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 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 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 issubstantially 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.