Opinion
No. 25376-7-III.
April 12, 2007.
Appeal from a judgment of the Superior Court for Douglas County, No. 05-2-00344-5, John E. Bridges, J., entered July 18, 2006.
Affirmed by unpublished opinion per Kato, J. Pro Tem., concurred in by Schultheis, A.C.J., and Kulik, J.
Ray Foianini appeals the Chelan County Superior Court's decision granting Clark Cooke's request for a variance from the East Wenatchee Municipal Code (EWMC) to access building lots by a private access easement in lieu of a public street. He contends the court erred by granting the variance application because the application failed to comply with the applicable provisions of the EWMC and the record was insufficient to support the court's decision. We affirm.
In 2005, Mr. Cooke was in the process of developing Lot 31, a 12-acre parcel, in the Briarwood Subdivision. The Covenants, Conditions and Restrictions (CCRs) for the subdivision stated that "[n]o lot shall be subdivided or short platted with the exception of Lot 31 which may be subdivided and/or short platted." Clerks Papers (CP) at 83. On May 2, 2005, Mr. Cooke applied for a variance from the requirements of the EWMC, which required direct access to a public street and a minimum of 70 feet of frontage on the street for each lot. Mr. Cooke planned to divide the lot into three parcels and the variance would provide access to the lots by a private access easement.
On August 4, the East Wenatchee Community Development Department (Department) submitted its report to the East Wenatchee Board of Adjustment (Board) recommending approval of Mr. Cooke's application. On August 19, the Board denied the application. On August 31, Mr. Cooke filed a land use petition action (LUPA) in Chelan County Superior Court. On September 23, the parties stipulated to have the matter remanded to the Board for reconsideration of its findings of fact and conclusions of law on the variance application. A notice of public hearing was published by the Board. Mr. Foianini and other adjoining property owners also received notice of the hearing.
On October 12, the Board denied Mr. Cooke's variance application and reentered these findings of fact and conclusions of law.
FINDINGS OF FACT (From August 19, 2005 Notice of Decision)
. . . .
8. The variance is not appropriate due to special circumstances relating to the lot, shape, location, size and topography. The reasons set forth in the application and those listed above do not justify the granting of the variance. Therefore,
a) the variance requested do not constitute a grant of special privilege inconsistent with the limitation upon uses of other properties in the vicinity and zone in which the subject property is located.
b) the variance is not necessary because of special circumstances relating to the size, shape, topography, location or surroundings of the subject property to provide it with use rights and privileges permitted to other properties in the vicinity and in the zone in which the subject property is located and
c) the granting of such a variance will be materially detrimental to the public welfare or injurious to property or improvements in the vicinity and zone in which the property is situated.
. . . .
CONCLUSIONS (From August 19, 2005 Notice of Decision)
1. The proposed variance is not in compliance with the required findings outlined in Chapter 17.88 of the EWMC.
2. With the exception of the lot width at the street and access via a private street, the proposed lots are consistent with the dimensional standards, permitted land uses and lots size requirements of the R-L district as contained in EWMC 17.24.050.
3. Environmental Review has concluded that the proposal will not have a probable significant adverse environmental impact[.]
4. The proposal will be detrimental to the general public health, safety or welfare[.]
5. The public interests will not be serviced by the granting of the variance[.]
6. The proposal complies with the goals and policies for residential development contained in the City of East Wenatchee Comprehensive Plan[.]
CP at 44-45.
On October 19, Mr. Cooke filed an amended LUPA petition seeking reversal of the Board's decision. He argued the Board's findings of fact and conclusions of law were not supported by the evidence and did not conform to the law.
On March 22, 2006, Mr. Foianini, as intervenor, filed a brief arguing Mr. Cooke had failed to show the Board's decision was not supported by substantial evidence and it was not a clearly erroneous application of the law to the facts. On May 10, the court reversed the Board's denial of Mr. Cooke's application and ordered that the variance be granted. Mr. Foianini appeals.
He contends the court erred by granting Mr. Cooke's variance application. Under LUPA, a court may reverse a land use decision if one of the statutory criteria of RCW 36.70C.130 is met. The statute provides in relevant part:
(1) The superior court, acting without a jury, shall review the record and such supplemental evidence as is permitted under RCW 36.70C.120. The court may grant relief only if the party seeking relief has carried the burden of establishing that one of the standards set forth in (a) through (f) of this subsection has been met. The standards are:. . . .
(b) The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise;
(c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court;
(d) The land use decision is a clearly erroneous application of the law to the facts.
On appeal of an administrative decision, we review the record before the hearing examiner, including findings of fact and conclusions of law. N. Pac. Union Conference Ass'n of Seventh Day Adventists v. Clark County, 118 Wn. App. 22, 28, 74 P.3d 140 (2003). We must give substantial deference to both legal and factual determinations of local jurisdictions with expertise in land use regulation. Timberlake Christian Fellowship v. King County, 114 Wn. App. 174, 180, 61 P.3d 332 (2002), review denied, 149 Wn.2d 1013 (2003). Whether a land use decision is an erroneous application of law is a legal question we review de novo. Id. A decision is clearly erroneous only when the court is left with the definite and firm conviction that a mistake has been made. Boehm v. City of Vancouver, 111 Wn. App. 711, 716, 47 P.3d 137 (2002). We view the evidence and any reasonable inferences in the light most favorable to the party that prevailed in the highest forum exercising fact-finding authority. Davidson v. Kitsap County, 86 Wn. App. 673, 680, 937 P.2d 1309 (1997). Substantial evidence is evidence of a sufficient quantity to persuade a fair-minded person of the truth or correctness of the order. Benchmark Land Co. v. City of Battle Ground, 146 Wn.2d 685, 694, 49 P.3d 860 (2002).
Mr. Foianini first contends that the court erred in granting the variance because the variance was not necessary due to "special circumstances" pertaining to the lot. Mr. Foianini cites EWMC 17.88.050, which states in relevant part:
A. Applications for variances from the terms of the zoning ordinances, from the official zoning map, ordinance and from other land use regulatory ordinances prescribed by city ordinance, and no application for a variance shall be granted unless the board of adjustment finds:
. . . .
2. That such variance is necessary, because of special circumstances relating to the size, shape, topography, location or surroundings of the subject property, to provide it with use rights and privileges permitted to other properties in the vicinity and in the zone in which the subject property is located.
The Board found, without reference to any evidence in the record, that the variance was inappropriate due to special circumstances related to the lot. But according to the record, the CCRs for the subdivision specifically restricted the subdivision of any lot, with the exception of Mr. Cooke's 12-acre parcel. In order for him to seek short plat approval to subdivide his lot, Mr. Cooke was told that he was first required to seek a variance to access the lots by a private access easement in lieu of a public street.
Moreover, the Department's report submitted in favor of approving the variance specifically stated that the location, shape, and topography of Lot 31 represented a significant challenge for providing access and utilities to serve the property. The Department stated that the existing size of the lot would permit the creation of at least 20 lots in the subdivision, much more than proposed by Mr. Cooke. The Department found that although it would be possible to extend the existing public street to access Lot 31, the improvements necessary to serve the lot by a public street would require extensive excavation of the slopes that would have to be financially supported by the creation of more than three parcels on the lot. The Department therefore found that such circumstances supported the granting of a variance to access the property via a private rather than a public street. Based on this evidence, the court did not err by granting the variance due to "special circumstances" pertaining to the lot. Mr. Cooke's application was properly granted on this basis.
Mr. Foianini also contends that Mr. Cooke's reliance on EWMC 17.24.020 and 17.24.050 to support his variance application was misplaced. He argues Mr. Cooke was required to follow the provisions of EWMC 16.20 pertaining to subdivisions.
EWMC 17.24 relates to the R-L Residential Low Density District and states in pertinent part:
The following uses shall be permitted uses in the R-L district:
A. Single family dwellings . . . but not to exceed one dwelling on any one lot; provided, the lot abuts on a public street; provided further, that the board of adjustment may grant a variance to this regulation and grant approval to secure a building permit upon making the finding that the private easement is of adequate width, alignment, grade and restricted length to afford the same degree of public safety as a public street. EWMC 17.24.020(A).
The following are dimensional standards in the R-L district:
. . . .
B. Minimum width of lot at building line: 70 feet. Corner lots shall have a minimum width at the building line of 80 feet, except as provided in EWMC 17.72.020(D).
EWMC 17.24.050(B).
The provisions of EWMC 16.20, however, relate to design standards for subdivision plat approval. EWMC 16.20.090 details the minimum standards for public streets and sidewalks. EWMC 16.20.100 relates to private streets and states the following: "Private streets in any subdivision whether recorded or not shall conform to minimum standards as required by the council."
But here, Mr. Cooke was not seeking preliminary plat approval. The requirements of EWMC 16.20 were thus not yet applicable. Moreover, the Community Development Director for the City of East Wenatchee informed Mr. Cooke that his short plat application could not be approved without a variance from the requirements of EWMC 17.24.020(A) and 17.24.050(B). Accordingly, the variance application under EWMC 17.24 was the first step in the process of developing Lot 31. Mr. Cooke's reliance on EWMC 17.24 therefore was not misplaced.
Based on the record, there is substantial evidence to establish that the variance was necessary due to special circumstances related to the lot. Moreover, Mr. Cooke appropriately followed the procedures outlined in EWMC 17.24 in submitting his variance application. The court did not err by granting the variance application.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, A.C.J. and KULIK, J., concur.