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Real Property and "Grandfather Rights" aka Nonconforming
Use
We often hear the expression, "grandfather rights," when
someone's property is not affected by a land use change while
nearly everyone else's is. In legal parlance, land use attorneys
know the term is "Nonconforming Use," defined as a use "existing
lawfully before the rezone of the surrounding area and continues
or is 'grandfathered' after the rezone, provided the use is not
thereafter interrupted for longer than a prescribed period,
generally a year." Land Use and Environmental Law, Ch. 24, Part
Two, Washington Lawyer's Practice Manual. Nonconforming use is
not limited solely to zoning issues, but to changes in a large
spectrum of administrative regulations.
"The right to continue a nonconforming use despite a zoning
ordinance which prohibits such a use in the area is sometimes
referred to as a 'protected' or 'vested' right. This right,
however, only refers to the right not to have the use immediately
terminated in the face of a zoning ordinance that prohibits the
use." Rhod-A-Zalea & 35th, Inc. v. Snohomish County, 136
Wn.2d 1, 6, 959 P.2d 1024 (1998).
Establishing nonconforming use requires: (1) the use existed on
the date specified in the zoning or administrative code, (2) it
was lawful, and (3) after the change took effect, it was not
abandoned or discontinued for one year or more. State ex rel.
Lige & Wm. B. Dickson Co. v. Pierce County, 65 Wn. App. 614,
623-24, 829 P.2d 217 (1992). Nonconforming uses are also
disfavored in the law, and slowly but surely the courts in
Washington State are restraining their existence. The prevailing
public policy is to severely limit if not abolish them.
Washington State, however, is one of the jurisdictions where
nonconforming use is hanging on because there is some emphasis on
protecting due process rights. Bartz v. Board of Adjustment, 80
Wn.2d 209, 217, 492 P.2d 1374 (1972). "Due process prevents the
abrupt termination of what one had been doing lawfully." Meridian
Minerals Co. v. King County, 61 Wn. App. 195, 212, 810 P.2d 31,
rev. denied, 117 Wn.2d 1017 (1991). The message for the
property-owning public is nonconforming use is still available in
Washington, at least for the foreseeable future.
There are conditions where nonconforming us is in effect a vested
right and is therefore permanent. But there are limits. Immediate
abolishment of a nonconfirming use regardless of due process is
allowed where the use is substantially detrimental to the public
health, safety, morals or welfare. State v. Thomasson, 61 Wn.2d
425, 428, 378 P.2d 441 (1963). A local government may legislate
an "amortization period," where a nonconfirming use is phased out
because sufficient time is given the property owner to endure the
change. University Place v. McGuire, 102 Wn. App. 658, 9 P.3d 918
(2000). A city or county may require a permit for nonconfirming
use, but impose so many conditions that the use is effectively
eliminated.
From the beginning of nonconforming use, laws existed limiting
the character of the use from any expansion. In Greer v.
Washougal Motocross LLC, 137 Wn. App. 1046 (2007), while the
nonconfirming use is allowed, a property owner cannot
significantly change, alter, extend, or enlarge it. So, for
example, a retail store in an area downzoned to residential
cannot expand its building or business from what was in place
with the change took place.
There are time considerations. Almost all jurisdictions have a
time limit in which a nonconforming use lapses. It is generally a
year, Miller v. City of Bainbridge Island, 111 Wn. App. 152, 43
P.3d 1250 (2002), but for some local governments it is less. The
lapse can come from a predecessor. A former owner discontinued
the use of his land as church for over a year. He then sold the
property to group planning to use the location as a church.
However, because of the significant lapse in time with the first
owner, the nonconforming use expired, and the court prohibited
the new owner's plans to use the property as a church once again.
Open Door Baptist Church v. Clark County, 140 Wn.2d 143, 150-51,
995 P.2d 33 (2000).
What does this mean for a property owner believing he or she has
a nonconforming use after a land use or administrative change?
First, never assume the property loses its nonconforming use no
matter what you are told. Because it is against their interests,
the forces promoting the change will not in any way accept your
use as nonconforming. Second, as early as possible seek out
professionals to gather the evidence confirming the existence of
a nonconforming use. Third, take no chances on the time limit;
examine the local jurisdiction's code on when the time period is
up, and take steps many, many months before the deadline. If
selling the property or installing a tenant preserves the
nonconforming use, do so early on.