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HomeMy WebLinkAboutDurgan, Decision denying appeal of Code Interpretation, MLA20-00073 DECISION – DENYING APPEAL OF CODE INTERPRETATION – FILE NO. MLA20-00073 Page 1 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY Before Hearing Examiner Gary N. McLean BEFORE THE HEARING EXAMINER FOR JEFFERSON COUNTY In the Matter of the Appeal of CRAIG DURGAN, of a Code Interpretation issued by the Jefferson County Department of Community Development __________________________________ ) ) ) ) ) ) ) File No. MLA20-00073 DECISION DENYING APPEAL I. SUMMARY OF DECISION. The appeal is denied. The challenged Code Interpretation is affirmed. II. PROCEDURAL BACKGROUND. This matter comes before the Hearing Examiner as an appeal of a formal Code Interpretation issued by the County’s Community Development Director/Unified Development Code (UDC) Administrator on or about September 13, 2021 (Ex. B), following a written request for an interpretation explained in a letter submitted by Appellant’s counsel, Mr. Gribben and Mr. Tran, on or about June 24, 2021 (Ex. C). There is no dispute that the pending appeal was timely, as it was filed on or about September 27, 2021. (Ex. A). Scheduling for this appeal was impacted by the retirement of the County’s previous Examiner in late 2021 and the process to appoint a new hearing examiner, who began service in January of 2022. Shortly after this matter was assigned to the undersigned Examiner, counsel for the appellant and the County participated in a Pre-Hearing Conference, on January 4, 2022, where they agreed on a briefing schedule for an anticipated motion to dismiss from the County. After the conference, the County filed a Motion for Summary Judgment, the appellant submitted a written response opposing the motion, and the County filed a reply brief, all submitted with supporting materials. Copies of all briefs and attachments are included as part of the record. DECISION – DENYING APPEAL OF CODE INTERPRETATION – FILE NO. MLA20-00073 Page 2 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY III. RECORD. Exhibits entered into evidence as part of the record, and an audio recording of the oral arguments by counsel, are maintained by the Jefferson County Department of Community Development, in accord with applicable law. In this Decision, materials included as part of the Record are numbered and identified as follows: A. Notice of Appeal, dated September 27, 2021; B. Code Interpretation challenged in this appeal, issued September 13, 2021; C. Request for Code Interpretation, from Appellant’s counsel, dated June 24, 2021; D. Previous Code Interpretation, never appealed, issued September 22, 2020; E. Motion for Summary Judgment, filed by the County on January 14, 2022; F. Appellant’s Brief in Opposition to County’s Motion, dated January 28, 2022; G. County’s Reply Brief, dated February 2, 2022; and H. Post-hearing emails from counsel for both parties to the Examiner’s designated clerk, providing citations to additional legal authority on topics raised during their oral arguments. The Examiner has had a full and fair opportunity to consider all evidence submitted as part of the record; has visited the project site and surrounding area; has reviewed and researched relevant codes, caselaw, and ordinances; has considered all arguments offered by counsel for each party; and is fully advised. Accordingly, this Decision is now in order. IV. FINDINGS OF FACT. 1. Any statements of fact or findings set forth in previous or subsequent portions of this Decision that are deemed to be findings of fact are hereby adopted and incorporated herein as such. Captions are used for some groups of findings but should not be construed to modify the language of any finding, as they are only provided to make it easier for readers to identify some of the key topics addressed in this Decision. 2. At some point in or about May of 2006, Craig Durgan, the appellant in this matter, purchased a 3.55-acre property located at 61 Pomwell Road in the Port Hadlock area of unincorporated Jefferson County, identified as tax Parcel No. 901111005. The property is within the County’s Irondale and Port Hadlock Urban Growth Area. (Ex. F, Appellant’s Brief on pages 2 and 3, and Mr. Durgan’s Declaration; Ex. B, Code Interpretation on appeal, issued in September of 2021). 3A. The Durgan Property is within what is known as the Port Hadlock Urban Growth Area Overlay. The area is in an overlay district because it is not yet served by sewer. See Ex. E, County’s Motion for Summary Judgment, unchallenged facts summarized on page 3; See Irondale Community Action Neighbors and Nancy Durgan v. Jefferson Cy., Western Washington Growth Management Hearings Board (“WWGHMB”) Case No. 04-2-0022 at DECISION – DENYING APPEAL OF CODE INTERPRETATION – FILE NO. MLA20-00073 Page 3 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY 48-51 (Final Decision and Order, May 31, 2005) (finding Port Hadlock UGA, which included large areas for which no public sewer would be provided in the 20-year planning horizon, noncompliant with RCW 36.70A.110). 3B. In 2005, the County’s proposed Port Hadlock Urban Growth Area (UGA) was found noncompliant with Growth Management Act, so the County eventually adopted rural zoning in a “rural transitional” zoning for the overlay area, which was eventually deemed “compliant” by the Growth Management Hearings Board in 2010. An overview and history of the UGA transitional zoning is contained in the Code Interpretation issued by the County in 2020, a copy of which is included in this Record as Ex. D. There is no dispute that the 2020 Code Interpretation was never appealed, despite express language on the last page explaining the opportunity to and deadline for any appeal. 4. There is no dispute that the Durgan property is currently developed with a mini- storage facility, all constructed by previous owners in the early 1990’s. Mr. Durgan’s predecessor originally intended to develop over 25,000 feet of mini-storage facilities in several phases, but only built about half of their planned space, resulting in 12,780 square feet of mini-storage building space on the property. (Ex. A, Notice of Appeal, on page 2; Ex. E, County’s Motion for Summary Judgment, on page 3; Site visit). 5. There is no dispute that the mini-storage business use of the appellant’s property commenced at some point after the buildings were constructed; that the previous owners continuously operated such business; and that Mr. Durgan continued such use without interruption since he acquired the site in 2006. 6. The appellant concedes that, because of changes to land use designations and the Jefferson County Code since the time the mini-storage facility was developed in the early 1990s, the mini-storage facility has become a legal nonconforming use. (Ex. A, Notice of Appeal, on page 2). 7. In the Spring of 2020, Mr. Durgan approached County staff with a proposal to construct two additional mini-storage buildings on his property, one with 6,000 sq.ft. and the other with 6,750 sq.ft. He attended a pre-application conference regarding his proposal on April 14, 2020. (Ex. F, Appellant’s Brief, Declaration of Mr. Durgan, attached preapplication meeting notes). 8. During the pre-application conference in April of 2020, Community Development Department staff informed Mr. Durgan that the existing mini-storage use on his property was a nonconforming use due to the transitional zoning of Rural Residential 1 Dwelling Unit/10 Acres (“RR 1:10”), and that there were limits on his ability to expand such use. (Ex. D, Previous Code Interpretation issued in 2020, background summary of pre-application conference on page 1 of 12; Ex. F, Appellant’s Brief, attached Declaration from Mr. Durgan Paragraph 2 on page 1, with copy of his pre-app. meeting notes that include the following DECISION – DENYING APPEAL OF CODE INTERPRETATION – FILE NO. MLA20-00073 Page 4 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY statements: “Zoning – current zoning is Urban Growth Area – Light Industrial (UGA-LI); transitional zoning is Rural Residential 1:10 (RR 1:10). Transitional zoning must be used until the sewer system is installed per JCC 18.18.060(4)(b) and JCC 18.19.110. Mini storage facilities are not allowed in areas zoned RR 1:10; however, once the sewer system is installed, mini-storage facilities could be approved in areas zoned UGA-LI.”). 9. Shortly after the pre-application meeting in 2020, Mr. Durgan’s attorneys submitted a letter generally arguing that a special expansion exemption should apply; that the Durgan property should be considered as zoned Urban Light Industrial, which allows for a mini- storage use; and that certain limits on expansion of non-conforming facilities should be read favorably to his proposal, among other things. The letter specifically requested that his issues should be addressed through a formal Code Interpretation but did not include any application or fee to commence such process. (See Ex. D, pages 1 and 2). In any event, the County’s Uniform Development Code Administrator at the time decided on their own initiative to issue a Code Interpretation to clarify some key issues with respect to Mr. Durgan’s proposed expansion. The 2020 Code Interpretation – which is not and cannot be appealed as part of this appeal of the 2021 Code Interpretation – included several key determinations, stated and restated several times, including without limitation: • “...properties located within the UGA, which are without sewer, are subject to the rural transitional zoning requirements and that JCC 18.15.040, Table 3-1 [Rural Zoning] Allowable and Prohibited Use Table controls” (Ex. D, page 2); • “The Unified Development Code (“UDC”) plainly states that until sanitary sewer is available rural transitional zoning shall control.” [emphasis in original document, citing JCC 18.15.011; JCC 18.19.100; JCC 18.19.110; and JCC 18.18.060(4)(b) (applying rural development standards on transitional zoned properties)]. (Ex. D, page 3); and • The plain text of JCC 18.15.011, 18.19.100, 18.19.110, and 18.18.060(4)(b) is clear and unambiguous. Until sanitary sewer is available at a UGA property rural transitional zoning uses and development standards control. Therefore, when analyzing allowable uses, one must look towards the rural zoning provisions of JCC 18.15.040, Table 3-1 ([Rural Zoning] Allowable and Prohibited Uses). The inclusion of a UGA zoning column in Table 3-1, Rural Zoning Allowable and Prohibited Uses simply directs readers to “See Chapter 18.18 JCC” and only becomes operative once sanitary sewer is available to the individual UGA property. This column in no way modifies JCC 18.15.011, 18.19.100, 18.19.110, and 18.18.060(4)(b) by allowing transitional zoning to be urban, instead of rural. Reaching this conclusion would disregard the plain text of the JCC, Jefferson County Ordinance No. 10-0823-04, years of compliance hearings with the WWGMHB, and the GMA. Further, the Jefferson County Comprehensive Plan incorporates the rural transitional zoning scheme through its zoning map and narrative text. Jefferson County Comprehensive Plan, at ii; 1-122 (2018). (Ex. D, bottom of page 4 to top of page 5). DECISION – DENYING APPEAL OF CODE INTERPRETATION – FILE NO. MLA20-00073 Page 5 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY 9A. The Examiner expressly finds and concludes that the 2020 Code Interpretation placed the appellant and his attorneys on clear notice of the County’s position on multiple zoning issues relevant to Mr. Durgan’s development proposal. Mr. Durgan acquired knowledge of key issues raised in this appeal of a 2021 Code Interpretation through clear written determinations included in the County’s 2020 Code Interpretation. However, there is no dispute that Mr. Durgan never appealed any part of the 2020 Code Interpretation (Ex. D) despite express language on the last page explaining the opportunity to and deadline for any appeal. 10. Instead, in June of 2021, Mr. Durgan’s attorneys submitted a formal written request for a second code interpretation, which included the following statements: [W]e are writing in regards to [Mr. Durgan’s] Permit Pre-Application No. PRE20-00003 to request an additional project-specific land use code interpretation under Chapter 18.40 of the Jefferson County Code (“JCC”) of the following code provisions and issues as applied to the Project (defined below): (1) JCC 18.20.260(1)(c). Specifically, we request clarification on whether the Project is subject to the rural commercial standards instead of the rural residential 1:10 standards of Table 6-1 of JCC 18.30.050, notably those for impervious surface, as they relate to JCC 18.20.260(1)(c)(ii), JCC 18.30.050, and JCC 18.40.530 and their requirements for compliance with standards and criteria of the JCC, in order to obtain a Type II C(d) conditional use permit for the expansion of nonconforming use; and (2) JCC 18.30.070. Specifically, we request clarification on whether the requirement for a stormwater management plan under JCC 18.30.070(5) may be satisfied with the existing plan when it was created for a project larger than the Project on the Property and the Project seeks to complete much of such larger project. Based on representations from the Jefferson County Department of Community Development (“DCD”) to Mr. Durgan and his representatives, we understand that the rural commercial standards of Table 6-1 apply to the Project for purposes of JCC 18.20.260(1)(c)(ii), JCC 18.30.050, and JCC 18.40.530, and their requirements for compliance with standards and criteria of the JCC, and that the existing stormwater management/drainage plan may be submitted for purposes of obtaining a stormwater management permit. The purpose of this code interpretation request is to confirm this understanding prior to proceeding with the costly and time-consuming building permit application process.” (Ex. C, on page 2, Request for Code Interpretation letter from Appellant’s counsel, dated June 24, 2021). 2021 Code Interpretation that is the subject of this appeal. 11. On or about September 13, 2021, the County’s current Community Development Director / Unified Development Code (UDC) Administrator issued the formal code interpretation that is the subject of this appeal. (Ex. B, Code Interpretation issued on Sept. 13, 2021). The 2021 Code Interpretation includes the following Summary: DECISION – DENYING APPEAL OF CODE INTERPRETATION – FILE NO. MLA20-00073 Page 6 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY On the first issue, the Code Interpretation finds that impervious surface standards and other applicable development standards are determined by the land use designation applied to the site per JCC 18.30.050(2). While the expansion of existing nonconforming uses may be permissible through a conditional use permit per JCC 18.20.260(l)(c), nonconforming uses may be expanded beyond 10 percent through the approval of a Type II C(d) conditional discretionary use permit process per JCC 18.20.260(1)(c) if the proposal meets the development standards of the underlying land use district per JCC 18.20.260(1)(c)(ii) and JCC 18.40.530(1)(g). The applicable development standards are determined by the RR 1: 10 land use designation currently applied to the property. On the second issue, the Code Interpretation finds that the use of the existing stormwater plan may be permissible under JCC 18.30.070 with an addendum letter from Evergreen Engineering if the existing stormwater management plan meets the requirements of the 2019 Stormwater Management Manual for Western Washington ("SMM") as stated in the introduction of JCC 18.30.070: "All new development and redevelopment must conform to the standards and minimum requirements set by the most current version of the Washington Department of Ecology Stormwater Management Manual for Western Washington (SMM)..." The stormwater management methods and BMPs implemented through the stormwater plan must adhere to the 2019 SMM in order to meet the requirements of 18.30.070. (Ex. B, Code Interpretation that is the subject of this appeal, issued in September of 2021, on pages 1 and 2). 11A. The 2021 Code Interpretation also reiterated, amplified, or clarified several determinations previously made in the unchallenged 2020 Code Interpretation, including without limitation the following: The Comprehensive Plan's treatment of nonconforming uses is not factor considered in determination of whether the Project is compliant with JCC 18.20.260(1)(c)(ii). While the Comprehensive Plan is favorable for expansion of existing nonconforming uses, the Comprehensive Plan is a policy guide and not a regulatory document-a specific zoning ordinance will prevail over an inconsistent comprehensive plan (See Citizens for Mount Vernon v. Mount Vernon, 133 Wn.2d 861 (1997)). Any approval granted for expansion of a commercial nonconforming use on rural residential properties would need to demonstrate compliance with all applicable rural residential development standards of JCC 18.20.260(1)(c)(ii) and JCC 18.40.530(1)(g). Expansion of the existing nonconforming use while the Irondale/Port Hadlock Urban Growth Area (UGA) transitional zoning overlay is applicable will require the Project to meet rural residential development standards since a RR 1:10 land use designation is currently applied to the site. While this does constrain expansion while the transitional zoning overlay is applied, land use designations and development standards will change throughout the UGA once properties are serviced by sewer per JCC 18.19.110. (Ex. B, Code Interpretation that is the subject of this appeal, issued in September of 2021, on page 3). DECISION – DENYING APPEAL OF CODE INTERPRETATION – FILE NO. MLA20-00073 Page 7 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY 11B. In short, the challenged 2021 Code Interpretation essentially rejected Mr. Durgan’s arguments that the Comprehensive Plan supports expansion of his mini-storage facility and should control to allow for expansion under standards preferred by Mr. Durgan, and that the current use of his property should control which development standards apply, instead of the zoning currently assigned to the property. Mr. Durgan’s Appeal. 12. On or about September 27, 2021, Mr. Durgan’s attorneys filed a detailed written appeal that initiated this matter before the County’s Hearing Examiner. (Ex. A, Notice of Appeal, dated Sept. 27, 2021). Mr. Durgan’s Notice of Appeal includes the following “Assignments of Error”: We assign error to, and appeal, the Department’s conclusion that that “the impervious surface standards and other applicable development standards are determined by the land use designation applied to the site per JCC 18.30.050(2)” and that for purposes of expansion under JCC 18.20.260 [the County’s Conditional Use Permit process for non-conforming facilities], the “applicable development standards are determined by the RR 1:10 land use designation currently applied to the property.” Specifically, we assign error to, and appeal, following findings of the Department in the Code Interpretation: (Ex. A, on page 5). 12A. As noted in the County’s Motion and not rebutted in the appellant’s Opposition Brief, Mr. Durgan’s written Notice of Appeal (Ex. A) does not appeal the “second issue” addressed in the 2021 Code Interpretation, so that portion of the interpretation stands unchallenged. (See Ex. B, Summary on page 2, re: second issue, which reads in part: “...the Code Interpretation finds that the use of the existing stormwater plan may be permissible under JCC 18.30.070 with an addendum letter from Evergreen Engineering if the existing DECISION – DENYING APPEAL OF CODE INTERPRETATION – FILE NO. MLA20-00073 Page 8 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY stormwater management plan meets the requirements of the 2019 Stormwater Management Manual for Western Washington...”). 12B. Appellant’s Counsel summarized Mr. Durgan’s objectives and key arguments in this appeal in the Conclusion of their Opposition Brief, which reads as follows: The [Durgan] Property was approved for commercial use in the early 1990s and a drainage plan was approved and implemented for over 2.1 acres of impervious surface. The Property has continuously been operated as a mini-storage facility since that time. While the Property is currently transitionally zoned Rural Residential, the true zoning is Urban Light Industrial, which permits mini-storage facilities outright. The Jefferson County Comprehensive Plan also encourages expansion of Mr. Durgan’s mini-storage facility. Mr. Durgan now seeks to build additional mini-storage facilities, which use was previously approved by the County in the early 1990s. Based upon these factors, the commercial impervious surface requirements should apply to Mr. Durgan’s current proposal to build additional mini-storage facilities on the Property that has been approved and operated as a commercial use for almost 30 years. (Ex. F, Appellant’s Brief, on pages 14-15). 12C. The appellant’s Opposition brief also raised a new issue – never mentioned in his written requests for code interpretations submitted in 2020 or 2021 or in his written Notice of Appeal – arguing that the mini-storage facility on the Durgan property was built in conformance with an emergency zoning ordinance permit issued in 1993; that the 1993 emergency zoning permit approved the entire property for commercial use and permitted the construction of 15,780 sq.ft. of mini-storage facility; and that the 1993 emergency zoning permit did not include any expiration date and never expired, so “Mr. Durgan now seeks to develop almost all of this square footage of mini-storage in accordance with this approval [the 1993 emergency zoning permit] and commercial development standards.” (Ex. F, Opposition brief, on page 8, Sec. B). Jurisdiction. 13. The Hearing Examiner is granted express authority to address appeals of code interpretations, including preparation of findings of fact and conclusions of law, and issuing final decisions. JCC 2.30.080; JCC 18.40.330; JCC 18.40.390. Parties of Record, Counsel. 14. The parties to this appeal and their counsel of record are: Craig Durgan, the appellant in this matter, represented by counsel, Brandon S. Gribben and David L. Tran, with the Helsell Fetterman law firm; and the respondent, Jefferson County Department of Community Development, represented by Barbara Dykes Ehrlichman, the County’s Civil Deputy Prosecuting Attorney. Burden of Proof and Standard of Review. DECISION – DENYING APPEAL OF CODE INTERPRETATION – FILE NO. MLA20-00073 Page 9 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY 15. In an Appeal of a Unified Development Code Interpretation, the appellant (as the moving party) has the burden of proof, with issues of law subject to a de novo standard of review, and all issues of fact subject to a substantial evidence standard of review. HEx Rule 5.14(j). The "substantial evidence standard of review" that applies to issues of fact raised in an appeal means that the Examiner's review is deferential and requires the Examiner to view the evidence and reasonable inferences therefrom in the light most favorable to the party who exercised the fact-finding. HEx Rule 1.1(q). Even without such deference, based on this record, there are no material facts or controlling legal authority that would serve as a basis to grant the pending appeal. 16. Because the parties generally agreed to have this appeal decided based on briefs instead of a hearing full of witness testimony, bringing this matter forward to a final Decision based on the County’s Motion for Summary Judgment, the County has the burden of proof to prevail on its motion. The distinction is irrelevant in this matter, because the Examiner finds and concludes that there are no material facts or controlling legal authority that would serve as a basis to grant the pending appeal. 17. As noted above, the County filed a Motion for Summary Judgment (Ex. E), the appellant filed a Response in Opposition to the County’s Motion (Ex. F), the County filed a Reply Brief (Ex. G), and counsel for both parties provided oral arguments to the Examiner, followed by post-hearing emails providing citations to additional caselaw on topics raised during arguments (Ex. H). This appeal has been decided relying on written briefs filed by counsel for each party, supported by declarations or evidence referenced therein, and oral arguments from counsel. The Hearing Examiner visited the appellant’s project site to focus on features and surrounding conditions discussed in the appeal statement and briefing materials. 18. A party is entitled to summary judgment if the pleadings and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. A material fact is one upon which the outcome of the litigation depends, in whole or in part. A quasi-judicial decision maker like the Hearing Examiner may dispose of issues via summary judgment. (See caselaw cited in Ex. E, the County’s Motion on pages 4 and 5, including without limitation ASARCO Inc. v. Air Quality Coal., 92 Wn.2d 685, 695-98, 601 P.2d 501 (1979), not rebutted or contradicted by any legal authority provided in the appellant’s Opposition Brief, Ex. F). 19. In considering a summary judgment motion, the trier of fact must construe the evidence and consider the material facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. If the moving party is a respondent and meets this initial showing, then the inquiry shifts to the party with the burden of proof in the underlying proceeding. If, at this point, the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof, then the decision maker should grant the motion. (See DECISION – DENYING APPEAL OF CODE INTERPRETATION – FILE NO. MLA20-00073 Page 10 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY unchallenged summary of relevant caselaw provided in the County’s Motion, Ex. E, on pages 4 and 5). Discussion and Analysis. 20. Based on the unrebutted facts and evidence in the record, the Examiner finds and concludes that the appellant’s property is within the County’s RR 1:10 zone, referenced as a “land use district” in the Jefferson County Code. For purposes of this Decision, the two terms “zone” and “land use district” mean the same thing. This determination is addressed in the unchallenged 2020 Code Interpretation, which also explains that the appellant’s property is subject to the rural transitional zoning requirements found in the Jefferson County Code, including JCC 18.15.011. (Ex. D, unchallenged Code Interpretation issued in 2020, on page 3). 21. Despite an argument by Appellant’s counsel generally asserting that the 2020 Code Interpretation did not include any “holding” on various topics that might not be helpful to Mr. Durgan’s position in this appeal, there is no dispute that Mr. Durgan never appealed the 2020 Code Interpretation (Ex. D), which could have been done under JCC 18.40.390, as specifically noted on the last page of such document under a section captioned “Appeal.” So, any challenges and collateral attacks regarding the 2020 Code Interpretation (Ex. D) cannot serve as a basis to grant this appeal and would be rejected by Washington courts.1 22. Even if they were before the Examiner, the appellant’s direct and implied challenges to facts and determinations included in the 2020 Interpretation all fail, because they are contrary to unrebutted facts and legal authority addressed in this Decision. 23. For instance, on the issue of the zoning or land use district where the Durgan property is located, there is no credible dispute that it is now within the County’s RR:10 zone, as its “transitional zone,” and that it will not and cannot be deemed part of – and developed under specific standards for – the Urban Growth Area until a sewer system is installed for the area. JCC 18.18.060(4)(b) and JCC 18.19.110. This fact and legal determination was explained and repeated several times in the 2020 Code Interpretation, which Mr. Durgan and his attorneys received, but never appealed. 24. This fact is further confirmed by the current County zoning map for the area, available online and captioned as the “Jefferson County, Washington Comprehensive Plan – Land Use Designations” which shows the appellant’s property within the yellow-color used to depict 1 Durland v. San Juan County, 182 Wn.2d 55, 340 P.3d 191 (2014); Samuel's Furniture v. Dep't of Ecology, 147 Wn.2d 440, 54 P.3d 1194 (2002). When the appeal deadline for a land use decision passes, that decision “becomes final and binding and is deemed valid and lawful,” see, e.g., Mercer Island Citizens for Fair Process v. Tent City 4, 156 Wn. App. 393, 399 (2010). In other words, Appellants’ challenges to the correctness of the 2020 Code Interpretation are outside the Examiner’s jurisdiction and foreclosed as a matter of law. DECISION – DENYING APPEAL OF CODE INTERPRETATION – FILE NO. MLA20-00073 Page 11 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY the RR-10 zone. Below is a screenshot of the zoning map, with a red star showing the location of the appellant’s property, immediately south of Pomwell Road. 25. There is no credible dispute that mini-storage facilities are not a permitted use in the RR-10 zone, the ‘transitional zone’ that applies to the appellant’s property until such time as a sewer system is installed for the area, making the applicant’s facility non-conforming. (Ex. D, unchallenged 2020 Code Interpretation, citing relevant county codes). 26. The appellant must concede that he has been aware that this was the County’s position since at least the time of his pre-application conference in 2020. (Ex. F, Appellant’s Brief, attached Declaration from Mr. Durgan Paragraph 2 on page 1, with copy of his pre-app. meeting notes that include the following statements: “Zoning – current zoning is Urban Growth Area – Light Industrial (UGA-LI); transitional zoning is Rural Residential 1:10 (RR 1:10). Transitional zoning must be used until the sewer system is installed per JCC 18.18.060(4)(b) and JCC 18.19.110. Mini storage facilities are not allowed in areas zoned RR 1:10; however, once the sewer system is installed, mini-storage facilities could be approved in areas zoned UGA-LI.”) 27. The Examiner finds and concludes that the plain text of JCC 18.15.011, 18.19.100, 18.19.110, and 18.18.060(4)(b) is clear and unambiguous. Until sanitary sewer is available at a UGA property, rural transitional zoning uses and development standards control. As explained in the unchallenged 2020 Code Interpretation, when analyzing allowable uses, one must look towards the rural zoning provisions of JCC 18.15.040, Table 3-1 ([Rural Zoning] DECISION – DENYING APPEAL OF CODE INTERPRETATION – FILE NO. MLA20-00073 Page 12 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY Allowable and Prohibited Uses). The inclusion of a UGA zoning column in Table 3-1, Rural Zoning Allowable and Prohibited Uses simply directs readers to “See Chapter 18.18 JCC” and only becomes operative once sanitary sewer is available to the individual UGA property. This column in no way modifies JCC 18.15.011, 18.19.100, 18.19.110, and 18.18.060(4)(b) by allowing transitional zoning to be urban, instead of rural. Reaching this conclusion would disregard the plain text of the JCC, Jefferson County Ordinance No. 10-0823-04, years of compliance hearings with the WWGMHB, and the GMA. Further, the Jefferson County Comprehensive Plan incorporates the rural transitional zoning scheme through its zoning map [shown above in this Decision] and narrative text. Jefferson County Comprehensive Plan, at ii; 1-122 (2018). (See Ex. D, 2020 Code Interpretation, on pages 4-5). 28. This appeal cannot be used to collaterally attack any aspect of the unchallenged 2020 Code Interpretation or determinations made therein. See Wenatchee Sportsmen Ass’n v. Chelan County, 141 Wn.2d 169, 182, 4 P.3d 123 (2000), and Habitat Watch v. Skagit County, 155 Wn.2d 397, 410–11, 120 P.3d 56 (2005). Relevant Washington caselaw applying appeal deadlines in the state’s Land Use Petition Act (LUPA) embodies the same idea expressed by Washington Courts in pre-LUPA decisions – that even illegal determinations must be challenged in a timely, appropriate manner. (See Pierce v. King County, 62 Wn.2d 324, 334, 382 P.2d 628 (1963) (holding that even though a county resolution constituted illegal spot zoning and was therefore void ab initio, the applicable limitations period "begins with acquisition of knowledge or with the occurrence of events from which notice ought to be inferred as a matter of law[,]” as cited and discussed in Habitat Watch v. Skagit County, 155 Wn.2d 397, 120 P.3d 56 (2005))(emphasis added). 29. To expand a non-conforming facility (like the appellant’s mini-storage business) by more than 10%, there is no dispute that the appellant can seek a Conditional Use Permit. JCC 18.20.260(1)(c) reads as follows: A nonconforming use may be expanded beyond 10 percent through the approval of a Type II C(d) discretionary conditional use permit process. In addition to meeting the criteria set forth through the conditional use permit process [found in JCC 18.40.530], the department shall determine the expansion proposal has met the following: (i) The proposed area for expansion is contiguous to the nonconforming use; (ii) The area for expansion of the use complies with all applicable bulk and dimensional standards, performance provisions, and environmental and shoreline (WAC 173-27-080) regulations (emphasis added); (iii) The area for expansion shall not increase the land area devoted to the nonconforming use by more than 100 percent of that use at the effective date of the nonconformance; (iv) The expansion shall not be granted if it would result in a significant increase in the intensity of the use of the nonconformity (e.g., hours of operation, traffic). DECISION – DENYING APPEAL OF CODE INTERPRETATION – FILE NO. MLA20-00073 Page 13 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY 30. The central question in this appeal is – what are the “applicable bulk and dimensional standards, performance provisions, and environmental” regulations that must be used in considering the appellant’s proposal to expand his non-conforming mini-storage facility? 31. The approval criteria for a Conditional Use Permit, found in JCC 18.40.530, includes the following requirement: The conditional use complies with all other applicable criteria and standards of this title and any other applicable provisions of the Jefferson County Code or state law; and more specifically, conforms to the standards contained in Chapters 18.20 and 18.30 JCC. (JCC 18.40.530(1)(g)). 32. Chapter 18.20 of the County’s Code is captioned “PERFORMANCE AND USE- SPECIFIC STANDARDS”, and “[t]he performance standards provided in this chapter [Ch. 18.20 JCC] are those specific requirements that must be met before approval may be given for a proposed development or use within a particular land use district.” (JCC 18.20.010, with emphasis added). 33. Chapter 18.30 of the County’s Code is captioned “DEVELOPMENT STANDARDS”, and “establishes: (a) density requirements; (b) bulk, area, and dimensional standards; and (c) specific rules for all uses...” JCC 18.30.050(1). The Development Standards found in JCC 18.30.050 and Table 6-1 “contain general density, intensity, and dimensional standards for the various land use districts. Limitations specific to a particular district are also specified.” JCC 18.30.050(2). 34. In this appeal, as noted in the County’s Motion, Mr. Durgan essentially argues that his current commercial mini-storage use of his property should control which development standards should apply to his proposed expansion project instead of those that apply for all uses in a particular land use district. 35. The Examiner finds and concludes that there are no facts or controlling legal authority that would serve as a basis to ignore the requirement for a non-conforming facility, such as the applicant’s mini-storage facility, to satisfy all Performance and Development Standards that are assigned based on the land use district, i.e. zoning district, where the facility is located. “Current use” does not void zoning requirements adopted after the original use commenced. 36. Despite Appellant’s arguments for equitable or other relief – by a) reading friendlier language in the Comprehensive Plan to override more specific and restrictive language found in the County’s Unified Development Code, or b) applying less restrictive stormwater control regulations used when the first buildings were built almost 20 years ago to the new proposal, instead of updated stormwater regulations – Washington law is clear on the subject – a nonconforming use does not vest to building and development codes at the time a particular use is first established. DECISION – DENYING APPEAL OF CODE INTERPRETATION – FILE NO. MLA20-00073 Page 14 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY 37. The Washington Supreme Court has long held that a landowner does not “vest” to the entire code at the time a use is established, but that only the use itself is vested and a landowner must still comply with subsequent changes to the land use code not involving that specific use. Rhod-A-Zalea v. Snohomish County, 136 Wn.2d 1, at 6-7; 959 P.2d 1024 (1998); favorably discussed in King County Dep't of Dev. & Envtl. Servs. v. King County, 177 Wn.2d 636, 305 P.3d 240 (2013). 38. Here, the appellant generally argues that the only regulations that should apply to his nonconforming structures and use are those found in comprehensive plan provisions [cherry- picked because they might be more favorable towards nonconforming structures and uses], essentially arguing that the County’s code should be read narrowly, not broadly. 39. Any arguments that the code should be read narrowly, based on “minimum requirements” language found in JCC 18.30.020, or to defer to Comprehensive Plan language based on statements in JCC 18.30.010 or elsewhere, and that the codes applied should be based upon an actual need for and potential use of sewer service as opposed to applying development standards for the zoning district where the use exists, are misplaced and contrary to controlling legal authority, including without limitation several relevant statutes and County code provisions, as well as the Washington Supreme Court’s precedent established in the Rhod-A-Zalea case. 40. JCC 18.40.360(5), captioned “Conflicts with Other Regulations”, reads as follows: “Where conflicts occur between the provisions of this code [the Unified Development Code] and the Jefferson County building code, Chapter 15.05 JCC, or its successor ordinance, or other regulations of the county, the more restrictive shall apply. If any conflict between the land use districts map and the text of this code ensue, the text of this code shall prevail.” 41. JCC 18.05.130, captioned “Applicability”, reads: “This code [the Unified Development Code] provides land use regulations that apply to all land and land use activity and to all structures and facilities within Jefferson County. The provisions of this code shall prevail over any conflicting provision of the Jefferson County Comprehensive Plan, except as provided in JCC 18.05.150 [the County’s Shoreline Master Program, which does not apply to the appellant’s project].” 42. Applicable, specific provisions of the Jefferson County Code regulate proposed expansion of nonconforming structures and uses, such as the appellant’s nonconforming mini-storage facility. The County’s Comprehensive does not contain any sections that override specific zoning and development standards that apply to the appellant’s property and proposed project, all found in the Jefferson County Code. More general policies from the County’s Comprehensive Plan, which are preferred by the appellant to justify his proposed mini-storage expansion without need to satisfy current zoning and development codes, do not override the specific code provisions regulating development on his property. (See Lund v. DECISION – DENYING APPEAL OF CODE INTERPRETATION – FILE NO. MLA20-00073 Page 15 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY Department of Ecology, 93 Wn. App. 329, 337, 969 P.2d 1072, 1076 (Div. II, 1998), citing Hearst Corp. v. Hoppe, 90 Wn.2d 123, 128, 580 P.2d 246 (1978), holding that declarations of policy are without force in and of themselves). Stormwater requirements. 43. There is no dispute that current County Stormwater Management Standards mandate that “[a]ll new development and redevelopment must conform to the standards and minimum requirements set by the most current version of the Washington Department of Ecology Stormwater Management Manual for Western Washington (SMM) and obtain a stormwater management permit if required by subsection (5) of this section. The administrator may require additional measures as indicated by the environmental review or other site plan review.” (JCC 18.30.070, captioned “Stormwater management standards”) 44. In response to any arguments or reliance on possible communications with County staff to the effect that a nonconforming use or structure could be expanded by using old stormwater plans for the site, even if they do not meet current stormwater requirements, the Examiner finds and concludes that such arguments are not supported by any facts, and even if such facts were in the record – and they are not – they would fail as a matter of law. 45. After all, based on well-established common law, the proper action on a land use decision cannot be foreclosed because of a possible past error or failure to apply or enforce a provision of applicable codes. The County’s current development codes, including those relating to stormwater management, and their full effect should not be forfeited by any statement, impression, action, or inaction of a staff member that may have been in disregard or oversight of an ordinance or code provision. The public has an interest in zoning that cannot thus be set at naught. (See analysis provided in Dykstra v. Skagit County, 97 Wn. App. 670, 985 P.2d 424 (Div. 1, 1999), petition for rvw. denied, 140 Wn.2d 1016, 5 P.3d 8 (2000); citing City of Mercer Island v. Steinmann, 9 Wn. App. 479, 483, 513 P.2d 80 (1973), and Buechel v. Department of Ecology, 125 Wn.2d 196, 211, 884 P.2d 910 (1994). The Washington Supreme Court even applied this rationale in the context of water rights, where the Department of Ecology originally acted ultra vires in measuring a water right, it did not act arbitrarily and capriciously in abandoning an unlawful practice and switching to a new practice. See Department of Ecology v. Theodoratus, 135 Wn.2d 582, 957 P.2d 1241 (1998). 46. The County’s Reply brief argues that “Mr. Durgan’s core motive throughout this code interpretation process has been to find a way around the current stormwater regulations applicable to the property. His proposed expansion cannot meet current impervious surface limits applicable to the property under Title 18 JCC, which are part of the regulations which limit stormwater runoff on the property. But stormwater regulations are not subject to vesting, as they are not local land use control ordinances. Snohomish County, et al., v. Pollution Control Hearings Board, 187 Wn.2d 346, 386 P.2d 1064 (2016). As stated in Snohomish County, et al., an applicant “does not have a legitimate expectation that pollution control DECISION – DENYING APPEAL OF CODE INTERPRETATION – FILE NO. MLA20-00073 Page 16 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY measures will be frozen in time to outdated or ineffective measures.” Id. at 373 (quotations omitted). (Ex. G, County’s Reply Brief, page 4). 47. During oral arguments, appellants’ counsel did not offer any legal authority disputing the County’s arguments that stormwater regulations do not vest. Instead, he relied on general requests for equity and fairness. Such requests would fundamentally amend language in current county development regulations, something that the Examiner has no power to do. They also overlook the fact that the 2021 Code Interpretation is entirely fair and equitable in that it holds open the possibility that the old stormwater plan for the site might be acceptable, if it satisfies current County stormwater regulations. Requests for equitable relief. 48. Throughout this appeal process, neither party cited to any legal authority that would serve as a basis for the Examiner to apply equitable relief in this situation, basically waiving county code requirements that must be satisfied for Mr. Durgan to move forward with his proposal to expand his non-conforming mini-storage facility. 49. Instead, Washington case law has long established that a Hearing Examiner only holds specific authority and jurisdiction over matters as specified in ordinances and resolutions adopted by the local government. The Jefferson County Code does not grant explicit or implied powers for any hearing examiner to consider the issue of equitable estoppel, or to grant the kind of equitable relief sought in this appeal by Mr. Durgan. See Chaussee v. Snohomish County Council, 38 Wn.App. 630 (Wash. Ct. App. 1984)(A hearing examiner and the council lacked jurisdiction to consider the issue of equitable estoppel). In Chaussee, the Court ruled that the Examiner had no discretion to exempt a landowner from specific code requirements based on what he deemed equitable without regard to statutory requirements and the need for substantial evidence to meet statutory requirements. The case is controlling legal authority in this appeal. 50. With respect for the creative legal arguments presented by the appellant’s counsel, the Examiner cannot waive county codes – or GMA mandates for sewer service before urban zoning standards can apply – and allow Mr. Durgan to expand his mini-storage facility without complying with current County zoning and development regulations. 1993 Emergency Zoning Permit. 51. As noted in findings above (Finding 12C), the appellant’s Response brief asserted that an allegedly “unexpired” permit should be deemed to control his proposed mini-storage facility expansion instead of current County development regulations. (Ex. F, Appellant’s Opposition Brief, Declaration of Mr. Gibben, Ex. E). In its Reply brief, the County objected, appropriately citing to rules that require appellants to state their factual and legal basis for bringing an appeal in the notice of appeal itself, and correctly noting that the 1993 Emergency DECISION – DENYING APPEAL OF CODE INTERPRETATION – FILE NO. MLA20-00073 Page 17 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY Permit issue does not appear in the appellant’s notice of Appeal, included in the record as Ex. A. (Ex. G, County’s Reply Brief). 52. While the County’s objection is valid and serves as a stand-alone basis to reject consideration of the 1993 permit as part of this appeal, the Examiner finds that it is in the interest of judicial economy to address the issue as part of this Decision. Moreover, by addressing what is clearly an untimely issue, the Examiner is providing the appellant with another opportunity to present potentially material facts or legal authority that could serve as a basis to deny the County’s Motion for Summary Judgment. As explained below, the 1993 permit does not provide a factual or legal basis to deny the County’s motion, or to grant this appeal. 53. In addressing this issue, the Hearing Examiner takes official notice of County Ordinances available for review on the County’s website. For the convenience of the reader, some sections of relevant ordinances have been cut and pasted as images inserted into this Decision. 54. There is no credible dispute that Jefferson County adopted an interim emergency zoning ordinance in January of 1992, after the entire zoning code was invalidated by a superior court judge. (Ord. 1-0106-92, at p. 1). 55. The ordinance established an “interim zoning code to guide development until a permanent official control” could be adopted, as explained in Finding No. 14, on page 3 of Ord. 1-0106-92, republished below: 56. Finding No. 19, on page 4 of Ord. 1-0106-92, explains that the ordinance will operate as an “emergency zoning control” that will remain in effect only until such time as the County can adopt a permanent zoning control, and is republished below: DECISION – DENYING APPEAL OF CODE INTERPRETATION – FILE NO. MLA20-00073 Page 18 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY 57. The interim emergency zoning code allowed for an “application for interim zoning approval” which had to be approved or denied within ten working days of receipt of the application. Ordinance 1-0106-92 at p. 27. An “Interim Zoning Approval Permit” definition is found on page 8 of the ordinance, and reads as follows: (Ord. 1-0106-92, Sec. 3 Definitions, item 14, on page 8). 58. Based on records submitted with the appellant’s Opposition brief, it is clear that Mr. Durgan’s predecessor applied for and received an Interim Zoning Approval Permit in 1993 for Phases 3 and 4 of his mini-storage project. (Ex. F, Appellant’s Opposition Brief, Declaration of Mr. Gibben, Ex. E). The final page of the Interim Zoning Permit includes a note explaining that “[t]his approval provides a basis upon which a building permit can be issued.” 59. While the 1993 Interim Zoning Permit provided that building permits could be approved for Phases 3 and 4, there is no dispute that Mr. Durgan’s predecessor only applied for and received a building permit for one part of Phase 3, a 3,000 square foot building. (Ex. F, Appellant’s Opposition Brief, Declaration of Mr. Gibben, Ex. E, copy of Building Permit issued on August 31, 1993 for a 30 x 100 mini-storage building, on page 34 of 39 in .pdf record). 60. There is no dispute that Mr. Durgan’s predecessor never obtained building permits for the final half of Phase 3 or any part of Phase 4. 61. The interim emergency zoning code, adopted in 1992 by Ordinance 1-0106-92, was repealed in 1994 when the County adopted a “permanent zoning code ordinance consistent with the requirements of RCW 36.70.” See Ordinance 09-0801-94, on page 1. Again, the express language of Finding 19 in the interim emergency zoning ordinance provided that it would “remain in effect only until such time as the County can adopt a permanent zoning control.” Based on the clear language in the emergency ordinance, the Examiner finds and concludes that it ceased to be of any force or effect once the County adopted a permanent zoning control ordinance in 1994. DECISION – DENYING APPEAL OF CODE INTERPRETATION – FILE NO. MLA20-00073 Page 19 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY 62. RCW 19.27.095 has been on the books and in effect, without amendment, since April 1, 1992 – before the 1993 Interim Zoning Permit was issued.2 Section 1 of this statute reads as follows: A valid and fully complete building permit application for a structure, that is permitted under the zoning or other land use control ordinances in effect on the date of the application shall be considered under the building permit ordinance in effect at the time of application, and the zoning or other land use control ordinances in effect on the date of application. 63. Based on the clear language included in RCW 19.27.095(1), republished above, the Examiner finds and concludes that any building permit applications for the appellant’s mini- storage expansion project must be considered under the building permit ordinance in effect at the time of application, and the zoning or other land use control ordinances in effect on the date of application. 64. In other words – Mr. Durgan has no legal or credible basis to claim that new building permit applications filed for his mini-storage expansion project should be considered under interim emergency zoning and land use ordinances in effect when a 1993 Emergency Zoning Permit was issued, instead of zoning laws in effect on the date of any application. The time to seek building permits under the 1993 Interim Zoning Approval Permit was while the underlying interim emergency zoning ordinance was in effect. A 1993 permit issued by a local government cannot override a clear mandate provided in a statute in effect before the permit was ever issued. 65. Again, as explained above, the definition of any “interim zoning approval permit” issued under authority of the County’s 1992 interim emergency zoning ordinance was: “A formal acknowledgement issued by the Planning and Building Department that a proposal has been reviewed and approved in accordance with the provisions of this [1992 emergency] ordinance. The permit provides the basis upon which a building permit or use permit can be issued.” And, as explained above, the interim emergency zoning ordinance was repealed in 1994. 66. Assertions that the 1993 Interim Zoning Approval Permit has no expiration date, so it has not expired, are baseless and run counter to the express mandate found in RCW 19.27.095(1). A 1993 permit that only acknowledges that a proposal is in accord with emergency zoning provisions of a 1992 ordinance that was repealed and replaced in 1994 has been of no force or legal effect for complete building permit applications that might have been filed after permanent zoning controls were adopted in 1994. 2 See RCW 19.27.095, notes re: legislative history and effective date, last amended in Chapter 281, Laws of 1991, Sec. 27 (1991 c 281 § 27). DECISION – DENYING APPEAL OF CODE INTERPRETATION – FILE NO. MLA20-00073 Page 20 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY 67. Even construing evidence and inferences in a light most favorable to the party opposing summary judgment (the appellant), the 1993 permit issue fails to provide a basis to deny summary judgment and grant this appeal. For instance, even if the 1993 Zoning Permit could be somehow construed as a building permit issued without an expiration date for all parts of Phases 3 and 4 of the previous owner’s mini-storage construction project, or if the 1993 Building Permit could be read to apply to all parts of Phases 3 and 4, language found in County building codes establish that there is no such thing as an evergreen building permit. 68. Jefferson County adopted the 1991 Edition of the Uniform Building Code (UBC) through adoption of Ordinance 01-0208-93, effective February 19, 1993. A careful read of that ordinance shows that the County Council did not include any local amendment to the section of the UBC addressing “Expiration” of building permits. That ordinance, and the 1991 Edition of the UBC, remained in effect, without amendment, until 1998, when the County adopted the 1997 Edition of the UBC in Ordinance 03-0713-98. So, the 1991 Edition of the UBC, particularly Sec. 303(d), captioned “Expiration”, was in full force and effect in Jefferson County when the applicant’s predecessor applied for and received the 1993 Zoning Permit discussed above, as well as the 1993 building permit referenced in the appellant’s Response Brief opposing the County’s Motion. (See Ex. F, Appellant’s Opposition Brief, Declaration of Mr. Gribben, Ex. E, Building Permit issued in Aug. 31, 1993). 69. UBC, 1991 Edition, Sec. 303(d) reads as follows: DECISION – DENYING APPEAL OF CODE INTERPRETATION – FILE NO. MLA20-00073 Page 21 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY (Archived copy of full Uniform Building Code, 1991 Edition, available using the following link: https://archive.org/download/gov.law.icbo.building.1991/icbo.building.1991.pdf) 70. There is no dispute that Mr. Durgan’s predecessor completed all work he chose to finish long, long, ago, and that mini-storage building construction work on what is now the Durgan property ended in the early 1990s. There are no credible facts or reasonable inferences that could possibly show how the 1993 permits have not already expired under UBC 303(d). All work on the site ended far more than 180 days ago, so the building permit expired, and even though extensions could have been granted, extensions were limited to no more than 180 days, and no permit could be extended more than once. 71. While not dispositive of this motion and the underlying appeal, the County’s Reply Brief put the appellant on notice that his predecessor applied for and received a hydraulic permit approval as a part of the initial application, and that it is unknown whether the work for the hydraulic permit was completed within the short window in which the permit was valid so there may be a need to revisit the issue. See Opposition Brief, Gribben Declaration at Exhibit D, .pdf p. 32 of 39). As can be seen from the face of that document, the work had to be completed by December 31, 1991. 72. The 1993 permits referenced in Appellant’s Opposition Brief did not “vest” Mr. Durgan to any of the standards contained in the County’s Code, as the building permits for the development he now seeks were not applied for and completed in a timely manner. Had the building permits been applied for at that time, the permits would have vested the development proposal to the codes at that time, provided that the construction was completed within any applicable time limits. 73. As explained above and in determinations provided in the 2020 Code Interpretation and the 2021 Code Interpretation, the zoning for Mr. Durgan’s property has changed from commercial to Rural Residential 1:10, so his mini-storage use is now nonconforming and requires a conditional use permit to allow expansion. To obtain building permits, he must comply with current zoning and development regulations. He failed to offer material facts or controlling legal authority that would waive or provide a basis to excuse such requirements. 74. The County’s Motion correctly observes that “[t]here is nothing in the code, nor does Mr. Durgan cite to anything, to indicate that a nonconforming use may acquire the bulk standards of that use, rather than those that apply through the current zoning classification. In fact, bulk standards are not assigned to uses; they are only assigned to land use districts.” JCC 18.30.050(2). (Ex. E, top of page 6). 75. Despite the best efforts of creative and thorough attorneys working on his behalf, the appellant cites no controlling legal authority for multiple issues raised in his written appeal. DECISION – DENYING APPEAL OF CODE INTERPRETATION – FILE NO. MLA20-00073 Page 22 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY Where no authorities are cited in support of a proposition, courts are not required to search out authorities, but may assume that counsel, after diligent search, has found none. Helmbreck v. McPhee, 15 Wn. App. 2d 41, 476 P.3d 589 (Div. I, 2020), review denied Helmbreck v. McPhee, 2021 Wash. LEXIS 151 (Wash., Mar. 9, 2021), citing DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962). When a party cites no authority, the decision-maker “‘may assume that counsel, after diligent search, has found none.’” In re Disciplinary Proceeding Against Jensen, 192 Wn.2d 427, 430 P.3d 262 (2018), citing State v. Young, 89 Wn.2d 613, 625, 574 P.2d 1171 (1978), quoting DeHeer). 76. The appellant failed to satisfy his burden of proof needed to deny the County’s Motion for Summary Judgment or to show that the challenged 2021 Code Interpretation was in error. Accordingly, the appeal must be dismissed. V. CONCLUSIONS OF LAW. 1. Based on evidence in the Record, including without limitation all findings set forth above, the Examiner concludes that the Director’s challenged Unified Development Code Interpretation is fully supported by substantial evidence and controlling legal authority. The challenged interpretation was not a mistake. 2. The appellant failed to satisfy his burden of proof to prevail in this appeal and failed to show that there are any genuine issues of material fact or controlling legal authority that would serve as a basis to deny the County’s Motion for Summary Judgment. Accordingly, this appeal should be dismissed. 3. Because this Code Interpretation process appears to be driven by the appellant’s desire to avoid current stormwater regulations applicable to his property, including impervious surface limits that are meant to reduce stormwater runoff, among other things, it bears repeating that the Washington Supreme Court has ruled that stormwater regulations are not subject to vesting. State and federal law direct that local governments must implement stormwater regulations as part of the NPDES permitting program, so they are not the sort of local land use and zoning control ordinances that are normally subject to vesting. Snohomish County, et al., v. Pollution Control Hearings Board, 187 Wn.2d 346, 386 P.2d 1064 (2016). A developer does not have a legitimate expectation that pollution control measures will be frozen in time to outdated or ineffective measures. Id. at 373. 4. For the specific reasons and facts articulated in the Director’s challenged 2021 Code Interpretation and the County’s briefing materials, and for the additional facts and reasons set forth herein, all as thoroughly supported by the record established in this appeal, the challenged Code Interpretation should be and is hereby affirmed in its entirety. 5. Any legal conclusions or other statements made in previous or following sections of DECISION – DENYING APPEAL OF CODE INTERPRETATION – FILE NO. MLA20-00073 Page 23 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY this document that are deemed conclusions of law are hereby adopted as such and are incorporated herein by this reference. VI. DECISION. Based on evidence included in the record for this appeal, the appellant failed to meet his burden of proof. Accordingly, the pending appeal is respectfully denied, the County’s Motion for Summary Judgment is granted, and the Director’s challenged Unified Development Code Interpretation, dated September 13, 2021, is affirmed. ISSUED this 14th Day of April, 2022 _____________________________ Gary N. McLean Hearing Examiner DECISION – DENYING APPEAL OF CODE INTERPRETATION – FILE NO. MLA20-00073 Page 24 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY Final Decision, Appeal Rights The Hearing Examiner is authorized to issue Final Decisions for matters listed in JCC 2.30.080(2). Final Decisions of the Hearing Examiner are subject to appeal as explained in JCC 18.40.340, which reads as follows: (1) Time to File Judicial Appeal. The applicant or any aggrieved party may appeal from the final decision of the administrator or hearing examiner to a court of competent jurisdiction in a manner consistent with state law. All appellants must timely exhaust all administrative remedies prior to filing a judicial appeal. (2) Service of Appeal. Notice of appeal and any other pleadings required to be filed with the court shall be served by delivery to the county auditor (see RCW 4.28.080), and all persons identified in RCW 36.70C.040, within the applicable time period. (3) Cost of Appeal. The appellant shall be responsible for the cost of transcribing and preparing all records ordered certified by the court or desired by the appellant for the appeal. Prior to the preparation of any records, the appellant shall post an advance fee deposit in an amount specified by the county auditor with the county auditor. Any overage will be promptly returned to the appellant. State law provides short deadlines and strict procedures for appeals and failure to timely comply with filing and service requirements may result in dismissal of any appeal. Persons seeking to file an appeal are encouraged to promptly review appeal deadlines and procedural requirements and confer with advisors of their choosing, possibly including a private attorney.