Legal Non-Conforming Use

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.