anthony Grynchal has been licensed in California since November 2009.