Opinion
No. 35834-4-II.
April 15, 2008.
Appeal from a judgment of the Superior Court for Kitsap County, No. 06-2-00223-9, Jay B. Roof, J., entered December 13, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Penoyar, J., concurred in by Van Deren, A.C.J., and Bridgewater, J.
Jefferson County issued stop work orders to Securities Services Northwest, Inc. (SSNW) after receiving several noise complaints and learning that SSNW had constructed several unpermitted buildings and was conducting military special forces training on its property, which at the time was zoned as rural residential. SSNW appealed the orders to the County's hearing examiner, arguing that its activities were protected as a nonconforming use. The hearing examiner disagreed, and SSNW pursued its appeal in both the Kitsap County Superior Court and this court. Because SSNW had conducted limited commercial activities on the property prior to Jefferson County's enactment of zoning regulations in 1992, we affirm the trial court's finding of a limited nonconforming use. This use should properly be circumscribed by SSNW's pre-1992 activities, and because there is insufficient evidence in the record regarding those activities, we affirm in part, reverse in part, and remand with instructions that the hearing examiner consider not only SSNW's non-conforming use but also any lawful intensification of that use occurred.
FACTS
In 1986, Joseph D'Amico purchased a security services business in Port Townsend. Within a few years, the Gunstone family hired him to provide protection for their 3,700-acre property on Discovery Bay in Jefferson County. D'Amico moved the business to the property in 1988. He rented a residence on the property, and his lease covered approximately 22 acres.
The business would later become Securities Services Northwest, Inc.
Jefferson County's Interim Zoning Ordinance took effect on January 6, 1992. Under its terms, "[a]ny building, structure, or use, lawfully existing at the time of enactment of this ordinance, though not in compliance with the provisions herein, shall not be prohibited by this ordinance." Clerk's Papers (CP) at 37 (citing Jefferson County, Wash., Zoning Ordinance 1-0106-92 (Jan. 6, 1992), amended by, Zoning Ordinance 2-0127-92 (Feb. 27, 1992)). The Ordinance also stated that "[t]he expansion, alteration, or change in use of any existing conforming or non-conforming use is subject to the provisions of this ordinance." CP at 37 (citing Zoning Ordinance 1-0106-92, § 12). At that time, the Gunstone property was designated as a General Use Zone.
Also at that time, in early 1992, SSNW had three employees (including D'Amico) who became certified security officers. A year later, D'Amico described SSNW's business activities as including armored car services; alarm installation, maintenance, and response; security patrols; and K-9 assistance. Specifically, a few years later, D'Amico described the business as: less than 10 percent K-9 activity, 30 percent alarm installation and monitoring, 25 percent site security patrol and armed guard service, and 35 percent armored car and courier service.
In 2001, according to a D'Amico's deposition, SSNW's business still consisted of site security, patrol services, alarm installation and monitoring, video installation, and sometimes surveillance. However, the company had grown to include approximately 82 employees. The business continued to grow, and by 2005, it was described by the Port Townsend and Jefferson County Leader as providing "private marine security services, armored transport and training for law enforcement officials. The company also recently began training elite U.S. military personnel." Administrative Records (AR), log item 187. Also in 2005, a firearms trainer and marshal arts instructor SSNW employed testified that he had conducted three training sessions with the Navy on the property, with approximately 48,000 rounds of ammunition fired in each 4-day session.
Starting in about 2001, the County received numerous complaints from neighbors regarding gunfire and noise on the property. Neighbors complained of living in a war zone and repeatedly requested that the County do something about it.
The County investigated the property and discovered that SSNW had constructed three buildings on the property — a training facility, a bathroom and shower facility, and a bunkhouse — without obtaining any required permits (including building and septic permits). SSNW had also developed several firing ranges throughout the property.
Jefferson County issued two stop work orders to SSNW (on July 8, 2005 and August 11, 2005) prohibiting the use of non-permitted buildings on the property. SSNW appealed the stop work orders to the hearing examiner. Despite the orders, SSNW continued its business activities, apparently under the belief that the orders were illegal and unenforceable.
Indeed, one driver on Highway 101 reported being affected by possible tear gas in the air in the area near the property on September 30, 2005.
In October 2005, while awaiting the hearing, the Jefferson County Superior Court granted the County's request for a temporary restraining order. The court ordered SSNW to comply with the County's stop work order but permitted SSNW to use one firing range for recertifying its employees. The court also granted the County's motion for a preliminary injunction against SSNW, concluding that the County had a "reasonable fear of imminent and ongoing invasion" of its enforcement rights. CP at 200. The injunction contained the same terms as the temporary restraining order.
Jefferson County Superior Court dissolved this preliminary injunction and dismissed the County's case in February 2006, finding that the Kitsap County Superior Court had jurisdiction to hear SSNW's appeal of the hearing examiner's decision "as well as any related matters." CP at 440.
The hearing examiner held the hearing on SSNW's appeal in November 2005. Based on the record, the hearing examiner found that SSNW did not begin placing "significant effort into soliciting other organizations, including the Department of Defense, to provide training at the SSNW site" until 2001. CP at 39. The examiner also noted that SSNW's payroll levels increased substantially between 1992 and 2005. Noting the newer non-permitted buildings on the property, where the business activities were taking place, the hearing examiner found that SSNW failed to establish a lawful nonconforming use before January 1992. Furthermore, because SSNW never applied for prescriptive or conditional use permits, the hearing examiner held that those options were no longer available. CP at 52. Concluding that the County's decision to issue the stop work orders was not clearly erroneous, the hearing examiner affirmed the orders. The examiner's decision expressly prohibited all training activities and any use of firearms and weapons on the property.
SSNW filed a land use petition with Kitsap County Superior Court appealing the hearing examiner's decision, arguing that its operations constituted a legal nonconforming use because they predated Jefferson County's zoning ordinance. In total, SSNW alleged 48 errors on the part of the hearing examiner. SSNW also filed a motion to stay enforcement of the hearing examiner's decision, which the trial court denied. The trial court, in a memorandum opinion, found: (1) no error with the hearing examiner's preference of documented evidence rather than testimony; (2) the hearing examiner properly considered all of SSNW's arguments; (3) there was substantial evidence in the record to support the hearing examiner's decision to uphold both stop work orders; (4) any error by the hearing examiner regarding its finding that the County received complaints about the property from 2001 until 2006 was harmless; (5) substantial evidence to support the hearing examiner's finding regarding whether work was performed on-site or off-site; (6) the hearing examiner's use of SSNW's pre-1992 payroll data to determine its number of employees was entirely appropriate; and (7) the hearing examiner erred by concluding that because SSNW's buildings were unpermitted, its activities were not lawful and could not establish a nonconforming use. Instead, the trial court concluded that although several structures on the property were illegally constructed and maintained, commercial use of the land was not entirely illegal. Therefore, the trial court found that because not all of SSNW's activities were illegal, and because SSNW presented sufficient evidence that its operations on the property began in 1988, a limited nonconforming use did exist that predated the 1992 zoning laws.
The trial court concluded, however, that SSNW's use of the property at the time of the appeal was inconsistent with its pre-1992 use of the property. It stated that the evidence "strongly suggest[ed]" that SSNW's pre-1992 activities "simply involved the installation and monitoring of security systems, armed transport, and limited firearms training of both its full-and part-time employees." CP at 364-65. It also found "little to no evidence in the record . . . to find that training of third-parties took place on the property prior to January 1992." CP at 365. The trial court noted that "the only credible evidence presented regarding the scope of the property used was the initial lease . . . of twenty acres of the farm." CP at 365.
Based on its findings and conclusions, the trial court remanded the matter to the hearing examiner "solely to determine the scope and nature of SSNW's nonconforming use as of January 6, 1992." CP at 365. In its order, the trial court specifically stated that "no additional evidentiary hearings are to be held to explore whether SSNW's nonconforming use was lawfully expanded after January 6, 1992." CP at 384. It also ordered that the "current terms" of the Jefferson County restraining order and preliminary injunction would remain in effect pending the hearing examiner's final decision. CP at 386. The trial court denied attorney fees to either party "given that each party prevailed on various arguments presented to the Court[.]" CP at 386. SSNW filed a motion for reconsideration, which the court denied, and this timely appeal followed.
ANALYSIS
I. Standard of Review Under LUPA
Judicial review of land use decisions proceeds under the Land Use Petition Act (LUPA). See RCW 36.70C.010, .030; Chelan County v. Nykreim, 146 Wn.2d 904, 916-17, 53 P.3d 1 (2002). A petition for review by the superior court constitutes appellate review on the administrative record before the local jurisdiction's body or officer with the highest level of authority to make the final determination. HJS Dev. Inc. v. Pierce County, 148 Wn.2d 451, 467, 61 P.3d 1141 (2003) (citing Citizens to Preserve Pioneer Park v. City of Mercer Island, 106 Wn. App. 461, 470, 24 P.3d 1079 (2001); RCW 36.70C.130(1), .020(1)). LUPA permits relief where:
(a) The body or officer that made the land use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless;
(b) The land use decision is 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;
(c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court;
(d) The land use decision is a clearly erroneous application of the law to the facts;
(e) The land use decision is outside the authority or jurisdiction of the body or officer making the decision; or
(f) The land use decision violates the constitutional rights of the party seeking relief.
RCW 36.70C.130(1). Here, SSNW claims that it is entitled to relief under each of the above standards except (e).
SSNW additionally challenges this standard by claiming that the trial court's recognition of its nonconforming use "constitutes a paradigm shift in how the Court of Appeals must now view all of the evidence presented to the Hearing Examiner." Appellant's Br. at 23. However, the law is very clear on this point: "When reviewing a superior court's decision on a land use petition, the appellate court stands in the shoes of the superior court." HJS, 148 Wn.2d at 468 (quoting Citizens, 106 Wn. App. at 470). Thus, we review administrative decisions on the record of the administrative tribunal, not of the superior court. HJS, 148 Wn.2d at 468 (citing King County v. Boundary Review Bd., 122 Wn.2d 648, 672, 860 P.2d 1024 (1993)). However, to the extent that the trial court's findings and conclusions modify or replace the hearing examiner's findings of fact and conclusions of law, they are relevant on appeal. Heinmiller v. Dep't of Health, 127 Wn.2d 595, 601, 903 P.2d 433 (1995) (citing Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993)). Thus, the trial court's finding that SSNW established a limited nonconforming use is not binding in any way on this court, but merely relevant. We review the record before the hearing examiner regardless of the trial court's findings, and we review questions of law de novo to determine whether the hearing examiner's land use decision was supported by fact and law.
II. Interpretation of the Law
SSNW assigns error to the trial court's limitation of its nonconforming use to activities undertaken before 1992. According to SSNW, a 1992 limit "would only be lawful if the 1992 Zoning Code prohibited all ongoing uses." Appellant's Br. at 25. For example, because the Code did not expressly prohibit outdoor shooting ranges until 2001, SSNW contends that its shooting ranges constituted a legal nonconforming use until 2001.
Statutory construction is a question of law reviewed de novo under the error of law standard. Isla Verde Int'l Holdings, Inc. v. City of Camas, 146 Wn.2d 740, 751, 49 P.3d 867 (2002) (citing Wenatchee Sportsman Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000)). Generally, when reviewing a land use decision, the agency charged with interpreting a statute — in this case, the hearing examiner charged with interpreting the Jefferson County Zoning Code — is accorded some deference. See Pinecrest Homeowners Ass'n v. Cloninger Assocs., 151 Wn.2d 279, 290, 87 P.3d 1176 (2004).
Under a de novo standard, we must first examine whether the record supports SSNW's establishment of a limited nonconforming use prior to Jefferson County's enactment of its first zoning code in 1992. If SSNW failed to establish such a use, we need not address SSNW's temporal argument.
Nonconforming uses are disfavored in Washington. City of University Place v. McGuire, 144 Wn.2d 640, 648-49, 30 P.3d 453 (2001) (citing Rhod-A-Zalea v. Snohomish County, 136 Wn.2d 1, 7, 959 P.2d 1024 (1998)). "Lawful nonconforming uses are allowed to continue for some period of time, though the local government may regulate or even terminate the nonconforming use, subject to constitutional limits." McGuire, 144 Wn.2d at 648. 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. Rhod-A-Zalea, 136 Wn.2d at 6 (citing 1 Robert M. Anderson, American Law of Zoning § 6.01 (Kenneth H. Young ed., 4th ed. 1996)).
It is clear from the record that the latter two requirements are met here: SSNW is maintaining activities on the property that do not comply with its designation as a rural residential area. Commercial, professional services are not permitted in rural residential areas; neither are "unnamed commercial uses" and outdoor shooting ranges. Jefferson County Code (JCC) 18.15.040, table 3-1. Therefore, SSNW may only establish a legal nonconforming use if the record shows that their uses lawfully existed prior to the enactment of Jefferson County's zoning ordinance.
"`Personal and professional services' means for the purposes of this code, establishments primarily engaged in providing assistance, as opposed to products, to individuals, business, industry, government, and other enterprises. . . ." JCC 18.10.160.
Jefferson County originally enacted a zoning ordinance in 1989, which was later declared null and void by Clallam County Superior Court. AR, Jefferson County Development Code History, Zoning Ordinance 1-010609, finding 1 (Oct. 16, 1989). As a result, the Jefferson County Board of Commissioners enacted emergency zoning control on January 6, 1992. Zoning Ordinance 1-010609 § 19. The emergency ordinance created three mapped zones (general commercial zone, light industrial zone, and light industrial/commercial zone) and one unmapped zone (the general use zone). The Gunstone property was outside the mapped areas and thus classified as general use.
The ordinance permitted all uses and activities in the general use zone except those enumerated as commercial or light industrial uses or activities, which it specifically prohibited in the general use zone. Zoning Ordinance 1-010609 § 8. General commercial activities (prohibited in the general use zone) included "all activities involved in the retail or wholesale buying, selling, or distribution of goods or services." Zoning Ordinance 1-010609 § 5(1). The ordinance only permitted general commercial development in the general use zone if the Board of Commissioners granted a conditional use permit. Zoning Ordinance 1-010609, § 8(4)(a), 9(3)(b).
SSNW's activities fall within the ordinance's broad definition of general commercial activities: as a security service business, all of its business-related activities involve selling its services. Because SSNW's commercial activities on the Gunstone property were lawful prior to the enactment of the zoning law (as no zoning law previously existed in the county), whatever activities it maintained following the enactment of the zoning law became lawful nonconforming uses.
The record supports SSNW's establishment of a lawful nonconforming use prior to 1992 and possible lawful intensification of this use thereafter. However, SSNW's arguments that the trial court incorrectly limited its activities to those before 1992 and that intervening versions of the Jefferson County Code should instead govern its use are misplaced. The 1992 zoning enactment broadly prohibited all commercial activities in the general zone without a conditional use permit. Therefore, any subsequent, more specific limitations on commercial activity in the general zone are irrelevant. SSNW's lawful nonconforming use was correctly limited to whatever activities it can establish that it pursued prior to the effective date of the first zoning ordinance (January 6, 1992) or lawfully intensified thereafter.
SSNW also claims that the trial court impermissibly limited its use utilizing the standard found in current JCC 18.20.260 (defining nonconforming structures and uses). SSNW contends that any changes in its use between 1992 and 2001 should instead be governed by the standards in place at that time, not by current Code standards. This argument misconstrues the trial court's order, which must necessarily limit SSNW's activities into the future. The order stated:
The court finds that a limited nonconforming use existed prior to enactment of the January 6, 1992, zoning code. SSNW's legal use is restricted, however, to the nature and scope of the activities at that time and cannot be changed or expanded outside what is permitted in Jefferson County Code 18.20.260.
CP at 385 (emph. in original). The court was merely stating that, having established a nonconforming use, SSNW could not now violate the laws governing nonconforming uses in Jefferson County. Moreover, as stated above, the zoning standards enacted after 1992 have no bearing whatsoever on the scope of SSNW's preexisting nonconforming use.
Because the record before us is not sufficient to establish SSNW's uses of the Gunstone property prior to 1992 and any later lawful intensification of those uses, we affirm the trial court's remand of the matter to the hearing examiner for further factfinding.
III. Application of the Law to the Facts
SSNW argues that the growth of its business after 1992 was a permissible intensification of its use of the property, not an enlargement or expansion of the use. Where a party, as here, is arguing that the land use decision incorrectly applied the law to the facts of the case, we review using a clearly erroneous standard. RCW 36.70C.130 (1)(d); Oyster Growers Ass'n v. Moby Dick Corp., 115 Wn. App. 417, 428-29, 62 P.3d 912 (2003). When a decision is clearly erroneous, it leaves the reviewing court with "the definite and firm conviction that a mistake has been committed." Oyster Growers Ass'n, 115 Wn. App. at 429 (quoting Schofield v. Spokane County, 96 Wn. App. 581, 586, 980 P.2d 277 (1999)).
Washington law permits intensification, but not expansion, of nonconforming uses. McGuire, 144 Wn.2d at 649 (citing Keller v. City of Bellingham, 92 Wn.2d 726, 731-32, 600 P.2d 1276 (1979)). Intensification is permissible where the nature and character of the use is unchanged and substantially the same facilities are used. Keller, 92 Wn.2d at 731 (citing Jahnigen v. Staley, 245 Md. 130, 137, 225 A.2d 277 (1967)). The test is whether the intensified use is "different in kind" from the nonconforming use in existence when the zoning ordinance was adopted. Keller, 92 Wn.2d at 731 (quoting 3 A. Rathkopf, The Law of Zoning and Planning, ch. 60-1, § 1 (4th ed. Cum. Supp. 1979)).
Here, the hearing examiner found that virtually all of SSNW's business activities prior to 1992 (except for its provision of security services to the Gunstone property itself) took place off-site — as security guards, the employees performed their duties at their clients' sites. It also found that employee training and recertification took place on the Gunstone property, though the scope of this training and recertification was unclear from the record. Finally, it determined that SSNW employed fewer than three full-time equivalent employees at the end of 1991.
In comparison, the hearing examiner found that SSNW currently engaged in intensive training of third parties, in direct and dramatic contrast with its former periodic employee recertification. SSNW disputes these findings, and specifically disagrees with the hearing examiner's discounting of D'Amico's testimony. SSNW argues that the hearing examiner erred by requiring tangible evidence of its activities.
However, we defer to factual determinations by the highest forum below that exercised factfinding authority — in this case, the hearing examiner. Schofield, 96 Wn. App. at 586. We view the evidence and draw any reasonable inferences from it in the light most favorable to the party that prevailed before the hearing examiner (here, the County). Davidson v. Kitsap County, 86 Wn. App. 673, 680, 937 P.2d 1309 (1997). This process "necessarily" entails acceptance of the factfinder's views regarding the credibility of witnesses and the weight to be given reasonable but competing inferences. Freeburg v. City of Seattle, 71 Wn. App 367, 371-72, 859 P.2d 610 (1993) (citing State ex rel. Lige Wm. B. Dickson Co. v. County of Pierce, 65 Wn. App. 614, 618, 829 P.2d 217, (1992)).
The hearing examiner specifically stated that it did not find D'Amico's testimony credible. Moreover, the evidence in the record, viewed in the light most favorable to the County, supports a conclusion that SSNW impermissibly expanded its pre-1992 uses of the property. At the very least, replacement (or new construction) of buildings on the property indicates that post-1992 activities did not take place in the same facilities, as Keller suggests. Keller, 92 Wn.2d at 731. Viewing the evidence in the light most favorable to the County, the hearing examiner's conclusion that SSNW impermissibly expanded its nonconforming use seems far from "clearly erroneous." At the same time, the record reflects possible legal intensification, for instance, of SSNW's pre-1992 training of its own employees. Thus, the hearing examiner should consider additional evidence on intensification of pre-1992 uses consistent with this opinion.
The hearing examiner stated, "I was left with the conclusion that much of [D'Amico's] testimony [was] not creditable," but as he refers to the witnesses' "credibility" earlier in the paragraph, we believe that "creditable" is a typo, and he did intend to comment on D'Amico's credibility. CP at 51-52.
IV. Substantial Evidence
SSNW also asserts that substantial evidence does not support the trial court's limitation of either the scope or nature of its nonconforming use. It claims that the trial court erred by not including security patrol, site security, maritime security, or K-9 detection and tracking when it defined SSNW's use to include armed transport, installation and monitoring of security systems, and limited firearms training. SSNW specifically objects to the trial court's (1) excluding third-party training from the list of acceptable uses, (2) limiting SSNW's nonconforming use to two to three full time equivalent employees, and (3) limiting SSNW's use of the land to the 20 acres covered by the lease.
These arguments are largely addressed above: SSNW's nonconforming use is properly limited to its pre-1992 activities, and neither the hearing examiner nor the trial court erred in concluding that SSNW's current activities constituted an impermissible expansion of its pre-1992 uses. Regardless, even if these claims are examined separately, they fail.
As stated above, we review factual issues under a substantial evidence standard. Freeburg, 71 Wn App at 371. "Substantial evidence" is evidence that "`would convince an unprejudiced, thinking mind of the truth of the declared premise.'" Nord v. Shoreline Sav. Ass'n, 116 Wn.2d 477, 486, 805 P.2d 800 (1991) (quoting Cowsert v. Crowley Maritime Corp., 101 Wn.2d 402, 405, 680 P.2d 46 (1984)). This factual review is deferential, and it requires us to view the evidence and the reasonable inferences therefrom in the light most favorable to the party who prevailed in the highest forum exercising factfinding authority, a process that necessarily entails acceptance of the factfinder's views regarding the credibility of witnesses and the weight to be given reasonable but competing inferences. Wm. B. Dickson Co., 65 Wn. App. at 618. Here, the hearing examiner was the highest forum to exercise factfinding authority and thus our review is based on the record before the examiner; we view the evidence and draw inferences in light of the examiner's conclusion.
It was entirely within the hearing examiner's discretion to credit or disregard D'Amico's testimony based on his views of D'Amico's credibility. Given the dearth of documentary evidence supporting D'Amico's testimony that SSNW participated in third-party training before 1992, compared with the relative abundance of evidence establishing third-party training after 1995, it is reasonable to infer that SSNW did not, in fact, train third parties on the property before 1992. Drawing all inferences in the County's favor, substantial evidence supports this finding.
SSNW argues that the County cannot limit intensification of its non-conforming use in such a way that the County in effect is managing the details of SSNW's business. See Woodinville Water Dist. v. King County, 105 Wn. App. 897, 906, 21 P.3d 309 (2001) ("a municipality may not impose conditions on land use permits that relate to the detailed conduct of the applicant's business rather than to zoning limitations on the use of the land"). However, military or para-military training of third parties is quite different from training SSNW's employees to provide private security services. While the County cannot micro-manage SSNW's intensification of its pre-existing business, it may prevent SSNW from engaging in a substantially different kind of business with substantially different effects on the surrounding properties. Intensification, but not alteration, is permitted. Keller, 92 Wn.2d at 731.
Similarly, the record contains substantial evidence to support the finding that SSNW employed only two to three people (equivalent to full-time) before 1992 — both the graph of SSNW's payroll hours and Jim Carver's testimony (who certified the employees as security guards) indicate that SSNW employed two people in addition to D'Amico at that time. D'Amico testified differently, but, again, we defer to the factfinder on matters of witness credibility. As we have noted elsewhere, whether this use was lawfully intensified is a matter for consideration by the hearing examiner on remand.
Finally, there is substantial evidence in the record to support limiting SSNW's use of the property to the 20 acres stated in the 1986 lease. While both D'Amico and Gunstone testified that they had come to an oral agreement that SSNW could use the entire property, D'Amico was unable to offer a date for that agreement. He also testified that the contract was likely with the Charles Gunstone estate, but D'Amico admitted that Charles Gunstone had passed away only a few years earlier. Drawing all inferences in the County's favor, substantial evidence supports the conclusion that, before 1992, SSNW was limited to the 20 acres of the property in the lease.
We are concerned that the trial court's remand to the hearing examiner was unduly restrictive. The record included evidence that SSNW engaged in some other low impact activities before 1992 — specifically, security patrol, site security, maritime security, and K-9 detection and tracking. In addition, there is evidence in the record that could support a finding that SSNW changed its use of the property after 1992 in a way that would be considered a valid intensification of its nonconforming use. For instance, if SSNW simply hired more employees to provide the same services and trained them on the property, this could be a valid intensification. Thus, the limitation to two to three employees in the remand order was not appropriate.
V. Other Grounds for Relief Under LUPA
SSNW claims that it is entitled to relief under RCW 36.70C.130(1)(a), but it fails to specify any unlawful procedure that it claims the hearing examiner or trial court followed. We will not review an argument that has been insufficiently briefed. RAP 10.3(a)(6).
SSNW also claims that it is entitled to relief under RCW 36.70C.130(1)(f), arguing that its nonconforming use was a vested property right and as such was protected from arbitrary actions. 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. Rhod-A-Zalea, 136 Wn.2d at 6 (citing Van Sant v. City of Everett, 69 Wn. App. 641, 649, 849 P.2d 1276 (1993); Martin v. Beehan, 689 S.W.2d 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 immediately terminated in the face of a zoning ordinance which prohibits the use. Rhod-A-Zalea, 136 Wn.2d at 6 (citing 1 Anderson, American Law of Zoning § 6.01; Richard L. Settle, Washington Land Use and Environmental Law and Practice § 2.7(d) (1983)) (emph. in original). SSNW's right to continue its nonconforming use has not been immediately terminated; indeed, we find that SSNW has established a nonconforming use and we are remanding only to determine the boundaries of that use. SSNW has not lost any vested property right; this argument is therefore moot.
VI. Hearing Record
SSNW claims that the trial court erred by failing to invalidate the hearing examiner's use of the County's 1992 administrative rules, specifically asserting that the rules were never introduced into the record. The County correctly responds that the hearing examiner properly took judicial notice of the rules as part of the applicable law of the case. A court may take judicial notice of administrative rules. See Brooks v. City of Seattle, 193 Wash. 253, 74 P.2d 1008 (1938) (the court took judicial notice of departmental regulations despite their absence in the record); Keseleff v. Sunset Highway Motor Freight Co., 187 Wash. 642, 60 P.2d 720 (1936). Accordingly, this argument is without merit.
VII. Tangible Evidence
SSNW argues that the hearing examiner erred by requiring tangible evidence to justify the nonconforming use. SSNW further claims that the trial court erred in "accepting the Hearing Examiner's stunted view of the record." Appellant's Br. at 39. In response, the County notes that the examiner took three days of testimony and argues that its decision was not based solely on documentary evidence.
The hearing examiner included the following in its findings of fact: Tangible evidence is necessary to justify a nonconforming use, typically in the form of customer acknowledgement of actual work, contracts, and receipts. Less tangible evidence, such as solicitations and bids, may indicate intent to do business — but not actual activity. CP at 34. The examiner then went on to list the exhibits SSNW provided.
While the examiner did include a statement in his findings that tangible evidence was necessary to justify a nonconforming use, this statement did not appear to play a part in his conclusions. Specifically, the hearing examiner stressed in his conclusions the conflicts between the oral testimony and documents in the record. He then explained that he found D'Amico's testimony not credible and justified his decision based on his interpretation of the law and the documents entered into the record.
There is no rule in Washington that tangible or documentary evidence is required to establish a nonconforming use. To that extent, the hearing examiner's finding was in error. However, the ruling appears to have been based on an evaluation of all the evidence before the hearing examiner, not solely the documentary evidence. An error is not prejudicial unless, within reasonable probabilities, the outcome of the proceeding would have been materially affected had the error not occurred. State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993). Here, nothing in the record indicates that the outcome would have differed had the hearing examiner not included the "tangible evidence" statement in his findings. Therefore, any error was likely harmless. CP at 34.
VIII. Restraining Order
As stated above, Jefferson County Superior Court dissolved the County's temporary injunction before the trial in Kitsap County Superior Court, finding that the Kitsap County court had jurisdiction over the matter. Despite this, the Kitsap County court, in its ruling, stated that the terms of the October 2005 (Jefferson County) temporary restraining order would remain in effect on remand to the hearing examiner. SSNW contends that this was in error.
Again, this error was likely harmless. The earlier restraining order had not been dissolved for any substantive cause, and the outcome of the proceeding is not affected by the court incorrectly saying that the restraining order terms would "remain in effect" rather than "be reinstated." CP at 386. This error resulted in no prejudice to SSNW and does not merit reversal.
IX. Attorney Fees
The County requests attorney fees under RCW 4.84.370(1), which states as follows:
The court shall award and determine the amount of reasonable attorneys' fees and costs under this section if:
(a) The prevailing party on appeal was the prevailingor substantially prevailing party before the county city, or town, . . . and
(b) The prevailing party on appeal was the prevailingparty or substantially prevailing party in all priorjudicial proceedings.
Here, the County prevailed before the hearing examiner and substantially prevailed before the trial court. Because, under the above analysis, it also substantially prevails here, we grant its request for attorney fees.
We affirm in part, reverse in part, and remand with instructions that the trial court amend its order remanding to the hearing officer for that officer to determine the full scope of SSNW's pre-January 6, 1992 nonconforming use and to determine if and to what extent SSNW had validly intensified that nonconforming use after January 6, 1992.
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.
VAN DEREN, A.C.J., BRIDGEWATER, J., concur