Rhod-A-Zalea & 35th, Inc. v. Snohomish County

136 Wash. 2d 1
CourtWashington Supreme Court
DecidedJuly 23, 1998
DocketNo. 64926-0
StatusPublished
Cited by73 cases

This text of 136 Wash. 2d 1 (Rhod-A-Zalea & 35th, Inc. v. Snohomish County) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rhod-A-Zalea & 35th, Inc. v. Snohomish County, 136 Wash. 2d 1 (Wash. 1998).

Opinions

Madsen, J.

Snohomish County seeks to reinstate a decision of the Snohomish County Hearing Examiner (Examiner) in which he decided that, although Rhod-A-Zalea and 35th, Inc. (Rhod-A-Zalea) established a nonconforming use under the county’s zoning code to peat mine on the subject property, it was separately subject to provisions of the county’s building code requiring it to obtain a grading permit for its ongoing excavation and fill activities. The trial court reversed the Examiner, finding that because Rhod-A-Zalea established a nonconforming use it was not required to obtain the grading permit. The Court of Appeals agreed. We reverse and reinstate the decision of the Snohomish County Hearing Examiner.

STATEMENT OF THE CASE

Rhod-A-Zalea owns property in Snohomish County on which it has conducted peat mining activities since at least 1961. In response to a complaint regarding excessive ponding on a neighboring property, the Snohomish County Department of Community Development (County) initiated an investigation resulting in issuance of a Notice and Order to Rhod-A-Zalea. The notice charged two code violations: (a) the excavation and processing of minerals without first obtaining a conditional use permit required under Snohomish County Code (SCC) 18.32.040 (the zoning code use matrix), and (b) grading without necessary permits and [4]*4approvals required under SCC 17.04.280 of the county building code. The Notice and Order imposed a 30-day compliance period, after which civil penalties would be assessed. Rhod-A-Zalea timely filed an appeal and the compliance schedule was stayed. No penalties were imposed.

A business attempting to establish a use prohibited by the zoning ordinance must obtain a conditional use permit unless it is a valid nonconforming use. A conditional use permit allows otherwise prohibited activities based on certain restrictions. At the hearing before the Examiner, Rhod-A-Zalea presented evidence that the peat mining operation had been conducted on the subject property since a date prior to the enactment of a zoning ordinance which prohibited the use in that area. The Examiner found RhodA-Zalea had established that it was a valid nonconforming use and that a conditional use permit was not required. This ruling was not challenged on appeal.

The Examiner further ruled that Rhod-A-Zalea was subject to police power regulations including the building code provisions regulating grading contained in Title 17 SCC. Under SCC 17.04.280, no one may conduct any grading (excavating and filling) without first obtaining a grading permit, with certain exceptions. Among other things, a grading permit application must include grading plans, grading quantities, erosion and sedimentation controls, and a drainage plan. SCC 17.04.295. The code sets forth operating standards for grading activities, including slope, erosion control, ground preparation, fill material, drainage, benches and terraces, and access roads. SCC 17.04.310. Also, the code specifies steps which must be taken upon completion of activities. SCC 17.04.320. Finally, fill placed on land adjacent to or under any stream or water body must be contained so as to prevent damage to other lands. SCC 17.04.330. When determining that Rhod-A-Zalea was subject to the grading permit requirement the Examiner explained:

Such prohibition of any requirement of a general use permit does not lift the requirement of specific operational activity [5]*5permits, such as the grading permit in question. Similarly, building construction in the continued operation of a nonconforming use requires a building permit; a change in the use of an existing building (without changing the overall nonconforming use, such as by relocating individual operational aspects within the nonconforming use to different structures, for example changing the location of explosives storage) would require a Certificate of Occupancy under the building code; and business license requirements are not lifted by virtue of the establishment of a nonconforming use under the zoning code.

Appellant’s Br. at 190; Snohomish County’s Return to Writ of Cert. at 190.

Rhod-A-Zalea appealed the Examiner’s decision by writ of certiorari and the superior court ruled in favor of RhodA-Zalea. The court determined that Rhod-A-Zalea had a vested right to continue the peat mining operation, and since the operation by its nature involved grading, excavating, and filling, it was not subject to the County’s grading regulations, which were enacted after the mining operation began. Snohomish County appealed the superior court’s decision.

The Court of Appeals agreed with the superior court stating that requiring Rhod-A-Zalea to obtain a grading permit would allow the county to regulate “virtually every aspect of the peat mining operation . . . .” Rhod-A-Zalea & 35th, Inc. v. Snohomish County, No. 36658-1-1, slip op. at 4 (Wash. Ct. App. July 22, 1996). The court found that a nonconforming use “carries with it the right to the exercise of those accessory uses which are considered customary and incidental to the principal use.” Id. at 5. The court dismissed other authority, including a Supreme Court decision which held that nonconforming uses are subject to later-enacted police power regulation. The Court of Appeals stated that

[t]hese cases come from states which have adopted a majority position approving retroactive application of new zoning or development legislation. Washington State adopted and maintains a strong minority position in recognizing vested [6]*6property rights and the protection of those rights against subsequently adopted development regulations. See Mercer Enterprises, Inc. v. [City of] Bremerton, 93 Wn.2d 624, 627, 611 P.2d 1237 (1980) (retroactive effect of later zoning regulations not recognized in Washington). Here, the building code that the County seeks to apply was adopted in 1985 long after this mining operation.

Id.

Snohomish County’s motion for reconsideration was denied and it then petitioned this court for review.

DISCUSSION

It is undisputed that Rhod-A-Zalea operates a valid nonconforming use. The issue before this court is whether Rhod-A-Zalea’s nonconforming peat mining operation is subject to police power regulations subsequently enacted for the health, safety and welfare of the community. Specifically, we are asked to determine whether Rhod-A-Zalea must obtain a grading permit as required by SCC 17.04.280.

A nonconforming use is a use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance, although it does not comply with the zoning restrictions applicable to the district in which it is situated. See 1 Robert M. Anderson, American Law of Zoning § 6.01 (Kenneth H. Young ed., 4th ed. 1996). The right to continue a nonconforming use despite a zoning ordinance which prohibits such a use in the area is sometimes referred to as a “protected” or “vested” right. See Van Sant v. City of Everett, 69 Wn. App. 641, 649, 849 P.2d 1276 (1993); Martin v. Beehan, 689 S.W2d 29, 31 (Ky. Ct. App. 1985); 4 Arden H. Rathkopf, The Law of Zoning and Planning § 51A.01 (Edward H. Ziegler ed., 1991). This right, however, refers only to the right not to have the use

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Cite This Page — Counsel Stack

Bluebook (online)
136 Wash. 2d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rhod-a-zalea-35th-inc-v-snohomish-county-wash-1998.