A duplex operates legally in a zone later rezoned single-family. What is its status, and the key appraisal question?
Correct Answer
D) A legal nonconforming use — and whether it can be rebuilt if destroyed
Why this is correct: A duplex operating legally under a previous zoning code but now nonconforming is a 'legal nonconforming use.' A key appraisal issue is whether local ordinance allows it to be rebuilt to the same use if destroyed. Why the other choices are wrong: 'An illegal use that must be closed down within one year of rezoning' is wrong; legal nonconforming uses are generally allowed to continue. 'A variance, renewable on application' is wrong; a variance is a permission for a current violation, not a grandfathered use. 'A conditional use pending public hearing' is wrong; a conditional use is permitted under current zoning with conditions. Exam tip: For nonconforming uses, always check the ordinance's provisions on repair, expansion, and rebuilding.
Why This Is the Correct Answer
Option D is correct on both halves, naming the status as a legal nonconforming use and identifying the rebuild question as the key appraisal issue. The status is legal because the duplex complied when established, and nonconforming because it no longer matches current zoning. The rebuild provision is the right focus because it determines the durability of the income stream and therefore what a buyer will pay, and it must be verified in the ordinance rather than assumed. An appraiser who reports the status without checking the rebuild and abandonment clauses has left the most value-relevant fact unexamined.
Why the Other Options Are Wrong
Option A: An illegal use that must be closed down within one year of rezoning
Legal nonconforming uses are not illegal and are not automatically terminated by rezoning; ordinances protect them precisely because they were lawfully established. Some jurisdictions do use amortization schedules to phase out certain nonconformities over a period of years, but that is a specific and comparatively rare mechanism, and nothing in the stem invokes it. A blanket one-year shutdown rule does not exist as a general principle.
Option B: A variance, renewable on application
A variance is relief granted by a board of adjustment, on application and after a hearing, from a specific dimensional or use requirement, based on a showing of unnecessary hardship unique to the property. It is granted prospectively for something not otherwise allowed, and it typically runs with the land rather than being renewed periodically. The duplex here needed no relief, since it complied when it was built.
Option C: A conditional use pending public hearing
A conditional use, sometimes called a special exception, is a use the current code expressly permits in the district subject to standards and approval. It is a use the ordinance anticipates and allows, not one it now prohibits. The duplex is the opposite case: current zoning does not permit it at all, and it survives only by virtue of predating the change.
Grandfathered but Fragile
A legal nonconforming use is grandfathered but fragile. It may stay, but it may not grow, it may not sit idle too long, and it may not survive a fire. Three ways to lose it: expand it, abandon it, or burn it down. Check all three in the ordinance before you value it.
How to use: When a stem says a use was legal when built and the zoning later changed, the status is legal nonconforming and no application was involved. Then look for the option that names the ordinance-dependent risk rather than one that asserts a fixed outcome. Options citing automatic termination or periodic renewal are describing mechanisms that do not apply.
Exam Tip
Read the local ordinance's reconstruction clause and state your finding in the report; whether a destroyed nonconforming structure may be rebuilt is often the largest single value factor in the assignment.
Common Mistakes to Avoid
- -Assuming a nonconforming structure can always be rebuilt as-is after a total loss
- -Confusing a variance, which is granted on application, with a nonconforming use, which arises from predating the code
- -Valuing the property on its current income without disclosing the nonconforming status and its limitations
Concept Deep Dive
Analysis
This question tests the four zoning statuses a use can occupy and the specific valuation risk attached to one of them. A legal nonconforming use, often called a grandfathered use, is one that was lawfully established under the zoning in effect at the time and is permitted to continue after the code changed, because retroactively extinguishing an existing use would raise constitutional takings problems. Continuation is not unlimited, though, and every ordinance attaches conditions: the use generally may not be expanded or intensified, it is typically lost if abandoned or discontinued for a stated period such as six or twelve months, and most importantly it may or may not be reestablished if the structure is destroyed. Rebuild provisions vary widely, with some codes permitting full restoration, others allowing it only if damage falls below a threshold such as fifty percent of replacement cost, and others prohibiting it outright. For a duplex in a single-family zone, that rebuild clause determines whether a buyer is purchasing durable two-unit income or a one-fire-away conversion to a single-family lot, and the market prices that difference.
Background Knowledge
You need to distinguish permitted uses, conditional or special exception uses, variances, and legal nonconforming uses, and know which of them are granted by application and which arise from timing. You should also know the standard limitations on nonconforming uses, covering expansion, abandonment or discontinuance, and reconstruction after damage, and that these come from the local ordinance rather than from any national rule.
Real-World Application
Appraising a duplex in a district rezoned single-family in 1987, an appraiser confirms with the planning department that reconstruction is permitted only if damage is less than half of replacement cost, then supports a discount relative to duplexes in properly zoned districts using two sales of similarly restricted properties.
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Room count in residential appraisal conventionally excludes:
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