4611 COLLEGE AVE 2018-01-02 MF Import

i f= � � b � p 6 C H � H N iI M � � K y � JAMES M. DRISCOLL, Hearing Examiner, Cit]� of rverett � m � August 14, 1992 Page 3 N � REQUEST FOR RECONSIDERATION - ZION LUTHERAN CHURCH � � � O H $ H =� a owners. � ~ �a H S N '3 4 . The Hearing Examiner's decision fails to pla�� any parame ers $ y on the special permit, incluc�ing length of duration, conditions for �So H granting, or fence height (the City Coc,e provides for 6-foot � �y � fences, and Mr. Stark proposes a 7-foot fence) . O N III. Alleaed Errors of Law. 1. The authority of the City as delegated by its legislative body, or Iiearing Examiner, to issue spec al permits is limited by the standards set forth in the zoning ordinance. Lund vs. Tumwater, 2 Wn. App. 750, 4782 P. 2nd 550 (1970) . Everett Municipal Code Section 13.30. 010 states: "Special temporary use of city rights-of-way, including . . . alleys . . . within the city, where such use is non-exclusive and wlll not interfere with nublic convenience, may be j granted by the Public Works Department. " � ��' EMC 13 . 30. 010 makes it clear that such use must be non- � ; exclusive and not interfere with public convenience. Erecting a 7- ( foot high fence 7 1/2 feEt into the cit}'s right-of-way is clearly �� exclusive use of the property by the applicant, and violates this �� city's code section. "Exclusive" is defined in Black's Law Dictionary as "appertaining to the subject alone, not including, admitting, or pertaining to any others. . . . shutting out; debarring from interference or participation; vested in one persan alone. " � �� The applicant's erection of a fence squarely falls into the definition of exclusive use and violates this city code section. ' .e 2. The Hearing Examiner erred in concluding that EMC �) � 13. 30.040 sets forth the criteria fur the issuance of a temporary use permit. EMC 13.30.040 is entitled "Exceptions. " 13.30.040 (A) establishes that the annual permit fee establish=d in 13 .30.030 +. �� shall not apply in certain situations. 13. 30.040(B) provides that ��,.�� whenever the use of the city right-of-way involves leasing or renting of said city right-of-way, then the exception shall not � apply either. EMC 13 _30.040 is clearly limited to exceptions of permit fees, and the only section that is relevant is 13 .30.010, ��,�,. which defines when special temporary uses of city rights-of-way may be granted, which is when they are non-exclusive and will not interfere with public convenience. 3 . The applicant's property nay be in a single family zone, but it is surrounded by properties with other zoning classifications and will interfere with public convenience and/or