Is a Nonconforming lot the same as a non conforming use or building?

[unliable]

What is the name of your state? Colorado

I have a lot that is nonconforming and I can't find anything in the county charter that specifically addresses nonconforming lots. I also can't seem to find anything in Colorado law that regulates it either. So my question is there a legal difference between nonconforming lots and nonconforming use? Or is there anything in the Colorado revised statutes that addresses nonconforming lots?

The issue is that I would like to add an additional unit to a duplex I am buying and I'm having a tuff time trying to figure out if the county is going to make me issue a variance even though it is currently zoned R5 and allowed by right under the zoning ordinance.

The current lot size is 7500sqft and 10000 is needed to comply with R5 zoning, any help?

(Also I realize there are other factors to consider... this is the only one I'm having an issue though)

 

[LdiJ]

What is the name of your state? Colorado

I have a lot that is nonconforming and I can't find anything in the county charter that specifically addresses nonconforming lots. I also can't seem to find anything in Colorado law that regulates it either. So my question is there a legal difference between nonconforming lots and nonconforming use? Or is there anything in the Colorado revised statutes that addresses nonconforming lots?

The issue is that I would like to add an additional unit to a duplex I am buying and I'm having a tuff time trying to figure out if the county is going to make me issue a variance even though it is currently zoned R5 and allowed by right under the zoning ordinance.

The current lot size is 7500sqft and 10000 is needed to comply with R5 zoning, any help?

(Also I realize there are other factors to consider... this is the only one I'm having an issue though)

To be honest, this is not really a question for an internet forum. Its a question for a local real estate attorney who is familiar with the local rules.

 

[FlyingRon]

Anything you do with a lot is a use. If it says you need 10,000 feet in an R5 zoning for a second residence, you're going to likely need a variance, rezoning, or other exception. You can talk to the zoning office. Their staff can usually (and often must) make you a determination of whether you can do what you are proposing. If they say you can't build it by right, then you're likely going to need an attorney. Variances these days are harder to get as the standard has gone up to "preclude all use of lot" rather than just "I want it." There's likely to be surveys and plats drafted and your abutting properties (and the abutters to the abutters) will need notification so they can show up and protest it at the hearing.

 

[adjusterjack]

The current lot size is 7500sqft and 10000 is needed to comply with R5 zoning

That's all you need to know. Discussing your question would be a waste of time. Go visit the zoning office. You'll find out real fast if you have to apply for a variance.

 

[unliable]

@LdiJ I was under the impression that listing my state above indicated I would be able to gain knowledge on Colorado Laws. Is this not what this forum is about? I did not ask about County or Local Laws.

@FlyingRon I probably did not make my self clear enough and thus the assumptions....
I have no issue with "use" but rather "the lot of record"
It says 10,000ft is needed period. I have a nonconforming lot of record.
I did talk to a lady in the zoning department over the phone and she arbitrarily gave me an ill informed answer, thus the reason I went to the web.
I knew some litigation would be involved if there is an issue to what is allowed by right and I am curious as to what that litigation process is.
I understand the variance process and its a mess I wish to not deal with.

@adjusterjack My question isn't "what will my County allow me to do" but more of "what am I legally entitled to do"....

Replies weren't the best the first time but hopefully I cleared some things up.

Now after a little research this is what I concluded: (let me know if this makes sense or if there's issues with my logic)

My County zoned my lot R5 which has a minimum requirement of 10,000 ft. According to the R5 zoning I do not have the minimum lot size to do anything on my property thus rendering it useless.

If what I said is true there are several precedents regulating this issue. (1957 New York case of Long Island Land Research Bureau, Inc. v. Young) (Lucas v. South Carolina 1992)(Dallmeyer v. Lacey Township Board of Adjustment 1987)

Other References: ("nor shall private property be taken for public use, without just compensation" 5th Amendment)(Rathkopf, The Law of Zoning and Planning, Vol 3 § 49:5)(Agins v. City of Tiburan 1980)

 

[adjusterjack]

@adjusterjack My question isn't "what will my County allow me to do" but more of "what am I legally entitled to do"....

Those are not mutually exclusive.

Your zoning ordinances say 7500sf - NO, 10,000sf - YES.

The county can't prevent you from applying for a variance. You don't need permission to apply. However, the county will only grant the variance in according to the zoning ordinances that address variances.

If what I said is true there are several precedents regulating this issue. (1957 New York case of Long Island Land Research Bureau, Inc. v. Young) (Lucas v. South Carolina 1992)(Dallmeyer v. Lacey Township Board of Adjustment 1987)

The decisions of NY, SC, and NJ are not binding on CO.

Agins v. City of Tiburan 1980

I think you should read it before you start relying on it.

https://caselaw.findlaw.com/ca-supreme-court/1836510.html

"we hold that a zoning ordinance may be unconstitutional and subject to invalidation only when its effect is to deprive the landowner of substantially all reasonable use of his property."

That case will work against you rather than for you.

 

[not2cleverRed]

@LdiJ I was under the impression that listing my state above indicated I would be able to gain knowledge on Colorado Laws. Is this not what this forum is about? I did not ask about County or Local Laws.

@FlyingRon I probably did not make my self clear enough and thus the assumptions....
I have no issue with "use" but rather "the lot of record"
It says 10,000ft is needed period. I have a nonconforming lot of record.
I did talk to a lady in the zoning department over the phone and she arbitrarily gave me an ill informed answer, thus the reason I went to the web.
I knew some litigation would be involved if there is an issue to what is allowed by right and I am curious as to what that litigation process is.
I understand the variance process and its a mess I wish to not deal with.

@adjusterjack My question isn't "what will my County allow me to do" but more of "what am I legally entitled to do"....

Replies weren't the best the first time but hopefully I cleared some things up.

Now after a little research this is what I concluded: (let me know if this makes sense or if there's issues with my logic)

My County zoned my lot R5 which has a minimum requirement of 10,000 ft. According to the R5 zoning I do not have the minimum lot size to do anything on my property thus rendering it useless.

If what I said is true there are several precedents regulating this issue. (1957 New York case of Long Island Land Research Bureau, Inc. v. Young) (Lucas v. South Carolina 1992)(Dallmeyer v. Lacey Township Board of Adjustment 1987)

Other References: ("nor shall private property be taken for public use, without just compensation" 5th Amendment)(Rathkopf, The Law of Zoning and Planning, Vol 3 § 49:5)(Agins v. City of Tiburan 1980)

How rude.

1) In addition to state laws, you must abide by county and local municipal laws. While you did not ask about county or local municipal laws, they may be relevant. Zoning restrictions are not universal within a state, the vary depending on the municipality.

2) You have a nonconforming lot of record, because it is a smaller lot than is currently required for the type of development that you are interested in. You don't have a "right" to develop your property willy nilly if you are in an incorporated area that has actual codes and zoning plans - you have to abide by those rules. There are exceptions: 1) things that are grandfathered in or 2) things that are allowed by a variance. For example, most modern municipal code requires that buildings be setback from a certain amount from the property line - for obvious fire safety reasons, you don't want 2 wooden houses less than 5 feet from each other, but if there are a couple of older homes that close to each other when the code is changed to make things safer, the owners are not going to be asked to take down or move their houses. Can such homeowners remodel? Maybe. With a variance, that might be granted if the proposed work does not seem too problematic.

3) You are legally entitled to do what the law allows you to do. In your case, with a nonconforming lot, that means whatever variance you can sweet talk your local equivalent of a zoning board into granting you., and get your local equivalent of a planning board to allow.

What your tale of woe reminds me of: https://riverheadlocal.com/2015/07/03/town-again-rejects-restaurant-plan-for-corner-of-harrison-ave-and-route-58/ The owners of the tiny lot threatened to sue, based on allegations that the denial was racially based. Got nowhere. Lot is still undeveloped.

 

[FarmerJ]

non conforming use can also mean that should what ever structure on the lot now be destroyed by fire ( your city may have set a percentage number ) or weather your city might not allow you to repair it or re build it and only allow you to replace with something that will meet the current code, ( I had a four plex that was non conforming use according to the current zoning rules and if it was declared destroyed all I could have replaced it with was a single family home )

 

[unliable]

@FarmerJ Unfortunately with a nonconforming lot nothing can meet current code and there's not way to comply unless I buy another adjacent lot.

@adjusterjack
I'm going to try to address what you wrote under the assumption your trying to be helpful (why else write on a forum that is meant for advice?)
I'll also site my source for those cases which is basically (as I understand it) a case citing a book that references a case which ultimately draws from (Agins v. City of Tiburan 1980)

This is what I read
ftp://ftp.ci.missoula.mt.us/Documents/Attorney/Opinions/132003.pdf (AND the cases aren't binding but the logic is sound. Unless someone is simply trying to argue for the sake of arguing... sigh...)

Anyways (again optimistic) maybe you didn't understand what I was asking in the BOLD section. I am trying to show that a zoning ordinance is "depriv[ing] the landowner of substantially all reasonable use of his property" Thats where my question was. Does R5 zoning render my property useless? There's no reasonable way for me to comply unless I buy an adjacent property which again is barred from in those cases.

I'm open to scrutiny in my thought process there.

@not2cleverRed I'm not trying to be rude but sometimes its hard to let people know there not being helpful with out it coming out that way. So... with that said, hopefully I don't offend you but...

1) Relevant yes. That wasn't my issue with the comment though. He implied, or rather stated, that I should not be asking such a esoteric question when I wasn't trying to ask one or seeking esoteric advice.(sorry for the word - only one I could think of and I probably am using it wrong)

2)Yep that seems to agree with everything I read. The proposed work is in compliance with all zoning laws, other than the obvious minimum lot size cause... yea no way to change that. Also in one of those cases it does state "relief [must be made] available to the owner of such undersized lot" which takes form in the variance procedure. What I'm worried about is how much is given to opinion when deciding an approval for a variance and my recourse in worst case scenario.

3) So far no tale of woe here. I'm currently just trying to come up for a plan for worst case scenario but also am interested in ways to avoid worst case scenario such as "sweet talking" the zoning board.
Also I read the article. Seems like they were trying to get a nonconforming building passed through zoning (didn't meet minimum setbacks). Hopefully mine isn't viewed with such negativity seeing as it does comply with "use" and "building" ordinances. I'm not sure if I mentioned this but I'm not even planning on adding to the footprint of the building, there's a 1550 sqft walkout basement not being used that I would like to put a unit in.

So again for brevity for those not wanting to read:
Does my logic make sense:

My County zoned my lot R5 which has a minimum requirement of 10,000 ft. According to the R5 zoning I do not have the minimum lot size to do anything on my property thus rendering it useless.

 

[FlyingRon]

It sounds like in the circumstance, you have a claim for some sort of variance. The zoning makes no use of the property available to you by right. Again, you're going to need a land-use attorney. Variances aren't for the faint of heart. Mine was a lot more straight-forward than yours and it was right at the edge of what I could handle and I spent a lot of time working with the planning commission on other matters so I'd seen the variance / special exception processes played out a number of times before.

You can quibble all you like, but it's unlikely you're going to get a permit for a non-conforming use without a variance (or similar means).