Zoning Ordinance Update

Nonconformity frequently asked questions

• When zoning standards are amended, any lawfully established use or site feature that does not conform to the new standards becomes legally nonconforming.
• Under Minnesota State Law, legal nonconformities are afforded a variety of protections and rights (see attached excerpt from Minnesota State Statutes).

• A use nonconformity is created when a lawfully existing land use that previously was allowed is no longer allowed by the Zoning Ordinance. For example, if a lawfully existing motor vehicle sales use is rezoned to a district that does not allow motor vehicle sales, the use becomes legally nonconforming.
• A site characteristic nonconformity is created when a lawfully existing site characteristic that previously was allowed is no longer allowed by the Zoning Ordinance. For example, if a lawfully existing building with a setback of 30 feet from the property line is rezoned to a district that requires a 35 foot setback, the building setback becomes legally nonconforming.
• An important distinction between use nonconformity and site characteristic nonconformity is that use nonconformities are not eligible to apply for variances or planned development flexibility under State Law, whereas site characteristic nonconformities are eligible to apply.

• Site characteristic nonconformities are very common because standards (landscaping, lighting, parking, trash, sidewalks etc.) are constantly evolving.
• Use nonconformities, where a previously allowed use is no longer allowed by the Zoning Ordinance, are less common.

• Minnesota State Law affords nonconformities several protections. Nonconformities may be continued and may be repaired, replaced, restored, maintained or improved, unless:
  • (1) "the nonconformity or occupancy is discontinued for a period of more than one year"; or
  • (2) "any nonconforming use is destroyed by fire or other peril to the extent of greater than 50 percent of its market value, and no building permit has been applied for within 180 days of when the property is damaged" subject to reasonable conditions on the building permit to mitigate any newly created impact on adjacent property. If the property is less than 50 percent destroyed, then the nonconforming use may be continued, irrespective of the 180 day rule so long as the discontinued use or occupancy is not greater than one year.
• Use nonconformities may not be expanded unless authorized by City ordinance. Site characteristic nonconformities may not be expanded unless a variance or planned development flexibility is approved.

• Whether or not financing is extended is the decision of the lender. Staff has observed that recent changes in State Law with respect to nonconformity have made lenders less concerned with its impact. Staff often prepares zoning letters for lenders on their request that address nonconformity issues and very rarely hears of examples where financing is denied by a particular lender solely on the basis of nonconformity.

• No. Nonconformities run with the land rather than with the owner.

• A lawfully nonconforming use may be discontinued for a period up to one year and then resumed. If the use is discontinued for a period of more than one year, any subsequent use or occupancy must be conforming.

From Minnesota State Statute 462.357 Official Controls: Zoning Ordinance

Subd. 1e. Nonconformities. (a) Any nonconformity, including the lawful use or occupation of land or premises existing at the time of the adoption of an additional control under this chapter, may be continued, including through repair, replacement, restoration, maintenance, or improvement, but not including expansion, unless:

(1) the nonconformity or occupancy is discontinued for a period of more than one year; or

(2) any nonconforming use is destroyed by fire or other peril to the extent of greater than 50 percent of its market value, and no building permit has been applied for within 180 days of when the property is damaged. In this case, a municipality may impose reasonable conditions upon a building permit in order to mitigate any newly created impact on adjacent property.

(b) Any subsequent use or occupancy of the land or premises shall be a conforming use or occupancy. A municipality may, by ordinance, permit an expansion or impose upon nonconformities reasonable regulations to prevent and abate nuisances and to protect the public health, welfare, or safety. This subdivision does not prohibit a municipality from enforcing an ordinance that applies to adults-only bookstores, adults-only theaters, or similar adults-only businesses, as defined by ordinance.

(c) Notwithstanding paragraph (a), a municipality shall regulate the repair, replacement, maintenance, improvement, or expansion of nonconforming uses and structures in floodplain areas to the extent necessary to maintain eligibility in the National Flood Insurance Program and not increase flood damage potential or increase the degree of obstruction to flood flows in the floodway.

For more information or if you have comments or suggestions concerning Zoning Ordinance revisions, contact:

Planning Division
PH: 952-563-8920, FAX: 952-563-8949
E-mail: planning@ci.bloomington.mn.us

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