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Updates for the Week of December 26, 2013
An outdoor wedding business “tolerated” by the city despite restrictive zoning did not “lawfully exist.” The City of Kennewick, Washington sued Cole and Julie Morgan, who operated a home-based wedding business. Kennewick, having received complaints about traffic, parking, speeding, litter, and noise, said the Morgans’ business did not conform to the zoning code. The Morgans bought the property in 2002 from sellers who operated the same type of wedding business on the same premises, so they claimed the business was grandfathered in because it existed before the zoning code applied to the property.
3400 S. Jean Street had been used for outdoor wedding receptions since the early 1980s, by then-owners Evan and Treva Purser. In 1999, the City of Kennewick annexed the Jean Street property which continued to hold suburban zoning. The Pursers never applied for a permit for any of their home-based businesses, which included, in addition to weddings, a nail salon, swimming lessons, a landscape company, and makeup and tattoo parlor. The Pursers asked the city whether the wedding business was a conforming use, and in response received a letter outlining restrictions on home-based businesses, which included a maximum of four customer visits per day, entrance to the business from within the residence, and a requirement that all business activities be held indoors. The Pursers didn’t pursue a permit. They sold the Jean Street property to the Morgans in 2002.
In 2005, Kennewick ordered the Morgans to cease and desist the wedding business. In 2007, the Morgans applied for a “conditional use permit” for a pre-existing nonconforming use, but they never completely filled out the application or provided required documents. Eventually, the city filed a complaint for nuisance and sought an injunction. The Morgans opposed the complaint, based on established use over the years. They also noted that city officials had attended weddings on their property without objection.
A Washington appeals court held (in an unpublished decision) that the Morgans did not establish that the wedding business was a lawfully existing nonconforming use before their property became subject to the city’s zoning code. Applicable residential zoning code allowed certain business uses and home occupations only if conducted within the residence. The wedding receptions held by the Morgans took place outdoors, not inside their residence. The attendance of county and city officials at weddings on the Morgans’ property was characterized by the court as “tolerance” of the unauthorized activity, but insufficient to support their claim that this particular business lawfully existed.
City of Kennewick v. Morgan, No. 27473-0-III, Court of Appeals of Washington, Division Three, 8/25/2009 (Unpublished) [enhanced version available to lexis.com subscribers].
Real Cases in Real Estate is a periodic update on real estate law, with legal principles illustrated and explained by lawsuits from around the country. The topics are wide-ranging for appeal to a broad spectrum of readers including lawyers, homeowners, investors and the general public. Andrea Lee Negroni, a Washington DC attorney and legal writer with 25 years of experience in financial services and mortgage law, contributes the case summaries.
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