One of the more perplexing issues that confront land use lawyers and their clients is the question whether their actions or that of their predecessor or that planned by their purchasers or tenants jeopardizes a protected nonconforming use.
Consider, for a moment, that an owner has used his or her property as a parking lot for many years before the township adopted its first zoning ordinance. The same consideration would apply if the owner secured a zoning permit for this use under permissive zoning regulations that later changed to eliminate parking lots as a permitted use. In either case, settled law would recognize the parking lot use as a constitutionally protected nonconforming use, a right that runs with the land. Thus, if the property owner decided to sell or to lease the land to another who wanted to operate a parking lot on the property, the new owner or tenant would have the unquestioned right to continue the activity irrespective of any later changes in zoning regulations.
The problem arises when the use stops for a period. A related problem arises when the proposed purchaser or new tenant wants to engage in a use that is only similar to the protected use but not identical and involves activities that embraced by the former use. Then what?