Nonconforming (Grandfather) Rights
The law has recognized legal nonconformities ever since the first zoning ordinance was passed in 1946. Nonconformities are governed by section 21.55 of the municipal code. The municipal code recognizes five basic categories of legal nonconformities:
- Nonconforming lots of record. These lots were legal when they were subdivided but do not meet the current requirements for width, depth, access, or other requirements.
- Nonconforming uses of land. These are land uses that would not be permitted under current regulations, but which were established before the regulations went into effect.
- Nonconforming structures. These are buildings that were legal at the time they were constructed, but encroach into the current yard setbacks or exceed the current height or area limitations.
- Nonconforming uses of structures. These are uses of buildings, or land and buildings, that would not be permitted under current regulations, but which were established before the regulations went into effect.
- Nonconforming characteristics of use. This is something of a catch-all category that covers nonconformities to the parking, landscaping, signage or other requirements.
Nonconforming rights only apply to a structure or use as it existed at the time of the zoning or code change. The nonconforming portion of a structure may not be expanded, and a nonconforming use may not be extended to other areas of the property (unless the Zoning Board of Examiners and Appeals grants a variance.)
Encroachments into required yard setbacks that existed prior to January 1, 1986 may be considered legally nonconforming even if they were created after zoning. The process and application for obtaining a Certification of Nonconforming Encroachment are the same as for establishing conventional nonconforming rights.
To gain recognition of nonconforming rights, a property owner must apply to Development Review and supply evidence to establish the nonconformity. Application Form: Nonconforming Rights. Development Review maintains files of all nonconformities that have been established.
There are several popular misconceptions about "grandfather rights":
- If something has been there "for twenty years" or "forever," it must be legal.
- If "the Muni" didn't pursue an enforcement action before now, it must be legal.
- If the real estate agent or the title company didn't find a problem, it must be legal.
- Its up to "the Muni" to prove that I'm not "grandfathered in."
- "The Muni" hates to give grandfather rights for anything.
With apologies to Robert Service, "These are the simple facts of the case, and I guess I ought to know":
- To be a legal nonconformity (or in other words, to "have grandfather rights"), the lot or structure or use must have been legally established before the effective date of the zoning regulation that prohibits it. A twenty year-old violation is still a violation.
- The Municipality may not have abated a violation simply because it didn't know about it. Even if "the Muni" was aware of a violation, it may not have had the resources to pursue enforcement. Neither of these conditions makes a violation legal or bestows nonconforming rights or prevents the Municipality from enforcing the zoning code now.
- Real estate agents, title companies, banks, mortgage companies and other agencies may not have the expertise to recognize violations of the zoning regulations. Although a property owner may have even less experience with the law, ownership nevertheless carries with it the obligation to comply with the regulations.
- A person who asserts that something exists has the burden of proving that it exists. This is especially true of nonconforming rights. The burden of proof is on the property owner.
- "The Muni" (specifically Development Review) does not grant nonconforming rights. We simply recognize nonconformities that are documented to exist. We have no interest in denying valid nonconforming rights - just as we have no interest in recognizing rights that have not been documented.
Nonconforming rights are "vested property rights" that are often worth tens of thousands of dollars. Once established, they "run with the land" - that is, they automatically continue in force when the land is sold. Exceptions are:
- Nonconforming rights to a structure automatically terminate if a structure is destroyed or damaged beyond 50% of its replacement cost.
- Nonconforming rights to a use automatically terminate if the use is abandoned for more than one year or is superseded by a permitted use.
- Nonconforming rights for junkyards in residential districts and natural resource extraction operations were terminated by the Assembly.
- Nonconforming signs have amortization periods specified in AMC 21.47.090, after which they must be brought into conformity or removed.
- If a nonconforming use later becomes a conditional use in that zoning district, the nonconformity is terminated and the use may continue as a de facto conditional use.
If you use the online version of the code, search on "21.55.010" to get the beginning of the section. For the regulations on nonconforming signs, search on "21.47.090." Please note that recent amendments may not have been published yet. Development Review will be happy to verify the current code language for you.