Replacement of Non-Conforming Structure
by Jeff
(Del. Twp., Michigan)
Visitor Question: Is it possible (i.e. legal) to tear down a non-conforming structure (over 95%, Ordinance says over "75% replacement must fully comply with new code"), and increase the non-conformity (Ordinance says "shall not increase the non-comformity"), and increase the building size 80 square feet within the 15' setback area and get a NON-USE and a USE Variance?
Editors Reply: Jeff, as you probably are well aware, your question raises several issues, so we will take them one by one. Other visitors, Jeff's original title also referred to taking some of these actions without a permit, which only adds another element to the intrigue. (Sometimes we must shorten titles to conform with a word limit in our system.)
We are going to assume that the non-conformity is with respect to the zoning ordinance rather than the building code, since the rest of the question seems to relate to replacement and setbacks, which would be covered under zoning.
So it is very common in the U.S. for zoning ordinances to allow buildings and land uses to continue, even if they do not conform to present zoning requirements, but the building or use then is called non-conforming.
It is also common that when more than a certain percentage of the area of non-conforming are replaced or added, the entire property must now be brought into zoning compliance. Certainly that is the case here.
If the new replacement building is to extend into the required minimum 15 foot setback from the street or property line by any amount, let alone a total of 80 square feet, the new building must first apply for and receive a zoning variance. (Readers who are unfamiliar with the variance process should look at our page on zoning variances).
We would hope that a variance application that asked for the non-conformity to be increased would be turned down as not a valid application, considering the language you quoted about how the non-conformity shall not be increased. For newbies, the "shall" language is used in a zoning ordinance when something absolutely must be done.
But let's say that the staff and attorney decide to accept such an application, based on your local and state law. In that event, it is possible that the property owner might receive a zoning variance to allow construction into the setback area, although a conscientious board of adjustment (which might be called something different in your location) should not grant the variance unless the literal interpretation of the zoning ordinance would cause a unique hardship due to unusual circumstances on the property. Hardship in this context does not include lack of financial means or feasibility.
Any variance for intrusion into the required setback would be what Jeff is calling a non-use variance.
But Jeff also inserts another element and asks about a "use variance." We want to put that phrase in quotes because in a well-run municipality, there is no such thing. However, in popular imagination there is sometimes the possibility for a zoning variance that permits a land use that would not otherwise be permitted under the zoning ordinance.
The board of adjustment also would consider any proposed use variance, although we certainly hope that city staff would discourage any such application. A major purpose of a zoning ordinance is to set forth acceptable land uses in each district. If at any time the municipality feels that the list of land uses in its ordinance is inadequate or outdated, the appropriate action on the part of the city is to amend the ordinance to correct the list of permitted uses.
So in theory, if the property owner in question applied for and received two variances, the replacement building could be constructed as planned. Variance applications require that opportunities for neighbors to comment at a public hearing, just like rezoning applications, by the way.
Jeff's title also threw in a final element for discussion. He alluded to all of this being done without permits.
Well, it's no wonder that the property owner does not want to obtain a building permit, since a building permit cannot be granted without a sign-off from the appropriate official that the requirements of the zoning ordinance are met. (Again, we are assuming a reasonable municipality here, but most get this right.)
If you are a neighbor of the property in question, get the rest of your neighbors organized and get ready to go to the board of adjustment hearing to complain. In most variance cases, neighbors actually are providing a useful service by sharing relevant information.
If the variance(s) already have been granted, the bad news is that the only appeal on a variance matter is to a court, so we certainly hope that hasn't happened.
If you know or suspect that the new building is going up without a building permit, report that to the highest official concerned with building and zoning in your location. If you live in a rather small municipality or county, you might report it to the highest-ranking administrator period. Also mention this to your elected officials and let them know that you are not prepared to stay quiet about someone ignoring the requirement for a building permit and the requirements of the zoning ordinance relevant to eventually getting rid of non-conforming uses.
It is certainly appropriate to allow non-conforming uses to be replaced with uses that conform to the zoning ordinance in every respect, but when there are multiple variances and irregularities involved, the municipality should seriously question the wisdom of allowing the intention of the zoning ordinance to be ignored.
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