Nonconforming (Grandfather) Rights

The law has recognized legal nonconformities since the first zoning ordinance was passed in 1946.  Nonconformities are governed by Anchorage Municipal Code Chapter 21.13.  The municipal code recognizes five basic categories of legal nonconformities:

  • Nonconforming uses of land or structures (21.13.030)
    • These are uses of buildings, or land that would not be permitted under current regulations, but which were established before the regulations went into effect.
  • Nonconforming structures (21.13.040)
    • ​These are buildings that were legal at the time they were constructed, but encroach into the current yard setbacks or exceed the current height or area limitations.
  • Nonconforming encroachments into watercourse, water body and wetland setbacks (21.13.045)
    • These are structures and uses located within required setbacks to streams, lakes and wetlands.
  • Nonconforming lots of record (21.13.050)
      • These lots were legal when they were subdivided but do not meet the current requirements for width, depth, access, or other requirements.​
  • Nonconforming characteristics of use (21.13.060)
    • This category covers nonconformities to the parking, landscaping, signage or other site requirements.

Nonconforming rights only apply to a legally established structure or use as it existed at the time of the zoning or code change.  The nonconforming portion of a structure may not be expanded, and a nonconforming use may not be extended to other areas of the property unless the Zoning Board of Examiners and Appeals grants a variance.

Encroachments into required yard setbacks that existed prior to January 1, 1986, may be considered legally nonconforming even if they were created after zoning.  The process and application for obtaining a Certification of Nonconforming Encroachment are the same as for establishing conventional nonconforming rights.​

To gain recognition of nonconforming rights, a property owner must apply to the Planning Department and supply evidence to establish the nonconformity.  See handout for "How to Establish Nonconforming Rights​" and the application form: Nonconforming Determination​. The Planning Department maintains files of all nonconformities that have been established.

  • To be a legal nonconformity (or in other words, to "have grandfather rights"), the lot, structure or use must have been legally established before the effective date of the zoning regulation that prohibits it.  A twenty-year-old violation is still a violation.
  • The Municipality may not have abated a violation simply because it didn't know about it.  Even if "the Muni" was aware of a violation, it may not have had the resources to pursue enforcement.  Neither of these conditions makes a violation legal or bestows nonconforming rights or prevents the Municipality from enforcing the zoning code now.
  • Real estate agents, title companies, banks, mortgage companies,​ and other agencies may not have the expertise to recognize violations of the zoning regulations.  Ownership of property carries with it the obligation to comply with the regulations.
  • A person who asserts that something exists has the burden of proving that it exists.  This is especially true of nonconforming rights. The burden of proof is on the property owner.
  • The Municipality of Anchorage and Land Use Review do not grant nonconforming rights.  We recognize nonconformities that are documented to exist.  We have no interest in denying valid nonconforming rights - just as we have no interest in recognizing rights that have not been documented.

Nonconforming rights are vested property rights.  Once established, they "run with the land" - that is, they automatically continue in force when the land is sold.  Exceptions are:

  • Nonconforming rights to a use automatically terminate if the use is abandoned for more than one year or is superseded by a permitted use.
  • Nonconforming rights for junkyards in residential districts and natural resource extraction operations were terminated by the Assembly.
  • Nonconforming signs have amortization periods specified in AMC 21.13.070B., after which they must be brought into conformity or removed.    
  • If a nonconforming use later becomes a conditional use in that zoning district, the nonconformity is terminated and the use may continue as a de facto conditional use.

For more information, please contact Land Use Review at 907-343-8380, or 907-343-8332.