2019 RAINIER AVE 2022-03-01 - Laserfiche WebLink

CONCLUSIONS OF LAW Jurisdiction The Hearing Examiner Pro Tern of the City of Everett has jurisdictional authority to hold a hearing and to issue the decision pursuant to EMC 15.16.100. Appeals of a Planning Director's decision are heard by the City's Hearing Examiner pursuant to the provisions of EMC 15.24. EMC 15.16. 1 10(A)(1). The Hearing Examiner's decision on the appeal is final. EMC 15.24.320.. Criteria and Standards for Review Title 15 does not provide a specific standard of review for the Hearing Examiner to use when reviewing the Director's administrative decision. In determining what standard to apply, the Hearing Examiner is guided by RCW 34.05, the Administrative Procedures Act (APA), RCW 36.70C, the Land Use Petition Act (LUPA), and decisions of the courts. A decision which applies the law to facts is subject to the "clearly erroneous" standard or review. A decision is clearly erroneous when, after reviewing the record as a whole, the reviewing body is left with the "definite and firm conviction that a mistake has been committed." Norway Hill Preservation & Protection Assn v. Kinq County Council 87 Wash.2d 267 (1976). In determining whether a land use decision is clearly erroneous, the reviewer must be deferential to factual determinations made by the highest forum below that exercised fact-finding authority. Davidson v. Kitsap County, 86 Wash. App. 673 (1997). In this case, that is the Planning Director for the City of Everett. CONCLUSIONS BASED ON FINDINGS The burden of proof for to demonstrate that the use or structure was legally nonconforming prior to the adoption of the City's zoning code in 1956 is upon the appellant. EMC 15.24.340, City of Univ. Place v. McGuire, 144 Wn.2d 640, 648 (2001); see also, Rhod-A-Zalea & 3e v. Snohomish County, 136 Wn.2d 1 (1998). 2. The Appellant has not submitted any documentation or testimony contrary to the City's evidence or in support of a finding that Building Number 1 existed as a duplex dwelling prior to 1956 thereby qualify it for certification as a legal structure/use. The Director's Decision finding that Building Number 1 is not a legal conforming use was not clearly erroneous. Findings of Fact Nos. 1, 3, 5, 6, 7, 8, and 9. 3. The Appellant did not obtain a building permit(s) prior to modification (enclosure) of the carport addition to Building Number 1 during the years of 1999 to 2004. The modified structure appears to encroach into the required setback which, due Before the Hearing Examiner Pro -Tern in the Appeal of Moreno #06-002 Page 6 of 8