Distinguishing Between Detrimental and Benign Nonconformities
Zoning Practice — November 2009
By Gail Easley, David Theriaque
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Local governments routinely adopt new or revised zoning regulations to establish minimum standards for the use of land and standards for development on the land. With the adoption of new standards for use and development, many existing uses, structures, site design features, and lots may no longer meet the current standards.
The concept of nonconformities arises from adopting new codes for areas that already have some development, which is the case for almost every jurisdiction in the country. When land is used for activities that are no longer permissible under the zoning regulations, the local government typically allows the preexisting use to continue if it was permissible when it was first established. Likewise, when development is in place and the provisions of the zoning regulations render the lot or one or more site design features out of compliance with current standards, the local government typically allows the development to continue if it was in compliance when first established.
This issue of Zoning Practice takes a look the differences between detrimental and benign nonconformities and recommends a two-tiered approach to regulating legal nonconformities.
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About the Authors
Gail Easley
David Theriaque
David Theriaque earned his Law Degree with high honors and a Master’s Degree in Urban and Regional Planning from FSU. He practices primarily in land use planning law, growth management law, and local government law. He has represented public and private entities in state and federal litigation and administrative hearings concerning land use issues. He is rated as an AV Preeminent attorney, which is the highest rating assigned by Martindale-Hubbell for legal ability and ethical standards, and has been recognized in the 2010 through 2019 editions of Florida Super Lawyers as among the top attorneys in Florida in the area of land use and zoning law.