Zoning fundamentalsExplainer

Nonconforming uses & buildings

Chicago’s own ordinance concedes the point: in an older city, many buildings that were legal when built no longer comply. Zoning answers with nonconforming status — the right to keep what was lawful, on terms narrower than most owners assume.

The whole doctrine in one line

lawful when builtnever abandonednever made worse

= it may stay

The worked rules are Chicago’s Chapter 17-15, each linked to our hosted zoning code. The doctrine is general; the clocks, the enlargement rules and the vocabulary are not — see the “Elsewhere” note.

Definition

What a nonconformity is

A nonconformity is something that was lawfully established and then a rule changed. A rezoning, or an amendment to the text of the ordinance, leaves a lot, a use, a building or a sign on the wrong side of a rule it once met. That is different from an illegal building, which never complied at all §17-15-0102 — and the difference matters, because the owner carries the burden of proving which one they have §17-15-0104.

Chicago sorts them into four kinds, and each gets its own rules:

  • Nonconforming lot — a recorded lot that fails today’s minimum area or width §17-15-0201.
  • Nonconforming use — an activity the district no longer allows §17-15-0301.
  • Nonconforming development — the building or site itself: setbacks, height, parking count, landscaping §17-15-0401.
  • Nonconforming sign — which may stay and change its message, but not much else §17-15-0504.

If you built it today

Inside every line

The same 25 by 125 foot lot built under today's rules: a 15 foot front setback, 2.5 foot side setbacks and a 30 foot rear setback leave a smaller building, set in from every line. 15 ftstreet

Today’s rules on this RM-4.5 lot: a 15 ft front setback — or the average of the neighbors, whichever the builder picks §17-2-0305-B — side yards of at least 2 ft each and 5 ft combined §17-2-0309, and a 30 ft rear §17-2-0306-A.

What is actually there

Legal nonconforming

The building that is actually there: it runs the full width of the lot and stands in what are now the front, side and rear yards. It was legal when it was built, so it may stay. 5 ftstreet

The older building runs the full width of the lot and stands in what are now three required yards. It was lawful when it was built, so it may stay §17-15-0103.

Shaded bands are the yards today’s rules would require. On a 25 ft lot the side yards are a couple of feet, so both buildings read as equally wide — it is the front and the rear that separate them. Nothing about the older building is illegal; it is simply frozen.

Which rear-yard rule applies. The 30 ft above is 24% of lot depth, the figure for a building of 19 units or fewer in which at least a third of the units are accessible §17-2-0306-A. Without those units the same building owes 30% §17-2-0306-C — 37.5 ft here — and a detached house owes 28% §17-2-0306-B, 35 ft. The rear yard is the one setback on this lot where the answer turns on what you are building, not just where.

Lots

A lot that is too small

The most common nonconformity is the narrow lot. In a residential district a nonconforming lot may still be developed with a detached house, even though it fails the district’s minimum lot area or width §17-15-0202-A — and it keeps that right even if the owner voluntarily enlarges it and it still falls short.

In nonresidential districts the test is narrower: only those uses or intensities that do comply with the lot area and width standards are permitted §17-15-0202-B.

The exemption is only about the lot. Everything else — setbacks, floor area, height, parking, open space — still applies in full §17-15-0203. A 20-foot lot does not get relief from the side setbacks that make it unbuildable; that is what a variation is for.

Uses

A use the district no longer allows

A nonconforming use may continue, and the status runs with the land — a sale, a new tenant or a new manager does not end it §17-15-0106. What it may become is limited:

  • It may change to any use the district allows — a one-way door, since the new use is conforming §17-15-0302-A.
  • It may be swapped for a use in the same category, or a functionally similar one, only by administrative adjustment, judged on hours, traffic and the people it attracts, with notice to the alder §17-15-0302-B §17-15-0302-C.
  • It may be expanded into another part of the same building only by administrative adjustment, and only if it breaks no parking, bulk or density rule §17-15-0303-A.
  • It may not be expanded at all if it is an open use of land, a use that would today need a special use, a business or commercial use in an R district, or a business use in a B or C district where the expansion would trigger more parking §17-15-0303-B.
  • A detached house that is a nonconforming use in a B, C or M district may grow by up to 30% of its floor area, within the district’s FAR §17-15-0303-C.

Buildings

Altering a building that no longer fits

The rule is one sentence: a nonconforming development may be altered or enlarged as long as the work does not increase the extent of the nonconformity §17-15-0403-A. The ordinance then gives the two cases that decide most projects:

  • An upper-story addition that carries a front or side wall — one that is already nonconforming — vertically upward does increase the nonconformity.
  • An addition that extends a wall nonconforming as to the rear setback or rear yard open space does not, so long as the original building was constructed before August 1, 2004 and the addition is set back at least 30 ft from the rear property line.

Not an increase

The addition meets today’s setback

The older building in grey, with a new third story on top of it drawn in color. The new story is set 30 feet back from the rear property line, which is the rear setback the district requires today, so it does not carry the nonconforming rear wall any higher. 30 ftstreet

The new story stops at the 30 ft rear yard the district now requires, so the old wall below it is never carried any higher.

An increase

The addition follows the old wall

The same building and the same new third story, this time carried out to the existing rear wall, 20 feet from the rear property line: the nonconforming wall gets taller, so the addition increases the nonconformity. 20 ftstreet

The same story taken out to the existing wall, 20 ft from the line, makes the nonconforming wall taller — and needs relief.

Grey is the building that is already there — standing 20 ft from the rear property line where 30 ft would now be required — and color is the new story. Chapter 17-15 asks for its own 30 ft of clearance whatever the district requires; on this lot the two happen to be the same number. Heights are drawn to scale.

Existing nonconforming rear porches get their own allowance: they may be restored or reconstructed on documentation of what was there, without enlarging the nonconformity §17-15-0403-B.

How it ends

The ways the right is lost

EventResultSection
Use discontinued 18 continuous monthsNonconforming use rights are lost and may not be re-established§17-15-0304-A
Adult use or open use of land, 6 monthsSame, on the shorter clock§17-15-0304-A
Operations cease or the business license lapsesTreated as discontinuance, even if the structure and equipment stay§17-15-0304-A
Structure intentionally damaged or removedThe nonconforming use and the nonconforming elements may not return§17-15-0304-B
Fire or other cause beyond the owner’s controlMay be rebuilt no more out of compliance than before, if a permit is obtained within 18 months§17-15-0404-B

Nonconforming rights are use-it-or-lose-it, and the clocks are shorter than most owners expect.

This is the underwriting risk. A three-flat in a district that now allows two units is worth what its third unit earns — until an 18-month vacancy, a demolition you chose, or a missing permit record turns it into two. Buy the records, not the rent roll.

Other cities

The doctrine travels; the details do not

Whatever the city, the proof problem is the same: nonconforming status is a fact about the past, and it lives in records rather than in the zoning map.

Questions

Common questions

What does “grandfathered” mean in zoning?

It is not a term of art. Codes say nonconforming: something lawfully established that a later rule change made non-compliant. Chicago separates nonconforming lots, uses, developments (buildings and site features) and signs, and the rules for each are different (§17-15-0101).

Can I keep a nonconforming use?

Yes — nonconforming status runs with the land and survives a sale (§17-15-0106). But it is lost if the use is discontinued for 18 continuous months, or 6 months for an adult use or an open use of land, and ceasing operations or letting the business license lapse counts as discontinuance (§17-15-0304).

Can I expand a nonconforming building?

In Chicago a nonconforming development may be altered or enlarged as long as the work does not increase the extent of the nonconformity (§17-15-0403-A). Carrying a nonconforming front or side wall higher does increase it; a rear one does not, if the building predates August 1, 2004 and the addition is set back at least 30 feet from the rear property line.

My lot is too small for the district. Can I still build?

In Chicago, a nonconforming lot in a residential district may be developed with a detached house even though it fails the district’s minimum lot area or width — and it stays eligible even if you voluntarily enlarge it and it still falls short (§17-15-0202-A). Everything else, from setbacks to floor area, still applies (§17-15-0203).

What happens if the building burns down?

If the damage was beyond the owner’s control, it may be rebuilt no more out of compliance than before — but only if a building permit is obtained within 18 months of the damage (§17-15-0404-B). If the structure is removed or intentionally destroyed, the nonconforming elements may not come back (§17-15-0404-A).

Who has to prove a building is legal nonconforming?

The owner. Chicago puts the burden of proving that a nonconformity exists — rather than a plain zoning violation — on the landowner (§17-15-0104). Old permits, photographs, directories, water records and prior certificates of occupancy are what that proof usually looks like.

Does a zoning report tell me whether a use is legal nonconforming?

No, and be wary of anything that claims it does. A zoning screen can tell you the current district allows or disallows a use; whether a non-permitted use is lawfully nonconforming is a records question about what was legal when it began.

Keep reading

For a real address

Check the real numbers for a real parcel

LotGrade shows what a Chicago parcel’s district allows today and flags where the building or the use on it no longer matches — the screen that tells you which records to go find.

The analyzer requires an account — you’ll be asked to sign in. The Zoning Field Guide, the zoning code and these guides are free and need no login.