October 19, 2010

Non-conforming use designations: “the new black” for bureaucrats?

By Non-conforming use designations: “the new black” for bureaucrats?

Author: Brian T. Hodges

Regulation for its own sake only leads to more regulation.  Case in point:  Washington State’s land use scheme.  The state’s Growth Management Act was adopted in 1990 and 1991 to require all local governments to engage in land use planning by requiring them to adopt comprehensive plans and development regulations addressing a series of subjects, such as transportation, urban growth, agriculture, critical areas, economic development, affordable housing, and preserving property rights.  All laudable goals.  But the problem with the Act is that it mechanically requires that local government update its development regulations at least once every 7 years without requiring them to review or rescind existing regulations that aren’t working or are unnecessary.

As a result, Washington property owners are facing a veritable pachinko parlor of regulations.  Because of the constantly changing land use standards, a home that was lawfully constructed less than a decade ago may now violate the law.  And government’s answer to this random assault on property rights is only making matters worse.

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. 

In response to a recent PLF case where the Court of Appeals reversed a local government’s decision to expand its shoreline buffers (and thereby deem existing development within the buffers non-conforming), our Legislature amended the GMA to prohibit local governments from deeming existing development on shoreline properties non-conforming simply because the government adopts new regulations.  PLF has two cases in the appellate courts, where it is fighting to assure that local governments comply with this new law and rescind their non-conforming use regulations.

For more information about these cases, visit PLF’s website here and here.

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