Posted by: Patricia Salkin | February 23, 2012

WA Appeals Court Holds Nonconforming Use Continues as Petitioner does not Satisfy Heavy Burden of Abandonment

Since the 1950’s, the subject property in this action was considered a duplex, and due to zoning changes, was also a legal nonconforming use.  The petitioners in this matter, Rosema, sought an interpretation under the code, questioning whether the subject property’s nonconforming use status had lapsed as abandoned.  The City of Seattle’s Department of Planning and Development Services formally opined that the subject property retained its legal nonconforming use status.  As a result, the owners of the subject property were issued building permits to increase the number of bedrooms in the units.  The Rosema’s appealed this determination to the King County Superior Court, which reversed and remanded, ordering a stay pending review.  The Court of Appeals held that, under the Seattle Municipal Code, the nonconforming use was not abandoned, reinstating the opinion of the City. 

The court provided that the party claiming abandonment has a “heavy burden of proof.”  The party must show an intention to abandon and “an overt act, or failure to act, which carries the implication that the owner does not claim or retain any interest in the right to the nonconforming use.”  Additionally, the Seattle Municipal Code provides that the nonconforming use is discontinued where it is not used, for a period of 12 consecutive months, for the use which is allowed by the most recent permit.

In determining whether the use was discontinued, the court had to look to the conduct of the prior owners.  It was clear they no longer intended to use the property as a duplex, as they attempted to have the property changed to a single residential use, but could not due to financial restraints.  Given that the first prong of abandonment was met, the court had to determine whether previous owner’s conduct satisfied the second prong of the test; specifically, “whether the failure to use the basement unit of their property to house an independent household . . . was an overt act or failure to act sufficient to imply disclaimer of their interest in the property’s intended purpose as a duplex.” 

The court found that the City’s determination that the duplex use was not abandoned was not an error, as it could have gone either way and the Rosemas did not meet their elevated burden of showing abandonment.  As such, the Court of Appeals of Washington reversed the previous ruling and reinstated the City’s formal opinion. 

Rosema v. City of Seattle, 2012 WL 279479 (Ct. App. Wash., Div. 1 1/30/2012)

The opinion can be accessed at:

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