Q:  I am renovating an older ranch house that was built outside the 25-foot stream buffer. The City has now increased the buffer to 75 feet causing one-half of the house to lie within the new buffer. I want to add a second floor. Can I renovate the house using the existing footprint?

A:  For the answer to this question, we must turn to the doctrine of legal nonconforming use.  A legal nonconforming use is a use that complied with prior zoning ordinances but does not conform to a newly enacted ordinance.  Despite its non-conformance, the use may continue to exist under these circumstances—i.e., the use remains legal. Most refer to the use being “grandfathered” in to the new ordinance.

Most likely, the house itself would constitute a legal nonconforming use or property after enactment of the new 75 foot stream buffer ordinance. Whether you are permitted to add an additional floor to the property is less clear. As a general rule, minor renovations of a structure do not result in loss of a legal nonconforming use status, while major ones do. Accordingly, if the addition of the second story constitutes a significant renovation, the public authority will most likely reject any such permit request. Whether a court reviewing such a decision will agree depends very heavily on the language of the ordinance in that jurisdiction. Most, if not all, municipalities include treatment of nonconforming uses and properties in their development or zoning codes. In no event, however, can a public authority ignore the concept altogether and infringe on your property rights in the face of this common law doctrine.

Given how complex and fact specific the law can be in this area, we suggest talking to an attorney experienced in this arena before making any renovations that might remove your structure from the scope of its legal nonconforming use.

Please send your “Ask Simon” questions to kmurphy@hbag.org.

The information contained in this column: (1) is not provided in the course of and does not create or constitute an attorney-client relationship, (2) is not intended as a solicitation, (3) is not intended to convey or constitute legal advice, and (4) is not a substitute for obtaining legal advice from a qualified attorney. Readers of this newsletter should contact their attorney to obtain advice with respect to any particular or specific legal matter. No reader of this newsletter should act or refrain from acting on the basis of information contained herein without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney, with full and complete knowledge of the relevant facts, can provide assurances that the information contained herein – and your interpretation of it – is applicable to your particular situation.