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Three things you need to know about...non-conforming rights Law Letter - Issue 4, 2007

Commonly known as “Grandfather Rights” a non-conforming right is a constitutionally based protection for uses of and structures on property that were legal until the date a law or regulation was enacted causing the use or structure to be out of compliance (illegal). Such uses or structures may generally continue “AS IS” and cannot be taken away, but are limited in that they may not be expanded in scope or area.


1 Location, Location, Location Kentucky statutes provide that a continuous non-conforming use for a ten-year period is entitled to protection; however, this does not apply to counties containing a first or secondclass city, a consolidated local government (such as Jefferson County), or an urban-county government (such as Fayette County). In Metro Louisville, the date to which the use must first be established differs radically depending upon whether the property is within the former city limits. Enlargements and expansions are only permitted for long-standing uses involving public attractions as more fully described in the statute. In areas where the ten-year rule does not apply, the use must be proven back to the date the zoning ordinance was adopted. In addition, Metro Louisville contains thirteen municipalities with zoning authority that have adopted various regulations, at different times. We have all heard someone claim, “its grandfathered because it has been like that since I can remember!”, which leads to rule number two.


2 It’s your burden of proof Anyone who asserts a non-conforming right has the burden of creating a record to establish the continuous legal use back to the applicable date. The failure of the government to take affirmative action to prohibit the use is irrelevant. There are many ways to establish such continuous use. Personal sworn affidavits, city directories, building permits, construction contracts and utility records are the most commonly utilized forms of evidence. Proving the existence of the use as of the applicable date may not be enough if the use has not been continuous, which leads us to the third rule.


3 Use it or lose it A non-conforming use right can be lost forever if it is discontinued for a certain duration (typically one year), in which case it is deemed abandoned. However, abandonment of the non-conforming use must be shown by the conduct of the property owner, that evidences intent to abandon. An established right to use a property in a certain way is not lost by mere discontinuance. If it is temporarily interrupted due to such things as repair work or loss of a tenant and it is demonstrated that the owner did not intend abandonment by showing attempts to lease or sell the property, the use can be preserved.

Of course, these are general guidelines for a complex issue. There are various principles applicable to certain types of uses such as signage and extractive industries that must be taken into account. Every non-conforming use case is extremely fact-specific. Any successful attempt to convince a Board of Zoning Adjustment is heavily dependent upon the quantity and the quality of the evidence.§

To learn more about Tandy C. Patrick and her practice, please visit her profile.



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