4228 S 3RD AVE 2018-01-02 MF Import

�U Third A .,4uc Fr40W6P IN THE MATTER OF THE APPEAL OF CAROL '' FEB 1 a 1994 LIVELY, TERRY SLATTEN, MARK SULLIVAN........1-.....• . AND JOANNE WILDMAN CITY OF E s Dept. Appeal #11$9 Public Works Dept. DENIAL OF MOTION FOR RECONSIDERATION On January 10, 1994, the Hearing Examiner of the city of Everett granted certification of a commercial non -conforming use of property at 4228 South Third, Everett, Washington. The approval was granted after the case had been remanded to the Hearing Examiner by the Washington Court of Appeals. The Washington Court of Appeals determined in a decision, VanSant vs City of Everett 69 Wn.App. 641, 849 P.2d 1276, that the Hearing Examiners original withdrawal of the certification of commercial and multi -family non -conforming uses on the property was in error. The Court of Appeals indicated that the Hearing Examiner incorrectly applied the burden of proof and the standai ds for review of the commercial non- conforming use. The Court upheld the Hearing Examiner's denial of the mufti -family non- conforming use. The January 10, 1994, decision was based on the record developed at the original hearings in this matter as well as the hearing field pursuant to the remand. The legal directions as enunciated in the Court of Appeals case were applied. Specifically, it was determined that the abandonment of the commercial non -conforming use had not been proven because there had been no proof of an intention to abandon. In VanSant, supra. the !Iourt twice cited the requirement that there be a proof of an intention to abandon. It stated on page 648: "The abandonment of a non -conforming use ordinarily depends upon a concurrence of two factors: (a) an intention to abandon; and (b) an overt act, or failure to act, which carries the implication that the owner does not claim or retain any interest in the right of the non -conforming use." The Court also said: 'Therefore, if the City is unable to prove (1) intent to abandon and (2) action or failure to act that would constitute abandonment, VanSant gets to keep his non -conforming use." The Hearing Examiner, based on the record and the record produced at all hearings in this matter, determined that the city had not proven any intent to vacate or abandon the commercial non -conforming use.