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� <br /> �] M <br /> �a ro <br /> i0 G <br /> � � � . ._ '1 "�`R*,a.v:: . <br /> N 't F(7 <br /> � H 7�1 <br /> O C O <br /> � N M <br /> � z � free use, without any responsibility for <br /> �" � � taxes, would not interfere with the welfare of <br /> °� � � the general public. <br /> n �° <br /> � y � 3 . The Hearing Examiner's decision failed to consider. a definite <br /> discrepancy between Mr. Stark's survey and the plat plans on file <br /> H wi.!� the Snohomish County Assessor's Office. Before any permit is <br /> � o N granted, the city's civil engineering staff and surveyor : hould <br /> � cGa r confirm the survey of the property line of Mr. Stark, and this <br /> � o � should be done at no cost to him or to the adjacent property <br /> owners. <br /> 4 . The Hearing Examiner's decision fails to place any parameters <br /> on the special permit, including length of duration, conditions �or <br /> granting, or fence height (the City Code provides for 6-foot <br /> fences, and Mr. Stark proposes a 7-foot fence) . <br /> III. Alleaed Errors of Law. <br /> 1. The authority of the City as delegated by its legislative <br /> body, or Hearing Examiner, to issue special permits is limited by <br /> the standards set forth in4782 P°n2nd 5501n(1970) . L Everett <br /> f . Tumwater, 2 Wn. App. 750, <br /> � 1_�' *•iunicipal Code Section 13.30.010 states: <br /> `� <br /> � ; "Special temporary use of city rights-of-way, <br /> alle s within the city, <br /> ��►, wheredsuch use is non-ex�l.usive and will not <br /> �� interfere with oublic convenience, R�ay be <br /> : granted by the Public Works Department." <br /> EMC 13.30.010 makes ic clear that such use must be non- <br /> I v� exclusive and not interfere with public convenience. Erecting a 7- <br /> foot high fence 7 1/2 feet into the city's right-of-Way is clearl;� <br /> exclusive use of the property by the applicant, and violates thie; <br /> e city' s code section. "Exclusive" i5 defined in Black's L-a�a <br /> � �( � Dictionary as "appertaininq to the subject alone, not including, <br /> admitting, or pertaining to any others. . . shutting out; debarring <br /> from i.nterference or participation; vested in one person alone." <br /> ! � The applicant's erection of a fence squarely falls into the <br /> ���,.� � definition of exclusive use and violates this city code section. <br /> A� n�ted in the ;ase of Maranatha Minin the Court ofCAppeals5said, <br /> ppp. 795, 804 , 801 Pac. 2nd 985 (1990) , <br /> � � <br /> ��i �. ��To the extent that the council 's decision was an <br /> exercise of police power, L•eviewable under the arbitrary <br /> and capricious standard, the council's denial of the <br /> pei�nit presents a textbook example of arbitrary and <br /> capricious action: without consideration and in <br /> disregard of the facts. . . . [citations omitted] . A <br /> ZION LUTHERAN CHURCA APPEAL - 4 <br /> realest. zionluth.apl <br /> _ - — / <br />