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Shoreline Master Programs

Non-conforming uses

A non-conforming use is a use or development that was lawfully constructed or established but does not conform to present SMP requirements. These "grandfathered" developments may continue as long as they are not enlarged, intensified, increased, or altered in a way that increases the nonconformity.

State rules for non-conforming uses (WAC 173-27-080) apply unless local governments have adopted different master program provisions.

Enlarging uses | Abandoned uses | Repairs | Substandard lots | Variances | Changing uses | Moving structures | Determining age of uses | Other pre-existing uses | Uses built before 1969

Enlarging or expanding a nonconforming use

A non-conforming uses may be enlarged or expanded under very limited circumstances. Nonconforming single-family residences that are located landward of the ordinary high water mark may be enlarged or expanded in conformance with applicable bulk and dimensional standards by the addition of space to the main structure or by the addition of normal appurtenances upon approval of a conditional use permit.

It is sometimes important to distinguish between a nonconforming structure with a conforming use and a nonconforming use. If a house is located in an environment that allows residential use but is closer to the water than the environment designation allows, it may be expanded as long as the expansion does not further intrude on the setback. (A further intrusion may be authorized by a variance if the criteria can be met.) Expansion of a structure that houses a nonconforming use cannot be authorized by these provisions or by variance.

If an existing use conforms with SMP use regulations but does not conform with SMP setback, height, or density requirements the use may be enlarged or expanded if the extent of non-conformity is not increased.

Abandoned uses

Nonconforming uses are considered abandoned if they are discontinued for more than twelve consecutive months or for twelve months during any two year period. The "grandfathered" rights expire regardless of the owner's intent to abandon or not.

Any subsequent use must conform to the requirements of the SMA and SMP. Similarly, a nonconforming use may not be changed to another nonconforming use or moved any distance within the shorelines of the state.

Repairing damaged nonconforming uses

If a nonconforming use is damaged to an extent not exceeding 75% replacement cost of the original structure, it may be reconstructed to those configurations existing immediately prior to the time the structure was damaged, so long as:

  •  the applicant applies for permits needed to restore the development within six months of the date the damage occurred;
  • all permits are obtained; and
  • the restoration is completed within two years of permit issuance.

Substandard lots

A pre-existing lot or parcel that is substandard with respect to lot size or density requirements may be developed providing it meets the other requirements of the SMA and SMP. A reasonable use of the property should be allowed based on the characteristics of the site. Easing of standards other than lot size or density, for example building setbacks, would require a variance permit. Typical situations of nonconforming developments are an old boat repair yard or industrial warehouse located in a conservancy environment; or a residence encroaching within established SMP setbacks.

Approved variances

A structure for which a variance has been issued shall be considered a legal nonconforming structure and the requirements of this section shall apply as they apply to preexisting nonconformities.

Changing uses of nonconforming structures requires a CUP

A structure which is being or has been used for a nonconforming use may be used for a different nonconforming use only upon the approval of a conditional use permit. A conditional use permit may be approved only upon a finding that:

  • No reasonable alternative conforming use is practical; and
  • The proposed use will be at least as consistent with the policies and provisions of the act and the master program and as compatible with the uses in the area as the preexisting use.

In addition conditions may be attached to the permit to assure compliance with the master program and to assure that the use will not become a nuisance or a hazard.

Moving a nonconforming structure

A nonconforming structure which is moved any distance must be brought into conformance with the applicable master program and the act.

Determining the age of a development

Determining exactly when a development, such as a bulkhead, was initially built, can be a difficult task. While technically it is the applicant which must prove compliance with the regulation, the practical situation is that usually the local government must look into this to be sure of the situation. Evidence such as assessor's records, recorded deeds or other documents, historical photos, other permit records (e.g. building, HPA, short or long plat, etc.) or testimony from contractors, neighbors, officials, etc.) can be crucial in proving the date of construction or initial use.

Noncomforming uses and CUPs

The criteria for allowing a Conditional Use Permit (CUP) in 173-27-150(4) prohibits prohibited uses through a CUP. However, the SMA section on nonconforming development in 173-27-080(6) allows it. At first blush, this appears to be a conflict. However, the purpose of the nonconforming use rule is to provide reasonable use of a legally existing non-conforming building when no more conforming use can be practically expected to make use of the structure. This is a very limited exception under very limited circumstances but is necessary to assure that regulations do not either overly compromise policy in order to accommodate some particular situation or overregulate and result in a "taking" of private property.

Pre-existing uses

If a shoreline development predates the SMA or a local SMP ("pre-existing uses") is consistent with the SMP, permits are only required if new substantial development is proposed.

When the use consists of ongoing development activities, such as a gravel mine, the project requires an "active" (unexpired) shoreline substantial development permit throughout the life of the project. If the use of a pre-existing development is proposed to be changed the new use must be consistent with the SMP. If the proposed use is a conditional use in the master program then a conditional use permit is required whether or not new development is required to establish the use.

Structures placed in navigable waters before 1969

In RCW 90.58.270, the SMA specifically recognizes one class of pre-existing use, in declaring that "Nothing in this statute shall constitute authority for requiring or ordering the removal of any structures, improvements, docks, fills, or developments placed in navigable waters prior to December 4, 1969." This language was a response to the State Supreme Court's decision in Wilbour v. Gallagher, in which the court held that fill placed in Lake Chelan violated the public's right of navigation under the public trust doctrine.

For more information

Law: RCW 90.58.270
Rule: WAC 173-27-080

Contact Ecology's shoreline permit staff serving your town, city, or county.

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