Van Sant v. City of Everett
| Decision Date | 03 May 1993 |
| Docket Number | No. 28049-0-I,28049-0-I |
| Citation | 69 Wn.App. 641,849 P.2d 1276 |
| Court | Washington Court of Appeals |
| Parties | Craig VAN SANT and Laura Van Sant, husband and wife, Respondents, v. The CITY OF EVERETT, a municipal corporation, Appellant, and Carolyn Lively; Terry Slatten; Mark Sullivan; and Joanne Wildman, Third Party Defendants. Division 1 |
Bradford N. Cattle, Anderson & Hunter, Everett, for respondents.
The City of Everett appeals the Superior Court's reversal and remand of an Everett hearing examiner's decision. We affirm in part and reverse in part.
Respondent Craig Van Sant filed an application for a non-conforming use permit for property located at 4228 South Third in Everett. Such permits are governed by provisions of Everett City Code Chapter 19.56. Everett's Director of Planning and Community Development granted Van Sant a certification of non-conforming commercial and multi-family use on October 26, 1989, allowing automobile detailing on the main floor and three multi-family units on the second floor of Van Sant's property. Neighbors Carolyn Lively, Terry Slattern, Mark Sullivan and Joanne Wildman appealed the decision to the City of Everett Hearing Examiner.
At the resulting hearing before the examiner, Van Sant presented evidence that in 1972 the City's Board of Adjustment had acknowledged the commercial non-conforming use right of the property by authorizing a previous owner to Van Sant also presented evidence establishing that when the prior owner, Mr. Cole, acquired the property a recycling business was being conducted on the premises. Van Sant contends that when Cole became the owner he used the first floor of the building for operation of a neon glass plant and for storage. Cole also blew glass on the premises as a hobby.
"utilize the vacant non-conforming commercial structure for commercial purposes." A multi-family residential use was not acknowledged or approved by the Board of Adjustment at that time or any later date.
Some neighbors confirmed that Cole used the premises to run a business. One neighbor, Don Fletcher, testified that he saw neon companies pick up products on a daily basis. Van Sant testified that he owned the house across the street from the premises in question for 10 years and he saw glass blowing and manufacturing going on. In contrast, other neighbors claimed that there was little evidence of a business being conducted on the premises.
Marian Paine, an Everett housing inspector, testified that the City posted the building as illegal to occupy for residential purposes in 1974. Paine also testified that Cole was uncooperative in getting permits and bringing the structure up to code and, therefore, no permits had been issued. Mr. Irvine, from City Planning, testified that the City had no record of any federal, state, or local tax payments that would indicate that income was being generated on the premises. The City could find no record of a business license ever being issued. Nor were there fire inspection records on file.
Cole testified that the work done on site was for other businesses and the taxes and business licenses were all handled through different companies. He stated that he never conducted a business using his own name or tax identification number and there were no commercial sales out of the site. Any income generated from the location was reported by companies that did not have an ownership interest in the site, and employees were paid by different companies. Cole also stated that there was continuous use of the property for business purposes from 1972 to 1989.
Following the December 19, 1989, hearing, the hearing examiner issued a written decision on January 12, 1990, granting the neighbors' appeal and withdrawing the certification of non-conforming use. The following findings are of particular importance for this appeal:
Findings of Fact
7. During the time Mr. Cole owned the subject property, no Business License was acquired from the State of Washington or the City of Everett for the use of the property. No registration of the property was made with any of the taxing departments of the State of Washington. The building was used in conjunction with Mr. Cole's business, a neon sign company, that had its main office in Seattle.
8. During the period of time Mr. Cole owned the property, his main place of business was in Seattle. The activity in the building on-site was done during off hours, or when Mr. Cole brought work home from the Seattle plant. Any non-conforming commercial use of the property has terminated because the variance of April 3, 1972, has lapsed, and, the commercial use has not been continuous since that time to the present.
....
11. The historical use of the building on the subject property includes numerous violations of City of Everett's codes....
....
12. No non-conforming use of the property as a multi-family residence has existed for the building and property.
3. Any non-conforming commercial use of the property that may have existed as a result of a variance that was issued on April 3, 1972, has terminated. The variance has lapsed.
....
6. The non-conforming commercial use of the property has not been continuous, and, therefore, the property is not a commercial non-conforming use.
7. No multi-family residential non-conforming use has been established for the subject property.
The Applicant contended that the previous owner of the property established it as a commercial use. The basis of this contention is that the City, through the Everett Board of Adjustment, on April 3, 1972, established the non-conforming commercial status of the building. According to the Applicant, the previous owner, who purchased the building The weakness in the Applicant's argument is the fact that no licensed or taxed commercial activity has occurred on the site. At no time during the previous ownership was there a Business License issued by the City of Everett for the business activity on-site; and, at no time during the previous ownership were Business and Occupation taxes ever paid to the City of Everett for the business conducted on-site.
on May 12, 1973, continued the non-conforming commercial use until he sold the property to the Applicant, who contends that the commercial use has been continued to the present.
....
... Thus, because no official or documented activity has been transacted on the property, the use cannot be considered non-conforming for commercial use in the R-2 zone.
On January 29, 1990, Van Sant filed a request for reconsideration of the January 12, 1990, decision. At a February 22, 1990, hearing more evidence was presented concerning commercial activity. In a decision dated March 8, 1990, the hearing examiner concluded once again that Van Sant had failed to establish a non-conforming legal use. Significant portions of this decision read:
The activity on the subject property in the past has been in conjunction with other business uses. However, there are no business records, taxation records, or any permits from the City of Everett with regard to the commercial activity on the subject property noted.
A complete review has been made of the Request for Reconsideration. The Applicant has failed to document the legal use of the subject property for commercial activity. As noted in the original Findings and decision of January 12, 1990, there is no specific proof that the activity on-site was a commercial activity that was authorized or licensed by the City of Everett.
DISCUSSION
In reviewing a Superior Court's reversal of a hearing examiner's decision, the appellate court conducts its own review of the record before the hearing examiner. Grader v. Lynnwood, 45 Wash.App. 876, 879-80, 728 P.2d 1057 (1986). On questions of fact the reviewing court applies the arbitrary and capricious standard. Abbenhaus v. Yakima, 89 Wash.2d 855, 858-9, 576 P.2d 888 (1978). On issues of law the court applies the error of law standard. Franklin Cty. Sheriff's Office v. Sellers, 97 Wash.2d 317, 324, 646 P.2d 113 (1982), cert. denied, 459 U.S. 1106, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983); Fisher v. Employment Sec. Dep't, 63 Wash.App. 770, 773, 822 P.2d 791 (1992); Schmitt v. Cape George Sewer Dist. 1, 61 Wash.App. 1, 4, 809 P.2d 217 (1991). Under the error of law standard the reviewing court may substitute its own judgment. However, substantial weight is generally given the agency's view of the law. Franklin, 97 Wash.2d at 325, 646 P.2d 113; Schmitt, 61 Wash.App. at 4, 809 P.2d 217. The error of law standard also applies to mixed questions of fact and law. Devine v. Department of Employment Sec., 26 Wash.App. 778, 781, 614 P.2d 231 (1980).
Proceedings before quasi-judicial administrative bodies, including zoning proceedings, are not governed by strict rules of judicial procedure. See Mitchell Land Co. v. Planning & Zoning Bd. of Appeals, 140 Conn. 527, 102 A.2d 316, 321 (1953); Woodbury v. Zoning Bd. of Review, 78 R.I. 319, 82 A.2d 164, 166 (1951); National Heritage, Inc. v. Pritza, 728 P.2d 737, 738 (Colo.App.1986).
The City asserts that the record of proceedings does not establish that the hearing examiner improperly placed the burden of proof on the permit applicant. We disagree.
The City is correct that the initial burden of proving the existence of a non-conforming use is on the land user The...
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