18A.70.100 Burdens of Proof.
A. Whenever an owner or applicant claims to have nonconforming rights, the initial burden shall be on the owner and/or applicant to prove, by a preponderance of evidence, that the nonconforming use or development was lawfully established prior to the change in zoning regulations that made the use or development nonconforming. The owner or applicant shall submit an application for confirmation of nonconforming use and submit all relevant evidence to the Planning and Public Works Department for review, research, and a determination.
B. In cases where the County is alleging that the nonconforming use or development has been abandoned:
1. The County shall show, by a preponderance of evidence, that there was an intent to abandon along with an overt act, or failure to act, that is consistent with abandonment. Intent may be inferred from acts or failures to act. Examples of "overt acts" or "failures to act" include, but is not limited to, discontinuance of the use for more than two years, allowing the structures on the property to fall into disrepair, closing or changing the business, failure to renew a business-related license, written or oral statements evidencing an intent to abandon.
2. The owner and/or applicant may rebut the County's evidence of abandonment by showing there was no intent to abandon. Such evidence includes, but is not limited to, actively marketing the current business for sale or lease or evidence showing that the business was suspended due to protracted litigation or emergencies.
3. The examples listed in this Section are intended to be illustrative only and not an exclusive list of required factors. The Examiner or Director may take into consideration the totality of evidence to determine if the parties have met their respective burdens and to determine if a nonconforming use has been abandoned.