Non-conforming use, more commonly referred to as a “grandfathered use,” is a concept found in zoning and land use law. To understand it fully, one must understand how zoning and land use codes work. State and local government use municipal “zoning codes” to govern how buildings are constructed and how land is utilized. What’s more, codes govern not only what people can build, how they can build it. For instance, one section of municipal code would limit one’s lot to a single-family residence, but another section might mandate how large the home can be for the lot.

The difficulty with code is that it changes and evolves over time. In a manner of thinking, it’s as though the regulatory goal posts can shift. Grandfathered uses, therefore, occur when a new land-use regulation or rule doesn’t apply to an existing property because it fails to conform to the new land-use control. While powerful, grandfather use rights are not unlimited. A grandfather use can lapse if the property owner fails to take advantage of it over time. It can’t be “revoked” immediately, but the nonconforming use could potentially become strictly regulated and purposefully ended according to a reasonable legal time frame.

Timing is essential with these types of uses. It must have
legally existed before the change in the surrounding area. This now-nonconforming use continues or is after the zoning code change so long as the use it is not interrupted for longer than a given period, usually a year (which would be a lapse).

The right to continue a nonconforming use, despite a rule which prohibits it, is sometimes called a “protected” or “vested” right. This grandfather clause protection refers only to the right not to have the use immediately stopped due to a new rule or ordinance prohibiting the use. To establish a nonconforming use, you must show:

• The use existed on the date spelled out in the zoning or administrative code.
• It was a lawful use at the time.
• After the change in the code went into effect, the use
  wasn’t abandoned or discontinued for a year or more.

As one might imagine, local governments don’t like
non-conforming use protections. Laws are interpreted not to favor nonconforming uses. Courts can limit those uses, but not abolish them. What protects the property owner isn’t land-use law, but constitutional law. Under our federal Constitution, you can’t be deprived of property rights without due process of law. That includes the fact that you can’t suddenly stop what a person has been doing lawfully with their land in the past. This means a grandfathered use might never be revoked.

Can You Revoke a Grandfather Clause? No, but it Can be Controlled and Limited.

There are conditions in which a grandfather clause is not revoked, but a nonconforming use becomes a vested legal right and permanent, within limits:

• The immediate end of a nonconforming use, regardless of due process, can happen if the use is substantially detrimental to the public health, safety, morals or welfare.
• A local government can create a period when a nonconforming use will be phased out because the property owner is given enough time to adapt to the change.
• A city or county could require a permit for a nonconforming use, with the conditions making it very difficult for the operation to continue.

The state Supreme Court, in the case of Rhod-A-Zalea v. Snohomish County in 1998, established limits for nonconforming uses and their regulation. The case involved a business (a peat mining operation) challenging the county’s regulation of its operation (a building code requiring it to obtain a grading permit for its ongoing excavation and fill activities). The peat mining company claimed Snohomish County was trying to run it out of business, improperly denying its right to continue its nonconforming use. It argued that its ongoing grandfathered use could not be revoked.

Lower courts found for the company; the Supreme Court reversed, stating the company could be subject to regulations enacted after it started business. It saw the state’s regulation as a valid, reasonable exercise of police power. Though compliance would cost it money, the business didn’t produce evidence that complying with the County regulations would threaten its operations. Thus, while a nonconforming use is powerful, it is not untouchable from a regulatory standpoint.

Can You Revoke a Grandfather Clause?

Examples of past cases can help answer the question of whether a grandfathered use can be revoked. In the peat mining company case, the court listed two essential cases for guidance relating to the question of revocation of a grandfather clause:

• Town of Hempstead v. Goldblatt: A town regulated dredging and pit excavations, and a mining operation challenged it. It claimed it wasn’t a genuine regulation, just a way to stop its nonconforming use. The U.S. Supreme Court found the rule was reasonably related to the health, safety, and welfare of the community and upheld the ordinance, though it conceded it completely prohibited the property’s past use. The Court justified its decision by stating that every regulation potentially could be a prohibition. If the ordinance is a valid exercise of the town’s police powers, the fact that it deprives the property of its most beneficial use doesn’t make it unconstitutional.
• Watanabe v. City of Phoenix: Landowners challenged an ordinance requiring that parking lots for three or more vehicles be paved for dust control. Their lot was covered in gravel and they questioned the city’s ability to affect its nonconforming use. The Arizona Court of Appeals ruled for the city. It stated that the protection of nonconforming uses was to prevent the injustice of their immediate termination, but they were still subject to reasonable regulations under the city’s police power to protect the public health, safety, and welfare. The regulation wouldn’t affect the landowners’ ability to continue their nonconforming use, nor would it make their business economically unfeasible.

Placing Limits on Grandfathered Land Uses

While nonconforming use acts as a protection against code changes, can those uses expand over time? Although nonconforming uses have been allowed, there have also been laws limiting their expansion. Simply put, while a nonconforming use is permitted, the owner can’t significantly change or enlarge it. (For example, A gas station which over time becomes surrounded by homes in an area later zoned residential may not be able to buy up nearby lots and expand its operation.)

In nearly all Washington jurisdictions, there are time limits concerning nonconforming uses; thus, grandfathered uses eventually lapse. There is no specific time frame, rather, it depends on the context of the use. As a general rule of thumb, the more difficult it is for a grandfathered use to change, the longer the time the property owner has to change it.
(For example, a property owner may have only a few years to change a non-conforming use if it involves something minor that has to do with landscaping, while he may have an almost unlimited time to change if the non-conforming use deals with a foundational element of his or her building.)

The most damaging thing a property owner can do regarding a grandfathered use, is to stop doing it. A lapse in non-conforming use that last longer than a year can destroy it. The lapse may start with a predecessor property owner. If the nonconforming use was a business, it was discontinued for more than a year, the land was sold to someone wanting to expand the business, that effort would probably fail due to the lapse in time with the first owner. The nonconforming use expired, and, if this went to court, the plans would probably be stopped.

What Should You Do if You Want to Continue a Grandfathered Land Use?

If you want to continue a grandfathered, nonconforming use on a property you want to buy, what should you do? Do your homework and don’t waste time.

• Others may tell you that nonconforming use isn’t possible. That may be because they don’t want you to continue that use, not because you lack that right.
• As soon as possible, work with professionals to gather evidence confirming the existence of the nonconforming use.
• What’s the local period before the use lapses? Take actions, ideally, months before that deadline passes.

Questions about Revoking a Grandfather Clause and Other Land-Use Disputes

No matter what side of a grandfather clause issue you are on, a real estate attorney will protect and defend your interests before, during, and after any land-use dispute. Call now for a free consultation