Agenda - Planning Commission - 08/04/2011

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June 10, 2011 !Volume 5 1 No. 11 Zoning Bulletin In 2007, McMilian was using both parcels for an automobile wrecking yard. At that time, both parcels were zoned for residential development. In 1958, the county's zoning ordinances were amend- ed such that a wrecking yard was prohibited in the area. Also in 2007, the county's Department of Development and En- vironmental Services (DDES) investigated numerous complaints about McMilian's use of the southern parcel. The DDES notified McMilian that, among other things, his use of the southern parcel for the wrecking business violated the county code because it was not a residential use in the residential zone. McMilian appealed. He argued that the operation of the wreck- ing yard on the southern parcel was a valid nonconforming use. He said this was because the wrecking yard business on the northern parcel, which was in effect before the zoning amendments of 1958, had spilled over onto the southern parcel for years. The hearing examiner concluded that the owners of the northern parcel, as trespassers on the southern parcel, could not establish a valid nonconforming use. McMilian appealed. The superior court reversed in favor of McMilian. The County appealed. DECISION: Affirmed in part and remanded. The Court of Appeals of Washington, Division 1, held that a trespasser cannot establish a valid nonconforming use. The court explained that in order to establish that a valid non- conforming use exists, a landowner must prove that: (1) the use existed before the county enacted the contrary zoning ordinance; (2) the use was lawful at the time; and (3) the applicant did not abandon or discontinue the use for over a year prior to the relevant change in the zoning code. Thus, said the court, generally speak- ing, a valid nonconforming use is one which lawfully existed prior to the adoption of the contrary zoning legislation. "The require- ment that the use be lawfully established is not limited to compli- ance with zoning legislation but, rather, also demands compliance with general statutory requirements," said the court. This is be- cause "[n]onconforming use ordinances 'are not intended to protect uses which were not legally commenced or continued."' Thus, "an illegality, even one arising from a violation of legislation other than land use laws, would render a use unlawful such that it could not be established as a valid nonconforming use." 10 ©2011 Thomson Reuters