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Zoning Bulletin November 25, 2014 1 Volume 81 Issue 22 <br />petitions, contesting each of his citations. He also brought claims for damages <br />under federal law, 42 U.S.C. § 1983 (which allows a civil action for depriva- <br />tion of rights), alleging a violation of his procedural due process rights in <br />violation of the 14th Amendment to the United States Constitution. <br />The superior court affirmed the citations and dismissed the due process <br />violation claims. <br />Johnson appealed. <br />DECISION: Judgment of superior court reversed, and matter re- <br />manded with instructions. <br />The Court of Appeals of Washington, Division 1, held that Johnson's in- <br />ability, under the City's ordinance scheme, to present evidence of his <br />nonconforming use as a defense to his citations, violated his constitutional <br />right to procedural due process. The court also held that since Johnson was <br />never in violation of the City zoning ordinance (SMC 23.44.016)—since his <br />use was a legal nonconforming use, he was not subject to citation. <br />In so holding, the court explained that a legal nonconforming use is one <br />that "does not conform to a zoning law but which lawfully existed at the time <br />the law went into effect and has continued to exist without legal abandonment <br />since that time." Here, the Department had determined that Johnson had a <br />legal nonconforming use and thus a vested right to keep more than three cars <br />on his single-family lot. <br />The court agreed with Johnson that the City had violated his procedural due <br />process rights—of notice and a hearing—by preventing him from asserting his <br />legal nonconforming use as a defense and thus denying him of a meaningful <br />opportunity to be heard. The court explained that to demonstrate a valid § 1983 <br />claim, Johnson had to show that "a person acting under color of state law <br />deprived [Johnson] of a federal constitutional or statutory right." Since the <br />court had found that the City had violated Johnson's right to procedural due <br />process, the court concluded that Johnson had demonstrated valid claims under <br />§ 1983. <br />The court vacated the citations, and thus found they did not constitute dam- <br />ages under § 1983. The court remanded the issue to the trial court to determine <br />whether Johnson had additional damages on which to base an award. <br />See also: Post v. City of Tacoma, 167 Wash. 2d 300, 217 P.3d 1179 (2009). <br />2014 Thomson Reuters 9 <br />