Johnson v. City of Seattle, No. 68819-7-I (Wash. Ct. App. Oct. 13, 2014).
Tyko Johnson, a self-described “car guy,” keeps multiple trailers, cars, and “car type projects” (whatever those might be) on his Seattle property. Seattle cited him three times for keeping more than three cars on his lot. Not long after Seattle issued him the third citation, though, Johnson applied to the city to establish that he had a legal nonconforming use on his property.
A quick explanation of “legal nonconforming use.” The idea of a legal nonconforming use is that a landowner was using his land lawfully up until the time a new land use regulation went into effect—and that the landowner should be allowed to continue using his land that way, even now that the law has changed. Local governments like Seattle have procedures to recognize nonconforming uses because demanding an immediate end to the nonconforming use might open the government up to a regulatory takings claim.
Now, back to the facts of this case. Johnson asked Seattle to recognize his legal nonconforming use: namely, his penchant for parking more than three cars on his property. And, after Johnson jumped through the bureaucratic hoops, Seattle agreed to recognize it.
What’s Johnson’s beef, then? Well, Johnson argues that Seattle violated his due process rights by recognizing his legal nonconforming use but refusing to allow him to use that nonconforming use to defend against the citations. The whole notion of a legal nonconforming use, after all, is that the use was always legal. So it doesn’t matter that the citations were issued before Seattle agreed to officially recognize the legal nonconforming use.
The Court of Appeals agrees: Johnson should have been allowed to defend against the citations by relying on his legal nonconforming use and arguing that he had always been using his property legally. Denying him the right to make that argument denied him a meaningful opportunity to be heard. So the court vacates Johnson’s citations and remands for the trial court to award Johnson appropriate damages, if any.