Daily Decisions: I Don’t See Nothing Wrong with a Little Crush n’ Grind

Jeffrey Spencer owns some farmland; Ron Shear operates a processing business on Spencer’s land. Shear’s business is to take “organic vegetation such as trees, stumps, brush, leaves, grass, and organic soils” and convert that stuff into “animal bedding and fuel.” Sounds like a fine business to me.

Well, Spencer’s neighbors operate a flower farm and they don’t like the business one bit. Apparently, when trucks bring in the organic vegetation, dust kicked up by the trucks lands on the neighbors’ precious flowers. So they called the King County Department of Developmental and Environmental Services (“DDES”) and snitched on Spencer and Shear. DDES issued a “notice of violation” to Shear and Spencer, which alleged that they were operating an unauthorized materials processing facility because the facility was “engaged in crushing, grinding, pulverizing or otherwise preparing earth materials.”

Shear and Spencer (“S&S”) appealed to a Hearing Examiner, who concluded that S&S had established a valid nonconforming use prior to the enactment of the relevant zoning ordinance. DDES then appealed that decision to the Superior Court, who reversed the Hearing Examiner and sided with DDES.

In King County v. King County DDES (Division 1, April 2, 2012), the Court of Appeals reversed the Superior Court and reinstated the Hearing Examiner’s findings.

First, a word about the caption.  Yes, that is King County vs. King County. Apparently, DDES was represented by an attorney in the King County Prosecutor’s Office in connection with the action against S&S. When the Hearing Examiner ruled against DDES, DDES decided to add a claim against King County — apparently because the Hearing Examiner was employed by the County and because DDES thought the Hearing Examiner exceeded his jurisdiction. In the Superior Court, the Hearing Examiner was represented by a different attorney from the King County Prosecutor’s Office. So you had the KCPO on both sides of the V on this one.  Seems strange.

On the merits, the question is whether S&S had established a nonconforming use prior to the enactment of the zoning ordinance, which prohibits the operation of a materials processing facility. In other words, were S&S already running a materials processing facility before the rules said they weren’t allowed to?  If they had established the use before the enactment of the ordinance, then they get to continue with that use despite the ordinance.

The relevant code provision defines “materials processing facility” to be:

a site or establishment . . . that is primarily engaged in crushing, grinding, pulverizing or otherwise preparing earth materials . . . .

Everyone seemed to agree (1) that prior to the enactment of the zoning ordinance, S&S were not crushing, grinding, or pulverizing anything, (2) that S&S started crushing and grinding after the ordinance went into effect, and (3) that S&S were somehow otherwise preparing materials prior to the enactment of the ordinance.

The Court of Appeals appears to think S&S’s later-commenced crushing and grinding is irrelevant to the issue because the code provision regarding when a use is “established” states that a use is considered established “when that use will or has been in continuous operation for a period of 60 days.” (emphasis in original).

Well, did S&S start crushing and grinding and pulverizing within 60 days of the ordinance? We don’t know. The Court doesn’t answer that question. What is important, according to the Court of Appeals, is (1) that the “establishment” provision of the Code generally contemplates future use through employment of the future tense in the word “will” and (2) that S&S were “otherwise preparing” earth materials prior to the operation of the restrictive ordinance.

But why is that enough? Sure, if the crushing and grinding started within that 60-day window, then the “establishment” would be timely. But if they were not crushing and grinding until after the 60 days expired, then I would think the crushing and grinding might be considered an expansion or change in the use which would then be subject to the ordinance. Once one limited kind of material processing use is established, that should not necessarily mean that any/all kinds of material processing use will be permitted in perpetuity.

For example, what if prior to the ordinance and for a year after, S&S “otherwise prepared” earth materials by just mixing them up in a bin. Nobody complained. But then after a year they ditched the mixing bin and got a huge pulverizer, which allowed them to process much more material and caused more dust and brought more trucks to the property. Would that be okay? It seems like we should be looking at cases involving expanded use if we are outside that 60-day window. But the Court of Appeals rejected those cases as irrelevant.

Also, it should be noted that the nuisance that caused this entire row — the dust on the flowers — has absolutely nothing to do with the actual merits of the case. Whether S&S’s activities cause dust or how much dust they cause is totally irrelevant to the zoning question in the Court’s opinion.

In any event, after deciding that S&S had established a nonconforming use, the Court of Appeals went on to hold that the DDES has to actually delineate flood hazard areas, which would then be subject to zoning restrictions. The Code itself did not define the areas or set out standards for courts to determine the areas.  DDES has to do that in the first instance.

And lastly, the Court held that the Hearing Examiner did not exceed his jurisdiction by imposing conditions on DDES’s future review of S&S requests for modifications and permits and the like.  Since DDES’s position is that the facility needs to be shut down immediately, the Hearing Examiner can ensure that his order permitting the facility is not wholly undermined by later DDES actions.

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One thought on “Daily Decisions: I Don’t See Nothing Wrong with a Little Crush n’ Grind

  1. Pingback: Monday Morning Mash-up: April 9, 2012 | Ziff Blog

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