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May 10, 2012 I Volume 6 I Issue 9 <br />Zoning Bulletin <br />for property to be used as a materials processing facility. Also, the Code <br />explicitly included the prospective word "will" in the definition of <br />"established." <br />In analyzing whether Shear's activities on the site amounted to a noncon- <br />forming use, the court explained that a nonconforming use was: a use "which <br />lawfully existed prior to the enactment of a zoning ordinance, and which is <br />maintained after the effective date of the ordinance, although it does not <br />comply with the [current] zoning restrictions applicable to the district in which <br />it is situated." In order to qualify as a nonconforming use with vested legal <br />rights to continue the use, the use of the property must be established prior to <br />the adoption of the zoning ordinance, said the court. <br />The court noted that the hearing examiner had found that, prior to <br />September 2004, Shear had: rented the site; assembled and stored equipment <br />at the site; graded the site; stockpiled materials for processing organic materi- <br />als; and extended access driveways to the site. The court found these findings, <br />in combination with the court's interpretation of the Code, supported the hear- <br />ing examiner's conclusion that: (1) a materials processing facility was in exis- <br />tence on Spencer's property prior to the adoption of the restrictive regulation <br />in September 2004; and (2) it was a legal nonconforming use. <br />The court reversed the superior court's decision and reinstated the hearing <br />examiner's decision. <br />See also: McMilian v. King County, 161 Wash. App. 581, 255 P.3d 739 <br />(Div. 1 2011). <br />Case Note: <br />Spencer and Shear had also argued that the materials processing facility use did not <br />occur within a critical area. The court found that DDES had not articulated a clear, <br />intelligible flood hazard standard in enacting the "critical areas" ordinance. <br />Consequently, the court found the ordinance was not enforceable against Spencer's <br />business. <br />Telecommunications Act —Zoning <br />Board Denies Application to <br />Construct Wireless Broadband <br />Internet Access Service <br />Parties dispute whether zoning of such service is <br />limited by the Telecommunications Act of 1996 <br />Citation: Clear Wireless LLC v. Building Dept. of Village of Lynbrook, 55 <br />Communications Reg. (P & F) 740, 2012 WL 826749 (E.D. N.Y. 2012) <br />6 ©2012 Thomson Reuters <br />