Agenda - Planning Commission - 07/12/2012

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Zoning Bulletin May 10, 2012 I Volume 6 I Issue 9 After receiving a complaint about dust created by trucks driving up and down roads to Spencer's property, the County's Department of Development and Environmental Services ("DDES") issued a notice of violation on the grounds that Shear's use of the farm was an unauthorized "materials process- ing facility" in a critical area, namely a wetland and flood hazard area. Pursu- ant to a County Code regulation adopted in September 2004, "materials processing facilities" were not permitted in critical areas. Spencer and Shear maintained that the use of Spencer's property as a materials processing facility was a valid nonconforming use. They contended that their use of the property amounted to operation of a materials processing facility before the regulation restricting such activity in critical areas came into existence in September 2004. A hearing examiner agreed with Shear and Spencer. DDES appealed under the Land Use Petition Act ("LUPA"). DDES pointed to the County Code's definition of "materials processing facility": "a site or establishment, not accessory to a mineral extraction or sawmill use, that is pri- marily engaged in crushing, grinding, pulverizing or otherwise preparing earth materials, vegetation, organic waste, construction and demolition materials or source separated organic materials that is not the final disposal site." DDES noted that Spencer and Shear had not begun crushing and grinding the earth materials, organic vegetation and organic waste until the winter of 2004 or spring of 2005—after adoption of the September 2004 regulation restricting such activity in critical areas. DDES contended that every step involved in materials processing had to be completed in order to have "established" the use. Accordingly, DDES argued that Spencer and Shear had not been using the property as a "materials processing facility" before the restriction went into effect. The superior court agreed with DDES and reversed the hearing examiner. Shear and Spencer appealed. On appeal, Spencer and Shear countered DDES' arguments. They pointed out that the County Code did not require crushing and grinding to be taking place for the property to be used as a materi- als processing facility. Indeed, the Code indicated that property could be used as a materials processing facility where the operator is "otherwise preparing" the earth materials vegetation and organic waste, Moreover, Shear and Spen- cer maintained that the Code's definition of the term "established," included prospective language: "The use is considered permanently established when that use will or has been in continuous operation for a period of sixty days." DECISION: Reversed and matter remanded. The Court of Appeal of Washington, Division 1, held that Spencer and Shear had a valid nonconforming use of property even though the materials processing facility was not in full operation prior to adoption of the restrictive regulation in September 2004. In so holding, the appellate court agreed with Spencer and Shear's arguments: The Code did not require crushing and grinding to be taking place ©2012 Thomson Reuters 5