Andrew v. King County

• Decision Date: 16 October 1978
• Docket Number: No. 5685-I,5685-I
• Parties: Olen V. ANDREW and Elmer L. Guenther, Respondents, v. KING COUNTY, the Board of Appeals of King County, the Department of Community and Environmental Development, Building Division of King County, Respondents, and Raging River Mining, Inc., Appellant.
• Court: Washington Court of Appeals

Page 566

21 Wn.App. 566

586 P.2d 509

Olen V. ANDREW and Elmer L. Guenther, Respondents, v. KING COUNTY, the Board of Appeals of King County, the

Department of Community and Environmental

Development, Building Division of King

County, Respondents,

and

Raging River Mining, Inc., Appellant.

No. 5685-I.

Court of Appeals of Washington, Division 1.

Oct. 16, 1978.

Rehearing Denied Nov. 16, 1978.

[586 P.2d 511] James R. Young, Redmond, for appellant.

Smith, Brucker, Winn & Ehlert, Roger M. Leed, Christopher T. Bayley, King County Pros. Atty., Richard W. Elliott, Deputy Pros. Atty., Seattle, for respondents.

ANDERSEN, Acting Chief Judge.

FACTS OF CASE

On certiorari, the Superior Court of the State of Washington for King County reversed the decision of the King County Board of Appeals and determined that the Raging River Quarry was not a legal nonconforming use permitted under the King County zoning code. The quarry owner appeals. We reverse and remand.

The Raging River Quarry, which is the subject of this action, is located adjacent to the Raging River and is between the towns of Preston and Fall City in a largely rural area of King County. A determination was made by an administrative department of King County that the quarry was a valid nonconforming use. That decision was appealed to the King County Board of Appeals by property owners who live in the vicinity of the quarry.

The King County Board of Appeals (hereinafter "board of appeals") is a seven-member board established by the King County Charter to hear and decide appeals from administrative rulings in zoning and certain other designated cases. King County Charter art. 7, § 720. It is an administrative tribunal with quasi-judicial powers and in zoning cases performs functions similar to those of boards of adjustment in noncharter counties. It properly had jurisdiction of the parties, as well as of the subject matter of the case. King County Charter art. 7, § 720; King County Code In the present case, the board of appeals granted a de novo hearing at which all parties were heard in person or by counsel and evidence was introduced. Thereafter, the board of appeals entered its findings of fact, conclusions of law and decision in writing as it is required to do. King County Code §§ 20.32.010; 20.28.070; King County Board of Appeals, King County Board of Equalization, Rules of Procedure art. 2, § 6(A)(5) (adopted January 28, 1975).

§§ 21.52.130 and 21.58.080; Bartz v. Board of Adjustment, 80 Wash.2d 209, 216, 492 P.2d 1374 (1972).

As to the site in question, the board of appeals found that: it has been used as a rock quarry beginning about 1935; it existed prior to the adoption of the King County zoning code in 1958, and under that code it was not an outright permitted use; it was used intermittently over the years as a quarry; its ownership changed many times but its purpose and sales basis was always that of a quarry site; rock quarries are peculiar in operation in that they operate only when there is need for material and the need is sufficient to justify quantity production, and when the need is not present, quarry operations may cease for as long as a year or more. ¹

Based on these findings, the board of appeals concluded that the administrative determination under review was correct and "that the rock quarry activity constitutes a legal non-conforming use, and that such use is still effective."

In certiorari proceedings, the Superior Court reviewed the record presented to it in response to its writ of certiorari directed to the board of appeals and determined that the quarry was not a legal nonconforming use.

The quarry owner's appeal to this court presents one ultimate issue for determination.

ISSUE

Did the Superior Court err in reversing the administrative tribunal and itself deciding that the quarry was not a lawful nonconforming use?

DECISION

CONCLUSION. The Superior Court correctly concluded that the administrative tribunal made a mistake of law in arriving at its decision. The Superior Court erred, however, when it went on to then decide itself that the quarry was not a lawful nonconforming use, rather than remanding the case to the board of appeals which, as the trier of the fact in this case, was the body to make that determination.

Generally speaking, a use which lawfully existed prior to the enactment of a zoning ordinance or resolution, and which is maintained after the effective date of the ordinance or resolution, although it does not comply with the use restrictions applicable to the area in which it is situated, is commonly referred to as a "nonconforming use." This basic definition is used by most authorities without significant variation and, in substance, is written into most zoning ordinances, resolutions and statutes, and is used in most judicial opinions on the subject. 1 R. Anderson, American Law of Zoning § 6.01 (2d ed. 1976); 8A E. McQuillin, The Law of Municipal Corporations § 25.185 (3d ed. rev. 1976). See King County Code § 21.04.455. ²

Nonconforming uses are not favored in law, Keller v. Bellingham,20 Wash.App. 1, 9, 578 P.2d 881 (1978), and it is only to avoid injustice that zoning laws except them. Coleman v. Walla Walla, 44 Wash.2d 296, 300, 266 P.2d 1034 (1954).

To qualify as a nonconforming use in the first instance, the use in issue must lawfully exist on the date specified in the zoning code. Anderson v. Island County, 81 Wash.2d 312 321, 501 P.2d 594 (1972); 1 R. Anderson, American Law of Zoning § 6.10 (2d ed. 1976); 8A E. McQuillin, The Law of Municipal Corporations § 25.185 (3d ed. rev. 1976). The date specified in the King County zoning code was August 12, 1958.

If the nonconforming use is subsequently abandoned or discontinued, however, the right to continue it as a nonconforming use comes to an end. Saddle River ex rel. Perrin v. Bobinski, 108 N.J.Super. 6, 259 A.2d 727 (1969); 1 R. Anderson, American Law of Zoning § 6.60 (2d ed. 1976); 8A E. McQuillin, The Law of Municipal Corporations § 25.191 (3d ed. rev. 1976).

The mere temporary cessation of a nonconforming use, however, does not effect abandonment or discontinuance of the nonconforming use. 8A E. McQuillin, The Law of Municipal Corporations § 25.196 (3d ed. rev. 1976). As our State Supreme Court expressed it in King County v. High, 36 Wash.2d 580, 582, 219 P.2d 118, 119 (1950), where the court had before it a zoning code using the word "discontinued" rather than the word "abandoned":

The evidence wholly refutes any idea that the nonconforming use was discontinued. Many cases recognize the rule that a temporary cessation of business or discontinuance of a nonconforming use due to war conditions, or other causes over which the owner or operator has no control, do not constitute a discontinuance or abandonment within the meaning of zoning laws or ordinances; also, that discontinuance or abandonment depends upon the intention of the party affected, and the time element is merely evidential of such intention.

The parties opposing the status of the quarry as a nonconforming use argue, however, that the use of the quarry which was intermittent does not have to be abandoned but need only be discontinued for any reason for a period of over 1 year. In support of their position, they cite the following language which is now a part of the King County zoning code If any nonconforming use of land not involving a nonconforming building or any nonconforming use of a conforming building Is discontinued for a continuous period of more than one year, such land or building shall not again be occupied or used except by a conforming use.

(Italics ours.) King County Code § 21.52.030(2).

Most courts, however, have merged the terms "discontinue" and "abandon" and require proof of an intent to abandon even though the zoning code speaks in terms of a discontinued use or a use discontinued for a specified period of time. 1 R. Anderson, American Law of Zoning § 6.63 (2d ed. 1976). See King County v. High, supra. The prevailing view is expressed by the Supreme Court of Alabama:

The courts have generally held that the word discontinuance, as used in a zoning ordinance, is equivalent to abandonment. A discontinuance results from the concurrence of an intent to abandon and some overt act or failure to act which carries the implication of abandonment.

Board of Zoning Adjustment v. Boykin, 265 Ala. 504, 92 So.2d 906, 909 (1957). Thus the cessation of a use for the one-year period prescribed by the King County zoning code is only prima facie evidence of an intent to abandon the nonconforming use.

In order to find that the quarry owner had discontinued or abandoned the nonconforming use, it was necessary to find an intent to abandon it and an overt act or failure to act which carried the implication of abandonment. Whether there was such an intent to abandon is a question of fact for the trier of the fact. See Bianco v. Darien, 157 Conn. 548, 254 A.2d 898, 902 (1969); Mundt v. Mallon, 106 Mont. 242, 76 P.2d 326, 328 (1938); Hoke v. Stevens-Norton, Inc., 60 Wash.2d 775, 777, 375 P.2d 743 (1962).

Here the board of appeals did not find as a fact that the use of the property as a quarry lawfully existed on the date specified in the zoning code or that the use was not subsequently discontinued or abandoned. Both of these findings were necessary to sustain the board of appeals' decision that the quarry was an existing legal nonconforming use at the time this litigation arose. Neither is there any oral decision or other expression of the board of appeals' finding on these points. The Superior Court, therefore, did not err when it determined that the board's findings did not support its conclusion and decision that a valid nonconforming use now exists.

However, the trial court went further and itself determined that there was not a valid nonconforming use. This was error.

We first observe that the King County Board of Appeals is not a state agency, therefore, the...