In a case that navigates well the distinction between illegal uses, non-conforming uses, illegal structures and non-conforming structures, the Virginia Supreme Court reversed a lower court decision invalidating a zoning enforcement action. The case involves the interpretation of a Virginia law that limits local government zoning actions. A couple bought a property back in 1998 that had a main house, a garage and a cottage, each of which were being rented as dwellings when the couple bought the property. The zone allowed only one single family use and the Zoning Administrator ordered the couple to remove the kitchen facilities in the accessory dwellings and bring the property into conformance. Based on the evidence, neither the garage nor the cottage had ever been approved for dwelling uses. So, the court found that while the structures were legal and conforming that the use of them for dwellings was illegal rather than non-conforming. A Virginia statute provides that when a taxpayer pays taxes on a building or structure for 15 or more years that the structure cannot be declared illegal absent payment of compensation to the owner. So, were the accessory structures non-conforming or illegal? That wasn't the issue, it was their use as accessory dwellings that was illegal, not the structures themselves. Thus, the statute did not apply. The distinction between non-conformance and illegality can be important. The law will generally protect structures and uses that were legally established, but tends to limit that protection to only those legally established. For example, a law that changes what is allowed will render a use or structure non-conforming. The language of the law making the change should address how preexisting uses (legal, non-conforming or illegal) should be treated under the new law. A structure can be legal, but its use illegal or non-conforming. So, for practitioners, determining whether the use, the structure or lot was legally established determines how the law may apply. Often, there are laws that act to protect a property from the consequences of non-compliance such as the Virginia statute. Some protections can be quite broad while others offer only limited protections. FAIRFAX COUNTY vs COHN http://www.courts.state.va.us/opinions/opnscvwp/1171483.pdf [cid:image002.png@01D496CB.8B740130] Charles W. Thompson, Jr. Executive Director/General Counsel International Municipal Lawyers Association, Inc. A 51 Monroe St., Suite 404, Rockville, MD 20850 [cid:image005.jpg@01D496CB.8B740130]<http://www.facebook.com/IMLA-259977855541/> [cid:image007.jpg@01D496CB.8B740130] <http://www.linkedin.com/company/international-municipal-lawyers-association-inc./> [cid:image009.png@01D496CB.8B740130] <http://twitter.com/imlalegal> [cid:image011.jpg@01D496CB.8B740130] <http://soundcloud.com/internationalmunicipallawyersassociation> P (202) 466-5424 ext. 7110 M 240-876-6790 D (202) 742-1016 W www.imla.org<http://www.imla.org> Plan Ahead! IMLA's Mid-Year Seminar<http://www.imla.org/events/seminars>, March 29- April 1 in Washington, D.C.! IMLA's 84th Annual Conference<http://www.imla.org/events/conferences>, September 18-22 in Atlanta, GA!