Preexisting Nonconforming Uses: Protecting “Grandfathered” Rights and Avoiding Abandonment
By: Lee Lefkowitz
A “Preexisting Nonconforming Right” is an owner’s lawful ability to use real property in a manner that later zoning regulations no longer permit. The use was permitted when it began, then the rules changed and it no longer is. New York law generally protects that vested “grandfathered” right—but only within limits. Nonconforming uses are tolerated and protected, but not favored. The law’s long-term aim is conformity, and case law allows municipalities to enact policies that encourage properties toward compliance over a longer timeline—even when they have preexisting nonconforming rights. So the owner must be diligent in keeping the right alive.
One way a legal preexisting nonconforming use might be lost is through abandonment, which usually requires more than just a temporary shutdown. Where a property owner has a preexisting nonconforming use that deliberately ceases for a period of time, a municipality can assert the grandfathered right to be deemed “abandoned,” and require that property owner comply with current zoning. On the question of abandonment, New York courts often look for two elements: intent to give up the use, and conduct consistent with that intent. A seasonal marina closing for the winter, a restaurant closed for a fire repair, or a contractor’s yard paused while equipment is being replaced may be harmless—not intentional abandonment. But context matters. What about a trailer park, where innate to the use is the fact that trailers may come—and then go—for long extended periods of time? How long before an empty mobile home yard’s use is deemed abandoned? And what about a small multifamily building whose landlord has difficulty renting for an extended period? How long can an unrented building sit idle before a municipality can claim that the use cannot continue?
Long inactivity, removed equipment, surrendered permits, lapsed licenses, or poor operating records can become the municipality’s proof that the grandfathered right has been abandoned. Or, perhaps most declarative: a property’s intentional shift to a conforming use—even temporarily—can be strong evidence of abandonment. A warehouse that keeps receiving inventory, shipping orders, paying employees, and maintaining equipment is in a stronger position than one that sits dark, empty, and unlicensed, which is still in a stronger position than one that temporarily leases the space to another use.
Local codes may be even stricter. Most contain restrictions on when a preexisting nonconforming use can continue after a portion of the property is destroyed. Many contain “discontinuance” provisions—one year, two years, or some other fixed period—after which a use that ceases may not be resumed. And in terms of how courts will evaluate such codes: New York Courts have recognized that municipalities may legally place a thumb on the scale of eliminating preexisting nonconforming uses, because their desire is to nudge properties toward compliance. That being said, the burden is on the municipality to make an initial showing of abandonment—but once it does, that burden shifts to the property owner to come forward with evidence that it did not abandon. A nonconforming auto-repair shop that removes its lifts, stops renewing its licenses, and leases the space for ordinary storage has a very different problem if it wants to one day return to its preexisting use from one that closes briefly for renovations and keeps its permits, tools, invoices, and customers lined up for reopening, and documents all those facts.
Thus, the practical advice is simple: treat the nonconforming use as valuable and fragile. Make a record. Document that the use remained active. If operations must stop or shift, document why, when, and what is being done to restart the same use.
Be equally cautious about changing or enlarging the use. A nonconforming use is not a zoning get-out-of-jail-free card. Expanding the area of use, increasing the use’s intensity, or changing the character of the operation may create a new violation. A restaurant that adds large outdoor catered events; an industrial operation that spreads onto more land; or a retail store that creeps toward something materially more intensive may invite enforcement even though the original use was protected.
The general advice: if you’re a prospective purchaser of a property being marketed as possessing a preexisting nonconforming use, zoning due diligence is critical, and obtaining an attorney to help evaluate the integrity of that use is essential before purchase—to mitigate the risk that the municipality might later come in and assert the right no longer exists. If you’re an owner: keep the use active. Or keep evidence. Do not treat “grandfathered” as meaning unimpeachably protected. Before any long interruption, operational change, or expansion, get zoning advice.