    / Fl LE
          IN CLERKS OFFICE
 lllJI'R9&E COURT, STATE OF WASHINQ10N
       DATE     JUN 2 7 2013
"Ykt.t.
                              PREME COURT OF THE STATE OF WASHINGTON



     KING COUNTY, DEPARTMENT           )
     OF DEVELOPMENT AND                )             No. 87514-6
     ENVIRONMENTAL SERVICES,           )
     an executive agency,              )              EnBanc
                                       )
                        Petitioner,    )
                                       )
          v.                           )
                                       )
     KING COUNTY, a Washington         )
     municipal corporation, JEFFREY L. )
     SPENCER, a single man, and        )
     RONALD A. SHEAR, a single man, )
                                       )
                        Respondents.   )
                                       )              Filed            JUN 272013


               C. JOHNSON, J.-This land use case requires us to determine how the King

     County Code provisions allow uses to vest as nonconforming uses. This case began

      as a challenge to an agency order declaring the use of the property was not

      compliant with King County zoning ordinances. The applicants' challenge was

     based on the assertion that the use was established before revisions to the zoning

      ordinances characterized the use as nonconforming and, thus, requiring a permit.

               This case also presents the issue of what effect a nonpermitted activity has

      on a later claim to a preexisting use when a permit was required for the activity
No. 87514-6


asserted as support for a preexisting use. The hearing examiner found for the

landowner on all relevant issues, but the decision was reversed by the superior

court. The Court of Appeals reversed the superior court, and we now reverse the

Court of Appeals and hold that the landowner's use was not established within the

meaning of the King County Code.

                                FACTS AND PROCEDURAL HISTORY

         The 10-acre parcel of land at issue in this appeal lies in the Green River

Valley and is zoned agricultural. The landowner, Jeffrey Spencer, allowed Ronald

Shear, who operates a business (BRC), which processes organic materials into

animal bedding and fuel, to rent the property. 1

         In 2003, Shear was operating a similar processing facility on a one-acre

parcel near Spencer's parcel. In October, the two entered into an oral "lease"

agreement whereby Shear began bringing equipment and materials onto Spencer's

parcel for later processing. This operation fit under the definition of an "interim

recycling facility" under the then-existing King County Code and required no use-

specific permitting. Shear's activities on the parcel increased throughout 2004,

although no actual grinding or processing had begun. Then, in September 2004,


         1
             For ease of reference, these parties will all be referred to as Shear unless otherwise
noted.



                                                     2
No. 87514-6


King County amended its code to require permitting for operations such as Shear's,

classifying them as "materials processing facilities." 2 There is no dispute that

Shear's current operations constitute a materials processing facility under the code.

Nor is it disputed that actual grinding of the organic materials had not commenced

before the code revisions. However, the hearing examiner did find that Shear's

operations were continually expanding during the time leading up to the zoning

revisions and that the business required three stages for full implementation: site

preparation, grinding of raw materials, and transfer of those materials off site. The

hearing examiner also found that prior to the zoning change, "all of the essential

first-stage site preparation activities were underway." Clerk's Papers (CP) at 31.

       Shortly after the zoning change, in late 2004 or early 2005, Shear began

actual grinding of organic materials. In response to complaints from a nearby

landowner, the Department of Development and Environmental Services (DDES)

began to investigate Sheaes operations. Apparently, DDES made multiple

informal contacts before ultimately filing an administrative notice and order on

October 9, 2006. The administrative order found two violations: the operation of a



       2
          The King County Code defines a "[m]aterials processing facility" as "[a] site or
establishment, not accessory to a mineral extraction or sawmill use, that is primarily engaged in
crushing, grinding, pulverizing or otherwise preparing earth materials, vegetation, organic waste,
construction and demolition materials or source separated organic materials and that is not the
final disposal site." King County Code (KCC) 21A.06.742.


                                                3
No. 87514-6


materials processing facility in a critical area without permit and grading in critical

areas (flood hazard area and wetlands) without proper permitting.

      Shear appealed the administrative order, setting off long and contentious

proceedings not relevant here. On January 28, 2010, the hearing examiner filed his

report and decision, which was largely (but not completely) in favor of Shear. In

relevant part, the hearing examiner interpreted the following language of the King

County Code as expressly recognizing that preexisting uses could vest even if not

in full operation:

       21A.06.800 Nonconformance. Nonconformance: any use,
       improvement or structure established in conformance with King
       County rules and regulations in effect at the time of establishment that
       no longer conforms to the range of uses permitted in the site's current
       zone or to the current development standards of the code due to
       changes in the code or its application to the subject property.

        21A.08.010 Establishment of uses. The use of a property is defined
        by the activity for which the building or lot is intended, designed,
        arranged, occupied, or maintained. The use is considered permanently
        established when that use will or has been in continuous operation for
        a period exceeding sixty days. A use which will operate for less than
        sixty days is considered a temporary use, and subject to the
        requirements ofK.C.C. 21A.32 of this title. All applicable
      . requirements of this code, or other applicable state or federal
        requirements, shall govern a use located in unincorporated King
        County.

KING COUNTY CODE (KCC) 21A.06.800; KCC 21A.08.010. Thus, the hearing

examiner reasoned, Shear's use as a materials processing facility could be a



                                           4
No. 87514-6


preexisting use despite the fact that actual grinding had not begun prior to the

zoning change. The hearing examiner also found that the King County Code

required further actions by the county to designate flood hazard areas, and because

it had yet to complete the process, the code contained an unenforceable flood

hazard standard. Finally, the hearing examiner found that Shear had engaged in

unlawful grading, albeit not in a critical area. 3

       Importantly, the hearing examiner recognized that Shear's use had and

would likely continue to expand and required Shear to obtain a conditional use

permit for any expansion. He determined that Shear's use as of September 2004

(the month King County amended its code) was the baseline level of permitted use.

Any expansion after that date would require a conditional use permit. However,

given the contentious nature of the proceedings, the hearing examiner also

recognized that DDES might abuse the conditional use permit process and imposed

several restrictions applicable to the permitting process. He ruled that DDES was

not allowed to use the permit process to directly or indirectly prohibit a viable

materials processing facility. Moreover, subject to small exceptions, it could not

require any further studies on the wetland or flood hazard area issues.



-----------------
       3
         There were also findings related to a wetlands issue, but that issue is not part of the
current appeal.


                                                  5
No. 87514-6


      DDES filed a timely appeal under the Land Use Petition Act (LUP A),

chapter 36.70C RCW. The King County Superior Court reversed the hearing

examiner on all issues. The court held that the hearing officer's determination that

actual grinding had not occurred "preclude[ d]" his finding of a nonconforming use

because the code required a use to be "'in operation'" for 60 days in order to be

established. CP at 664. It also held that the code did contain an enforceable flood

hazard area standard and that the hearing examiner acted outside of his jurisdiction

in imposing conditions. Shear timely appealed this decision, and in a published

decision, the Court of Appeals, Division One reversed the superior court and

reinstated the hearing examiner's decision. King County Dep 't ofDev. & Envtl.

Servs. v. King County, 167 Wn. App. 561, 273 P.3d 490 (2012). We granted

discretionary review. King County Dep 't ofDev. & Envtl. Servs. v. King County,

175 Wn.2d 1009,287 P.3d 594 (2012).

                                         ANALYSIS

       LUP A sets forth six standards for relief from an administrative land use

decision. RCW 36.70C.130. As relevant here, relief will be granted if the hearing

examiner's decision was "an erroneous interpretation of the law, after allowing for

such deference as is due the construction of a law by a local jurisdiction with

expertise." RCW 36.70C.130(1)(b). An appellate court stands in the same shoes as



                                          6
No. 87514-6


the superior court and reviews the administrative record. Isla Verde Int 'l Holdings,

Inc. v. City of Camas, 146 Wn.2d 740, 751,49 P.3d 867 (2002). Alleged errors of

law are reviewed de novo and questions of fact are reviewed for substantial

evidence. City of University Place v. McGuire, 144 Wn.2d 640, 647, 30 P.3d 453

(2001).

      Nonconforming Use

      Generally, a nonconforming use is a use that "lawfully existed" prior to a

change in regulation. Despite that the use may no longer be permitted, it is allowed

to continue due to the fairness and due process concerns of the landowner. Rhod-A-

Zalea & 35th, Inc. v. Snohomish County, 136 Wn.2d 1, 6, 959 P.2d 1024 (1998).

The doctrine is "intended to protect only those uses which were legally established

before" the change in regulation. 1 ROBERT M. ANDERSON, AMERICAN LAW OF

ZONING § 6.11 (Kenneth H. Young ed., 4th ed. 1996). The landowner has the

burden to prove that (1) the use existed prior to the contrary zoning ordinance, (2)

the use was lawful at the time, and (3) the applicant did not abandon or discontinue

the use for over a year prior to the relevant change. McMilian v. King County, 161

Wn. App. 581, 591, 255 P.3d 739 (2011).

       The analytical focus of the dispute here centers on the provisions and

language of the King County Code, which regulates zoning and the allowable uses



                                           7
No. 87514-6


of land. The parties disagree over the interpretation of several sections of the King

County Code.

      The first disputed section of the code defines a nonconforming use as "any

use, improvement or structure established in conformance with King County rules

and regulations in effect at the time of establishment that no longer conforms to the

range of uses permitted in the site's current zone." KCC 21A.06.800 (emphasis

added). Importantly, the past-tense form of the word "establish" is used twice in

this provision in reference to the use, which shows that the use must already be

established in order to be considered a nonconforming use. As discussed below,

this approach tracts the analysis employed by our cases discussing preexisting

uses. See, e.g., Anderson v. Island County, 81 Wn.2d 312, 501 P.2d 594 (1972)

(finding no nonconforming use where landowner had intent to operate cement

hatching plant but had not actually begun operations).

       Shear's argument, which the Court of Appeals found convincing, focuses on

another section ofthe code that provides, "The use of a property is defined by the

activity for which the building or lot is intended, designed, arranged, occupied, or

maintained." KCC 21A.08.010. Although these words, especially "'intended,"'

arguably suggest that prospective uses are allowed, this sentence is about

"'defin[ing]"' uses, not selecting a point in time at which they vest. Here, for



                                           8
No.   87514~6




example, the hearing examiner found that Shear "intended, designed, arranged,

occupied, or maintained" the property in a manner that falls under the code's

definition of a "materials processing facility." Thus, because Shear intended to

operate a materials processing facility, that is the use he must prove was

established. However, this sentence in the code provides little guidance because it

says nothing about when a use is established but instead provides guidance as to

how to define a use in relation to activities occurring on the land, especially where

some activities might be unregulated for one use but regulated for another.

       This interpretation is further confirmed by the next two sentences of the

code, which provide further guidance on defining the use-specifically, whether it

is temporary or permanent. These sentences state that a "use is considered

permanently established when that use will or has been in continuous operation for

a period exceeding sixty days. A use which will operate for less than sixty days is

considered a temporary use." KCC 21A.08.010. Shear focuses on the word "will"

to argue that prospective uses can be "established" within the meaning of the code.

As discussed above, however, this section is about defining uses, not about when

they are established. 4 As a condition precedent to determining whether a use is



-------------
        4
         We recognize that the section is entitled "Establishment of uses" but is in a separate
chapter of the code than the definition of a "nonconforming use." In context, we read this section


                                                9
No. 87514-6


permanent or temporary, that use must exist. A use exists when it is "established"

within the meaning ofKCC 21A.06.800. In this context, "will" speaks to existing

established uses that have not been in operation for 60 days but are expected to

continue for more than 60 days.

       For example, suppose a landowner wanted to open a hotel and obtained

approval for all the necessary permitting before that use is subsequently prohibited.

The permit approval would "establish" the use even though occupation of the

facility may not have started, and the use would be a permanent use because it

"will" be in operation for more than 60 days. Similarly, in Shear's case, if he had

been fully processing the materials for 15 days, his use would have been

established within the meaning of the code and would have been permanent

because it eventually would have been in continuous operation for 60 days. But,

again, the code requires establishment as a' condition precedent to the creation of a

nonconforming use. Thus, we conclude that the "will" in KCC 21A.08.010 does

not have any bearing on when a nonconforming use is "established" but instead

refers to whether uses that are already "established" in accordance with KCC

21A.06.800 are considered "permanent" or "temporary." Because Shear had not




as related to establishing what the use is, not the point in time in which the use is "established"
within the meaning ofKCC 21A.06.800.


                                                 10
No. 87514-6 ·


completed all three stages as determined by the hearing examiner, his use was not

established within the meaning of the code prior to the zoning change.

      This interpretation of the code is also consistent with our case law applying

the nonconforming use doctrine. Nonconforming uses are disfavored, and we have

repeatedly held that the doctrine is a narrow exception to the State's nearly plenary

power to regulate land through its police powers. Consistent with the narrowness

of this doctrine, we held in Rhod-A-Zalea that a landowner does not "vest" the

entire code at the time the use is established, but that only the use itself is vested

and a landowner must still comply with subsequent changes to the land use code

not involving that specific use. Rhod-A-Zalea, 136 Wn.2d at 6-7. Thus, even where

a nonconforming use was lawfully established, the rights of a landowner may still

be limited to only what is required to protect the landowner's due process interests.

Nonetheless, the use must actually exist before it can be termed a "preexisting use"

and a due process right attaches to a landowner.

       In another case, the landowner moved its gravel operations to a newly

purchased track of land with the intent of also moving its cement batching plant to

the same location. Several months later, the county amended the zoning code to

designate the land as residential. Soon thereafter, the landowner began construction

of a cement hatching plant. This court held that a nonconforming use did not exist



                                            11
No. 87514-6


for the cement batching plant because that use did not precede the zoning change.

We stated that "mere purchase of property and occupation thereof are not sufficient

factors, either severally or jointly, to establish an existing nonconforming use" and

that the use '"must exist somewhere outside the property owner's mind."'

Anderson, 81 Wn.2d at 321 (quoting Cook v. Bensalem Twp. Zoning Bd. of

Adjustment, 413 Pa. 175, 196 A.2d 327, 330 (1963)). The landowner might have

established the gravel operation as a preexisting use because it "existed" prior to

the zoning change. He could not, however, prove that the intended cement batching

plant was established so as to be a nonconforming use. That same reasoning

applies in this case.

      Here, Shear took similar actions to that of the landowner in Anderson. He

obtained rights to the land (although not a fee interest), stored some materials on

the property, and expressed an intent to take further action to commence a

recycling operation but had not commenced actual recycling. When the regulations

changed, the "processing" component of his materials processing facility had not

begun. Allowing some contemplated future use to be considered a "preexisting"

use would be contrary to the requirements of the preexisting use doctrine as

defined by our cases, and we find no language in the King County Code that would

allow a landowner to create a preexisting use merely by undertaking preparatory



                                          12
No. 87514-6


steps with a plan to take action at some unknown time in the future. Neither the

King County Code nor our cases recognize such activities as sufficient to establish

a vested nonconforming use. Shear has not met his burden to show his use was

established.

      As further support for this conclusion, this case also presents the situation

where Shear's preparatory work was performed without the required permits.

Importantly, Shear did not appeal the hearing examiner's conclusion that permits

were required for the grading performed before the code revisions. The hearing

examiner recognized this failure and ordered Shear to apply for and secure those

permits, albeit, after the fact. That ruling, however, has the analysis somewhat

backward. A component of establishing a preexisting use is that the use be lawfully

established. This rule has been consistently recognized by our cases. Rhod-A-

Zalea, 136 Wn.2d at 6 (stating rule that use must have "lawfully existed" prior to

becoming a nonconforming use); McMilian, 161 Wn. App. at 590-91 (holding that

petitioner's status as a trespasser precluded a finding that the use lawfully existed,

and therefore the use could not be a nonconforming use); First Pioneer Trading

Co. v. Pierce County,l46 Wn. App. 606, 614, 191 P.3d 928 (2008) (discussing

petitioner's failure to obtain proper permitting and finding that petitioner had not

established a nonconforming use). What these cases recognize is that when a



                                           13
No. 87514-6


landowner utilizes unlawful methods to establish a nonconforming use, that

unlawfulness precludes a subsequent finding of a lawful nonconforming use.

Because Shear has not appealed the ruling that permits were required, he cannot

meet the required showing that his use lawfully existed. 5

                                        CONCLUSION

      We reverse the Court of Appeals' reinstatement of the hearing examiner's

decision and hold that Shear's use was not established within the provisions of the

King County Code as a lawful preexisting use.




       5
         Because we hold that the materials processing facility was not a lawful nonconforming
use, we do not need to resolve the issues regarding the hearing examiner's imposition of
conditions. The hearing examiner's conditions were imposed as part of the conditional use
permit process, which was necessarily predicated on Shear having a nonconforming use. Thus,
we need not address whether the hearing examiner exceeded his authority or whether the code
contains an enforceable flood hazard zone standard.


                                              14
No. 87514-6




WE CONCUR:




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