Be Careful to Preserve Pre-Existing Property Issues

Have you ever had a buyer or seller tell you that a particular use of a piece of property is “Just fine, don’t worry, it’s grandfathered”?  “Grandfathering” refers to permitted property uses that would not currently be allowed under existing zoning or use regulations.  A common example is an older home built next to the edge of Puget Sound, where current regulations require a minimum setback.

Many people take this concept for granted.  They should not.   If the property owner changes the prior existing use by demolishing a structure, or changing its character, the owner might lose the right to rebuild, or even revert back to the original non-conforming use.

Mr. George Lund of Pierce County learned this lesson the hard way.  In 1978, he purchased a large parcel of waterfront property near the Tacoma Narrows.  He subdivided the property into three land lots, and one waterfront lot.  The waterfront lot previously housed a cabin “built up on float logs”.  The cabin had been demolished in 1964.

Mr. Lund sold the three land lots.  He then applied for a permit to build a home on pilings on his waterfront lot.  All the property surrounding his had homes built on pilings.  Mr. Lund’s was the only undeveloped waterfront lot.

The City approved his permit.  The State Department of Ecology (which must review such permits) denied it.  Ecology stated, among other things, that such a house on pilings was not permitted under the locality’s shoreline master program.   Since there was no prior, pre-existing use or structure in place at the time the shorelines master program was enacted, it could not be “grandfathered”.

Mr. Lund tried to say that he never intended to abandon the residential character of his lot.  Unfortunately for him, the applicable shoreline master program states that a pre-existing use is considered abandoned if it is discontinued for more than two years.  Neither of these helped Mr. Lund, as relevant periods of time passed long before he purchased the property.

Moreover, the pre-existing use (as a residence) was not in effect at the time the shoreline master program was passed, so Mr. Lund lost on that point as well.  If you would like to know more about Mr. Lund’s story, you can find it at Lund v. Department of Ecology, 93 Wn. App. 329 (1998), a Washington Court of Appeals case.

While Mr. Lund’s was a Pierce County case, there is a moral that applies to those of us in other counties.  First, do not take for granted that a prior use of your property will be automatically allowed in the future; second, do not demolish structures or change the use of your property without thoroughly checking out the impact of this on your future land use plans; and third, as always, do your homework ahead of time.  Public agencies, while sometimes frustrating, are servants of the public.  They have large amounts of information, expertise and experience available for the asking.  Working in partnership with them to forward your plans works much better than acting first, and asking questions later.

Published May, 1999

This article contains information of general interest, and is not intended to be, nor should it be relied upon as a substitute for specific legal advice.