Division I - Opportunity to Present Non-Conforming Use Required
Johnson liked cars. He had a few. The City issued a citation due to his having over three cars on his lot. Johnson argued he had a legal non-conforming use, but the hearing examiner stated that this was not proven at the time of the hearing, and that only the Department of Planning and Development could make the determination as to legal non-conforming use. The examiner affirmed the citation.
This happened a couple more times. Johnson then filed the petition for the nonconforming use, which was granted.He then sought to have the citations vacated. The superior court said the hearing examiner was correct, and affirmed the first two citations, and remanding the third for a mitigation hearing.
The Court of Appeals noted that the non-conforming uses deal with a potential deprivation of a vested right. In layman terms, your right was grandfathered in. Thus, the Court does have the right to determine if the right was indeed vested such that it would amount to a legal non-conforming use:
On this point, we disagree with the City. The establishment procedure [by permit only] does not create a legal use—it merely verifies that a legal use existed and has not been abandoned or discontinued at any intervening time. Recognition of nonconforming uses entails fact finding, because the vested rights are defined by their historic existence and scope. 8A E. McQuillin, Municipal Corporations, § 25.185, .186. When the Department accepts this factual proof and establishes a nonconforming use for the record, it also recognizes that, as a matter of law, the vested right has existed throughout the entire period in which it has been nonconforming. See Thomasson, 61 Wn.2d at 427. Johnson was therefore never in violation for parking too many vehicles on a single-family lot, though that is what he was cited and penalized for doing. He was only without a permit for his nonconforming use, but he was not cited for not having a permit. And, the ordinance does not provide penalties for failing to apply to establish a nonconforming use for the record nor a time frame within which application must be made.9 See SMC 23.42.102; compare Gray, 130 Wn. App. at 605.
Johnson does not claim that the City cannot require him to apply to the Department or to pay a fee to establish his use. He does not object to having to prove the fact of his prior legal use and its continuation. Nor could he. These are well-recognized as lawful conditions to a legal nonconforming use. See 8A E. McQuillin, Municipal Corporations, § 25.188.50. However, Johnson claims that the City violated his procedural due process rights by failing to dismiss the citations once his legal nonconforming use was established for the record or failing to stay the citation hearings pending his application to establish his use.
The City did violate his due process rights by not allowing him to argue his defense of legal non-conforming use.
Now, here is the kicker. Had the city in place a mechanism fora penalty for engaging in a legal non-conforming use without obtaining a permit, that citation would have held up. However, you can’t cite the man for engaging in something he has a legally protected interest in doing. Its all a little screwy, and one of those moments where the law appears to protect someone, and at the same time, point the city in a way which will allow them to get some fees from you.
Interestingly, the Court of Appeals did say there are some potential ways the City could come into compliance. The first would be to allow the person to claim their non-conforming use, then allow a stay for them to go through that process.