Abandoned Non-Conforming Use

Real Estate Agent with Coldwell Banker Residential

Warning:  I don't know what I am talking about here.  I am simply repeating what I am being told.  I don't have any reason to disbelieve what I am being told, I just haven't seen the ordinances in print to confirm my understanding.  Perhaps someone who ACTUALLY knows about this stuff will weigh in and explain zoning to me. I am repeating my understanding of what is going on because I think it is really interesting.  Part of the reason I love my job is that I get to learn new and interesting stuff all the time.

Anyway.....I am making offers on two commercial buildings in an older part of town.  In both cases, the underlying zoning is SF, single family.  In both cases, many years ago, these buildings were built, in violation of that zoning.  That makes them both a "non-conforming use", something that apparently is allowed to continue as long as the use isn't changed.  They are not "grandfathered" in. If something is "grandfathered", that means that the building was there before the zoning was.

Apparently, once that use is "abandoned", it rolls back to the underlying zoning.  In one case, the use may well have been abandoned.  That building is just sitting, derelict.  It is also the most problematic non-conforming use, the one that has the highest level of visibility, the most active neighborhood association, the most people watching the area.

One way that zoning use gets enforced is through the utilities.  The utilities are off in one building.  In order to get the utilities turned back on, it is necessary to get a Certificate of Occupancy.  That means that an inspector comes out and looks at the building.  The inspector pokes around, asks questions.  The utilities don't get the clearance to go ahead and get turned on until the inspector issues the CO. 

I have dealt with this problem in another part of town where a client rented a commercial building with the intent to run his business there and also to live in.  He couldn't move in anything that looked like residential use until after the CO was issued and the utilities turned on.  Dallas doesn't have "lesser included use", a zoning strategy where zoning is though of as a hierarchy and the property can be used for any use up to the level of the actual zoning.  In other words, if a property is zoned commercial, it could be lived in or used as an office because those are both "lesser uses".  Dallas doesn't do it that way.  If a property is zoned commercial, you can't live in it.  There is a permitting provision that makes it possible to do it, but I haven't gone through that process and can't describe it.

In the case of these two buildings, my buyer, an cranky investor with a strong bend toward historic preservation, is completely willing to convert these buildings into residences.  He is almost looking forward to being driven to do that.  We sat out on his front porch last night, in the gathering gloom of twighlight, signing the paperwork to support offers on these buildings.  While he signed papers he explained this zoning situation to me.

See.  Isn't all this intersting?  Does that make me a Serious Real Estate Geek?

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Atlanta's Home Inspector, David Lelak IHI Home Inspections
IHI Home Inspections 404-788-2581 - Canton, GA
Experience the IHI Difference

I love it, Judith! Non Confromists Unite!!  Sounds like a wonderful find for your client, a wonderful piece of history for the community and wonderful learning opportunity for you :) ~ Jennifer the IHI Office Girl

Aug 23, 2011 03:06 AM #1
Mike Carlier
Lakeville, MN
More opinions than you want to hear about.

Sometimes things work out well and sometimes not.  I'm almost exclusively a residential agent, but once ran into an abandoned non-conforming commercial use.  It was a setback issue with a gas station - convenience store that had been closed for fourteen months.  Pumps were not far enough from the roadway according to current setback requirements, and the non-conforming use was broken because the property was not in use for more than twelve months.  The land was situated in a way that changing the pump location would have required relocating the building.  There was no room to do that because there were wetland setback issues.  That happened in 2002, and the property is still vacant and for sale.  It's located at an interstate exit to a fairly well-traveled state highway. 

Aug 23, 2011 05:17 AM #2
Chris Ann Cleland
Long and Foster REALTORS®, Gainesville, VA - Bristow, VA
Associate Broker, Bristow, VA

This is one of the reasons I stick with residential.  I have no clue about what is happening the world of commercial real estate.

Aug 23, 2011 05:45 AM #3
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Judith Abbott

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