Hearing Examiner Decision OFFICE OF THE HEARING EXAMINER
CITY OF YELM
REPORT AND DECISION
CASE NO.: APP-02-8319-YL, DOUGLAS WALKER APPEAL
APPELLANT: Douglas Walker
1329 E. Main
Puyallup, WA 98372
SUMMARY OF REQUEST:
The appellant is appealing the administrative decision of Gary Carlson, Building Official, to deny placement of a temporary sales trailer at the Van Norhop Estates subdivision.
SUMMARY OF DECISION:
The appeal of Douglas Walker is denied.
PUBLIC HEARING:
After reviewing Community Development Department Staff Report and examining available information on file with the application, the Examiner conducted a public hearing on the request
as follows:
The hearing was opened on July 1, 2002, at 9:01 a.m.
Parties wishing to testify were sworn in by the Examiner.
The following exhibits were submitted and made a part of the record as follows:
EXHIBIT "1" - Community Development Staff Report and Attachments
TAMI MERRIMAN appeared, presented the Community Development Department Staff Report, and testified that the appellant recorded the plat on May 10, 2002, and that the City had received
a request from the appellant to place a temporary sales trailer on the site. The City Code allows an on-site model home for sales purposes, but does not allow a mobile home or temporary
sales trailer. The code allows temporary uses to include security and temporary living quarters. The City could not allow a sales trailer pursuant to the code.
Appearing was DAVE WILSON, president of Concord Development, who testified that this is his first time building in Yelm and he thanked staff for their help. The two ordinances cited
in the staff report do not address the sales trailer issue, but are very builder friendly otherwise. Staff denied the request due to the lack of a specific ordinance addressing the sales
trailer issue. Staff correctly asserts that the code does not address sales trailer, but questioned whether staff or the Council had ever addressed the issue. They will need to in the
future if the Council wants the code to be builder friendly. They requested to use a sales trailer, but since the City Code has no provision on point, staff denied the request. They
ask the Examiner to look at the intent of the ordinance. The code allows a sales office within a residential home and also authorizes temporary construction trailers. He sees no reason
why the code does not allow a sales trailer in addition to a construction trailer. The construction trailer is much more intrusive and is present on the site for a longer time. It is
very important to have the answers to these questions so that they can get things going. As a builder he sees no ordinance addressing their specific request.
Appearing was DOUG WALKER, appellant, who reiterated that nothing in the ordinance discusses a temporary sales facility. He is aware of over 40 new home communities in various jurisdictions,
90% of which open with a temporary sales facility. This builder has cleared 20 lots and if he must wait 90 to 120 days to get sales staff on site, it will hinder him in getting the sales
started. He is not aware of any jurisdiction denying a temporary sales facility in the past. If he felt the code denied such use they would have constructed a model home. The sales trailer
presents no risk to the City. They will follow all of the City codes.
Reappearing was MR. WILSON who testified that he is building homes right now and framing as of Monday. Buyers will look at a new home right before they begin drywalling and can look
at and determine the room sizes. It is very important to provide someone to answer questions and create rapport. The City will address this issue in the future. Developers typically
start a model home as they have no risk since they will complete the plat. A builder who purchases lots is placed at a big disadvantage if he starts construction of model homes prior
to final plat approval. He has no control over the developer obtaining final plat approval.
Reappearing was MS. MERRIMAN who testified that the City Code lists the permitted uses in the R-4 classification and does not include a temporary sales building. Another section of
the code prohibits uses not specifically listed.
Reappearing was MR. WALKER who doesn’t understand the problem since a construction trailer is allowed on the site. He sees no reason not to allow a temporary sales office. He sees no
harm to the City as it will not create a problem for either the City or the site.
Reappearing was MR. WILSON who reemphasized that a question exists regarding code interpretation. Should the City exercise leniency or follow the code exactly. The City should do what
makes sense and allow the sales trailer.
Reappearing was MR. WALKER who testified that the City of Buckley has no ordinance addressing a mobile home and originally denied one, but then reversed itself when they showed what
Pierce County has done in the past. Their ordinance did not address model homes at all.
No one spoke further in this matter and so the Examiner took the request under advisement and the hearing was concluded at 9:26 a.m.
NOTE: A complete record of this hearing is available in the City of Yelm Community Development Department.
FINDINGS, CONCLUSIONS AND DECISION:
FINDINGS:
1. The Hearing Examiner has admitted documentary evidence into the record, heard testimony, and taken this matter under advisement.
Pursuant to the State Environmental Policy Act (SEPA) this request is exempt from its review.
Proper notice was given pursuant to the Yelm Municipal Code.
The appellant, Douglas Walker, appeals the decision of Gary Carlson, Building Official, City of Yelm, denying his request to locate a temporary sales trailer on lot 20 of the Van Norhop
Estates single family residential subdivision located at the intersection of 107th Loop SE and Mill Road SE within the City of Yelm. The Yelm City Council has placed Van Norhop Estates
within the Low Density Residential zone classification (R-4) of the Yelm Municipal Code (YMC). The Building Official determined that the R-4 zone classification does not allow a temporary
sales trailer. For the reasons set forth hereinafter, the Building Official correctly interpreted the uses allowed and disallowed in the R-4 classification and therefore the appeal must
be denied.
The facts in this appeal are not disputed. David Wilson, a home builder, has purchased 20 lots in the Van Norhop Estates subdivision and has commenced construction of new single family
dwellings on several lots. The appellant, a real estate agent, desires to place a temporary sales trailer on lot 20 adjacent to 107th Loop SE to assist potential new home buyers. He
remove the trailer following completion of the first unsold home.
The appellant asserts that the Building Official and Community Development Department staff improperly applied a strict interpretation of the Yelm Municipal Code (YMC). The appellant
asserts that the YMC is a building friendly code, but agrees with staff that it does not address a sales trailer. Appellant asserts that in
considering the YMC as a whole, the City Council intended to allow temporary sales trailers in new subdivisions. The appellant points out that the subdivision code allows a model home
to serve as a sales office and also authorizes construction trailers, a more intense use. The appellant sees no reason why the Council would not authorize a temporary sales trailer
as well. Appellant further asserts that most jurisdictions authorize temporary sales facilities as many sales occur during the construction of homes and real estate personnel need to
be on site to answer questions of potential buyers and create rapport. Furthermore, a developer can commence building a model home without risk since the developer must complete the
plat. However, if a builder starts construction of a home prior to final plat approval, he takes a risk as he has no control over the developer obtaining final plat approval. Thus, the
prudent builder must wait until final plat approval to start construction of a model home.
Section 17.12.020 YMC sets forth the uses authorized in the R-4 zone classification. These uses are generally restricted to single family dwellings and accessory uses, but also include
“mobile/manufactured homes as provided in Chapter 17.63 YMC”. Section 17.63.010 YMC sets forth the intent of the manufactured homes chapter which includes the following:
A. Permit the location of manufactured homes as a permanent form of dwelling unit in certain districts and as an accessory use or temporary use in certain other districts.
No section of Chapter 17.63 YMC authorizes manufactured homes to serve as temporary sales facilities. Section 17.12.030(B) YMC states:
Uses other than those identified or described in YMC 17.12.020 are prohibited.
Thus, because neither Chapter 17.12 nor Chapter 17.63 YMC authorize mobile homes or manufactured homes to serve as a temporary sales facility, Section 17.12.030(B) YMC prohibits such
use.
Section 17.63.030(F) YMC provides that manufactured housing units placed on a lot outside of a manufactured home subdivision or housing community may serve as a “temporary or emergency
use in:”
1. Any district as part of a construction project or office use for construction personnel or temporary living quarters for security personnel for a period extending not more than 90
days beyond completion of construction….
Thus, Section 17.63.030(F) YMC authorizes manufactured homes for a temporary construction office or temporary living quarters for security personnel, but does not
authorize their use for a temporary sales office.
Section 16.04.150 YMC, entitled “Model Homes”, provides in part as follows:
Any other provisions of this title notwithstanding, following preliminary approval of each full subdivision…the Public Works Director is authorized to approve and the Building Official
may issue a permit for construction of one and only one residence for use as a model home. Prior to final plat or site plan approval, such unit may be occupied solely for purposes of
promotion of the development and may not be occupied as a residence except by a real estate agent or other representative of the subdivider, and then only for the limited purpose of
security…
Thus, the YMC specifically addresses temporary sales offices by allowing such offices to operate from a model home. The code does not authorize a manufactured home “solely for purposes
of promotion of the development”. Therefore, staff correctly determined that the code does not authorize such use and properly denied the appellant’s request.
The Examiner does not find the YMC ambiguous as it clearly authorizes model homes to serve as temporary sales offices, but does not provide the same option for manufactured homes. Even
if the YMC is considered ambiguous, staff’s interpretation would still prevail. As stated by our Washington Supreme Court in Hama Hama v. Shorelines Hearings Board, 85 Wn. 2d 441 (1975):
Finally, when a statute is ambiguous – as in the instant case – there is the well known rule of statutory interpretation that the construction placed upon a statute by an administrative
agency charged with its administration and enforcement, while not absolutely controlling upon the courts, should be given great weight in determining legislative intent…The primary foundation
and rationale for this rule is that considerable judicial deference should be accorded to the special expertise of administrative agencies…At times, administrative interpretation of
a statute may approach “law making”, but we have heretofore recognized that it is an appropriate function for administrative agencies to “fill in the gaps” where necessary to the effectuation
of a general statutory scheme…It is likewise valid for an administrative agency to “fill in the gaps” by a statutory construction – as long as the agency does not proport to “amend the
statute”. 85 Wn. 2d 441 at 448.
In the present case, staff has not amended the YMC by refusing to allow a manufactured home to serve as a temporary sales office. On the contrary, staff has interpreted the adopted
provisions of the YMC in accordance with their clear
meaning.
CONCLUSIONS:
The Hearing Examiner has jurisdiction to consider and decide the issues presented by this request.
The appellant has not established that the Building Official’s denial of his request to place a temporary sales trailer on lot 20 of the Van Norhop Estates subdivision was erroneous.
Therefore, the appeal should be denied.
DECISION:
The appeal of Douglas Walker is hereby denied.
ORDERED this ______ day of July, 2002.
_____________________________________
STEPHEN K. CAUSSEAUX, JR.
Hearing Examiner
TRANSMITTED this _____ day of July, 2002, to the following:
APPELLANT: Douglas Walker
1329 E. Main
Puyallup, WA 98372
Dave Wilson P.O. Box 1567 Milton, WA 98354
City of Yelm
Tami Merriman
105 Yelm Avenue West
Yelm, WA 98597