Rhod-A-Zalea & 35th, Inc. v. Snohomish County
| Decision Date | 16 November 1988 |
| Docket Number | RHOD-A-ZALEA,No. 64926-0,64926-0 |
| Citation | 959 P.2d 1024,136 Wn.2d 1 |
| Court | Washington Supreme Court |
| Parties | & 35TH, INC., Respondent, v. SNOHOMISH COUNTY, Petitioner. |
Anderson, Hunter, Dewell, Baker & Collins, Bradford N. Cattle, Everett, for Respondent.
Norm Maleng, King County Prosecutor, Cassandra Newell, Deputy King County Prosecutor, Seattle, Amicus for King County.
Brent D. Boger, Groen & Stephens, John Groen, Bellevue, Robin L. Rivett, Sacramento, CA, Amicus Curiae for Pacific Legal Foundation.
Snohomish County seeks to reinstate a decision of the Snohomish County Hearing Examiner (Examiner) in which he decided that, although Rhod-A-Zalea and 35th, Inc. (Rhod-A-Zalea) established a nonconforming use under the county's zoning code to peat mine on the subject property, it was separately subject to provisions of the county's building code requiring it to obtain a grading permit for its ongoing excavation and fill activities. The trial court reversed the Examiner, finding that because Rhod-A-Zalea established a nonconforming use it was not required to obtain the grading permit. The Court of Appeals agreed. We reverse and reinstate the decision of the Snohomish County Hearing Examiner.
Rhod-A-Zalea owns property in Snohomish County on which it has conducted peat mining activities since at least 1961. In response to a complaint regarding excessive ponding on a neighboring property, the Snohomish County Department of Community Development (County) initiated an investigation resulting in issuance of a Notice and Order to Rhod-A-Zalea. The notice charged two code violations: (a) the excavation and processing of minerals without first obtaining a conditional use permit required under Snohomish County Code (SCC) 18.32.040 (the zoning code use matrix), and (b) grading without necessary permits and A business attempting to establish a use prohibited by the zoning ordinance must obtain a conditional use permit unless it is a valid nonconforming use. A conditional use permit allows otherwise prohibited activities based on certain restrictions. At the hearing before the Examiner, Rhod-A-Zalea presented evidence that the peat mining operation had been conducted on the subject property since a date prior to the enactment of a zoning ordinance which prohibited the use in that area. The Examiner found Rhod-A-Zalea had established that it was a valid nonconforming use and that a conditional use permit was not required. This ruling was not challenged on appeal.
approvals required under SCC 17.04.280 of the county building code. The Notice and Order imposed a 30-day compliance period, after which civil penalties would be assessed. Rhod-A-Zalea timely filed an appeal and the compliance schedule was stayed. No penalties were imposed.
The Examiner further ruled that Rhod-A-Zalea was subject to police power regulations including the building code provisions regulating grading contained in Title 17 SCC. Under SCC 17.04.280, no one may conduct any grading (excavating and filling) without first obtaining a grading permit, with certain exceptions. Among other things, a grading permit application must include grading plans, grading quantities, erosion and sedimentation controls, and a drainage plan. SCC 17.04.295. The code sets forth operating standards for grading activities, including slope, erosion control, ground preparation, fill material, drainage, benches and terraces, and access roads. SCC 17.04.310. Also, the code specifies steps which must be taken upon completion of activities. SCC 17.04.320. Finally, fill placed on land adjacent to or under any stream or water body must be contained so as to prevent damage to other lands. SCC 17.04.330. When determining that Rhod-A-Zalea was subject to the grading permit requirement the Examiner explained:
Such prohibition of any requirement of a general use permit does not lift the requirement of specific operational activity Appellant's Br. at 190; Snohomish County's Return to Writ of Cert. at 190.
permits, such as the grading permit in question. Similarly, building construction in the continued operation of a nonconforming use requires a building permit; a change in the use of an existing building (without changing the overall nonconforming use, such as by relocating individual operational aspects within the nonconforming use to different structures, for example changing the location of explosives storage) would require a Certificate of Occupancy under the building code; and business license requirements are not lifted by virtue of the establishment of a nonconforming use under the zoning code.
Rhod-A-Zalea appealed the Examiner's decision by writ of certiorari and the superior court ruled in favor of Rhod-A-Zalea. The court determined that Rhod-A-Zalea had a vested right to continue the peat mining operation, and since the operation by its nature involved grading, excavating, and filling, it was not subject to the County's grading regulations, which were enacted after the mining operation began. Snohomish County appealed the superior court's decision.
The Court of Appeals agreed with the superior court stating that requiring Rhod- A-Zalea to obtain a grading permit would allow the county to regulate "virtually every aspect of the peat mining operation...." Rhod-A-Zalea v. Snohomish County, No. 36658-1-I, slip op. at 4, 1996 WL 544391 (Wash.Ct.App. July 22, 1996). The court found that a nonconforming use "carries with it the right to the exercise of those accessory uses which are considered customary and incidental to the principal use." Id. at 5. The court dismissed other authority, including a Supreme Court decision which held that nonconforming uses are subject to later enacted police power regulation. The Court of Appeals stated that
[t]hese cases come from states which have adopted a majority position approving retroactive application of new zoning or development legislation. Washington State adopted and maintains a strong minority position in recognizing vested Id.
property rights and the protection of those rights against subsequently adopted development regulations. See Mercer Enterprises, Inc. v. [City of ] Bremerton, 93 Wash.2d 624, 627, 611 P.2d 1237 (1980) (retroactive effect of later zoning regulations not recognized in Washington). Here, the building code that the County seeks to apply was adopted in 1985 long after this mining operation
Snohomish County's motion for reconsideration was denied and it then petitioned this court for review.
Discussion
It is undisputed that Rhod-A-Zalea operates a valid nonconforming use. The issue before this court is whether Rhod-A-Zalea's nonconforming peat mining operation is subject to police power regulations subsequently enacted for the health, safety and welfare of the community. Specifically, we are asked to determine whether Rhod-A-Zalea must obtain a grading permit as required by SCC 17.04.280.
A nonconforming use is a use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance, although it does not comply with the zoning restrictions applicable to the district in which it is situated. See 1 Robert M. Anderson, American Law of Zoning § 6.01 (Kenneth H. Young ed., 4th ed.1996). The right to continue a nonconforming use despite a zoning ordinance which prohibits such a use in the area is sometimes referred to as a "protected" or "vested" right. See Van Sant v. City of Everett, 69 Wash.App. 641, 649, 849 P.2d 1276 (1993); Martin v. Beehan, 689 S.W.2d 29, 31 (Ky.Ct.App.1985); 4 Arden H. Rathkopf, The Law of Zoning and Planning § 51A.01 (Edward H. Ziegler ed., 1991). This right, however, only refers to the right not to have the use immediately terminated in the face of a zoning ordinance which prohibits the use. See 1 Robert M. Anderson, American Law of Zoning § 6.01; Richard L. Settle, Washington Land Use and Environmental Law and Practice § 2.7(d) (1983).
State ex rel. Miller v. Cain, 40 Wash.2d 216, 221, 242 P.2d 505 (1952).
The theory of the zoning ordinance is that the nonconforming use is detrimental to some of those public interests (health, safety, morals or welfare) which justify the invoking of the police power. Id. at 220, 242 P.2d 505. Although found to be detrimental to important public interests, nonconforming uses are allowed to continue based on the belief that it would be unfair and perhaps unconstitutional to require an immediate cessation of a nonconforming use. Id. at 218, 242 P.2d 505. A protected nonconforming status generally grants the right to continue the existing use but will not grant the right to significantly change, alter, extend, or enlarge the existing use. Id. Moreover, zoning ordinances may provide for termination of nonconforming uses by abandonment or reasonable amortization provisions. See R. Settle, Washington Land Use § 2.7(d).
While some states' authority to terminate, alter, or extend nonconforming uses is expressly granted or withheld in zoning enabling acts, Washington's enabling acts are silent regarding the regulation of nonconforming uses. See R. Settle, Washington Land Use § 2.7(d)....
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