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AIN-27-93BOARD OF ADJUSTMENT SPOKANE COUNTY, WASHINGTON APPEAL OF AN ADMINISTRATIVE ) INTERPRETATION OF THE ZONING ) CODE FOR SPOKANE COUNTY IN ) RELATION TO A BUILDING PERMIT 1 APPROVAL ) FILE: AIN-27-93 ) APPELLANT: SAM P. WOOD ) COMPANION FILES: NONE ) FINDINGS OF FACT, CONCLUSIONS, AND DECISION APPLICATION DESCRIPTION: This matter, being an appeal of an action by the Spokane County Planning Department (the "Department"), approving the issuance of a residential building permit authorizing the replacement of a single wide manufactured home with another single wide manufactured home. The Board of Adjustment, hereinafter referred to as the "Board," having held a public hearing on November 17, 1993 and having fully considered all testimony, as well as, File No. AIN-27-93, does hereby make the following decision. PROJECTLOCATION: Approximately 150 feet east of Dearborn Street, in the N 1/2 of Section 23, Township 25N, Range 43 EWM; 4510 E. 7th Avenue; Assessor's Parcel No.: 35232.4413. OPPONENTS OF RECORD: Jayn and Randy Courchaine, Doris Williamson and Carol Riehle. FINDINGS OF FACT 1. The proper legal requirements for advertising the hearing before the Board of Adjustment have been met; except the file does not indicate that adjacent property owners were mailed the Notice of the Hearing by certified mail as required by sections 14.412.041, 14.404.060 and 14.402.160.2 of the Zoning Code of Spokane County ("Code" hereinafter). However, Heather Dressor, Secretary to the Board of Adjustment did mail a Notice of a Hearing to Jayn Courchaine a few days before the hearing and Ms. Courchaine appeared at the hearing and presented testimony. An Affidavit to this effect was entered into the record. Doris Williamson and daughter, Carol Riehle, appeared and spoke at the hearing, supplementing the record with testimony in support of denying the appeal. 2. The circumstances are described above and detailed in documents contained in the file; specifically, the following is relevant. a. Prior to the adoption of the present zoning, Urban Residential-3.5 (UR 3.5), the zoning of the subject parcel allowed a single wide manufactured home. b. The lot at 4510 E. 7th Avenue was and is one of several in the area containing a single wide manufactured home. The lot in question is 50 feet wide by 135 feet deep and contains currently and previously single wide manufactured homes oriented in a north - south direction, close to the west property line; that is with its narrow end parallel to the street. CASE NO. AIN-27-93 SPOKANE COUNTY BOARD OF ADJUSTMENT PAGE 2 c. Prior to the placement of the present single wide manufactured home (on or about 9/93) on the subject parcel, the appellant, Sam P. Wood purchased and began improving property across the street from the subject property. d. The previous manufactured home (8 feet by 45 feet) was removed by its owner, who had been renting the lot from Randy and Jayn Courchaine. e. Some time prior to August, 1993, the Courchaines entered into an agreement with Arthur and Doris Williamson to rent the subject property and to allow the Williamsons to place a single wide manufactured home on the property for their daughter. f. On or about September 22, 1993, Doris and Arthur Williamson applied for and were granted a permit to place a single wide manufactured home (14 feet by 70 feet) on the subject property. The Planning Department personnel signed the building permit, stating, "Replacement of a nonconforming single wide manufactured home with another single wide manufactured home." g. Upon seeing the replacement manufactured home moved onto the property, the appellant Wood filed a timely appeal on October 12, 1993. The appeal alleged, among other things that the replacement manufactured home does not conform to the existing UR 3.5 zoning, which zoning allows only double wide, Class A manufactured homes. The appellant alleges, and no party disagreed, that the manufactured home which was removed was livable, was not damaged by fire, flood or act of nature and that it had not been abandoned for a period of time exceeding one year. Further, the former manufactured home was not in need of restoration in order to become habitable. The appellant cites Code, section 14.508.060, Nonconforming Building and Structures. 4. The present zoning, and the zoning at the time the replacement in September/October, 1993 occurred, is UR-3.5. Residential use is an allowed use; but, the nature of the residential structure is the subject of some qualification and limitation. Section 14.605.020 of the Zoning Code indicates a manufactured home is permitted in the UR-3.5 zone, subject to qualifying as a Class A manufactured home, as per the requirements of section 14.808.060 of the Code. This section of the Code contains 6 criteria which a manufactured home must meet (the standard of "acceptable similarity" appearance) in order to qualify as a Class A manufactured home. One of them is that the minimum width the manufactured home shall be 24 feet. The replacement manufactured home of 10/93 does not so qualify. Additionally, the standard is that the portion of the manufactured home nearest the public street frontage must be at least 36 feet in dimension parallel to the public street. The replacement manufactured home does not so qualify as it is placed on the site. The Code defines "nonconforming" in section 14.300.100 and stipulates that it is a lot, use, building or structure which was legal when commenced; but, which does not conform to subsequently enacted regulations (emphasis added). It was established in the hearing that the subject lot is a legal nonconforming lot. The use of the property is residential, is an allowed use and doesn't need to be established as nonconforming. It was also established that the building or structure, in this case a single wide manufactured home and dwelling unit/residence designed for human habitation, is a nonconforming structure or building; that is, it is not the type of manufactured home permitted as a Class A. HD/AIN-27-93 decision CASE NO. AIN-27-93 SPOKANE COUNTY BOARD OF ADJUSTMENT PAGE 3 5. The Board discussed at considerable length whether replacement of the single wide manufactured home with a another single wide manufactured home amounted to restoration or repair of a nonconforming building or structure (Code; section 14.508.060) or the expansion or extension of a nonconforming use (Code; section 14.508.040). Regarding expansion or extension of a nonconforming use, the Board had little trouble agreeing that the replacement was not expansion of a nonconforming use. The Board investigated the dictionary definition of 'extension.' (In the event that a word is not adequately defined in the Code, the Code references Webster's Collegiate Dictionary.) Examining Webster's 9th New Collegiate Dictionary, the Board found the 5th definition to be "an increase in length of time; specif an increase in time allowed under agreement or concession [was granted an — ]." After considerable discussion, the majority of the Board agreed that 'extension' of nonconforming use could in fact be an increase in length of time that a nonconforming use exists and that such extension would likely be addressable under the conditional use permit established for expansion or extension of nonconforming uses in section 14.508.040 of the Code. Residential use in a single wide manufactured home is not permitted in the zone at this time; except in manufactured home parks. The Board went on to examine section 14.508.060 of the Code (Nonconforming Buildings and Structures) wherein it states that restoration of a nonconforming building or structure which is damaged by fire, flood or act of nature shall be initiated, as evidenced by issuance of a valid building permit, with one year. (emphasis added). There was no such qualifying damage. Replacement of the manufactured home in 10/93 is not a qualifying upkeep, repair and maintenance. The Board then discussed whether or not the provisions of the Code (section 14.508.060), with respect to "upkeep, repair, and maintenance of nonconforming building," were germane. No claim of upkeep, repair and maintenance was made or established. The previous single wide manufactured home (prior to removal in July or August of 1993) was apparently a livable, habitable dwelling. Finally, the last sentence of 14.508.060 states: "A building or structure conforming with respect to use, but not conforming with respect to height, yard requirements, coverage or density, may be restored in the event of damage, or altered or extended provided that the alteration or extension does not result in further violation of this Code." The current situation is neither restoration resulting from damage nor does the pre 8/93 structure qualify as altered or extended in the context of the last sentence of section 14.508.060.1 No testimony was presented that the former manufactured home was damaged in any way which would necessitate its alteration. 6. The Board from time to time found itself discussing: (a) the concept that expansion or extension of nonconforming uses are discouraged (Zoning Code, section 14.508.040); and (b) the public policy of the State of Washington is to restrict rather than increase nonconforming uses.2 Whereas, expansions or extensions of nonconforming uses are discouraged and restricted; no language to discourage/restrict nonconforming buildings or structures exists within the Code, section 14.508.060. 1 "A building or structure conforming with respect to use, but not conforming with respect to height, yard requirements, coverage or density, may be restored in the event of damage, or altered or extended provided that the alteration or extension does not result in further violation of this Code. 2 Keller v. Bellingham, 20 WN, App. 1, 9, 578 P.2d 881 HD/AIN-27-93 decision CASE NO. AIN-27-93 SPOKANE COUNTY BOARD OF ADJUSTMENT PAGE 4 CONCLUSIONS 1. The Board acknowledges that the adverse party of record, Jayn and Randy Courchaine did not receive notice by certified mail. Information from the Planning Department, clarified to the Board in the meeting in which it signed this decision, substantiates that the Courchaines had actual notice of the hearing by receipt of the official notice and receipt of the appeal document containing the hearing date. The Courchaines attended the hearing and participated fully in that hearing. As a result, although there was technical non-compliance with required notice, the Board concludes that the applicant Courchaines had adequate notice to make their case and were not prejudiced by lack of certified mail notice. 2. Residential nonconforming use of the property is not an issue. The Board makes a clear distinction between nonconforming use and nonconforming building/structure. The use is residential and conforms to the present Code. The building is nonconforming. 3. Based upon conclusion number 2, the entire decision on this issue rests in Code section 14.508.060, Nonconforming Buildings and Structures. Arthur and Doris Williamson sought and received the administrative approval of the Department to place a serviceable, single wide manufactured home on the lot. Several authorizations regarding nonconforming buildings and structures are set forth in section 14.508.060: (a) restoration when a structure is damaged by fire, flood or act of nature (within one year of such damage); (b) upkeep, repair and maintenance of the existing nonconforming structure is permitted; and (c) a structure conforming with respect to use, but not conforming with respect to various dimensional standards (height, yard requirements, coverage or density are actually stated) may be restored in the event of damage or such a structure may be altered or extended provided that the alteration or extension does not result in further violation of the Code. In the present case, even if total replacement is deemed alteration or extension, the Class A standards of the Code are violated. DECISION From the foregoing Findings of Fact and Conclusions, the Board of Adjustment APPROVES the appeal and reverses the Planning Department's administrative decision to approve the building permit for the replacement manufactured home. The applicant is encouraged to consult with the Planning Department for any additional available options. DA 1ED this 15th day of December, 1993. BOARD OF ADJUSTMENT OF SPOKANE COUNTY, WASHINGTON 'Scott R. Smitii, trperson HD/AIN-27-93 decision CASE NO. AIN-27-93 SPOKANE COUNTY BOARD OF ADJUSTMENT PAGE 5 Martin E. Hibbs Paul E. Eichin Dr. Wayne D.\Powel FILED: 1) Appellant (Certified/Retum Receipt Mail) 2) Opponents of Record 3) Spokane Division of Engineering and Roads 4) Spokane County Health District 5) Spokane County Division of Utilities 6) Spokane County Division of Buildings 7) Planning Department Cross-reference File and/or Electronic File APPEAL SHALL BE TO A COURT OF COMPETENT JURISDICl ION FOR A WRIT OF CERTIORARI, A WRIT OF PROHIBITION OR A WRIT OF MANDAMUS WITHIN 10 DAYS OF THE DAIL OF THIS DECISION. (Section 14.412.042.1. of the Zoning Code of Spokane County). HD/AIN-27-93 decision