Legal Non-Conforming Use
Legal Non-Conforming Use (Grandfather Rights)
The Legal Non-Conforming Use application is a review of a non-conforming use to determine if the use can be established as a Legal Non-Conforming Use. This is also referred to as establishing “grandfather rights.” Legal Non-Conforming uses are defined as any lawful use of a building, structure or land which does not conform to the current zoning regulations where it is located. Non-conforming uses usually occur when the use conformed to zoning regulations when it was originally established, but became non-conforming due to a zoning change or annexation. This administrative review requires documentation outlining the nature of the use over time. These applications are reviewed administratively by the Planning Team.
Resources & Documents
What are My Rights?
In most cases, if you are able to establish that the property’s current use began before zoning changes made it non-conforming, you have a right to continue that use. That right is called a “Grandfather Right.”
Why Do I Need These Rights?
Should you decided to sell the property, the new owner will want assurances of the use’s legitimate status. Also, if a complaint or legal challenge is made against the use, you will need to prove your right.
How Do I Obtain Proof?
Obtaining proof of Grandfather Rights can be done in several different ways. The more complete the documentation is, the better your chances of establishing a Grandfather Right.
The following is a list of some (but not all) of the types of records which are accepted as proof of the use’s existence:
- Licenses such as beer, liquor, retail or professional, that show the dates of use
- If the property is rented, receipts showing dates of use
- Receipts showing services or goods provided if the use is a type of business
- Tax records
- Statements from utilities, such as power, water or gas, which indicate time and amount of use
- Notarized statements from neighbors who have observed the non-conforming use over the required period
What Do I Do With the Proof?
After you have gathered the materials to prove your Grandfather Right, complete a Non-Conforming Use application. If your evidence is substantial enough, you will be issued a Certificate of Non-Conforming use.
Is That All There Is To It?
Not quite. Under certain circumstances, a Grandfather Right will cease to exist, and cannot be reestablished. The most common reasons are:
- The Non-Conforming use is discontinued for a continuous period of:
- 6 months for residential uses
- 6 months for agricultural uses
- 1 year for commercial and industrial uses
- It is clear that the owner intended to abandon the non-conforming use, even if the elapsed time is less than stated above.
- Buildings or structures are damaged to an extent of 50% or more of their appraised value.
If you lose a Grandfather right, it cannot be re-established under the Boise City Code. In such a case, the property may only be used for the purposes specified in the Zoning Ordinance. The non-conforming use must be either discontinued or moved to a property which has the correct zone.
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