http://propertyrights.utah.gov/opinions/68_AO_Abstract.pdf
OFFICE OF THE PROPERTY RIGHTS OMBUDSMAN
Advisory Opinion #68
May 5, 2009
T
OPICS:
(#14) Nonconforming uses and noncomplying structures
(#15) Other Topics (Interpretation of Ordinances)
Question
Did a city apply the proper standards to determine that a duplex was not entitled to nonconforming use status?
Background
Property owners claimed that their building was eligible for nonconforming use status as a duplex, and produced affidavits from former owners and tenants, along with other documentary evidence, showing that the building was leased as two units prior to the zoning change which prohibited duplexes. The City maintained that the second apartment was not “legally established” because it did not comply with building codes, including failure to obtain a building permit when the building was converted from a single-family residence. Since the second apartment did not comply with the City’s codes, the City’s position was that it could not “legally” exist.
Analysis
Under Utah law, a use is eligible for nonconforming status if it was legally established prior to being prohibited by a change in a land use ordinance. If a use was initiated when it was permitted under local zoning ordinances, the use is “legally established,” and is eligible for nonconforming use status if the zoning ordinance has changed. Compliance with building codes and other ordinances unrelated to land use regulation is not a factor in determining whether the use was legally established. Local ordinances adding a condition that a use be fully compliant with local ordinances are therefore invalid.
The threshold requirements for nonconforming use status are established in the Utah Code. A property owner must show that the use was legally established prior to a zoning change. Local governments may not add to that requirement. Local ordinances which increase the burden of proof on a property owner, or add other conditions for eligibility are invalid.
