City of University Place v. McGuire

• Citation: 144 Wash.2d 640,30 P.3d 453
• Decision Date: 06 September 2001
• Docket Number: No. 70356-6.,70356-6.
• Parties: CITY OF UNIVERSITY PLACE, a municipal corporation, organized under the laws of the State of Washington, Respondent, v. Brian P. McGUIRE, a single man, Petitioner.
• Court: United States State Supreme Court of Washington

30 P.3d 453

144 Wash.2d 640

CITY OF UNIVERSITY PLACE, a municipal corporation, organized under the laws of the State of Washington, Respondent, v. Brian P. McGUIRE, a single man, Petitioner.

No. 70356-6.

Supreme Court of Washington, En Banc.

Argued May 22, 2001.

Decided September 6, 2001.

Gordon, Thomas, Honeywell, William Theodore Lynn, Margaret Yvonne Archer, Tacoma, for Petitioner.

Timothy X. Sullivan, University Place, Keating, Bucklin, McCormack, Michael Charles Walter, Seattle, for Respondent.

CHAMBERS, J.

Developer Brian McGuire seeks to grade a 1.4-acre knoll as fill for a nearby development. The City of University Place has refused permission. McGuire argues he has a valid nonconforming use right to mine the knoll, as it is historically part of a site owned and operated by his predecessor in interest. University Place argues that the nonconforming use either never accrued to the knoll or, in the alternative, has been abandoned. McGuire urges this Court to adopt the doctrine of diminishing asset, which extends the boundaries of the nonconforming mining use to the entire parcel intended to be mined at the time the zoning ordinance was promulgated. We concur with the overwhelming number of jurisdictions considering the question and conclude the diminishing asset doctrine is applicable to mining operations. We also conclude University Place has failed to establish the hearing examiner erred in deciding the nonconforming use had not been abandoned. We reverse the Court of Appeals.

STATEMENT OF FACTS

The knoll at issue is a 1.4-acre parcel that was once a part of 80 acres of property owned by the Holroyd Land Company (Holroyd). Since the 1940s, Holroyd has been gradually and continually mining various portions of this 80 acres of land for sand and gravel. Pierce County, and later University Place, enacted zoning ordinances that restricted or prohibited mining, but Holroyd continued to mine as a valid nonconforming use. In 1991, Holroyd sold a portion of the property to McGuire who has been gradually developing the former Holroyd property for residential and commercial uses. McGuire seeks to reclaim one former mine in part by grading the adjacent 1.4-acre knoll to use as fill. University Place denied permission. Since McGuire grounds his right to grade the 1.4 acres upon the property's prior nonconforming use as a mine, we turn to the property's mining history.

Originally Holroyd operated the mine unfettered by zoning ordinances. In 1944, Pierce County adopted a zoning ordinance covering the Holroyd site that permitted continued nonconforming uses subject to an abandonment provision.¹

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 1956, a Pierce County Commissioner stated at a public hearing that Holroyd could continue to operate the mines, presumably applying the nonconforming use doctrine. This zoning scheme was amended in 1957 allowing "[q]uarries, sand and gravel pits" to operate in Holroyd's area only with special permits. It does not appear Holroyd ever sought a special permit. Holroyd mined the parcel continuously during this period and until sale, in small portions, occasionally seeking permits from the Department of Natural Resources (DNR).

In 1970, Washington State enacted the surface mining act (SMA), chapter 78.44 RCW. Under the SMA, mine owners must obtain surface mining permits from the DNR. The SMA requires mine owners to file a reclamation plan outlining how the property will be brought to beneficial use after mining ceases before a permit will be issued. RCW 78.44.081. While the land need not be level, steep slopes are discouraged. RCW 78.44.141(4). Mine owners must establish that they can lawfully mine so, at Holroyd's request, Pierce County informed DNR that Holroyd's mines were legal nonconforming uses previously established when the zoning ordinance was promulgated. Holroyd only sporadically sought permits for the various mining projects engaged on the property and by 1972 had expanded his mines outside the permitted area.

Holroyd did indicate an intent to mine the entire 80 acres in some of the permit applications by including the property in an attached map. However, the legal description of the area he sought to mine did not always reference the 1.4-acre knoll at issue today.

In 1973, Bridgeport Way and Anderson Pierce Road were realigned to cut off the knoll from the rest of the 80 acres. The 1.4 acres was essentially an island boarded by paved roads. The 1.4 acres was not mined before the road was moved and no one has attempted to mine the 1.4 acres until McGuire sought to level the hill on the parcel for fill.

In 1991, the DNR ordered Holroyd to cease mining outside of the area covered by permits. Holroyd acknowledged this order, and agreed not to mine outside of the permitted area without permission. The 1.4-acre knoll was outside the permitted area. In May 1991, Holroyd sold the property, which is now within the city limits of University Place, to McGuire.

University Place has prohibited all new mining activities. University Place Municipal Code (UPMC) 18.44.020. Nonconforming uses are allowed to continue, and may be changed by permit. UPMC 19.75.070. If the nonconforming use is abandoned for more than one year, the right is extinguished, unless extended by a hearing examiner. UPMC 19.35.130(D), (J).

McGuire is a property developer, not a miner. He testified his intention was to develop the property, not to mine it. He purchased the property adjacent to the 1.4 acres contingent upon University Place approving a shopping center and two residential subdivisions. These developments were approved. The required January 1993 Final Environmental Impact Statement (FEIS) noted McGuire planned to level a hill on the 1.4 acres to provide fill material for the shopping center. McGuire estimates the 1.4 acres will provide 2,600 cubic yards of fill material. The 1.4 acres is a treed knoll that provides a buffer from roads and commercial development to residents. Many residents protested the destruction of the knoll's use as a buffer zone. University Place denied McGuire's application for a site development permit to remove fill material from the 1.4 acres on the following grounds: (1) the land was zoned residential and mining was nonpermitted use; (2) mining the site would be an impermissible expansion of a nonconforming use; and (3) McGuire did not have a DNR reclamation permit to mine the 1.4 acres.

McGuire appealed the denial to a hearing examiner. The hearing examiner reversed the city's denial of the permit and allowed McGuire to go forward with his construction plan. University Place appealed to the Pierce County Superior Court. The trial court upheld the hearing examiner, but granted a stay pending appeal. University Place prevailed before the Court of Appeals, which assumed without deciding the diminishing asset doctrine was the law in Washington, but found Holroyd had abandoned any right to continue a nonconforming use by not indicating objectively an intention to mine the 1.4 acres. City of Univ. Place v. McGuire, 102 Wash.App. 658, 9 P.3d 918 (2000). McGuire sought review in this Court, which was granted.

ANALYSIS

Review is governed by the Land Use Petition Act (LUPA), chapter 36.70C RCW. To prevail University Place must establish either the hearing examiner made a mistake of law, that there was insufficient evidence to support the decision, or that the decision was clearly erroneous.² Errors of law are reviewed de novo. Girton v. City of Seattle, 97 Wash.App. 360, 363, 983 P.2d 1135 (1999),review denied, 140 Wash.2d 1007, 999 P.2d 1259 (2000). Whether the hearing examiner correctly applied the diminishing asset doctrine to the 1.4 acres will be reviewed to determine if it was clearly erroneous. Schofield v. Spokane County, 96 Wash.App. 581, 586, 980 P.2d 277 (1999). The decision as a whole will be reviewed for substantial evidence supporting the hearing examiner's decision. Substantial evidence is "`a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the order.'" City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wash.2d 38, 46, 959 P.2d 1091 (1998) (quoting Callecod v. State Patrol, 84 Wash.App. 663, 673, 929 P.2d 510 (1997)).

[T]he initial burden of proving the existence of a nonconforming use is on the land user making the assertion. However, once a nonconforming use is established, the burden shifts to the party claiming abandonment or discontinuance of the nonconforming use to prove such. "Whether abandonment has occurred is a question of fact as to which the municipality has the burden of proof." This burden of proof is not an easy one.

Van Sant v. City of Everett, 69 Wash.App. 641, 647-48, 849 P.2d 1276 (1993) (citations omitted); see also 1 Robert M. Anderson, American Law of Zoning § 6.09 (3d ed.1986). In short, McGuire bears the burden of establishing a lawful or vested nonconforming use covering the 1.4 acres under some theory; the burden then shifts to University Place to show the use has been abandoned.

Nonconforming Use

Local governments have the power to promulgate zoning schemes, consistent with the United States Constitution. Goldblatt v. Town of Hempstead, 369 U.S. 590, 592, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962). "If [the] ordinance is otherwise a valid exercise of the town's police powers, the fact that it deprives the property of its most beneficial use does not render it unconstitutional." Goldblatt, 369 U.S. at 592, 82 S.Ct. 987. The zoning ordinance must merely be reasonable in light of the menace faced, the availability and effectiveness of less drastic alternatives, and the loss faced by the property owner. Goldblatt, 369 U.S. at 594-95, 82 S.Ct. 987.

"A nonconforming use is a use which lawfully existed prior to the enactment of a...