Daily Development for Thursday, December 28, 2001

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

ZONING AND LAND USE; PRE-EXISTING NON- CONFORMING USE; ABANDONMENT: Abandonment of pre- existing use will be found when landowner had not used geographically separate parcel for the stated use for 17 years and had offered it for sale for purposes inconsistent with the stated use.

City of University Place v. McGuire, 9 P.3d 918 (Wash. App. Div. 2 2000).

Holroyd Land Company owned an 80-acre parcel of property and began surface mining in 1940 when mining was unregulated. In 1957, after Pierce County adopted a number of resolutions, surface mining became a nonconforming use. Holroyd applied for and obtained permits after state regulations were enacted in 1970. However, Holroyd expanded its mines beyond the permitted limits. In 1978, Pierce County relocated a road running through Holroyd's parcel, severing a 1.4-acre parcel of land, which Holroyd had never mined. In 1991, Holroyd sold the 80-acre parcel to McGuire, a developer who intended to develop a shopping center on the parcel. McGuire applied for a permit to clear, grade and remove gravel from the 1.4-acre parcel to fill in the area upon which McGuire intended to construct the shopping center. The City denied the application because the land was zoned residential and mining would constitute an impermissible expansion of a nonconforming use. McGuire appealed to the city's hearing examiner, who granted McGuire's appeal, finding that the nonconforming surface mine extended to the entire Holroyd ownership, including the 1.4-acre parcel. The City sought review in the trial court, which affirmed the hearing examiner. City appealed.

The Court of Appeals of Washington reversed. The Court found that the parcel of property in question was never mined, was geographically isolated from any mining operations on adjacent property which had been commonly owned at time of mining, was not included in any required mining application, permit, or reclamation plan, was ignored as a potential mining source for 17 years, and was offered for sale for residential and commercial development with no mention of mining uses and concluded that Holroyd had abandoned mining as a use.

The court emphasized that a critical issue in determining whether abandonment has occurred is "intent to abandon." This is true even though the where zoning code speaks in terms of a discontinued use or a use discontinued for a specified period of time. The question of whether there has been "intent to abandon" a mining activity is particularly troublesome, particularly where the party owning the property in question is conducting mining activities on other property in the vicinity. Does this other activity indicate that the landowner is gradually moving toward this parcel, and continues to have an active intent to mine there?

Here, the court noted the fact that the other mining in the area of the 1.4 acre tract had long been discontinued and that the property had sold for residential purposes with no mention of mining activity. Further, the 1.4 acre parcel in question had been offered for sale for residential or commercial purposes unrelated to mining. Only later did the ultimate determine that they would extract material from the site for use elsewhere on property they had purchased from the owner. The court relied most heavily on these facts to demonstrate that indeed, at some prior time, the owner of the mining operation had formed the intent to stop mining in this area.

Comment: The analysis of intent is what makes this, and other mining abandonment cases, particularly interesting. Clearly the issue is a difficult one to resolve, note that the hearing officer went the other way. But those studying the case can draw a lesson: if there is potential mining value (including fill transfer purposes) in a site that arguably has not yet been abandoned as a mining site, include mining value in the marketing and contract for a transfer of the mining business. Do this even if, at the time of marketing and sale, it is not clear that the new owners will actually make use of this potential in the land. To ignore it is to lose it forever.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.

Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues.

ABOUT DIRT:

DIRT is an Internet discussion group for serious real estate professionals. Message volume varies, but commonly runs 5 ‑ 10 messages per workday.

Daily Developments are posted every workday.

To subscribe to Dirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Subscribe Dirt [your name]

To cancel your subscription to Dirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Signoff Dirt

For information on other commands, send the message Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only commercial and general real estate matters but also focuses specifically upon residential real estate matters. Because real estate brokers generally find this service more valuable, it is named "Brokerdirt." But residential specialist attorneys, title insurers, lenders and others interested in the residential market will want to subscribe to this alternative list. If you subscribe to Brokerdirt, it is not necessary also to subscribe to DIRT, as Brokerdirt carries all DIRT traffic in addition to the residential discussions.

To subscribe to Brokerdirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Subscribe Brokerdirt [your name]

To cancel your subscription to Brokerdirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Signoff Brokerdirt

DIRT is a service of the American Bar Association Section on Real Property, Probate & Trust Law and the University of Missouri, Kansas City, School of Law. Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of Law, UMKC School of Law, but Professor Randolph grants permission for copying or distribution of Daily Developments for educational purposes, including professional continuing education, provided that no charge is imposed for such distribution and that appropriate credit is given to Professor Randolph, DIRT, and its sponsors.

DIRT has a WebPage at: http://www.umkc.edu/dirt/