Agenda - Planning Commission - 02/05/2015

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Zoning Bulletin December 25, 2014 I Volume 8 1 Issue 24 The court also ultimately concluded that—under both the KCC and the com- mon law—the terrnination of the Club's nonconforming use status was not the proper remedy even though the Club did expand its use. Here, the court found that the use of the Club's property as a shooting range remained lawful, and therefore any unlawful expansion of use, permitting violations, or nuisance activities could not trigger termination of the otherwise lawful nonconforming use. Under common law, the court found no Washington case holding that an unlawful expansion of a nonconforming use, permitting violations, or nuisance activities terminates a nonconforming use. Moreover, it found no Washington case had even suggested such a remedy. The court determined that the appropriate remedy for the Club's expansion of its nonconforming use had to "reflect the fact that some change in use— 'intensification'—is allowed and only `expansion' is unlawful." The court remanded to the trial court to determine the appropriate remedies for the Club's expansion of its nonconforming use. See also: Keller v. City of Bellingham, 92 Wash. 2d 726, 600 P.2d 1276 (1979). Case Note: The County had also alleged that the Club had engaged in unlawful development activi- ties because the Chub lacked the required permits. It was undisputed that the Club's unpermitted development work on the property constituted unlawful uses. Case Note: The appellate court also held that the Club's activities—including increased noise levels and operation without property safety measures—constituted public nuisances. The court said a nuisance was a "substantial and unreasonable interference with the use and enjoyment of another person's property." Under statutory law, "an actionable nuisance" is "whatever is injurious to health.. . . or offensive to the senses, . . so as to essentially interfere with the comfortable enjoyment of the life and property." (RCW 7.48.010.). It is also defined as an "act or omission [that] either annoys, injures or endangers the comfort, repose, health or safety of others . . . or in any way renders other persons insecure in life, or in the use of property." (RCW 7.48.120) The Club had argued that noise from its activities could not constitute a nuisance because noise regulations exempted shooting ranges (See, e.g., KCC 10.28.040 and KCC 10.28.145.) The court disagreed, noting that a nuisance can be found even if there is no violation of noise ordinances, and thus the exemption from such ordinances is immaterial. The court affirmed the trial court's injunction limiting certain activities at the Club in order to abate the Club's nuisance activities. Case Note: Notably KCC 17.455.060, which specifically prohibited alteration or enlargement of a nonconforming use, was repealed after the trial court rendered its opinion. Neither © 2014 Thomson Reuters 11 •