Legal Nonconforming Use, or Being "Grandfathered In"

Livestock facilities in rural areas may be considered "legal nonconforming uses" and therefore be exempt from new zoning ordinances. Indiana law, in particular, gives special protection to agricultural land uses.

A "legal nonconforming use" is generally the same thing as being "grandfathered in" under county zoning rules. It is the use of a property which lawfully exists prior to the enactment of a zoning ordinance and which is allowed to be maintained or continued after the effective date of the ordinance although it does not comply with the new zoning restrictions. Zoning is forward looking -- new zoning rules are not retroactively applicable to existing uses or structures. Legal nonconforming uses are typically created when zoning ordinances or zoning map changes are passed after the use in question has already begun. 

Most zoning ordinances prohibit the expansion or extension of a legal nonconforming use, but there can be some question about what constitutes an expansion. Maintenance and upkeep are allowed on a legal nonconforming use. In some counties, a legal nonconforming use can be repaired if destroyed by fire, flood, or other disaster without losing its status. The big issue is deciding how to treat changes to the use or structure. Can a chicken farm build a new barn within the footprint of its existing nonconforming use or structure? Can a layer hen facility update its buildings to process and package eggs? Indiana case law does not provide a bright line rule regarding expansion of a legal nonconforming use.

Abandonment or discontinuance of the nonconforming use for a period of time usually relinquishes the protection of being a legal nonconforming use. But Indiana provides additional protections to agricultural property uses. Under Indiana Code 36-7-4-616, an agricultural legal nonconforming use can be changed to another type of agricultural use without losing its protected legal nonconforming use status. County zoning rules may not terminate an agricultural legal nonconforming use if the use has been maintained for at least three of the past five years.

The same rules typically apply to legal nonconforming structures. A nonconforming structure is a structure which was lawfully in existence at the time the zoning regulations were adopted and which does not conform to the new zoning regulations. The structure may now violate a setback rule or lot size requirement, but it is "grandfathered in" because it complied with the rules in force when it was constructed. Often, a structure is grandfathered for its lifetime, with the expectation that any replacement structure would comply with the zoning rules.

If you are facing zoning challenges to a new or expanding livestock facility, contact an attorney. You may be able to use the "legal nonconforming use" doctrine to your advantage.