In Praise of Nonconformity
67 Pages Posted: 12 Oct 2021
Date Written: September 9, 2021
Exemption of existing structures and land uses from new zoning regulations is a long-standing part of zoning practice but is often regarded as an unfortunate political concession that entrenches an irrational distinction between present uses and future use. This Article provides an unapologetic defense of statutory protection for these nonconforming existing uses. Existing use protection represents a principled position that balances the interests of property owners and the interests of the public. Far from being an unsavoury political compromise, protection of existing uses is a crucial component of modern land use regulation that balances the needs of landowners for legal certainty with the public imperative to regulate development. Existing use protection is a vital check on the excesses of fiscal zoning and an important protection for small businesses.
The special status of non-conforming uses is grounded both in the nature of zoning regulation and in the normative significance of property ownership. Existing use protection mitigates the unfairness inherent in comprehensive zoning of subjecting landowners in different zones to differing rules. It discourages disaffected neighbors from bypassing common law remedies in favor of regulatory fixes and reaffirms the function of zoning regulation as a tool to guide development to avoid future land use conflicts rather than a means to change to rules in response to ongoing disputes. Over time, comprehensive land use planning has given way to greater use of ad hoc bargaining with developers. In this context, weakening existing use protection would give the appearance of going back on a bargain and undermine the ability of local governments to bargain effectively. Property ownership provides a sphere of exclusive control in which an owner can develop her plans over time without outside interference. Existing use protection allows the property owner to make land use choices with confidence that they will be respected while still permitting local governments to control future development. In the context of onerous zoning regimes, real estate markets play a crucial role in allowing landowners to acquire property where they can be assured of their legal right to continue the present use of land.
Finally, abolishing existing use protection would have undesirable effects on property law in greatly increasing the number of takings and due process claims by landowners. The murky nature of takings and due process doctrine combined with the factual complexity of zoning cases would create great legal uncertainty without providing sufficient protection for the interests of landowners.
Keywords: Land Use Law, Property Law, Zoning Law, Local Government, Property Theory, Property Rights
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