City of University Place v. McGuire

• Decision Date: 22 September 2000
• Docket Number: No. 24829-8-II.,24829-8-II.
• Parties: CITY OF UNIVERSITY PLACE, a municipal corporation, Appellant, v. Brian P. McGUIRE, a single man, Respondent.
• Court: Washington Court of Appeals

9 P.3d 918

102 Wash. App. 658

CITY OF UNIVERSITY PLACE, a municipal corporation, Appellant, v. Brian P. McGUIRE, a single man, Respondent.

No. 24829-8-II.

Court of Appeals of Washington, Division 2.

September 22, 2000.

Bourtai Hargrove, Olympia, Timothy X Sullivan, University Pl., for Appellant.

Thomas J. Parkes, William Theodore Lynn, Gordon Thomas Honeywell Et al., Tacoma, for Respondent.

HUNT, A.C.J.

The City of University Place (City) appeals the City Hearing Examiner's reversal of the City's denial of Brian P. McGuire's (McGuire) application for a site development permit. McGuire sought to remove 26,000 cubic yards of material from a 1.4-acre parcel of land adjacent to residential communities built on a larger parcel that a previous owner had used to mine gravel. Although the 1.4-acre parcel and the larger mined parcel had originally been contiguous, they had subsequently been severed by the relocation of a road.

The City argues that the Hearing Examiner erred by (1) ignoring Pierce County and City ordinances and Washington caselaw on establishment and expansion of nonconforming uses; (2) applying the doctrine of diminishing assets to expand a nonconforming use; (3) finding no abandonment of the nonconforming use; and (4) entering findings of fact not supported by substantial evidence. Holding that the nonconforming use was abandoned, we reverse.

FACTS

I. NON-REGULATED MINING—1940'S

In the 1940's, the Holroyd Land Company (Holroyd) began surface mining for sand and gravel on an 80-acre parcel of land it owned within the present-day City limits. At the time, no state, county, or municipal law regulated surface mining; thus, the mines were legal uses of the property.

Holroyd's parcel was located mostly northeast of old Bridgeport Way; old Anderson-Pierce Road cut the parcel into a smaller west portion and a larger east portion. Holroyd established surface mines on both sides of Anderson-Pierce Road northeast of Bridgeport Way, near the center of the parcel.

In 1944, Pierce County adopted its first zoning resolution, establishing use districts, including a "COMMERCIAL DISTRICT" for "[m]anufacturing and industry." Regarding nonconforming uses, Resolution 1650 provided:

1. The lawful use of ... land ... existing at the time of the passage of the resolution establishing any zoning district, although such use does not conform to the provisions therein, may be continued, but if such non-conforming use is discontinued for a period of one year, any future use of said ... land ... shall be in conformity with the provisions of said established use district, unless the use, thereof, is issued a permit by the Pierce County Commissioners.

2..... The County Commissioners may, in their discretion, after public hearing, grant special and conditional permits for the extension of a non-conforming use by addition or enlargement of any tract of land partially occupied by such use at the time of the passage of any resolution establishing any use district.

3. Whenever a use district shall be hereafter changed, any then existing non-conforming use may be continued under the same conditions as are provided in paragraphs 1 and 2....

In 1955, Pierce County amended Resolution 1650 to permit the operation of "[q]uarries, sand and gravel pits" in "1-G GENERAL USE DISTRICT[S]" "[o]n sites approved by special permit."

In February 1956, during a public hearing on a zoning proposal affecting Holroyd's parcel,¹ a Pierce County Commissioner told Holroyd's attorney:

In any operations such as Holroyd's or a Nursery, it is not intended that they should be hampered from continuing their operations; if they have property that they purchased for this purpose, they can continue to use it to the extent of their property.

II. SPECIAL COUNTY PERMIT REQUIRED/NONCONFORMING USE-1957

In May 1957, Pierce County again amended Resolution 1650, permitting "[q]uarries, sand and gravel pits" to operate in "3-G GENERAL USE DISTRICT[S]" upon issuance of a special permit. According to McGuire, "It was on that date that the Holroyd surface mines ... became nonconforming uses."²

III. DNR SURFACE MINING PERMITS—1970

As required by the Surface Mining Act (SMA) of 1970, RCW ch. 78.44, Holroyd applied for two surface mining permits from the Department of Natural Resources (DNR). Holroyd notified DNR it intended to mine 10 acres of the mine located north of Bridgeport Way and west of Anderson-Pierce Road, and 25 to 40 acres of the mine located north of Bridgeport Way and east of Anderson-Pierce Road. Concerning Holroyd's application for the west mine, Pierce County informed DNR in January 1972:

The mining operation being carried on within the subject property is a nonconforming use legally established prior to zoning controls and may continue to operate without a [County] permit subject to the provisions of Article 26 of the Piece County Zoning Code.

In May 1973, Pierce County repeated this statement to DNR with respect to Holroyd's application for the east mine. In early 1973, Holroyd and Pierce County began negotiations to relocate Anderson-Pierce Road and Bridgeport Way.

In July 1974, DNR issued Operating Permit 11017 for Holroyd's east mine; at some unspecified date, DNR issued Operating Permit 10718 for the west mine. Holroyd expanded both mines beyond the permitted limits: The west mine was expanded northward; the east mine was expanded northward and eastward; and mining occurred within the Anderson-Pierce right-of-way, which the City had abandoned in exchange for the anticipated relocation.

IV. SEVERANCE OF 1.4-ACRE PARCEL; CESSATION OF MINING OUTSIDE PERMIT AREA

By 1978, Bridgeport Way had been realigned roughly 200 feet northward, and Anderson-Pierce Road had been realigned 650 feet eastward and renamed 67th Avenue West.

The realignment severed a 1.4-acre southern portion from the bulk of the Holroyd property. Thus, the 1.4-acre parcel was now bounded on the north by Bridgeport Way, and on the east by 67th Avenue West.

Although the east mine had been operating under Permit 11017 on a portion of the Holroyd property now north of realigned Bridgeport Way, Holroyd's earlier application for Permit 11017 did not cover the southern 1.4-acre parcel at issue here. Nor had this southern 1.4-acre portion ever been mined.³

As evidenced by aerial photographs taken in 1978, 1985, and 1989, Holroyd continued mining operations to some extent in the east or west pits following road realignment. But in February 1991, DNR ordered Holroyd to cease mining operations outside the area covered by Permit 11017 for the east pit. In March 1991, Holroyd notified DNR that it would cease mining outside the 40 acres "without an appropriate extension of the remaining permit," but that Holroyd would continue mining "a limited area" under Permit 11017 and submit a reclamation plan. But Holroyd obtained no further permits.⁴ SUBEQUENTLY, HOLRoyd sold the Property located east of 67th Avenue West, which included portions of the mine covered by Permit 11017.⁵

V. SALE OF PROPERTY TO McGUIRE; DEVELOPMENT

In May 1991, Holroyd and McGuire entered into a "REAL ESTATE PURCHASE AND SALE AGREEMENT" for the remaining property located west of 67th Avenue West, and north and south of Bridgeport Way, including the 1.4-acre parcel.⁶ McGuire obtained (1) "preliminary and final plat approval for two single family subdivisions" north of Bridgeport Way; and (2) a conditional use permit for construction of a shopping center (Bridgeport Corners) adjacent to the intersection of Bridgeport Way and 67th Avenue West.

When the January 1993 Final Environmental Impact Statement (FEIS) was prepared, McGuire "did not intend to mine the site." Rather, the FEIS indicated that McGuire proposed to develop the severed 1.4-acre parcel into a professional office complex.

In connection with the shopping center construction north of Bridgeport Way, McGuire had requested a site development permit "to clear, grade and remove approximately 26,000 cubic yards of material from the [1.4-acre parcel]" and "us[e] it for fill on the Bridgeport Corners [shopping center] site."⁷ The City denied McGuire's application for "a site development permit to clear, grade and remove gravel" from the 1.4-acre parcel, explaining:

(1) the land is zoned residential and mining is not a permitted use in a residential zone; (2) mining the land would constitute an impermissible expansion of a nonconforming use and a violation of the Pierce County and University Place Zoning Codes; and (3) Mr. McGuire does not have a [DNR] reclamation permit for the land as required by RCW 78.44.081.

The City Hearing Examiner granted McGuire's appeal, contingent upon McGuire's obtaining "appropriate DNR permits," ruling, in part:

2. The nonconforming surface mine extended to the entire Holroyd ownership which included the 1.4[-]acre parcel, and nonconforming use rights to mine the 1.4[-]acre parcel were not lost by the realignment of Bridgeport Way.... The diminishing assets doctrine extends the nonconforming use throughout the parcel to include the 1.4[-]acre parcel....

3. [McGuire] never expressed an intent to abandon his mining rights....

The City sought review in Superior Court under the Land Use Petition Act (LUPA), RCW ch. 36.70C. The Superior Court affirmed the Hearing Examiner, but granted the City's motion for a stay pending appeal.

ANALYSIS

The City advances a variety of theories under which we might reverse the Hearing Examiner's decision. We address only the abandonment theory, which we find dispositive. In so doing, we assume, without holding, that nonconforming mining use rights originally extended to the 1.4-acre parcel. But we hold that Holroyd and McGuire abandoned any nonconforming mining rights they may have had in the 1.4-acre parcel.

I. STANDARDS OF REVIEW

The City asserts it can satisfy three of the six statutory standards for relief under LUPA:

(b) The land use decision is an erroneous interpretation of the law,

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