Pacific County Department of Community Development v. Driscoll

PACIFIC COUNTY DEPARTMENT OF COMMUNITY DEVELOPMENT, Appellant, v. DANIEL ALAN DRISCOLL, d/b/a OYSTERVILLE SEA FARMS, Respondent.

No. 49467-1-II

Court of Appeals of Washington, Division 2

April 10, 2018

UNPUBLISHED OPINION

MAXA C.J.

Pacific County appeals a superior court decision reversing a district court ruling that Dan Driscoll committed two infractions of zoning and shoreline regulations in the operation of his seafood market business, Oysterville Sea Farms (OSF). The district court ruled that although OSF's operation of a seafood market was a lawful nonconforming use, selling beer and wine and operating a food establishment with indoor seating constituted unlawful expansions of that nonconforming use.

We review the district court's ruling and hold that (1) Driscoll could properly raise a defense that he engaged in legal nonconforming use in an infraction hearing rather than in a petition under the Land Use Petition Act (LUPA), chapter 36.70C RCW; (2) the district court erred in concluding that OSF's sale of beer and wine and the operation of a food establishment with indoor seating constituted unlawful expansions rather than lawful intensifications of its nonconforming use; and (3) OSF's placement of outdoor seating on its deck constituted a lawful intensification of its nonconforming use.

Accordingly we reverse the district court's determination that Driscoll committed infractions of zoning and shoreline regulations.

FACTS

The OSF Property audits Uses

OSF is located in Oysterville, on the western shore of Willapa Bay. The OSF property consists of two buildings and a large deck that extends over the shoreline. The buildings were constructed in the 1920s and were historically used as an oyster cannery. At least by 1973, Driscoll's father had operated OSF as a business that sold oysters and clams, as well as various related retail items like oyster knives T-shirts, cards, and books. That retail business continued until Driscoll assumed ownership in 1991.

Beginning in the mid-1990s and continuing through at least 2011 Driscoll began to add items to OSF's retail sales business. Among these other items were cranberries, wine cereal, pasta, spices, syrups, and jams or jellies. OSF also began selling food for consumption on the premises, including hot prepared foods like clam chowder and steamed oysters and clams, and also began serving beer and wine for consumption on the premises. OSF added stools inside, and a picnic table and a few chairs on the deck for customers to use while eating or drinking.

Throughout this process, Driscoll communicated with local county officials to ensure the business met code requirements. For example, in 1996 or 1997 the County informed Driscoll that he needed a health license. To qualify for the license, Driscoll needed to install a commercial kitchen, which he did. He also contacted the County's planner, who stated that "the building was grandfathered" and Driscoll could use it for commercial activities. Report of Proceedings (Oct. 17 2014) at 55-56.

In 2009, Driscoll communicated with county employees about placing picnic tables on the property's deck and installing a small deli. One employee responded that there was no issue doing so. By 2010, Driscoll had obtained several liquor licenses. Although the County was involved in that process, it did not state at any point that zoning regulations prevented Driscoll from selling alcohol.

Notice of Infractions

In 2011, the County began to express concerns with Driscoll's use of the OSF property. In May 2012, the County sent Driscoll a letter that listed specific items that either were allowed or were not allowed for sale. The letter suggested that the County would bring an enforcement action if Driscoll did not comply. OSF continued to sell items that the County considered to be improper.

On June 18, 2014, the County sent Driscoll a notice of infraction, alleging that Driscoll had violated zoning regulations in Pacific County Ordinance (PCO) 162 and Pacific County Shoreline Master Program (SMP) regulations. The County later submitted an amended notice that included two counts. In count one, the County alleged that Driscoll violated PCO 162 by engaging in a commercial use that was prohibited in either (a) an aquaculture district or (b) a restricted residential district. In count two, the County alleged that Driscoll violated the SMP by engaging in a commercial use without a permit that was prohibited in either (a) a conservancy environment or (b) an urban environment. The infraction notice stated that Driscoll was subject to a maximum penalty of a $1, 025 fine for each violation.

First District Court Decision

The district court held a bench trial and issued extensive findings of fact and conclusions of law in a decision dated February 25, 2015.^[1] The court found that OSF had engaged in some form of seafood preparation since the 1920s, selling oysters directly to customers. These activities began long before the County adopted the SMP in 1974 and enacted a zoning ordinance applicable to the OSF property in 1981.

The district court found that since before 1974, OSF also had sold retail items related to oyster preparation and consumption. The County conceded that by 1981, the year PCO 162 was enacted, OSF had established itself as a business selling oysters and other products, some associated with oysters and some not. After 1981, OSF also began providing seating for customers to consume food and beverages prepared and served on the premises.

The district court found that operation of a seafood market lawfully existed before both the SMP and PCO 162 came into effect. In addition, the court found that the variation in the seafood items sold did not change the nature or character of OSF's nonconforming use. The court also found that OSF's variation in retail product inventory to include items like packaged pasta, cranberries, jams, spices, and wine did not change the nature or character of the nonconforming use.

On the other hand, the district court found that OSF's preparation and sale of seafood products (other than oysters on the half shell) for immediate consumption and the operation of a restaurant did not exist as an activity before enactment of the SMP or PCO 162. And the court found that operation of a "restaurant" had changed the nature and character of OSF's use, was different in kind than the original seafood business, and had altered the nonconforming use.

The district court entered several conclusions of law. The court ruled that OSF's sale of fresh seafood products generally found in a seafood sales store was an authorized nonconforming use; any variation in the inventory of seafood items constituted an allowed intensification of that nonconforming use. The court also ruled that two other activities constituted an allowed intensification of the nonconforming use: the sale of non-seafood items generally found in a seafood sales store and OSF's food preparation to the extent that it involved the sale of oysters on the half shell for immediate consumption.

However, the district court ruled that, in the absence of additional evidence, OSF's sale of food (other than oysters on the half shell) for immediate consumption was an unlawful expansion of its nonconforming use. The court also ruled that it was an unlawful expansion to offer onsite food preparation involving formal food consumption on the premises and to offer outside seating. Finally, the court ruled that the sale of beer and wine for consumption on the premises was an unlawful expansion.

Based on these conclusions of law, the district court concluded that Driscoll had not committed any infractions regarding "inventory in OSF's retail store" and the "sale of oysters on the half shell for immediate consumption in an informal manner." Decision at 11. The court reserved the issue of whether Driscoll committed an infraction by operating a restaurant pending further testimony and argument, including on the issues of waiver and consent. The court stated that depending on additional evidence, it might reconsider its finding and conclusion that the sale of food for immediate consumption was more than an intensification of the nonconforming use.

Second District Court Decision

The district court conducted a second day of trial in which Driscoll presented additional testimony and evidence. On September 17, 2015, the court entered a second written decision.

The district court first concluded that the sale of beer and wine was not part of OSF's nonconforming use, which was limited to the operation of a seafood market. The court then addressed whether the County was estopped from preventing OSF from operating a restaurant. The court reviewed in detail the evidence supporting Driscoll's contention that "over the years [the County] consistently assisted and encouraged his efforts to establish a restaurant where the sale and consumption of cereal, fish, and alcohol could occur and be consumed at tables inside and outside of the retail area." Clerk's Papers (CP) at 10.

The district court ruled as follows:

[I]t is clear [Driscoll] may not operate a restaurant which includes indoor seating or the service of wine or other spirits. It is also clear that [Driscoll] may operate a "small deli" which sells seafood as its primary product with incidental non-seafood products also available for sale. It also seems clear [Driscoll] can operate an outdoor seating area limited to the back deck where patrons may consume the product purchased on site including cereal fruit, and fish because Pacific County is estopped to deny him that ability.

CP at 13-14.

The district court concluded that Driscoll committed infractions as alleged in both counts. For count one (reg...