I often see property for sale with this wording in the listing: “Buyer to confirm grandfathered use.” (or something to that effect.) Do you have to worry? Can you buy the property? And will the county prevent you from continuing that use after the property changes hands?
For a short version of all the information below, here are the three main take-away points for zoning in Kern County: (please, read the disclaimer)
- Nonconforming uses may continue after an owner sells property.
- You may work on and repair buildings that do not conform, but special rules apply.
- Be very careful to never let the building become vacant or in disrepair for more than one-year or you will lose the right to continue the nonconforming use.
First, you should know that I am a law student at Kern County College of Law. I have access to resources which allow me to study topics such as these, but I am not a licensed attorney and thus I cannot provide legal advice. The content of this blog post is a summary of my research and should not be construed as legal advice. If you have a specific legal question, consult a licensed member of the California Bar Association.
Second, Bakersfield has several pockets within the city that are “outside Bakersfield” and are controlled by Kern County. This means that you must be extra careful, because the answer to your question may be in either Bakersfield Zoning Codes or Kern County Zoning Codes, and these codes are very different. Today, in this blog article, we are looking just at Kern County’s codes.
You are on the market for an investment property. The seller advertises the home as two homes on one lot, which means that you have two tenants and two incomes which will offset your associated costs. This is attractive to you, because multi-unit buildings help offset the risk that comes with occasional vacancies. When you have more than one unit, you continue to have cash flowing in from other units when one unit is vacant, which means that you can pay the mortgage even when finding a new tenant.
After finding the perfect property, you notice that the property is zoned R-1 (Single family dwelling), and the seller cautions you to do appropriate investigations, because R-1 zones do not generally permit multi-unit structures.
What are your concerns?
Common Law Rules
The general rule that we learn in law school is that when a government changes a zoning regulation, a previous legal use may become a lawful non-conforming use. In general, the government cannot force the owner of the building to immediately stop the use of the land, but it can impose a number of years to change the use, or it can say, “We will let you continue the use until you no longer own the property.” This last option is commonly known as “grandfathering.”
When the owner dies and transfers the property to an heir, or when the owner sells the property to a new person, the government may then assert their right to the new use and stop the new owner from continuing the nonconforming use.
In California, the state permits any governing body to dictate how they will handle non-conforming uses in the code that establishes the zoning regulations.
The facts of Los Angeles v. Gage
We see this rule put to effect in the case Los Angeles v. Gage (1954) 127 Cal.App.2d 442 (Gage). In Gage, a person bought two parcels of land in a “C” zone (commercial use) in 1930. He established two residences on the properties and a commercial business, which he ran successfully. Under the rules for “C” zoning, these were all permissible uses.
From “C” to “C-3”
In 1936, the city of Los Angeles passed a new ordinance. Under the new ordinance, Mr. Gage’s property was changed from “C” to “C-3.” Under the new rules, he continued to use the property appropriately.
In 1941, the city changed the “C-3” zoning rules, and Mr. Gage no longer used his property as the zoning ordinance required him to. Under the new rules, Mr. Gage was no longer allowed to store materials openly (outside of an enclosure or structure), but the rules did allow anyone who was already doing this to continue their acts indefinitely as a nonconforming use. Essentially, in 1941, Mr. Gage’s use of his property was no longer legal, but it was “grandfathered.”
From “C-3” to “R-4”
In 1946, the city changed the zone again. This time, it changed the zone from “C-3” to “R-4.” In an R-4 zone, land owners were permitted to have multi-residence structures, but commercial uses were no longer permitted. Under the city’s existing ordinances, nonconforming uses could be continued in all zones except “R” zones. In “R” zones, the nonconforming use could only continue for five (5) years. After five years, the owner had to comply with the residential zoning regulations. The problem is that Mr. Gage now had a nonconforming use, and it was in an “R” zone.
The question in this case is whether the city can force Mr. Gage to close his plumbing business and force him to only have structures complying with the new residential zoning laws.
Factor’s Considered by the Trial Court
The court considered several factors. First, it admitted that if Mr. Gage were forced to close his business that he would be losing the $125,000 to $350,000 in gross revenue that the business brought in every year.
Second, they considered the high cost of relocating the business, moving all supplies, and starting anew in a different location.
Third, they considered the impact of keeping a plumbing business in a residential neighborhood. They reviewed the noise of workmen loading and unloading trucks, and they compared it to the noise that neighbors could anticipate if the owner used the land for strictly residential purposes.
After all of these factors, the court admitted that to force Mr. Gage to move the business would cost Mr. Gage a significant amount of money, because “the business conducted by Gage has a substantial value.” The court also concluded that Mr. Gage’s property would not be a nuisance to the neighbors, because he maintained a clean property that operated without being bothersome. Additionally, the use as a plumbing company did not injure the general health, welfare or safety of the neighbors.
After all of this, the trial court determined that Mr. Gage had a “vested right” to use the property as a plumbing company, but the city of Los Angeles disagreed.
The city of Los Angeles did not like the outcome of this case. They argued that the city had a police power which gave it the right to terminate even those uses that don’t harm the community. In their opinion, whether this would cause a financial loss to individual land owners was irrelevant to the fact that a city could force landowners to comply with zoning rules.
In the appeals court, they asked the question: Even if Mr. Gage was not a nuisance and did not harm his neighbors, could the city of Los Angeles still force him to discontinue his use?
California Laws Explained
The first step to solving this mystery is identifying the relevant laws. The appeals court enumerated the rules.
Cities have the right to control zones.
Zoning laws exercise the police power given to every governing body. When called into question, the court must presume the zoning law is lawful, which means the landowner must prove that the law is unjust before the court can interfere. The city may regulate more than just nuisances, and zoning laws may regulate non-nuisance situations when the city feels that it is in the best interest of “the public health, morals, safety, and general welfare. . .” The city also has the power to exclude all nonconforming uses from a zone.
zones can change from time to time.
The court also notes that a government may amend zoning ordinances “from time to time as new and changing conditions warrant revision.” Losses incurred by the land owner do not reduce the amount of power held by a city to make these changes. “Damage caused by the proper exercise of the police power is merely one of the prices an individual must pay as a member of society.”
“Damage caused by the proper exercise of the police power is merely one of the prices an individual must pay as a member of society.”Los Angeles v. Gage (1954) 127 Cal.App.2d 442 at 453.
The city must provide a reasonable amount of time to change the nonconforming use.
Normally, a zoning ordinance may not immediate end a particular, established use. Yet, the main problem facing the power of zoning is the inability to end nonconforming uses, which is why the “purpose of present-day zoning ordinances is to eventually end all nonconforming uses.”
The court makes special note that many states have recently authorized the power of government to put time limits on the nonconforming use (this is called “amortization”).
Under this set of rules, the court determined, with respect to the five-year limitation on Gage’s use: “We have no doubt that [the ordinance] in compelling the discontinuance of the use of the defendants’ property for a wholesale and retail plumbing and plumbing supply business, and for the open storage of plumbing supplies within five years after its passage, is a valid exercise of the police power.”
Main Take-away from Gage
Under Gage, the main takeaway is that California allows cities to discontinue non-conforming uses. The government may discontinue use, even if it costs the landowner money. And, the city may specify how that process occurs in their zoning ordinances.
In the case of Gage, the city of Los Angeles provided a five-year limit on the nonconforming use, and they wrote it into the zoning codes.
What does this mean for Kern County
Just like the city of Los Angles, Kern county has zoning codes. The codes specifically address non-conforming use. For full details, look up section 19.180 in the Kern County Zoning Ordinances, but we will give an overview of the highlights here.
In General, nonconforming uses may continue provided no one alters or enlarges the structure.
The general rule in Kern County is that a nonconforming use may continue even if the land transfers owners. “[N]onconforming structures, uses, lots, and signs . . . shall not be enlarged, expanded, or extended . . .” (19.108.010)
“Any nonconforming structure may be continued and maintained provided there is no physical change . . .” (19.108.020)
Do not allow the nonconforming structure to become vacant for extended periods.
Under ordinance 19.108.020, subdivision C, any structure that is nonconforming and vacant for one year “shall not again be used or occupied for a nonconforming use.”
You may repair or rehab the structures.
As long as you do not “enlarge [the structure] in area, space or volume,” you may work on the nonconforming building. The structures may be “reconstructed, repaired, or rebuilt when damaaged . . . if the . . . expense does not exceed [150%] of the actual cash value of the building. . .”
However, you must repair the structure within 1-year of the damage to the building. This means that if you are buying a property that needs repair and it is a nonconforming use, the county may prevent you from continuing your nonconforming use.
Who determines whether use is lawfully nonconforming?
Section 19.108.080 covers this exact question. In short, you, as the uncertain and new owner of the property, have the burden of proving that your use is lawful. The Planning Director has the final say on whether he has been convinced by your arguments.
After all of that, what is our final conclusion? Kern County makes buying property with nonconforming uses very easy. The current ordinance permits nonconforming structures indefinitely provided that the owners consistently maintain the structures and continue the use uninterrupted. Be warned that if you are buying a vacant structure, you must verify that the structure has not been vacant for more than one year, because vacancy can discontinue the lawful status of the property. Other than that, you are relatively safe.
Keep in mind that the county has the right to change the ordinances at any time. The last modification occurred in November of 2017. In the court case discussed above, the city of Los Angeles changed their zoning ordinances almost every six years. Changes may be as much for your benefit as against it, and the government does not care if you lose money in the process.
Until next time, happy investing, and I hope that you have enjoyed this review of California law and Kern County Zoning ordinances.