I have reviewed many surveys in the course of my real estate practice. Every so often, one shows a structure that doesn’t meet the property’s current setback requirements. It may be a garage sitting a few feet too close to the side yard, a porch that creeps into the front-yard setback, or, most frequently, a shed or swing set placed right on the property line. When that happens, buyers get nervous, sellers get defensive, and otherwise amicable deals sometimes become more contentious. But there is something all parties should know before the panic sets in. As the old adage goes, “time heals most wounds.”
Connecticut zoning regulations change over time. For instance, a setback that requires 40 feet today might have only required 30 feet when a garage was built in 1974. A structure that was legal when it was built but no longer complies with current zoning is called a “legally non-conforming” structure. This is not a code violation. It’s a structure built according to the rules in effect at the time, and that simply predates a later regulatory change.
There are other ways zoning violations become legally non-conforming, and one of them cures the situations described above. Connecticut General Statutes Section 8-13a establishes a statute of limitations on zoning enforcement. Under this statute, the Town cannot enforce a setback violation if the structure has been in place for at least three years. The practical result, the town cannot require you to tear down or move your structure if it has been in its current location for three years or more.
This doesn’t make the structure compliant with current zoning. What it does is close the enforcement window. The violation still technically exists as a matter of record, but the structure is now legally non-conforming and can remain in place on the property in perpetuity.
One thing to be aware of is that the statute applies only to location, not to use. For instance, you built your barn in the setback 5 years ago and were using it to operate a store. Your property sits in a residential zone, and the Town discovers what you are doing. The Town is precluded from bringing any violation for the barn’s location (it can stay where it is), but can still enforce the regulations that prevent commercial use of the property (it can shut down your store). The use regulations never become grandfathered.
Ultimately, understanding the nuances of Connecticut zoning laws can turn a source of real estate anxiety into a manageable situation. It is always a good idea to consult your attorney before panicking!
The Bayer Bottom Line
- Structures built in compliance with the zoning rules in effect at the time of construction are considered “legally non-conforming” when regulations later change or some other situation prevents town enforcement of the regulations.
- Some zoning violations can be cured by the passage of time.
- Under Connecticut General Statutes Section 8-13a, municipalities are barred from enforcing setback violations if the structure has been in its location for at least three years.
- This protection applies strictly to the structure’s location; it does not grandfather in unauthorized uses of the property, which may still be subject to enforcement.