Opinion
No. 33823-8-II.
March 20, 2007.
Appeal from a judgment of the Superior Court for Clark County, No. 04-2-01084-9, Roger A. Bennett, J., entered August 15, 2005.
Counsel for Appellant(s), James Lawrence Sellers, Sellers Law Office, Vancouver, WA.
Counsel for Respondent(s), Keith Hisao Hirokawa, Erikson Hirokawa PLLC, Vancouver, WA.
Reversed and remanded by unpublished opinion per Bridgewater, J., concurred in by Quinn-Brintnall and Penoyar, JJ.
Washougal Motocross, L.L.C., and Moss Associates appeal from a declaratory judgment that a conditional use permit under the Clark County zoning ordinances extinguished its right to operate a motocross race track complex as a nonconforming use. We reverse and hold that the conditional use permit did not extinguish the nonconforming use and remand for a determination of the extent of the nonconforming use in the declaratory judgment action.
In this opinion we refer to Washougal Motocross, L.L.C. and Moss Associates collectively as WMX.
FACTS
WMX has operated a private recreational facility in Clark County for off-road vehicles such as motorcycles, bicycles, and other off-road vehicles for several years. The 225-acre facility hosted recreational riding, as well as amateur and professional racing events, including a yearly national event hosting up to 20,000 participants and spectators. Most of WMX's use at the site became nonconforming in 1995.
Although the record is not clear, presumably it became nonconforming when the area was rezoned residential R-5 (rural).
In March 2002, at the County's request, WMX submitted an application for a conditional use permit (CUP) to operate its motocross facility. According to WMX, its purpose in filing this application was to obtain a CUP for activities that were already occurring under WMX's established nonconforming use rights. But the application also proposed new or amended management and operational plans to address traffic and environmental impacts.
In May and July 2002, the Clark County hearing examiner held public hearings about the application. Several adjoining property owners, including Eugene Greer and Jim Taska, opposed WMX's application. On July 22, the hearing examiner issued a written decision granting the CUP with conditions.
Although Taska is a party on appeal, he did not file a respondent's brief.
In this decision, the hearing examiner determined that WMX had carried its burden to prove that its use was legally nonconforming since 1995. He also found that the nonconforming use included the main track as well as meandering track pathways but not the trails through the creeks on the site.
In addition, answering whether WMX's use violated state and county regulations on noise, the hearing examiner determined that race events were exempt from state noise regulation because WMX was an existing authorized facility. But the hearing examiner found that, although some of WMX's activities were exempt from state regulation, WMX's use was not exempt from noise conditions in the CUP. Thus, as a condition for approval, the hearing examiner imposed conditions on the CUP requiring WMX to study and mitigate noise levels.
Both WMX and the property owners appealed the examiner's decision to the Board of County Commissioners. In October 2002, the Board remanded the matter to the same hearing examiner for further consideration of the state noise level exemption, imposition of noise mitigation conditions, conditions on durational intensity of WMX's use, and approval of a plan showing the location of several of the trails. The Board determined, among other things, that WMX was not exempt from state noise regulations merely because it had a nonconforming use.
The hearing examiner conducted a second set of hearings. In November 2003, he issued his final order on remand. In it, the hearing examiner reapproved the CUP subject to amended conditions and confirmed that sanctioned racing events were exempt from state noise statutes.
He then interpreted the Clark County Code to give him the authority to impose noise restrictions to prevent WMX's use from being significantly detrimental to neighboring people.
Accordingly, because the hearing examiner interpreted the CUP regulations as "the equivalent of a proactive approach to what would be nuisances at common law," he imposed a number of noise mitigation conditions including limiting the intensity of use to a specified number of days each year.
WMX, Taska, and Greer all appealed the hearing examiner's second decision to the Board. WMX argued, and continues to maintain, that it could not possibly comply with the noise conditions in the CUP. Greer argued that the hearing examiner should not have granted the CUP at all.
The Board held a public hearing on January 20, 2004, and orally affirmed the hearing examiner's decision with some minor modifications. Specifically, the commissioners moved to affirm the hearing examiner and the motion carried. It appears from the record, however, that after this motion was carried, the Board determined that it had neglected to read some portion of the file. Accordingly, on February 10, 2004, the Board held a second public meeting to address the WMX permit application.
Meanwhile, during the delay in the Board's proceedings, WMX sent a letter to the Board indicating that it was withdrawing its CUP application. In this letter, WMX indicated that if the permit was issued, it would not accept the permit and would abandon its right under the CUP.
At the February 10 meeting, the Board indicated that it had read the material it had omitted in the first hearing, apologized for the confusion, and determined that this error did not change its assessment. The Board also acknowledged that it was uncertain whether WMX had the right to withdraw its application. Nevertheless, the Board passed a resolution affirming the hearing examiner's decision.
It appears from the transcript of the February 10 Board proceeding that the Board believed that its decision created a valid CUP. The Board also, however, apparently believed that its CUP decision left WMX's nonconforming use rights intact. Thus, the Board anticipated that if WMX decided to eschew its CUP rights, the County would have begun an enforcement action to be sure that WMX was not exceeding its nonconforming use. CP at 801. For example, one Board member indicated, "I would support moving forward with the resolution accepting that code enforcement will be quite busy next year." CP at 801.
After the Board's resolution, Greer filed two actions in Clark County Superior Court. First, they filed a Land Use Petition Act (LUPA) petition challenging Clark County's land use decision granting WMX the CUP. In this LUPA petition, they asserted that the hearing examiner and Board made a number of errors requiring the superior court to reverse the CUP. Second, they filed a declaratory judgment action asking the court to declare, among other things, the extent of WMX's nonconforming use and the status of the conditional use permit.
In response to the LUPA petition, WXM moved to dismiss the petition for lack of standing. WXM argued that because it withdrew its application, there was no land use decision and therefore Greer were not aggrieved parties. The superior court rejected WXM's argument, finding that it would be grossly inequitable to allow WMX to withdraw the application after the County announced its decision. The superior court reasoned that the considerable private and government expense justified estopping WMX from withdrawing its application. Therefore, the superior court found that WMX's withdrawal letter was ineffective.
Reaching the merits of Greer's LUPA petition, the superior court then affirmed the County's land use decision. The superior court found that the hearing examiner did not make any errors of law and that substantial evidence supported the hearing examiner's factual findings.
Turning to Greer's declaratory judgment action, the superior court agreed with the hearing examiner that WMX had a valid nonconforming use. But the court determined that because WMX obtained a valid CUP, it had converted its rights from a nonconforming use to a permitted use. Accordingly, the superior court reasoned, WMX's nonconforming use rights were extinguished. Thus, in contrast to the County's expectations, after the superior court decision, WMX had a CUP allowing it to operate its motocross facility and no nonconforming rights. Following this logic, the superior court granted summary judgment against WMX in the declaratory judgment action.
WMX appeals and challenges two aspects of the superior court's decision. First, WMX argues that the superior court erred when it denied WMX's motion to dismiss for lack of standing. WMX asks this court to reverse and dismiss the LUPA petition on this basis. Second, WMX challenges the superior court's ruling that applying for and receiving a CUP to operate its facility extinguished its existing nonconforming use rights.
Greer, on the other hand, did not appeal the superior court's decision denying their LUPA petition. In fact, Greer takes the position, on appeal, that the CUP is valid and that it therefore extinguished WMX's nonconforming use rights.
ANALYSIS
WMX's contends that the trial court erred in entering a summary judgment against it in the declaratory judgment action in which the superior court determined that WMX's CUP extinguished its nonconforming use rights. WMX argues that the CUP did not extinguish those rights. We agree.
We review summary judgment motions de novo, engaging in the same inquiry as the trial court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). The moving party is entitled to summary judgment if it meets the burden of demonstrating that there is no genuine issue of material fact. CR 56(c); Atherton Condo. Apartment-Owners Ass'n Bd. of Directors v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). We consider all facts in the light most favorable to the nonmoving party. Vallandingham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005). And summary judgment is appropriate only if, in view of all the evidence, reasonable persons could reach only one conclusion. Hansen v. Friend, 118 Wn.2d 476, 485, 824 P.2d 483 (1992).
At common law, a nonconforming use is a use that lawfully existed before enactment of a zoning ordinance, and which is maintained after the ordinance's effective date, although it does not comply with the new ordinance's zoning restrictions. City of Univ. Place v. McGuire, 144 Wn.2d 640, 648, 30 P.3d 453 (2001). In Washington, these nonconforming uses qualify for constitutional protection as vested rights. Rhod-A-Zalea 35th, Inc. v. Snohomish County, 136 Wn.2d 1, 6-7, 959 P.2d 1024 (1998).
A property owner with a lawful nonconforming use may continue the existing use but not to significantly, change, alter, extend, or enlarge it. Rhod-A-Zalea, 136 Wn.2d at 7. But this right refers only to the right to not have the use immediately terminated. Rhod-A-Zalea, 136 Wn.2d at 6. A zoning ordinance may constitutionally provide that abandonment or reasonable amortization provisions terminate The Clark County ordinance involved in this case follows this common law definition. A nonconforming use is "a use of land, of the adoption of this title or of any amendment thereto, but which use does not conform with the use regulations imposed by this title or such amendment thereto." Former CCC 18.104.530. Here, the hearing examiner found that WMX had a lawful nonconforming use right to operate its facility. The trial court acknowledged and upheld the hearing examiner's finding regarding A nonconforming use is not, however, indestructible. A nonconforming use ends when it is abandoned, discontinued, or the property is destroyed. Eugene McQuillin, The Laws of Municipal Corporations §§ 25.189, at 71-72 (3d rev. ed. 2003). The motocross facility was not destroyed and Clark County's ordinance does not have a discontinuation or strict amortization provision. Thus, if WMX abandoned its nonconforming Abandonment requires the municipal authority to show (a) an intent to abandon and (b) an overt act, or failure to act. McGuire, 144 Wn.2d at 652. But in this case, abandonment is inapplicable. As WMX points out in its brief, WMX was very clear throughout the entire application process that it did not intend to abandon its nonconforming use rights. Moreover, WMX only applied for the permit at the County's insistence with the goal of confirming the nonconforming use. Without evidence of intent to abandon, the trial court could not have rested its decision In fact, we note that even if WMX did receive a CUP, WMX very clearly abandoned its CUP rights before the CUP was even issued. In the letter indicating that it was withdrawing its application, WMX stated it would "not accept the permit if issued." 1 CP at 162. Moreover, WMX indicated that if the permit was issued, "the applicant abandons the permit." 1 CP at 162. The fact that WMX applied for a permit is not sufficient, as matter of law, to create a genuine issue of material fact in the On this record, WMX did not abandon its nonconforming use under the common law. WMX never intended to abandon its nonconforming rights and consistently maintained that position. That WMX applied for a CUP is balanced against WMX's clear statement that it abandoned the CUP before it was ever issued.
According to McQuillian, a use is discontinued when the zoning ordinance provides for automatic termination after a reasonable period of time. McQuillian, §§ 25.189 at 72.
We also hold that WMX did not abandon its nonconforming use under the Clark County zoning ordinance. As indicated in Rhod-A-Zalea, a zoning ordinance may terminate nonconforming uses via abandonment or reasonable amortization provisions. Rhod-A-Zalea, 136 Wn.2d at 7. Here, the zoning ordinance provides two ways of extinguishing a nonconforming use:
Nonconforming uses shall be considered abandoned and discontinued in terms of legal nonconforming status if the legal nonconforming use ceases for a period of six (6) months or more, or is changed to a conforming use.
Former CCC 18.412A.030(1). Here, there is no indication or allegation that WMX has ceased its nonconforming use for any period of time. Even in its application for a CUP, WMX expressed its intention to process an application for a conditional use permit to continue its preexisting nonconforming activities. Thus, the issue turns on whether merely applying for a CUP "changed" its nonconforming use to a conforming one by applying for and then abandoning a CUP.
To make that determination, we must interpret the Clark County ordinance. We interpret local ordinances using statutory construction principles. HJS Dev., Inc. v. Pierce County, 148 Wn.2d 451, 471, 61 P.3d 1141 (2003). Accordingly, we construe the ordinance as a whole, and its clear and unambiguous language controls our interpretation. HJS Dev., 148 Wn.2d at 471-72.
We must reasonably construe ordinances considering their purpose. HJS Dev., 148 Wn.2d at 472. Here, viewing the ordinance as a whole, "changed" refers to altering the physical use of the land, not merely obtaining a CUP. The Clark County ordinance defines a nonconforming use to be a "use" of land lawfully existing when the ordinance was adopted. Former CCC 18.104.530. And it defines "[u]se" as an "activity or purpose for which land . . . is occupied or maintained." Former CCC 18.104.750. Thus, a nonconforming use is defined by the actual physical use of the land when the County adopts a zoning ordinance. This approach is consistent with the common law's approach to determining the extent of a nonconforming use. The scope of a nonconforming use right is determined by the use of the land established and maintained at the time a municipal authority imposes a zoning ordinance. Miller v. City of Bainbridge Island, 111 Wn. App. 152, 164, 43 P.3d 1250 (2002).
Thus, under both the common law and the specific zoning ordinance, in order to determine the scope of WMX's nonconforming rights, the trial court must determine how WMX was using the land when Clark County rezoned the area. And that is the approach the hearing examiner took in this case. For example, the hearing examiner initially defined the scope of WMX's nonconforming rights to include the main track as well as the meandering track pathways but not the creek trails based on WMX's historical use.
We hold that to change a nonconforming use that is defined by the physical use of the land, the property owner must change its actual purpose or physical activity. This interpretation of "changed" in the ordinance is most consistent with the overall approach to nonconforming uses both in this ordinance and in the common law. If a nonconforming use is defined by the actual use of the land, then in order to determine if that use has "changed," for the sake of consistency, the County must look to the actual use of the land as well.
WMX's nonconforming activity was motocross racing, and its CUP permit was also for motocross racing. But the record discloses no change in WMX's actual use of land. In this declaratory judgment action, Greer bore the burden of proving that WMX altered its use of the land and therefore lost its nonconforming use rights under the ordinance. McGuire, 144 Wn.2d at 648 (noting that once the owner establishes a nonconforming use, the burden shifts to the opposing party to show it has been abandoned). But Greer did not meet this burden. So far as this record indicates, WMX did not voluntarily alter its use of the land to comply with the zoning ordinance.
Greer asserts that cases from other jurisdictions indicated that once an activity is permitted, it is lawful and no longer nonconforming. Specifically, they cite to Morris v. Clackamas County, 27 Or. LUBA 438 (1994). In Morris, the issue was whether a property owner retained nonconforming use rights in a mobile home. Morris, 27 Or. LUBA at 438. After the mobile home became a nonconforming use, the owners filed an application for a temporary one-year permit authorizing use of the mobile home as a temporary residence for the owner's mother. Morris, Or. LUBA at 439. The owner then obtained additional one-year permits from 1978 to 1991. Morris, Or. LUBA at 439. The Oregon Land Use Board of Appeals held that having obtained those permits, the owner converted the nonconforming use into a lawful use and extinguished the nonconforming rights in the owner's residential use of the mobile home. 27 Morris, Or. LUBA at 442.
This case is distinguishable. First, we are interpreting the specific Clark County ordinance and the Morris court does not indicate what zoning ordinance it is interpreting. As persuasive authority, then, this decision has little value. Secondly, the owner in Morris actually altered his use of the land to bring it in compliance with the applicable zoning ordinance. He ceased his nonconforming use — his own residential use — by moving out of the home and moving his mother in. He also obtained 13 one-year permits to make her occupation a conforming use. Thus, Morris applies when a property owner altered his actual use of the land to comply with a zoning ordinance. That is not the case here; WMX did not change its use.
Thus, we hold that summary judgment was not appropriate. And because we hold that merely issuing the CUP did not extinguish the preexisting nonconforming use, the court must still decide the scope of WMX's nonconforming use. We remand for a determination of any remaining factual issues under the declaratory judgment proceeding.
Because we hold that the CUP did not extinguish the nonconforming use and that WMX abandoned the CUP, we do not address whether WMX could withdraw its application for a CUP or whether WMX needed to file a LUPA petition or cross-petition. It is sufficient that WMX has asserted that it is not proceeding under the CUP; it has abandoned that permitted use by asserting its right to withdraw its application and by proceeding under its nonconforming use. The Board's decision from which Greer filed a LUPA petition did not disturb or affect the nonconforming use rights directly and Greer's appeal centered on whether the Board should have issued a CUP, not an issue regarding the nonconforming use.
ATTORNEY FEES
Greer asks for attorney fees under RCW 4.84.370. That statute allows costs to a party who prevails on an appeal from a conditional use permit decision and was the prevailing party before the county and in all prior judicial proceedings. RCW 4.84.370(1). Greer was not the prevailing party in front of the County or the superior court. In the appeals before the Board and in the superior court, Greer argued that the County should not have issued the CUP. The superior court denied their land use petition. Thus, he was not the prevailing party and is not entitled to fees.
Reversed and remanded.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Bridgewater, P.J.
Quinn-Brintnall, J., Penoyar, J., concur.