February 5, 2013

Kitsap County rejects non-conforming use designation for shoreline homes

By Brian T. Hodges Senior Attorney

For nearly a decade, PLF was locked in litigation with Kitsap County over its critical areas ordinance.  Although the ordinance was ultimately upheld, we scored quite a few wins along the way. One of those wins may have turned the tide on a growing trend among local governments of addressing conflicts between homes and newly adopted regulations by designating lawful structures and uses “non-conforming.”

I wrote about the problem on our blog a couple of years ago. Because Washington’s land use/environmental statutes require constant updates to critical area regulations, property owners are facing constantly changing land use standards. A home that was lawfully constructed less than a decade ago may now be located in a “no touch” environmental area. How do local governments address that conflict?

More and more, local governments are relying on the non-conforming use designation to address conflicts between existing, lawful development and newly adopted regulations.  This is a band-aid measure for a real problem.  The non-conforming use designation was never intended to be used to exempt homes from new regulations.  Instead, our courts have held that this designation is intended to phase the use out of existence over time.  And there are many immediate and direct effects of deeming existing homes non-conforming, including the availability and cost of financing and insurance, decreased property value, and limitations on the right to maintain, remodel, or repair the house.

The non-conforming use designation may be an easy way for local government to delay having to address conflicts between its land use regulations and the built environment, but it is not an answer and should not be viewed as “the new black” for regulators.

PLF’s challenge to Kitsap County’s critical areas ordinance provided a solution to this problem. During an early phase of that case, the court of appeals held that the county lacked authority to expand its shoreline buffers (and thereby deem existing development within the buffers non-conforming).  In response, Washington’s Legislature amended a state land use statute to authorize cities and counties to regulate shorelines, but also recognized that existing development and uses do not become non-conforming simply because the government adopts new regulations. The amended statute expressly allowed cities and counties to deem homes and other structures “conforming” despite expanding environmental regulations.

Cities and counties across the state are still struggling with this issue.  But, earlier this month, I learned that, as part of its regulatory update, Kitsap County decided to drop language designating all existing homes “non-conforming,” and instead designated all lawful, existing structures “conforming.”  The relevant portion of the regulation now reads:

“Existing homes, appurtenant structures and residential uses, including lawns, landscaping and recreation areas, are authorized and conforming and may be remodeled, rebuilt, and expanded, provided that any new additional impact must be mitigated and meet the ‘No Net Loss’ standard for that property.”

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