Nonconforming Uses

VI. NONCONFORMING USES

A construction law practitioner may encounter a circumstance in which their client's use of property, which has persisted for years, is not compliant with the current regulations as adopted by the jurisdiction. Zoning changes often occur without property owners being aware that the uses allowed on their property have changed. For this reason, Maryland localities recognize the ability to have an existing use confirmed as a "nonconforming use," which is commonly defined as a "any lawfully existing use of a structure or of land that does not conform to the applicable use regulations of the district in which it is located."¹⁰¹ A valid and lawful nonconforming use is established if a property owner can demonstrate that before, and at the time of, the adoption of a new zoning ordinance, the property was being used in a then-lawful manner for a use that, by later legislation, became non-permitted.¹⁰² Due to their discordance with existing zoning, nonconforming uses are disfavored and will be strictly construed by the courts.¹⁰³ Nevertheless, a nonconforming use is an extension of the vested rights noted above and is entitled to constitutional protection.¹⁰⁴ Maryland courts have held that the rezoning of property without a right to protect existing uses amounts to a confiscation of property rights.¹⁰⁵

A nonconforming use may be reduced to conformance or eliminated in two ways: first, by "amortization," that is, requiring its termination over a reasonable period of time; and second, by "abandonment," i.e. non-use for a specific of time.¹⁰⁶ Property owners may challenge amortization periods for constitutional reasonableness.¹⁰⁷ As long as such a law provides for a reasonable relationship between the amortization and the nature of the nonconforming use, an ordinance prescribing such amortization is not unconstitutional.¹⁰⁸ Nonconforming uses laws that extinguished the use by abandonment focus not on the intent of the property owner, but rather on whether the owner failed to use the property for the use in the time period specified in the zoning ordinance.¹⁰⁹ The abandonment must be active and actual, meaning that overtly legalistic attacks on the use (i.e., failure to obtain or renew a license) will be overlooked in consideration of whether the property was actually utilized for the use in question.¹¹⁰

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Notes:

^[101] Baltimore City Zoning Code § 13-101(c).

^[102] Trip Assocs., Inc. v. Mayor and City Council of Baltimore, 392 Md. 563, 573...