Posted by: Patricia Salkin | December 17, 2014

WA Appeals Court Holds Zoning Code Provision That Allowed Continuation of a Nonconforming Use for Property Allowed for the Intensification but Not for an Expansion of Such Use

Kitsap Rifle and Revolver Club appealed from the trial court’s decision following a bench trial that the Club engaged in unlawful uses of its shooting range property. The Club challenged the trial court’s determinations that the Club had engaged in an impermissible expansion of its nonconforming use; that the Club’s site development activities violated land use permitting requirements; and that excessive noise, unsafe conditions, and unpermitted development work at the shooting range constituted a public nuisance. The Club also argued that even if its activities were unlawful, the language of the deed of sale transferring the property title from Kitsap County to the Club prevents the County from filing suit based on these activities.

Under Washington common law, nonconforming uses may be intensified, but not expanded. The court noted that when an increase in volume or intensity of use is of such magnitude as to effect a fundamental change in a nonconforming use, courts may find the change to be proscribed by the ordinance. Intensification is permissible, however, where the nature and character of the use is unchanged and substantially the same facilities are used. The test is whether the intensified use is different in kind from the nonconforming use in existence when the zoning ordinance was adopted. The court found that: (1) the Club’s commercial use of the property and dramatically increased noise levels constitute an impermissible expansion of its nonconforming use; (2) the Club’s development work unlawfully violated various County land use permitting requirements; and (3) the excessive noise, unsafe conditions, and unpermitted development work constituted a public nuisance.

Kitsap County v Kitsap Rifle and Revolver Club, 337 P. 3d 328 (WA App. 10/28/2014)

The opinion can be accessed at: http://www.courts.wa.gov/opinions/pdf/D2%2043076-2-II%20%20Published%20Opinion.pdf


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