Agenda - Planning Commission - 10/03/2013

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Zoning Bulletin August 25, 2013 1 Volume 7 1 Issue 16 �l In order to determine whether the use of the Property as a materials process- ing facility existed prior to September 2004, the court had to determine "how the King County Code provisions allow[ed] uses to vest as nonconforming uses." Importantly, the court found that the past -tense form of the word "es- tablish" was used twice in the Code's definition of "nonconforming." The court found that this showed that the use must already be established in order to be considered a nonconforming use. The court next looked to what was required by the Code for a use to be "established." Again, the Code stated that a use was permanently established when the use "will or has been in continuous operation for a period exceeding sixty days." Again, the hearing examiner had interpreted the term "will" to mean that the County Code expressly recognized that preexisting uses could vest even if not in full operation. The court disagreed. It found that the term "will" spoke to existing established uses that had not been in operation for 60 days but were expected to continue for more than 60 days. A use in operation for less than 60 days was considered a "temporary use." Thus, the court concluded that "will" did not have any bearing on when a nonconforming use was "established" but instead referred to whether uses that were already "established" were considered "permanent" or "temporary." The court determined that because Shear was not yet processing materials at the time of the September 2004 zoning change, his use as a materials processing facility was not yet established within the meaning of the Code. Moreover, the court found no language in the County Code that allowed a landowner to create a preexisting use merely by undertaking preparatory steps with a plan to take action at some unknown time in the future. Thus, the court said that allowing some contemplated future use to be considered a "preexist- ing" use would be contrary to the requirements of the preexisting use doctrine. Accordingly, the court concluded that Shear failed to show his use was established at the time of the zoning change and therefore a vested noncon- forming use. Case Note: The court said that if Shear had been fitly processing the materials for 15 days (prior to the date of the zoning change), his use would have been established within the mean- ing of the Code and would have been permanent because it eventually would have been in continuous operation for 60 days. Case Note: The case also presented the issue of what effect a nonpermitted activity has on a later claim to a preexisting use when a permit was required for the activity asserted as sup- port for a preexisting use. The hearing examiner had also concluded that permits (which had not been obtained) were required for grading that Shear had performed before the Code revisions. The court said that when a landowner utilizes unlawful methods to establish a nonconforming use, that unlawfulness precludes a subsequent finding of a lawful nonconforming use. Thus, the court found that because Shear had not appealed the ruling that permits were required for the grading, he could not meet the required showing that his use lawfully existed. © 2013 Thomson Reuters 11