Posted by: Patricia Salkin | September 30, 2019

WA Appeals Court Finds Property Owners Failed to Demonstrate a Valid Nonconforming Use to Excuse Compliance with City Restriction on Filling Wetlands and Wetland Buffers

This post was authored by Matthew Loeser, Esq.

Donald and Kathleen Miller dug a pond for the horses on the lowest spot on their property and spread the soil around the perimeter of the pond. In 2005, developer CamWest investigated developing a 38-lot residential subdivision on several parcels, including the Millers’ property. In a feasibility study that CamWest commissioned Talasaea Consultants, Inc. to prepare, two areas of the Millers’ property were discovery to be class III wetlands—wetlands K and L. In 2016, the City’s wetland biologist, Kathy Curry, informed the City’s code correction officer, Chris Hankins, that she received a complaint that the Millers had been filling and grading wetlands on their property. Specifically, Curry reported “Wetland K, which encompassed a farm pond, has been entirely filled and that Wetland L, which included a shallow depression, has been graded and filled.” Following this, the City of Sammamish commenced a code enforcement action. Over the next year, the City issued a notice to comply, posted a stop work order on the property, and finally issued a notice and order to abate and imposed a penalty. The Millers appealed to the City’s hearing examiner, who concluded that the Millers violated the Sammamish Municipal Code (“SMC”), and the superior court affirmed this holding.

The Millers first contended on appeal that the hearing examiner deprived them of their due process rights. The record indicated that the hearing examiner’s decision addressed and rejected the Millers’ claim that they had a nonconforming agricultural use. The examiner concluded that there was no evidence that the filling and grading had anything to do with agriculture; that the SMC did not exempt agricultural activities, and that “even if” the farm ponds were use that preexisted the SMC, “filling it would not constitute ‘maintenance’ in any normal meaning of the word.” The examiner further found that the SMC stated that not all critical areas are fully mapped and that the code “places the responsibility on the applicant to disclose critical areas within a proposed development site.”  Finally, the hearing examiner testified that the penalty assessment was not ad hoc, but was instead based on application of a longstanding set of City guidelines setting forth the methodology for calculating a fine. Specifically, the SMC allowed a penalty of up to $25,000 plus restoration costs for critical area violations and that using the methodology the notice assessed a lower $15,000 penalty.

The court also noted that despite the initial burden being on the Millers to prove the existence of a nonconforming use, the Millers only showed was how the Morins used the property in the 1970s. The Millers did not demonstrate that the Morins’ use of the property for a horse continued over the next 21 years before the Millers purchased the property, how or intervening owners actually kept animals, other than some ducks or chickens, or that they ever used the pond or pasture in the same manner as the Morins did in the 1970s. As such, the court held the Millers failed to demonstrate a valid nonconforming use that would excuse compliance with the SMC’s restriction on filling wetlands and wetland buffers.

Lastly, the Millers did not provide any authority in support of their argument that the City had an affirmative duty to inform landowners that their land includes wetlands. Nevertheless, the record reflected that the City did provide the Millers with notice that there were regulated wetlands on their property on February 12, 2016. Despite this notice, the Millers continued to fill and grade their property and remained adamant that wetlands were not present on their property. Additionally, using the wetland delineations, aerial photographs, and observations from excavations, the City’s witnesses testified that both critical areas had been topped by more than two feet of fill, which far exceeded the City’s 50 cubic yard threshold to obtain an exemption. Accordingly, the court affirmed, holding the hearing examiner’s finding that the Millers deposited more than 50 cubic yards of fill into the regulated wetlands was supported by substantial evidence.

Miller v. City of Sammamish, 447 P.3d 593 (WA App. 2019)

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