A recent Court of Appeals decision has limited the situations in which courts will allow a “nonconforming use”—that is, a use that was legal when it was established but is no longer permitted under current local land use regulations (sometimes referred to as “grandfathered”).  Many local land use codes allow nonconforming uses to continue subject to certain limitations, such as a prohibition on expansion or changes to the use. While many codes state that the nonconforming use must be “lawfully established,” they do not generally specify whether, to be “lawful,” the use must have complied only with land use regulations or with other laws as well.

In McMilian v. King County, Washington’s Division One Court of Appeals addressed a claim that a nonconforming use was not “lawfully established” because it was initiated by a trespasser. The Court discussed different jurisdictions’ approaches to the “lawfully established” requirement and opined that the better approach was to recognize a nonconforming use only where the use was initiated consistent with “general legislation” as well as with land use regulations. The Court upheld a ruling by the King County Hearing Examiner that “a trespasser may not establish a valid nonconforming use,” but was not convinced that the party claiming the nonconforming use in this case was actually a trespasser. For this reason, it remanded the case back to the Hearing Examiner for a determination of whether a nonconforming use had been lawfully established.

While the McMilian case provides some clarity on who may establish a nonconforming use, the scope of the “lawfully established” requirement remains unclear, and it is difficult to predict how far Washington courts will extend it. While preventing trespassers from benefitting from nonconforming use status may make good policy sense, imposing requirements unrelated to the use itself—such as business licensing requirements—may not. In any event, the “lawful use” requirement poses one more obstacle to the landowner seeking to establish a nonconforming use and thus merits serious consideration by any landowner hoping to continue a preexisting use which is no longer allowed under current land use regulations.