Mcmilian v. King County

• Decision Date: 02 May 2011
• Docket Number: No. 64868–3–I.,64868–3–I.
• Citation: 255 P.3d 739,161 Wash.App. 581
• Court: Washington Court of Appeals
• Parties: Leo McMILIAN, an individual, Respondent,v.KING COUNTY, a Washington municipal corporation, Appellant,Sherry McMilian, an individual, Defendant.

161 Wash.App. 581

255 P.3d 739

Leo McMILIAN, an individual, Respondent,

v.KING COUNTY, a Washington municipal corporation, Appellant,Sherry McMilian, an individual, Defendant.

No. 64868–3–I.

Court of Appeals of Washington, Division 1.

May 2, 2011.

Cristy J. Craig, King County Prosecuting Office, Seattle, WA, for Appellant.Jean Barr Jorgensen, Singleton & Jorgensen Inc.PS, Renton, WA, Dalynne Singleton, Singleton & Jorgensen Inc. PS, Port Orchard, WA, for Respondent.Sherry McMilian, Maple Valley, WA, for Other Party.

DWYER, C.J.

[161 Wash.App. 584]¶ 1 Valid nonconforming uses of land are permitted where those uses were lawfully established prior to the adoption of contrary zoning legislation.The requirement that the use be lawfully established is not limited to compliance with zoning legislation but, rather, also demands compliance with general statutory requirements.Although such nonconforming uses are disfavored, they are permitted to continue in order to avoid constitutional due process concerns arising from interference with a landowner's property rights.Such constitutional concerns do not arise, however, where a trespasser establishes the use.Thus, we hold that a trespasser onto land cannot lawfully establish a valid nonconforming use.

¶ 2 Nevertheless, a user of another's land will not be presumed to be trespassing upon that land.Because the hearing examiner herein improperly presumed that the user of neighboring land was trespassing, we remand for additional findings on the issue of whether a valid nonconforming use existed.We affirm the hearing examiner's decision that a clearing permit was required.

I

¶ 3Leo McMilian owns two adjacent parcels on the west side of Enchanted Parkway South in the unincorporated area east of Federal Way.He currently operates an automobile wrecking yard on both parcels.McMilian purchased the northern parcel (parcel number 332104–9005) and the wrecking yard business associated with that property in 2002.Several months later, McMilian purchased the southern parcel (parcel number 332104–9038).McMilian appears to be the first wrecking yard owner to own both the northern and southern parcels.Both parcels are currently zoned to allow residential development.

¶ 4 The northern parcel has been used as a wrecking yard business since prior to 1958.In 1958, King County's zoning ordinances were amended such that a wrecking yard use was prohibited in the area.However, the wrecking yard use on the northern parcel remains a valid nonconforming use.The southern parcel was primarily forested land and seems to have been used by the prior owners only for logging purposes.Prior owners of the northern parcel had also used part of the southern parcel for the wrecking yard business and, thus, the wrecking yard “bulged” past the northern parcel's property lines.Various owners of the southern parcel had offered to sell the property to at least one of the previous owners of the northern parcel prior to the sale to McMilian being consummated.

¶ 5 In 2005, McMilian cleared the southern parcel of much of the vegetation and placed numerous vehicles on it.Thereafter, the King County Department of Development and Environmental Services(DDES) investigated complaints regarding the southern parcel.

¶ 6 In 2007, DDES issued a notice of King County Code violations, which included the following violations:

1.Operation of an auto wrecking business from a residential site that does not meet the requirements for a home occupation in violation of Section 21A.30.080(and the allowed use section that the use would be under such as contractor' [sic] storage yard etc) of the King County Code.

2.Cumulative clearing and grading of over 7,000 square feet without the required permits, inspections, and approvals.

3.Construction of a fence over 6 feet in height without the required permits, inspections, and approvals in violations of Sections 21A12.170,21A14.220 of the King County Code, andSection 105.2 of the International Building code.

Clerk's Papers(CP)at 14.The notice ordered McMilian to abate his wrecking yard use of the southern property and to obtain the necessary permits for the clearing activity and for the over-height fence.

¶ 7 McMilian administratively appealed the notice of violation to the Office of the Hearing Examiner for King County.McMilian argued, in part, that the operation of the wrecking yard on the southern parcel was a valid nonconforming use because the wrecking yard business had spilled over onto the southern parcel for years.After an administrative hearing, the hearing examiner issued his report and decision on May 26, 2009.The hearing examiner found, in pertinent part:

4.An auto wrecking business has long been conducted on the property directly abutting to the north, under a series of ownerships.During prior ownerships, some spillover of the auto wrecking operation occurred onto the subject property, which was not owned by the prior ownerships of the auto wrecking business (it was purchased by Appellants after their purchase of the main Astro Auto Wrecking site abutting to the north).The spillover consisted of storage of some wrecked and dismantled cars and numerous junk auto parts and tires.The property was not utilized in active auto wrecking operations as was the main operation to the north.

5.No express permission was granted by the owners of the subject property to the prior operators of the auto wrecking business to the north to utilize the subject property for auto wrecking/auto storage purposes or any other related activity.Neither was eviction commenced.

6.A prior owner of the adjacent property, Richie Horan, testified that he was never asked to discontinue use of the property in the spillover auto wrecking/auto storage activity.He considered purchasing the subject property but never did, and speculated whether there was a possibility of adverse possession by his usage, though no adverse possession claim was ever made or asserted.

7.Upon their purchase of the subject property, the Appellants in or around 2005 commenced clearing of the subject property of its significant overstory and underbrush vegetation and removal of a substantial amount of auto parts, tires, a few vehicles, etc.The tree cover was so substantial that the vehicles, auto parts, etc., were not visible (at least not easily discernible) from aerial photographs taken prior to the time of clearing.

8.In clearing the property of vegetation, approximately 1.7 acres, or the vast majority, of the 1.9–acre property was cleared.

9.With some exceptions where the threshold is zero, not applicable here, clearing of vegetation in excess of 7,000 square feet of area must be conducted under the auspices of a clearing and grading permit.[KCC 16.82.051]

10.No clearing and grading permit was obtained for the clearing activity.

CPat 110(footnote omitted).¹

¶ 8 The hearing examiner then concluded, as a matter of first impression in Washington, that a trespasser using property cannot establish a valid nonconforming use:

Particularly given the context of nonconforming uses being disfavored in the law, and of the allowance of nonconforming uses to continue chiefly in order to respect private property rights ..., the requirement that there be a lawful establishment of the nonconforming use must logically include that it had been established under due property ownership or permission, i.e., not merely by trespass, criminal or not.Mere silent acquiescence (as asserted) by lack of expression of a demand to vacate is insufficient to accord [the prior owner of the northern parcel] a possessory or permission claim which would support a conclusion of legal nonconforming rights.It belies common sense to conclude that a person who operates a land use on property not owned by that person, without permission to operate such use, and without adverse possession, has established a lawfully operated use and a property right which must then be accorded disfavored nonconforming use status.

CPat 111–12.The hearing examiner further concluded that “[t]he subject property does not benefit from a nonconforming use right to an auto wrecking yard or an auto storage yard.”CPat 112.Moreover, the hearing examiner sustained the other two charges of violation for the clearing activity and the overheight fence.²

[161 Wash.App. 589]¶ 9 McMilian filed a petition pursuant to the Land Use Petition Act (LUPA), chapter 36.70C RCW, in the King County Superior Court, challenging the hearing examiner's decision.The superior court requested additional briefing on the issue of an individual's status for purposes of establishing a nonconforming use.The superior court then reversed the hearing examiner's decision except as to the violation related to the fence, an issue that the superior court determined McMilian had abandoned.The superior court explained:

The Hearing Examiner concluded that ... to be lawfully established, such a non-conforming use must be established through property ownership or permission, and not trespass....I conclude the better reasoning is that lawful use relates to whether the use was lawful under the zoning laws in effect, not whether the user was a trespasser.

CPat 736.The superior court thus found “that the Hearing Examiner erred in concluding that the right to maintain a nonconforming use depends upon ownership of the land, as opposed to being a right that attaches to, and runs with, the land.”CPat 733.The superior court determined “that the King County Hearing Examiner's decision that the subject parcel does not constitute a legal nonconforming use should be reversed.”CPat 733.

¶ 10King County appeals.

II

¶ 11 Review here is governed by the LUPA.In a LUPA appeal, we review the decision of the “local jurisdiction's body or officer with the highest level of authority to make the determination.”RCW 36.70C.020(2);Citizens to Preserve Pioneer Park LLC v. City of Mercer...