Most people have a general understanding of the concept of “grandfathered”.   They understand  it means that a use of land which does not adhere to the strict letter of the law but which is allowed to continue because it was established before zoning was adopted.

While this is true to a point, the “grandfathered” status of land is a bit more complicated and nuanced than is commonly thought.  Starting with the terminology, the formal term for “grandfathered” is nonconforming use, or even more precisely, a preexisting non-conforming use.  This is because the concept is defined by the New Hampshire Supreme Court as a use which is legal at the time when the ordinance is adopted which makes it illegal.  New London Land Use Ass’n v. New London Zoning Board of Adjustment, 130 N.H. 510 (1988).

The term “use” itself is a bit of a misnomer because non-conforming status applies with equal force to use regulations and dimensional regulations.  For example, a use regulation could prohibit a convenience store and deli in a residential zone; or a dimensional regulation could  prohibit a structure from being located closer than a certain number of feet from the side yard.  In each instance, if the use existed prior to the adoption of the ordinance, or if the structure was constructed at the designated location prior to the adoption of the ordinance, then they would be considered nonconforming.

The practical effect of the nonconforming status has implications for both property owners and for abutters and members of the public.  Under statute, case law and the express language of many local regulations, once a use or structure is non-conforming, it gets to stay,  regardless of whether the neighbors like it.    The only exception to this rule is if there is abandonment of the nonconformity.   Local regulations often provide guidance as to what constitutes “abandonment,” but in all cases, the question of whether a non-conforming use has been abandoned must be determined by looking at the facts of each case.  The intentions of the property owner will be taken into account as well as the amount of time which has passed since the nonconformity was actively used.

The other key practical effect of the non-conforming status is that the nonconformity could be expanded.   Numerous cases, both at the Supreme Court and at the Superior Court, have wrestled with this issue over the years.   The key issue in determining whether an expansion of the non-conformity is or is not permissible is whether the proposed change in the use is so substantial as to constitute a new and impermissible use.  Thus for example, increasing the type and number of offerings of prepared foods at the convenience store/deli described above would likely be found to be permissible, but doing so in conjunction with making the store into a twenty four hour a day operation might not be.  Each proposal must be analyzed on a case by case basis.  Hampton v. Brust. 122 NH 463 (1982).

One aspect of non-conforming land which is not addressed by statute is the issue of substandard lots.   Many New Hampshire communities have adopted ordinances which require the size of lots to be sufficient to handle the septic and well needs required under state law and to be sufficiently sized to create a sense of spaciousness in the community.  While these ordinances have many positive impacts, they do create a burden for property owners who for one reason or another, never developed lots which are now regarded as substandard in size.  Many, but not all, communities seek to balance the equation by creating “lot of record” ordinances, which allow lots to be developed which would otherwise not comply with the size requirements.  Owners of such lots should carefully review local regulations to determine what options they have for development.