255 P.3d 739
Wash. Ct. App.2011Background
- McMilian owned two adjacent parcels east of Federal Way and operates auto wrecking yards on both; he purchased the northern parcel in 2002 and later the southern parcel; both parcels are zoned to allow residential development.
- The northern parcel has housed a wrecking yard since before 1958; in 1958 zoning changed to prohibit wrecking yards, making the northern parcel a valid legal nonconforming use.
- The southern parcel was primarily forested; prior owners of the northern parcel used part of the southern parcel for wrecking/storage, causing spillover past northern parcel boundaries.
- In 2005, McMilian cleared the southern parcel and moved vehicles there; DDES issued 2007 notices for home occupation violation, excessive clearing (over 7,000 sq ft), and an over-height fence without permits.
- The hearing examiner concluded the spillover use did not establish a legal nonconforming use on the southern parcel and that a trespasser cannot create a valid nonconforming use; the examiner also found no express permission from the southern parcel’s owners.
- The superior court reversed the examiner on the nonconforming-use issue, stating the lawful-use standard is tied to zoning compliance rather than ownership, and remanded to determine whether the wrecking-yard use existed on the southern parcel prior to 1958.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can a trespasser establish a valid nonconforming use? | McMilian argues trespassers cannot establish a valid nonconforming use. | King County contends nonconforming use requires lawful establishment and may be challenged if unlawful. | Trespasser cannot establish a valid nonconforming use. |
| Is there a presumption that use of adjacent land is permissive rather than trespassing, requiring express permission? | McMilian contends acquiescence or permissive use can vest rights. | County argues no permissive-use presumption; a lack of permission defeats nonconforming rights. | Presumption of permissive use applies where land is vacant/open/unenclosed; remand to determine pre-1958 existence. |
| Did McMilian's clearing on the southern parcel require a clearing permit under KCC 16.82.051? | No exemption for routine maintenance; waiver claimed. | Exemption table does not cover wrecking-yard maintenance; a clearing permit was required. | A clearing permit was required; the examiner properly sustained the violation. |
| Was the wrecking-yard use on the southern parcel established prior to 1958 to support a nonconforming-use claim? | Use existed prior to zoning change via spillover from the north and longtime conduct on the south. | Record does not show the southern parcel used as wrecking yard before 1958. | Remanded to determine whether the southern parcel had a wrecking-yard use before 1958. |
| Did the hearing examiner properly apply the law to the facts regarding nonconforming use and permissive use? | Hearing examiner erred by presuming trespass and misapplying standards. | Hearing examiner correctly applied the law but failed to resolve factual questions on pre-1958 use. | Remand; examiner must decide if pre-1958 use existed and, if so, apply permissive-use presumption to determine validity. |
Key Cases Cited
- First Pioneer Trading Co., Inc. v. Pierce County, 146 Wash.App. 606, 191 P.3d 928 (Wash. Ct. App. 2008) (burden to prove preexisting lawful nonconforming use; abandonment standards)
- Open Door Baptist Church v. Clark County, 140 Wash.2d 143, 995 P.2d 33 (Wash. 2000) (nonconforming uses are disfavored; due process concerns)
- Anderson v. Island County, 81 Wash.2d 312, 501 P.2d 594 (Wash. 1972) (phasing out nonconforming uses; due process considerations)
- Kunkel v. Fisher, 106 Wash.App. 599, 23 P.3d 1128 (Wash. Ct. App. 2001) (permissive-use/acquiescence can be inferred in certain contexts)
- Sharp v. Kieszling, 35 Wash.2d 620, 214 P.2d 163 (Wash. 1950) (vacant land presumption of permissive use)
- Blue Ridge Club, State ex rel. Shorett v. Blue Ridge Club, 22 Wash.2d 487, 156 P.2d 667 (Wash. 1945) (vacant land permissive-use presumption; licensing/ownership implications)