Nonconforming Uses

What you should know

What happens if the current use of your property is legal but not in line with the proposed zoning changes if they become permanent?

In that case, your Use would become what the county calls a NONCONFORMING USE.

It sounds like a grandfather clause, however, in some instances you would have to get approval to have your use be grandfathered.

First, however, it is important to read the definitions. With any proposed draft it is always pertinent to pay attention to any changes in the definitions, and the canceled 1/16/25 draft did include some changes to the current definitions.

There are two definitions that you should be aware of before reading the chapter on nonconforming Use. We will paraphrase below but please read the actual draft for the precise definitions.

Definition of the word USE:
(no significant change from the current code and the canceled draft)
Use means the purpose(s) for which land, Building, or Structure is occupied, maintained, arranged, designed, or intended.

Definition of the word BUILDING:
Current code: Building means any structure used or intended for supporting, housing or sheltering any use or occupancy. For the purpose of this title, the terms “building” and “structure” shall be treated as though they are synonymous, unless stated otherwise. (See Structure.) A structure having a roof supported by columns and used exclusively for the shading of livestock and not for housing livestock shall not be considered a building and shall not need to conform to setback requirements that apply to buildings used to house livestock.

Canceled 1/16/25 draft (the definition changed): Any structure with a roof and walls that support, house, OR shelter any Use or occupancy.
***The part of the current code that stated that shade structures for livestock are not Buildings has been removed in the 1/16/25 canceled draft.***
This is very important for everyone with shade structures for livestock to understand. It appears that a shade structure would have been defined as a Building and be subject to Building rules if the proposed code had passed.

Below is what we call the NONCONFORMING CAN OF WORMS:

All notes below are subject to error, please read the original documents.
[To read the nonconforming Uses see page 8 of the markup draft.]

2.05.050 Statutory exemptions
What happens when you are using your property for grazing, general agriculture, (or railroad/mining/metallurgical) uses and you have 5 or more contiguous commercial acres (36,000ft2)?
Current code:
In the current code, nothing would prevent, restrict, or otherwise regulate properties that are 5 or more contiguous commercial acres (36000 ft2 per commercial acre) for railroad/mining/metallurgical/grazing/general agriculture. To be considered grazing and general agriculture, 50% or more of the owner’s income from the land would need to come from that activity.

Canceled 1/16/25 Draft:
Nothing would prevent, restrict, or otherwise regulate properties that are 5 or more contiguous commercial acres (36000 ft2 per commercial acre)from railroad/mining/metallurgical/grazing/general agriculture purposes EXCEPT for marijuana/cannabis. The part from the current code about needing 50% or more of the owner’s income to come from the land above is crossed out. HOWEVER in order to get that exemption you have to apply for it and submit a site plan and be subject to Development Services approval. The property needs to be specifically classified as one of those uses by the assessor’s office. Still, Development Services can cancel the exempt status at any time if it is determined that the property is no longer being used for that purpose.

2.05.060 Nonconforming Uses exempted
An update to the code won’t have affected existing Uses of the property, or the right to continued Use.
However, you wouldn’t be able to change from one nonconforming Use to another.
And of course, if you conform the Use of your property to the new code, you can’t go back to a nonconforming Use.

There are rules for various nonconforming uses.
[For nonconforming Business Use rules, see page 8 Section E in the draft.]

2.05.070 For nonconforming Use of land
You would be able to continue with the lawful Use of land that existed before the proposed update, but if you discontinue Use for 12 consecutive months, you will no longer be able to have the nonconforming Use.

2.05.080 For nonconforming Use of Buildings
Again, you would be able to continue a lawful nonconforming Use of a Building unless you stop using it for 12 consecutive months. If you stop using it for more than 12 months, then you can only use the Buildings for conforming Uses after that.
NOTE: Animal shelters were no longer excluded from the definition of Buildings in the canceled 1/16/25 draft.

2.05.090 Alteration of Nonconforming Buildings
You wouldn’t be able to alter nonconforming Buildings unless it is to make it a conforming Use aligned with the new code. Nonconforming Buildings may not be enlarged, extended, reconstructed, or structurally altered.
(Unless it is a business use, in which case you would follow the rules for nonconforming business use- see page 8 Section E of the draft.)
NOTE: Animal shelters were no longer excluded from the definition of Buildings in the canceled 1/16/25 draft.

2.05.100 Nonconforming buildings that are destroyed (fire, tornado, etc):
Current code:
Nonconforming buildings that are 100% destroyed in value or square footage can be rebuilt in their same footprint.
Canceled 1/16/25 Draft:
If the Buildings are 50% or less destroyed, they could be rebuilt as long as you submit your permit within 12 months from the date of destruction. Otherwise, you would only be allowed to rebuild according to a conforming Use.
If the nonconforming building is more than 50% destroyed, or if you haven’t submitted your permit within 12 months from the date the destruction occurred, you would only be allowed to rebuild with Uses conforming to the new code.
To determine the value of the building before destruction, you would have to hire and pay for a licensed appraiser.