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Real Property & Development Review

Washington Supreme Court Rejects Legal Nonconforming Use Claim for King County Recycling Facility

Posted in Environmental, Land Use

Last week, the Washington Supreme Court decided another case dealing with the scope of the legal nonconforming use doctrine.  Legal nonconforming uses, commonly referred to as “grandfathered” uses, are generally recognized under Washington law, but a rather complex, fact-driven analysis is required to determine whether such a “grandfathered” use exists.  Under this doctrine, local regulations may permit an owner to continue uses that were legal when they were established, even if regulations later change to prohibit or restrict the use.  The recent case of King County Dept. of Development and Environmental Services (DDES) v. Spencer concerns an operator of a recycling facility on a parcel of land in the Green River Valley, which was considered a “materials processing facility” under the King County Code.  The operator (which leased the site from its owner) had begun bringing equipment and materials onto the property to use in its operation when the land use code was amended to require a permit for this use.  At the time of the amendment, the operator had not begun a critical component of the recycling facility use—i.e. grinding of the materials to transport them off-site.

King County DDES sought to enforce the code’s current permit requirement, among others, but the operator claimed that its activities on the site established the recycling facility as a legal nonconforming use, so no permit was required.  A hearing examiner found in favor of the operator, but this decision was reversed by the King County Superior Court after a Land Use Petition Act (LUPA) appeal of the examiner’s decision.  The Court of Appeals later reversed the Superior Court, finding in favor of the operator.

The Supreme Court reversed the decision yet again, finding the landowner had failed to demonstrate it had established the materials processing facility use prior to the code amendment.  The Court carried out an in-depth analysis of the code provisions at issue, and took issue with the fact that “[the landowner] expressed an intent to take further action to commence a recycling operation, but had not commenced actual recycling.”  The Court quoted its earlier decision in Anderson, noting that “to establish an existing nonconforming use . . . the use must exist somewhere outside the property owner’s mind.”  The Court also took issue with the fact that some of the “preparatory work” completed on the site “was performed without the required permits.”

This case stands as a cautionary tale, as well as an instructive review of the legal nonconforming use doctrine, and will be of interest to any landowner that relies on these “grandfathered” uses to continue its operations.