Legal Non-Conforming Use (113)

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.

Grandfather Rights

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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