(dissenting) — The majority concedes RhodA-Zalea has a valid vested right to continue its peat mining operation as a nonconforming use. Majority at 6. But Snohomish County argues, and the majority concludes, the County seeks not to deny Rhod-A-Zalea its right to mine, but only to properly utilize its local police power prerogative to regulate the manner in which the mining is conducted to protect the public health and safety. Supplemental Br. of Snohomish County at 6; Majority at 19-20.
The Court of Appeals, however, disagreed, writing:
We cannot improve on the trial court’s answer to this argument.
In this instance, application of the grading permit provisions of the county building code constitutes such pervasive regulation of the peat mining operation that it effectively *21abrogates Rhod-A-Zalea’s vested property rights in maintaining the nonconforming use.
Rhod-A-Zalea & 35th, Inc. v. Snohomish County, No. 36658-1-I, slip op. at 6 (Wash. Ct. App. July 22, 1996) (quoting Trial Court’s Amended Mem. Decision at 4), review granted, 131 Wn.2d 120, 937 P.2d 1102 (1997). Nor can I better the observation of the trial court and would, therefore, affirm the Court of Appeals.
Rhod-A-Zalea seeks neither to expand its nonconforming use nor restart its operation after a hiatus. Rather it seeks to mine peat, an activity that, by the definition adopted by the county, is “grading.” See Clerk’s Papers (CP) at 322 (Snohomish County Decision of the Deputy Hearing Examiner (hereinafter “Hearing Examiner”) (Sept. 18, 1992)). In the words of the learned trial judge: “[T]he grading taking place on the property is not merely an activity component of the mining process. It is the mining process.” CP at 41 (Trial Court’s Amended Mem. Decision at 5).
The County, as the lower courts discerned, seeks to “ ‘regulate through the back door, by applying the building code, that which it cannot regulate through the front door by applying the zoning code, due to the existence of a valid nonconforming use.’ ” Rhod-A-Zalea & 35th, Inc. v. Snohomish County, No. 36658-1-I, slip op. at 4-5 (quoting Trial Court’s Amended Mem. Decision at 4-5).
The majority opines it would be “counterintuitive to conclude that nonconforming uses which are contrary to public interests, such as health, safety and welfare, would then be exempt from subsequently enacted public health and safety regulations,” Majority at 9; noting “[t]he theory of the zoning ordinance is that the nonconforming use is detrimental to some of those public interests (health, safety, morals or welfare) which justify the invoking of the police power,” but not immediately. Majority at 7.
*22The majority seems to say that while the County has no right to immediately prohibit through the zoning (pursuant to the County’s police power),4 it may nevertheless presently invoke its police power to burden Rhod-A-Zalea’s protected activity by simply denominating the regulation “grading” rather than zoning.
Such approach ignores the fundamental proposition that “[a] valid nonconforming use carries with it the right to the exercise of those accessory uses which are considered customary and incidental to the principal use.” Ferry v. City of Bellingham, 41 Wn. App. 839, 844, 706 P.2d 1103, review denied, 104 Wn.2d 1027 (1985). In Ferry the court found the addition of a crematory to a funeral home (which had a nonconforming use right in a residentially zoned area) did not constitute any enlargement of the nonconforming use and, thus, could not be precluded because of a zoning regulation. Id. Here, Rhod-A-Zalea seeks nothing more than to continue the very use of the land it has rightly enjoyed for over 30 years.
In an analogous case a rock mining and crushing business was protected in its continuation of its vested nonconforming use without submitting to a permitting requirement that encompassed potential termination of the nonconforming use. Missouri Rock, Inc. v. Winholtz, 614 S.W.2d 734, 739-40 (Mo. Ct. App. 1981). The authority to permit implies the power to prohibit.
As the Hearing Examiner noted, “[t]he subject excavation and fill constitutes ‘grading’ as such term is defined” in the Snohomish County Code. CP at 332 (Hearing Examiner at 11, conclusion 20). The subject excavation and fill is, of course, the peat mining. See CP at 324 (Hearing Examiner at 3).
The majority drags the red herring of undercooked food across the table where it uses this analogy: “[Rhod-A-Zalea’s] reasoning . . . leads to illogical results. For example, a nonconforming restaurant would not be subject *23to subsequently-enacted regulations governing the handling and cooking of meat to prevent E. coli contamination because handling and cooking food is ‘intrinsic’ to the restaurant business.” Majority at 17.
By the majority’s reasoning a valid nonconforming restaurant use could, under the guise of a police power regulation, be regulated out of existence, or at least burdened, through the prohibition of stoves, ovens, or normal restaurant fare. Cooking facilities to prepare food are intrinsic to a restaurant; however, service of contaminated food is not. This distinction is the heart of the case.
The distinction is of kind, not degree. Although a regulation banning black pepper might cost that restaurant only one customer a month, such regulation would be most problematic as it strikes at the heart of restauranteering, which is the preparation of wholesome, tasty food. One need not put the restaurant out of business to compromise its vested nonconforming use.
To support the County’s asserted right to impose its will upon Rhod-A-Zalea, the majority relies upon the “purpose” of the Uniform Building Code’s grading regulations: “ ‘to safeguard life, limb, property and the public welfare by regulating grading on private property.’ ” Majority at 14 (quoting Uniform Building Code, ch. 70, § 7001 (1976)). However the Uniform Building Code specifically exempts mining from the grading permit requirements it sets out and, therefore, by its original terms does not purport to justify any regulation whatsoever of peat mining. Uniform Building Code 1-508, app. ch. 33, § 3306.2(6) (1994).5 However Snohomish County, which adopted much of the Uniform Building Code verbatim (Snohomish County Code (SCO 17.04.010-.330), deleted this exemption (SCC 17.04.280) while retaining the grading permit requirement. Thus the County retains the justification of the original code but imposes a contrary result.
*24It is illogical on the one hand to rely upon the policy arguments of the Uniform Building Code to support the necessity of the County’s regulation while, on the other hand, ignoring the objectives of its drafters. The very first sentence of the Uniform Building Code sets out exactly why its provisions should not apply here: “The Uniform Building Code is dedicated to the development of better building construction and greater safety to the public by uniformity in building laws.” Uniform Building Code, Preface at 1-iii (1994). The grading regulations of the Uniform Building Code are justified as reasonable requirements pertaining to building, not mining-, hence, the exemption for mining makes perfect sense while the application of the code’s grading permit requirements to mining makes no sense.
The majority, with near religious fervor, also invokes the spirit of Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S. Ct. 987, 8 L. Ed. 2d 130 (1962), to justify its conclusion that the County may apply its grading permit requirements to Rhod-A-Zalea. See Majority at 5, 8, 9, 10, 15, 16, 17. Yet, as one commentator has rightly noted, what Goldblatt really does is “underline the difficulty of determining whether a particular regulation, onerous to a user, is an unlawful attempt to destroy the use, or a legitimate means of regulating it.” 1 Robert M. Anderson, American Law of Zoning 3d § 6.78, at 680 (1986).6 The majority’s flaw is its failure to make the distinction between continuation of a nonconforming use which is exempt from police power regulation on the one hand, and imposition of the police power without exemption, subject only to the usual requirements of due process, on the other. If the latter be the rule, the nonconforming use doctrine is robbed of its reason for existence, and is no more than the usual due process test.
The majority notes courts “have been alert to the pos*25sibility that a municipal corporation may seek to terminate a nonconforming use by the imposition of regulations so onerous as to render further use impractical.” Majority at 12-13.7 And the majority then complains of Rhod-A-Zalea’s alleged failure to make any “particularized argument concerning economic impact.” Id. at 13.8 Apparently the majority invites the conclusion that it is the degree, not fact, of imposition which is determinative. I disagree.
Placing this requirement of a “particularized argument” upon Rhod-A-Zalea is exactly what we should not do. If the regulation is consistent with the vested nonconforming use, it is valid no matter how prohibitory (assuming it satisfies due process); whereas, if it is inconsistent with the vested use, it is invalid no matter how slight its burden.
In any case the burden of proof properly rests on the County to establish that its regulation does not burden a vested nonconforming use but rather is a legitimate effort to protect from a recurring harm not incident to the very nature of the nonconforming use. See State v. Thomasson, 61 Wn.2d 425, 428, 378 P.2d 441 (1963) (requiring facts that establish a nuisance or “circumstances showing a condition substantially detrimental to the public health, safety, morals or welfare” before a municipality may attempt to abolish existing nonconforming use without violating due process of law). See also Township of Orion v. Weber, 83 Mich. App. 712, 269 N.W. 2d 275, 278-79 (1978) (nonconforming vested sand and gravel business not subject to retroactive burdensome regulation).
While the majority requires a “particularized argument” from Rhod-A-Zalea, the majority adopts the opposite view *26when dealing with the County: “[A] particularized finding of harm is not required for the grading permit to be applicable . . . .” Majority at 15. Nonetheless, the majority, relying on the testimony of the County’s enforcement officer and a neighboring property owner (testimony this court did not hear), concludes “it does appear that there are problems concerning current operations on Rhod-A-Zalea’s property which would be cured through the application of the grading permit requirements.” Majority at 15. The “problem” noted by the majority is the fact that RhodA-Zalea replaces peat with other materials. Id. This is the nub of the County’s complaint. Rhod-A-Zalea is indeed replacing peat with fill, which is to say Rhod-A-Zalea is peat mining. Were it the County’s prerogative to “permit” the mining, it would equally be its prerogative to withhold the permit. However the permit could be withheld only at the expense of the protected use.
The trial court and the Court of Appeals correctly discerned the distinction between that which is intrinsic to the privileged use and that which is not. However the majority overlooks it. I therefore dissent.
Dolliver, J., concurs with Sanders, J.
Reconsideration denied November 16, 1998.
See 1 Robert M. Anderson, American Law of Zoning 3d § 7.03, at 690 (1986).
The 1994 Uniform Building Code is substantially different from earlier versions in terms of organization, but the relevant content remains effectively the same. The exemption for mining, for example, was present in earlier versions as section 7003(6).
The Supreme Court has recently criticized Goldblatt, noting that the case assumed that when examining property regulations, the standards for takings challenges, due process challenges, and equal protection challenges are identical. “[T]hat assumption is inconsistent with the formulations of our later cases.” Nollan v. California Coastal Comm’n, 483 U.S. 825, 835 n.3, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987).
See also 1 Anderson, supra, section 6.06 at 462 (Noting general disapproval of retroactive zoning regulations: “Thus, one court . . . remarked: ‘Retroactive legislation is so offensive to the Anglo-Saxon sense of justice that it is never favored.’ ” (quoting Appeal of Sawdey, 369 Pa. 19, 22, 85 A.2d 28 (1951))).
Rhod-A-Zalea did, in fact, argue both the general impact and the specific impact that imposition of the grading permit would have on its operations. See generally Resp’t’s [Rhod-A-Zalea] Br. to the Court of Appeals Division One at 34-38 (discussing due process implications of County’s action) and 38-40 (discussing specific damages to Rhod-A-Zalea from imposition of grading permit).