City of Kent, Mun. Corp. v. Berg

• Decision Date: 05 December 2016
• Docket Number: No. 73269-2-I,73269-2-I
• Court: Washington Court of Appeals
• Parties: CITY OF KENT, a Washington Municipal Corporation, Respondent, v. DONALD I. BERG and KAREN BERG, Appellants.

CITY OF KENT, a Washington Municipal Corporation, Respondent, v. DONALD I. BERG and KAREN BERG, Appellants.

No. 73269-2-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

December 5, 2016

UNPUBLISHED OPINION

MANN, J. — Donald and Karen Berg seek review of a decision by the City of Kent's hearing examiner affirming a notice of violation citing the Bergs with illegally expanding a nonconforming commercial outdoor storage yard within a residential neighborhood without obtaining a conditional use permit. The Bergs petitioned for review to the King County Superior Court under the Land Use Petition Act (LUPA), chapter 36.70C RCW. The superior court upheld the hearing examiner's decision affirming the notice of violation. Finding no error of law and that substantial evidence supports the hearing examiner's determination that the Bergs illegally expanded and intensified the nonconforming storage yard, we affirm.

FACTS

Donald and Karen Berg own two parcels of property at 27918 and 27824 152nd Avenue SE in Kent, Washington. The combined properties are approximately three acres in size and known as Shady Park. There is a small grocery store and an auto repair business located on the west side of Shady Park adjacent to 152nd Avenue SE. The grocery store was established in the 1920s. The auto repair shop was established in the 1940s. Prior to 1996, the property was in unincorporated King County. Between 1958 and 1996, the property was zoned "residential" under King County's zoning code. Commercial uses, including grocery stores, auto repair, and commercial outdoor storage, were prohibited in King County's residential zone.

The City of Kent (City) annexed Shady Park and surrounding properties in 1996. During the annexation process, the City accepted public testimony concerning future zoning of the properties. David Spencer, the owner of Shady Park at the time, submitted testimony requesting that either all, or at least a portion, of his property be zoned commercial so that he could continue use of the property for the existing grocery store and auto repair business. The City planning director acknowledged that the grocery store and auto repair business existed but was opposed to commercial zoning out of concern for increased commercial uses within the residential area. The City ultimately compromised and zoned the Shady Park property Neighborhood Convenience Commercial (NCC).¹ Under NCC zoning the grocery store is an allowed use, but other commercial uses, including auto repair and outdoor commercial storage are prohibited. The City agreed, however, that the Shady Park auto repair business could remain as a legal nonconforming use.

In 2001, the grocery store burned down and Spencer notified the City that he wanted to rebuild the store. Based on Spencer's inquiry, the City inspected the property and discovered an outdoor storage area east of the grocery store. In January 2002, the City notified Spencer of "possible land use violations" on his property and informed him that outdoor storage was not permitted as an accessory or principal use in the NCC zone.² As the permitting process for the grocery store ran its course, the City continued to inspect the Shady Park property. On September 6, 2002, the City issued a notice of violation to Spencer for the "illegal storage of recreational vehicles, boats, equipment and miscellaneous inoperable and/or disassembled vehicles."³ The City's notice required the removal of the stored items.

Spencer continued to move forward with the permitting promise to rebuild the grocery store. In a September 11, 2002, letter summarizing a preapplication meeting, the City confirmed that outdoor storage was not allowed on the Shady Park property:

The review of this application does not constitute approval of the outdoor RV [(recreational vehicle)] and boat storage, self service mini-warehouse storage, impounded vehicle storage, or vehicle dismantling and salvage. These uses are not allowed under the current zoning of NCC . . . . To be considered legal, non-conforming these uses must have been legally established with King County at this location prior to being annexed into the City of Kent in January 1996. Documentation of this prior approval from King County must be submitted to the City of Kent in order for the City to recognize these uses as legal, non-conforming.⁴

No documentation of prior approval by King County was ever submitted.

The Bergs purchased the Shady Park property in June 2006. In 2009, the City began receiving neighborhood complaints concerning increased storage of vehicles, heavy equipment, recreational vehicles, and boats stored on the Shady Park property. In February 2009, the City notified the Bergs by letter that the outdoor storage was not allowed within the NCC zone:

The zoning for this property is NCC. . . . Outdoor storage is not a permitted use in this zone. To be considered a legal, non-conforming use, the outdoor storage must have been legally established with King County at this location prior to being annexed into the City of Kent in January 1996. After reviewing the site history[,] . . . the City determined that outdoor storage was legally established on the site prior to annexation and that the degree of outdoor storage allowed on the site is that which is depicted on aerial photos taken in 1996, the same year the property was annexed to the City of Kent. A clearer image of the site taken in 1999 shows a similar level of outdoor storage. Enclosed are copies of both images for your use. Based on a site visit on January 21, 2009, the degree of outdoor storage has greatly increased beyond that which was legally established as a non-conforming use. Furthermore, Kent City Code Section 15.08.100.C states that no land devoted to a non-conforming use shall be expanded, enlarged, extended or intensified unless the use is changed to a use permitted in the district in which such land is located.⁵

The City ordered the Bergs to reduce the size of the outdoor storage area to the 1996 and 1999 levels.

Between February 2009 and March 2011, the Bergs increased the use of their property for outdoor storage despite ongoing inspections and demands by the City that they reduce usage to the level that existed in 1996. Based on the Bergs' assurance that they would comply, the City did not take enforcement action. In March 2011, the Bergs' property manager, Tom Glenn, met with City planning staff to discuss the outdoor storage. The City provided Glenn with an annotated 1999 aerial photo that outlined approximately 34,000 square feet of property on the west side of the Shady Park property that could be used for storage related to the auto repair business. Consistent with the City's previous position, the area outlined was based on the area of storage visible in the 1996 and 1999 aerial photos. The City informed the Bergs that they could apply for a conditional use permit (CUP) if they wanted to use the property in a manner inconsistent with the City's zoning. The Bergs did not apply for a CUP. Instead, in August 2011, the Bergs informed the City that they intended to use the entire site for storage, claiming the entire property was "grandfathered" into the zone.

In February 2012, after receiving new complaints about increasing use of the Shady Park property for storage, City Planning Director Fred Satterstrom met with Glenn to resolve the issue. The parties were unable to resolve the dispute. On March 9, 2012, the City issued a 50 page correction notice that contained 9 pages of detailed findings along with multiple exhibits documenting the history of the property and violations of the City zoning code. The correction notice required the owners to remove and cease operating the outdoor storage yard. After the Bergs failed to comply, on May 24, 2012, the City issued a notice of violation (2012 NOV) fining the Bergs $500 per day for the ongoing violations. The 2012 NOV incorporated the findings and exhibits included in the correction notice.

The Bergs filed an administrative appeal of the 2012 NOV with the City's hearing examiner claiming that the storage on the entire property was legal nonconforming use. The Bergs' appeal was heard by the City's hearing examiner over eight days between June 13 and September 15, 2013. The hearing examiner issued his final findings, conclusions, and order on December 3, 2013 (decision). The decision identified the hearing dates, testifying witnesses, and the exhibits submitted into the record during the hearing. The decision included the following findings:

1. The Notice of Violation Issued on May 24, 2012 alleged that violations of the Kent City Code have occurred at 27918 and 27824 152nd Avenue SE, in Kent, Washington, 98043, Parcel Number 3522059154; and, named the following persons as being responsible for the Code Violations: Donald I and Karen Berg; . . .

2. The Notice of Violation dated May 24, 2012 referenced a, Correction Notice dated March 9, 2012 (which was attached and incorporated by reference) for the legal and factual basis for this violation: "Outdoor storage including truck, heavy equipment, Recreational Vehicles, boats[,] and contractor storage yards."

3. The aforementioned Correction Notice alleged that the persons responsible for the violations included Donald I. and Karen Berg.

4. Mr. and Mrs. Berg were notified of and were given several opportunities to correct the violations and/or to work with the City of Kent to settle the dispute, which did not occur.

5. A preponderance of the evidence supports a finding that Mr. and Mrs. Berg violated the King County Code. For violations of the Code, the Notice of Violation assess a total fine of $500.00.

6. Mr. and Mrs. Berg are subject to additional civil and/or criminal penalties if any violation subject to the Notice of Violation is not corrected or abated. KCC 1.04.18D.A.4.

7. Abatement of the violations by the City is authorized, at the Berg[s'] expense. KCC 1.04.180.A.5.

8. Mr. and Mrs. Berg

...