(dissenting) — Craig and Theresa Christian-son purchased and occasionally used a small weekend cabin on Lake Bosworth to pursue that small measure of leisure life would allow. But who would have thought, when they attempted to enlarge their tiny six-by-five-feet bedroom to a still small nine-by-ten-feet (plus a small storage area), the cost would include five years of litigation at virtually every level of our state court system plus a vigorous bout with an administrative tribunal even before first setting foot in the courthouse.
The record does not disclose it directly; however, by inference it seems we are dealing with citizens of modest means and a property particularly its owner does love.
And so the Christiansons come to court, claiming they have been deprived that process constitutionally due when local authorities denied them a permit to slightly enlarge their 24-by-18-feet, single story cabin on the basis that the public health would suffer if the addition were permitted.
*670Factually the Christiansons persist in their claim that an enlargement to their bedroom with the addition of a small storage area will imperil no one’s health. The factual findings of the examiner6 support their view.
While the majority makes much of its assertion that the hearing examiner’s findings constitute the factual basis of this review (Majority at 654), the majority would do better to accurately report what these findings actually state. Compare, for example, the majority’s claim that "the Hearing Examiner found that the addition will adversely impact the existing system” (Majority at 655) and the majority’s claim that "the Hearing Examiner found that the continued operation of the existing system will adversely affect surface and groundwater quality” (Majority at 656) with Findings 7 and 10,7 both of which are largely cast in terms of the district’s subjective state of mind,8 and neither of which even purport to find any probable increased use of the existing system due to the *671proposed remodel, much less any health problem as a result thereof. Perhaps a clever turn of the examiner’s phrase seduces a trusting leap of the majority’s faith; however, upon closer inspection, the seemingly factual support for a public health catastrophe disappears as does the mirage.
In fact, the examiner found no increased use of the existing system after the proposed alteration, nor did he find even a hypothetical increase would cause the system to "fail”9 any sooner than it would naturally fail even absent possible increased use. Rather, the alteration permit was denied by operation of law based on the perception that with or without the remodel the cabin would outlive the useful life of the septic tank.10 But what reason is that to deny Christiansons a larger bedroom? That is the question.
The hearing examiner was expressly clear that remodel cause and public health effect were neither his nor the resolution’s primary concern: "The basic issue presented by Christianson’s appeal is whether the District acted in conformance with applicable regulations when it denied his application. In other words, does the Christiansons’ application meet the applicable criteria for approval?” CP at 56, Mem. Conclusion 4, Snohomish Health Dist. Hr’g on Sanitation Appeal 92.05 (Oct. 21, 1992). (Hr’g Exam’r Mem.), Conclusion 4). The examiner thus answered the threshold question in the negative—the application did not meet regulatory criteria. This conclusion was clearly correct given the regulation which made the actual effect of a remodel permit upon the public health, *672if any, simply irrelevant. However that is precisely the constitutional infirmity.
The Christiansons appropriately rest their claim upon that provision of the Fourteenth Amendment to the United States Constitution which provides, "nor shall any State deprive any person of life, liberty, or property, without due process of law . . . .”11 They assert the State did indeed deprive them of a property interest through application and enforcement of Resolution No. 87-35 (resolution of Snohomish Health District Board of Health) which cannot pass the due process test of reasonableness as we have set it out:
The inquiry here must be whether the police power (rather than the eminent domain power) has exceeded its constitutional limits. To determine whether the regulation violates due process, the court should engage in the classic 3-prong due process test and ask: (1) whether the regulation is aimed at achieving a legitimate public purpose; (2) whether it uses means that are reasonably necessary to achieve that purpose', and (3) whether it is unduly oppressive on the landowner.
Presbytery of Seattle v. King County, 114 Wn.2d 320, 330-31, 787 P.2d 907 (1990) (emphasis added).
Proper analysis should begin by recognizing " '[t]he basic rule in land use law is still that, absent more, an individual should be able to utilize his own land as he sees *673fit.’ ”12 West Main Assocs. v. City of Bellevue, 106 Wn.2d 47, 50, 720 P.2d 782 (1986) (quoting Norco Constr. Inc. v. King County, 97 Wn.2d 680, 684, 649 P.2d 103 (1982)). And " '[although less than a fee interest, development rights are beyond question a valuable right in property.’ ” West Main Assocs., 106 Wn.2d at 50 (quoting Louthan v. King County, 94 Wn.2d 422, 428, 617 P.2d 977 (1980) (relying on Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978))). Any property owner, Christianson included, is entitled to do whatever he pleases with his land unless otherwise prohibited. Without dispute the Christiansons would be entitled to their alteration permit but for Snohomish Board of Health Resolution Number 87-35 which provides in pertinent part:
Section 2—Purpose and Policy Declared These rules and regulations are enacted as an exercise of the power and duties of the Snohomish Health District Board of Health to preserve, promote and improve the public health. The provisions herein shall be liberally construed for the accomplishment of these purposes.
It is the specific intent of these rules and regulations to prevent the development of any property, to which a public sanitary sewer is not available, to such an extent or in such a manner whereby the amount of any sewage produced on the property would exceed the property’s ability to dispose of and treat said sewage effluent in a manner consistent with WAC 248-96.
Section 3—Applicability WAC 248-96 shall apply whenever development or construction of a structure is proposed on any property to which a sanitary sewer is not available and to which water under pressure can be made available.
Section 4—Remodeling; Approval required All existing buildings or structures to which additions, alterations, or improvements are made after the effective date of these policies and *674procedures shall be served by an onsite sewage disposal system complying with WAC 248-96; provided however, the Health Officer may waive compliance with these requirements for existing buildings or structures when additions, alterations, repairs, or improvements to the building or structure are compatible with and do not adversely impact the existing onsite sewage disposal system and potential reserve drainfield area, the system is adequate to treat the on-site sewage expected to be generated over the remaining useful life of the structure, and the continued operation of the system will not adversely effect [sic] public health, surface water quality, or ground water quality. . . .
Resolution 87-35 (emphasis added).
The due process question posed by Christiansons is whether this resolution embodies means (permit denial) which are reasonably necessary to effectuate its purpose (protection of the public health). Of course, if the means do not even tend to rationally advance the end, it would seem the means certainly are not "reasonably necessary” to do so. If they were at least rationally related, due process would still require the means to be no broader or more extensive than necessary to accomplish the legitimate end. But here there is no rational relationship in the first instance.
This property clearly falls within the scope of the resolution as the Christiansons obviously own an existing structure which they seek to alter after the effective date of the resolution. The resolution literally applies to any existing structure sought to be altered regardless of how wonderfully its septic tank may be functioning now and forever more, and regardless of the nature of the alteration proposed (public rest room or skylight).13 In other words, *675the resolution applies without regard to whether there is, or would be, any dysfunction of the septic system as a result of the alteration. It just says no.
But after virtually prohibiting any alteration, the resolution reverses its field by authorizing a waiver to this otherwise universal rule of negation upon satisfaction of the criteria listed in section 4. However, the Christiansons cannot possibly qualify for the waiver under the second "useful life” criterion. By operation of law this disqualification is not because any proposed alteration would necessarily, or even possibly, have any adverse effect upon the public health status quo but is for an entirely unrelated reason, namely their cabin will outlive their septic system.
Although the majority spends great energy speculating about possible increased use of sanitary facilities should the bedroom be slightly enlarged,14 it misses the more fundamental point that such an inquiry under this resolution is entirely irrelevant because, amongst other things, the Christiansons cannot satisfy that waiver criteria which requires that "the system is adequate to treat the onsite sewage expected to be generated over the remaining useful life of the structure . . . .” Resolution 87-35, § 4. As the examiner found (finding 7), enlarged bedroom or no, the existing structure will supposedly outlive the treatment system in any event. However, it simply doesn’t matter for purposes of this resolution if the government padlocks *676the bathroom door, as the life of the septic system in comparison with the longevity of the house, not toilet flushing, is the point of disqualification. To qualify, the septic system must either have a longer life or the cabin a shorter one. But why is the public health preserved by remodel of a "biodegradable” shack but defeated by remodel of a stone cottage?
The majority seems to answer this question by claiming the "remaining life of the structure” criteria is an appropriate restriction on alterations to a "nonconforming use.” But this cabin is not a nonconforming use, nor would it be upon remodel. The majority’s discussion of the nonconforming use doctrine is quite misplaced. The cabin’s "use” is single family residential in both cases, before and after remodel. Presumably this use is permitted outright by the applicable zoning ordinance, which has not changed.
State ex rel. Miller v. Cain, 40 Wn.2d 216, 217, 242 P.2d 505 (1952), upon which the majority relies, demonstrates the majority’s misconception. The property owner there owned a commercial gas station which became a "nonconforming” use as a result of a city downzone of the property to residential uses only. However, even at that the applicable nonconforming use ordinance still allowed repairs, remodeling, and modernization of the nonconforming structure. Notwithstanding, perhaps banking on the perpetuation of the privileged nonconforming status, the property owner attempted to completely raze the old gas station to replace it with an entirely new gas station. However, the ordinance said no and so did the court. Continuation of an otherwise lawful use made nonconforming because of a change of use permitted in the zone would be permitted; however, substitution of an entirely new use would not. The commercial use was the "nonconforming use” which the ordinance lawfully sought to discourage, not to be confused with the manner or intensity of an otherwise conforming residential use—to which the nonconforming use doctrine has no application. Compare also Coleman v. City of Walla Walla, 44 Wn.2d 296, 299-*677300, 266 P.2d 1034 (1954) (a fraternity house rendered nonconforming because of the change in the underlying zone from multifamily to single family residential).
In short the majority misuses the term "nonconforming use” beyond recognition. Majority at 663-64. In these cases and normal parlance the term refers to the types of uses permitted in the zoning code such as single family residential use, multifamily residential use, commercial use, industrial use, etc. See generally, Richard L. Settle, Washington Land Use and Environmental Law and Practice 48 (1983). Simply put, a nonconforming use is a use which does not conform to existing zoning because of a change in the zoning code. This cabin as is, and as proposed, conforms. The nonconforming use doctrine gets the majority nowhere.
The reason for and limits of the nonconforming use doctrine are substantively important and serve a very different purpose from legitimate regulation of ongoing harmful activities. This inapplicable doctrine does not even serve as a useful analogy. One may have a vested right to continue an otherwise lawful but now nonconforming use which results from a simple change in area zoning so as to avoid a deprivation of property without due process; however, there is no vested right to endanger the public health through continued use of a nonfunctional septic tank, zoning change or no. Hass v. Kirkland, 78 Wn.2d 929, 931-32, 481 P.2d 9 (1971) (" 'There is no such thing as an inherent or vested right to imperil the health or impair the safety of the community.’ ”) (quoting City of Seattle v. Hinckley, 40 Wash. 468, 471, 82 P. 747 (1905)). In such a situation the answer is repair, replacement, or abatement—not the nonconforming use doctrine—nor forcing people to sleep in small bedrooms.
The remaining two waiver criteria are met. The criterion relating to "the continued operation of the system will not adversely effect [sic] the public health, surface water quality, or ground water quality. ...” (Resolution 87-35, § 4) is satisfied. There was neither finding nor claim *678that the system would be dysfunctional as a result of the remodel.
The criteria regarding diminution of the "potential reserve drainfield area” (Majority at 658) is factually inapplicable since the examiner found the existing system as improved was the best possible for the lot; i.e., there is no further "potential.” Mem. Finding 7. Moreover the proposed addition is uphill from the existing septic system, and even on the opposite side of the house; thus the land where it would be situated is physically unavailable to the existing septic system (if we take judicial notice that even in the Snohomish Health District water does not run uphill). Mem. Finding 5, Ex. 5.
Of ultimate importance is recognition that the resolution condition regarding longevity which prevents the Christiansons from obtaining a permit to enlarge their bedroom has no necessary factual, or therefore "reasonable,” relationship to public health consequences of the project.
Such is the ultimate constitutional deficiency of this resolution because, insofar as it identifies a health interest of legitimate public concern, it fails to make the public health consequences of the addition or alteration the governing criteria upon which the permit will be granted or withheld. Thus it can be safely said that not only is the means not reasonably necessary to achieve the purpose, it is really irrelevant to the purpose. In consequence the resolution deprives the Christiansons of their property without due process, the resolution is therefore unenforceable, and the Christiansons are entitled to issuance of the alteration permit.
Who is John Galt.
7. The repaired system does not meet District standards for a new onsite sewage disposal system: it has an inadequate setback from the lake shoreline, inadequate separation from one or more domestic water wells, inadequate vertical separation above the seasonal high water table, inadequate reserve area and unsuitable soil conditions. Repairs to failing onsite sewage disposal systems must meet District standards "to the maximum extent permitted by the site.” [WAC 246-272-030(2)] The District believes that the repair system is the best that can be obtained for the site but is also convinced that it will fail hydraulically before the cabin fails, even if the cabin is not enlarged/remodelled. When the system fails, Christianson will have to obtain an easement for an oifsite sewage disposal system or abandon use of the cabin. (Testimony)
CP at 54, Mem. Finding 7 (footnote omitted), Snohomish Health Dist. Hr’g on Sanitation Appeal 92.05 (Oct. 21, 1992).
10. The District’s denial was based on its conclusion that the site could not be brought into conformance with applicable regulations and that the addition would make the cabin more commodious, thus increasing its utility and its actual use, which in turn would increase sewage flows into a sub-standard system. (Exhibit l.and testimony)
CP at 55, Mem. Finding 10.
I must confess, I didn’t know it had one.
Use of the term "fail hydraulically” in Finding 7 is problematic. The examiner does not tell us what this means nor does he link it in any way to usage, much less increased usage, of the system. Nor is it specified whether the predicted "failure” may be corrected by repair or maintenance. Finally it is posited as a "belief’ of the District. CP at 54, Mem. Finding 7. Subjective belief is irrelevant where good faith is not an issue.
While it may be disconcerting to realize septic tanks, like their human creators, are not immortal, such would not seem to furnish the missing link between denial of an alteration permit on the one hand and protecting the public health on the other.
The majority mentions the Takings Clause of the Fifth Amendment while acknowledging that is not really the basis of the Christiansons’ claim. Majority at 659-61. Its discussion of Takings is therefore dicta. Further, this dissent will not discuss the "unduly oppressive” prong of the majority’s analysis as I conclude the "reasonably necessary means” prong is more on point. Majority at 662-64. I would disagree, however, that undue oppression is necessarily limited only to those situations where the landowner is required " 'to shoulder an economic burden . . . the public should rightfully bear.’ ” Majority at 664 (citations omitted). Shifting a public burden to private shoulders may also be unduly oppressive; however, this concern is more specific to the Takings Clause than to Due Process and the usual distinction should be recognized to avoid confusion. Compare Armstrong v. United States, 364 U.S. 40, 49, 80 S. Ct. 1563, 4 L. Ed. 2d 1554 (1960) (The Takings Clause is primarily designed to "bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”).
Justice Talmadge’s concurring opinion questions this rule for lack of repetition. Concurrence at 669 n.5. But perhaps some truths are so obvious they go without saying, much less repeating.
There is no claim that the Christiansons’ septic system, as completely replaced at a cost of $12,000, does not function appropriately in every respect as of the date of the permit application. The fact that the system conforms to historical standards, but not new standards, does not in itself demonstrate cause for concern, especially when the repaired system has been inspected and certified. In another context we have rejected the notion that " 'because the world gets wiser as it gets older, therefore it was foolish before.’ ” Hyjek v. Anthony In*675dus., 133 Wn.2d 414, 418, 944 P.2d 1036, 1038 (1997) (quoting Fed. R. Evro. 407 advisory committee’s note). The hearing examiner found: “The repaired system, consisting of a new 1000 gallon septic tank, a 150 gallon pump chamber with pump, a sand filter bed and 375 sq. ft. of new pressure dosed drainfield, was installed by or on behalf of Christianson and approved by the District on August 27, 1992. (Exhibits 1 and 5).” CP at 54, Mem. Finding 6. The successful repair and/or presently functioning state of the system, however, played no part in the examiner’s decision, nor did the fact that Christianson began remodeling his cabin and working on his sewage disposal system prior to obtaining the required permits. CP at 56, Mem. Conclusion 6.
The examiner penned the following curiously worded conclusion: “The remodeling will increase use and sewage flows. Such increases into a system which the best evidence says will fail is not furthering the public health.” CP at 58, Mem. Conclusion 9(F) (emphasis added). This is apparently double talk for finding "no effect” on the public health.