A zoning ordinance provides that a legal nonconforming use ends if the use is discontinued for 12 consecutive months. The subject's nonconforming auto-repair shop closed 18 months ago and has not reopened. What is the most likely status of the nonconforming use?
Correct Answer
A) It has lapsed; future use must meet current zoning
Under a discontinuance provision, a nonconforming use that stops for longer than the stated period loses its protected status, so future use must conform. Ownership and the building's continued existence do not preserve the use. Some jurisdictions also look at intent to abandon, so the appraiser should verify the ordinance and how it is applied locally.
Why This Is the Correct Answer
Option A is correct because the ordinance ends a legal nonconforming use after 12 consecutive months of discontinuance, and this use stopped 18 months ago. Once the protected status ends, future use must conform to current zoning. Some jurisdictions also consider intent to abandon, so the appraiser should verify how the ordinance is applied locally.
Why the Other Options Are Wrong
Option B: It continues because the owner still holds title
Option B is wrong because it says the use continues because the owner still holds title. Ownership does not preserve a nonconforming use once the discontinuance period in the ordinance has passed.
Option C: It continues as long as the building remains standing
Option C is wrong because it says the use continues as long as the building stands. The ordinance ties loss of the use to discontinuance of the use, not to whether the structure remains.
Option D: It passes to any buyer as a grandfathered right
Option D is wrong because it says the use passes to any buyer as a grandfathered right. Once the use has been lost under the ordinance, there is no protected right left to transfer.
Stop the use, lose it
A grandfathered use is like a subscription: let it lapse past the stated period and it is gone.
How to use: Use this when a question compares the closure period to an ordinance's discontinuance limit.
Exam Tip
Compare the time the use has been discontinued with the ordinance period; if it exceeds the limit, the protected status is likely lost.
Common Mistakes to Avoid
- -Assuming title ownership preserves a nonconforming use
- -Believing the use survives as long as the building stands
- -Treating a lost nonconforming use as transferable to a buyer
Concept Deep Dive
Analysis
This question tests how a discontinuance provision affects a legal nonconforming use. The ordinance sets a 12-month limit, and the shop has been closed for 18 months. Because the closure exceeds the stated period, the protected status is most likely lost and future use must conform.
Background Knowledge
A legal nonconforming use is one that was lawful when established but no longer conforms to current zoning. Ordinances often limit such uses, including by ending them after a stated period of discontinuance. Loss of a nonconforming use can change highest and best use and value.
Real-World Application
An appraiser values a closed service station in a district now zoned residential. The local ordinance ends nonconforming uses after a stated period of discontinuance, and the station has been closed longer than that. The appraiser confirms with the zoning office and analyzes highest and best use under current zoning.
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