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November 25, 2014 1 Volume 8 1 Issue 22 Zoning Bulletin <br />Nonconforming Use/Due <br />Process—At hearing on zoning <br />violation citation, landowner, <br />pursuant to city ordinance, is unable <br />to raise defense of legal <br />nonconforming use <br />Landowner says this violates his due process <br />rights <br />Citation: Johnson v. City of Seattle, 2014 WL 5144611 (Wash. Ct. App. Div. <br />1 2014) <br />WASHINGTON (10/13/14)—This case addressed the issue of whether a <br />city violated a resident's right to procedural due process when, pursuant to a <br />city ordinance, only the Department of Planning and Development could es- <br />tablish whether the resident had a legal nonconforming use, and therefore the <br />resident could not assert a nonconforming use defense to a hearing examiner <br />at a hearing for a zoning violation citation. <br />The Background/Facts: Tyko Johnson ("Johnson") owned a single-family <br />home in Seattle, Washington (the "City"). Johnson owned the home since <br />1959. He was a "car guy" and kept multiple cars on his property. <br />In September 2010, the City issued Johnson a zoning violation citation with <br />a $150 penalty. The citation stated that Johnson had "more than the allowed 3 <br />vehicles parked on a single family lot" in violation of the City's zoning code, <br />SMC 23.44.016. <br />At a hearing on the citation, Johnson argued that he had a legal nonconform- <br />ing use and was therefore not in violation of SMC 23.44.016. The hearing <br />examiner determined that, under the zoning code, only the City's Department <br />of Planning and Development (the "Department") could determine whether a <br />property use was legal nonconforming. The hearing examiner did not stay the <br />citation hearing pending an application by Johnson to establish his use. Rather, <br />because Johnson had not established a legal nonconfoiniing use with the <br />Department at the time of the hearing, the examiner concluded that the cita- <br />tion was proper. <br />In December 2010, and again in February 2011, the City issued Johnson a <br />second and third citation for parking more vehicles than allowed under the <br />City zoning ordinance. Each citation included a $500 fine. The hearing <br />examiner affirmed the citations. <br />In May 2011, Johnson applied to the Department, and on August 31, 2011, <br />the Department determined that Johnson had established his use as legal <br />nonconforming. <br />Johnson then filed three Land Use Petition Act ("LUPA") (RCW 36.70C) <br />8 © 2014 Thomson Reuters <br />