The key to a legal nonconforming use is establishing that the use was previously permitted. The Utah Court of Appeals recently reiterated this statutory requirement in LJ Mascaro v. Herriman City, 2018 UT App 127, where it stated a land owner must “provide substantial evidence to support a prior legal use,” in order to gain protected legal nonconforming use status.  In Mascaro, the court held that the land owner had failed to provide evidence that its use was ever legally permitted and therefore upheld a denial of nonconforming use status.

To establish a legal nonconforming use, the use must have “legally existed before its current land use designation,” must be “maintained continuously” following a change in the applicable land use regulations, and now fails to comply with those regulations. Utah Code Ann. § 10-9a-103(37).  In Mascaro the court easily found the use had continuously existed and was now not permitted, but it did not find sufficient evidence that such use was ever legally permitted.

The factual nuances in Mascaro stem from an attempted annexation of the land owner’s property from Salt Lake County into Riverton City in 1978, which was found null and void in 1981, and then a successful 2009 annexation into, and zoning by, Herriman City.  In 2013 the land owner requested that the use of topsoil manufacturing and screening be considered a legal nonconforming use by Herriman City, rather than require a conditional use permit pursuant to the new zoning.  The Herriman City Planning Commission considered the evidence but found that it did not support the establishment of a legal nonconforming use by Salt Lake County prior to the annexation and found the lack of zoning for the short period the property was subject to the Riverton City annexation inapplicable, and therefore it denied the request for nonconforming use status.

The Mascaro court agreed with the city’s conclusion, stating that the land owner had not provided evidence of land use approvals, business licenses, or other permits from Salt Lake County establishing the use as legal.  The court also found that the land owner had not provided evidence that the use existed prior to Salt Lake County adopting zoning ordinances prohibiting the use.  The court did not address whether the annexation into Riverton City and lack of applicable zoning until the annexation was voided could have established the use as permitted, because the court found the land owner had failed to preserve the issue for appeal.  The court therefore held that the denial of nonconforming use status was not illegal or arbitrary and capricious.