McMillan purchased two adjoining lots, the northern parcel and the southern parcel, in 2002 to use for an auto wrecking yard business. The previous owner of the northern parcel had used it for the auto wrecking business since prior to 1958 when King County’s zoning ordinance was amended to prohibit the use in that district. Thus the wrecking business on the northern parcel qualified as and remained a valid nonconforming use. The previous owner’s wrecking business had also encroached onto the southern parcel, which was owned by someone else. In other words, the previous owner of the northern parcel had trespassed on the southern parcel to operate part of his wrecking business there. McMillan cleared the southern parcel, but was ordered to abate his wrecking yard use. The hearing examiner for McMillan’s administrative appeal found that the use of the southern parcel was not a valid nonconforming use because it was a trespass. The superior court reversed, finding that the determination of a valid nonconforming use depends on the use rather than the ownership of the subject land.
Court of Appeals reversed the superior court judgment. Noting that this was an issue of first impression in Washington courts, the court first discussed the division of opinion nationally over whether the requirement that a use be lawfully established requires compliance only with land use legislation or also with general legislation. While not answering the question fully, the court held that a nonconforming use cannot be lawfully established where the individual engaging in the use of the property is a trespasser. The court remanded the case the hearing examiner to determine two issues: whether there was evidence of the southern parcel owner’s implied acquiescence in the use of the property whether the wrecking yard use on the southern parcel actually existed prior to 1958.
McMillan v. King County, 2011 WL 1631853 (Wa. Ct. App. 5/2/2011).
The opinion can be accessed at: http://caselaw.findlaw.com/wa-court-of-appeals/1566157.html
Hat Tip to Robert Foster of Rackemann, Sawyer and Brewster for including this summary in the 2011 ALI-ABA Land Use Institute in Boston last month.
See his MA land use blog here: http://www.massachusettslandusemonitor.com
