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    The Lawletter Blog

    PROPERTY: Nonconforming Use Zoning Controversy Hinges on Whether Use Was Permissive, Adverse, or Trespass

    Posted by Gale Burns on Fri, Jul 29, 2011 @ 13:07 PM

    The Lawletter Vol 35 No 11, July 29, 2011

    Scott Meacham, Senior Attorney, National Legal Research Group

    It is well known that an express grant of permission will defeat a claim for adverse possession.  If a junkyard owner, for example, gets permission to store old tires on a neighboring property, then his use of that property will not ripen into full title no matter how long it continues.

    But when no one gives clear permission, should permission be presumed?  Or should an apparently adverse use be presumed to constitute a trespass instead?  These are the questions the Washington Court of Appeals addressed recently in the case of McMilian v. King County, No. 64868-3-I, 2011 WL 1631853 (Wash. Ct. App. May 2, 2011).

    The background of McMilian lies outside the context of an adverse possession dispute.  Rather, the case involved a zoning controversy and the possibility that a grandfathered nonconforming use could exist on land that the nonconforming user did not own.

    Prior to 1958, the owner of the northernmost of a pair of adjoining parcels had begun operating a wrecking yard on his property.  Although the County amended its zoning ordinance in 1958 to prohibit such uses in a residential zone, the wrecking yard on the northern parcel remained a valid nonconforming use.

    The northern owner did not limit his industry to his own land, however.  Over a period of several decades, he stored wrecked cars, junk auto parts, and tires on the southern parcel.  The northern owner apparently did not seek permission to do this, and the southern owner never granted anyone express permission to use his land.  It is easy to see why the county hearing examiner would see this as a case of trespass.

    In 2002, the plaintiff purchased both the northern and southern parcels.  He continued the wrecking yard operation, and in 2005 he cleared the remainder of the southern parcel and began storing vehicles there.  The County cited him in 2007 for code violations on the southern parcel, including the operation of a wrecking business in a residential zone.

    On administrative appeal, the hearing examiner determined that the prior owner of the northern parcel had neither obtained permission nor asserted an adverse possession claim and that he must therefore have been a trespasser.  Since a trespasser could not establish a valid nonconforming use, the junkyard on the southern parcel would be prohibited.  The county superior court reversed, and the County appealed.

    The court of appeals agreed with the hearing examiner on the point that a trespasser could not establish a valid nonconforming use:  "Trespassers have no constitutional property right in the land they are trespassing upon, and, thus, they have no right to due process concerning that land."  Id. at *9.  The court disagreed, however, on whether the use by the northern owner could be presumed to be trespassing.  The hearing examiner had not only overlooked the possibility that permission could be implied but had entirely ignored the rule that permission would be presumed where the land was unenclosed, as was the case here.  Therefore, the use of the southern parcel as a junkyard would be presumed to constitute the use of that land by the true owner.

    The court of appeals remanded the case for a determination of whether the wrecking yard had already spilled over onto the southern parcel by 1958, in which case it would be considered a valid nonconforming use.

    Topics: legal research, property law, adverse possession, The Lawletter Vol 35 No 11, Scott Meacham, nonconforming use, presumed permission, trespass

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