Grandfathered Zoning

(navajo county az)

Visitor Question: I bought a house that is ten feet from the south side property line and is angled to the north. This allows room to add a detached garage on the south side towards the front of the house.

The setbacks have changed since the house received its certificate of occupancy. The side set backs are now twenty five feet.

Since the house is already grandfathered for the ten foot setback do I need a variance to build a garage 15 feet from the side property line if all other requirements are met?

Editors' Reply:

Since this is a public website, let's explain for our other visitors what "grandfather" means when we're talking about zoning.

If you are "grandfathered," you are allowed to live by an earlier set of rules.

You're presuming that your proposed new garage would be "grandfathered in," another term that people use, since your setback would have been sufficient under the zoning ordinance at the time your purchased or built your house.

However, that's not necessarily true for two reasons:

(1) Your particular town or city may not allow for grandfathering in their particular zoning ordinance. Just because it is a common practice, don't assume this will be true without checking the actual law carefully.

Since you've been so gracious as to share a question with us, we'll just go ahead and assume that you've done that, and that your zoning ordinance has some sort of grandfather provision.

(2) Sometimes grandfathering covers only structures that already were in existence when a change took place, or when a new zoning ordinance was enacted.

Since you are proposing to build a new structure (and while each zoning ordinance is free to define structure any way it wants, we haven't seen one yet that wouldn't consider a garage a structure), it might be true that your house wouldn't be considered nonconforming if its setback did not meet a legal requirement that went into effect after it was built, but that a brand new structure still couldn't be built.

Wow, that was a long sentence.

But let's just assume too that you've checked and that even new structures on your property don't have to conform to a new law because every potential change on your lot would be considered grandfathered. That would be good news for you.

If you've checked with your local officials and they tell you that not only your house but also your potential garage is grandfathered in under the old ordinance, then you usually wouldn't have to get a zoning variance either. You should be able to just go to the counter and get a building permit.

So let's summarize:

1. If your house itself is grandfathered because the structure existed before the more strict zoning regulations, often you could add on to the house but not build a new structure. A detached garage would be considered a new structure. (An attached garage is a room addition in most towns.)

2. If your house and every potential accessory building (a detached garage would be one type of accessory building, as would a shed) on your lot is grandfathered, most ordinances would allow you to just get a building permit.

3. If your local zoning ordinance is a little quirky and not as typical, you might be told that you have to obtain a zoning variance. In that case, we would say that you weren't grandfathered, but we're probably just taking words a little more technically than you would like.

If you do need to seek a variance, do read our page about them so that you have some idea of how to present your case. A zoning variance usually has to go to a zoning board of appeals, board of adjustment, or similar independent board that should be run according to very strict legal standards. You need to be well prepared.

We hope this helps you understand the possibilities. It's all up to your local zoning ordinance and the people who interpret it.

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