12.39.040 Burden of proof.
Any property owner asserting as a defense to a charge of violating this ordinance that his property was a valid nonconforming use has the burden of demonstrating to a reasonable certainty by the greater weight of credible evidence that:
(a) The nonconforming use was legally in existence at the time the ordinance was passed or amended, and
(b) That the use of the property prior to the ordinance was so active and actual that it can be said the property owner acquired a vested interest in its continuance. For purposes of this ordinance, a property owner shall be deemed to have a vested right in the use of his property where that use at the time of the effective date of this ordinance or amendment thereto is both active and actual (noncontemplated) and a substantial degree of activity or expense had been undertaken prior to the effective date of this ordinance or amendment thereto. Permits issued prior to the existence of this ordinance shall be deemed to have created a vested right in the property owner to the extent provided in section 12.02.050 of this ordinance.
(c) That the use is substantially the same use that existed prior to the enactment of the ordinance or amendment thereto. [Code § 12.28-4.]