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Real Property and “Grandfather Rights” aka Nonconforming Use

By Thomas L. Dickson, Esq.

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 knowthe term is“Nonconforming Use,” defined as ause“existinglawfully 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 prescribedperiod, 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 ina large spectrum of administrativeregulations.

“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 arerestrainingtheir 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 becausethere is someemphasisonprotecting due process rights.Bartzv. 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 isnonconforming use is still available in Washington,at least for the foreseeable future.

There areconditions wherenonconformingusis in effect a vested right and is therefore permanent.Butthere are limits. Immediate abolishment of a nonconfirming use regardless of due processis allowedwhere theuse issubstantially detrimental to the public health, safety, morals or welfare.State v. Thomasson, 61 Wn.2d 425, 428, 378 P.2d 441 (1963).Alocal 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 fornonconfirming use, but impose so many conditionsthat the use is effectively eliminated.

From the beginningof nonconforming use,lawsexistedlimiting the character of the use from any expansion.InGreer v. Washougal Motocross LLC, 137 Wn. App. 1046 (2007),while the nonconfirming use is allowed, a property owner cannot significantlychange, alter, extend, orenlarge it. So, for example, a retail store in an area downzoned to residentialcannotexpand its building or business from what wasin place with the change took place.

There are time considerations. Almost all jurisdictions have a time limit in which a nonconforming use lapses. Itis 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 ownerdiscontinuedthe useof 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, andthe court prohibitedthe new owner’s plans to use the property as a church onceagain.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 useafter a land use or administrative change? First,never assume the property loses its nonconforming useno matter what you are told. Because it is against their interests, the forcespromoting the change will not in any wayaccept youruse asnonconforming. Second, as early as possible seek out professionalsto gatherthe evidenceconfirmingthe existence of a nonconforming use.Third,take no chances on the time limit; examinethe local jurisdiction’scode on when the time period is up, andtake stepsmany, manymonths before thedeadline.If selling the propertyor installing a tenant preserves the nonconforming use,do so early on.