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20150342 Signed HE Decision 031620160F THE 'O' City of Yelm 0!% Community Development Department 105 Yelm Avenue West P. O. Box 479 Yelm, WA 98597 March 16, 2016 John Bichler 105 West 1St Street Ryderwood, WA 98581 RE: 20150342 Bichler Appeal of Staff Determination Dear Applicant: Transmitted herewith is the Report and Decision of the City of Yelm Hearing Examiner relating to the above - entitled matter. Very truly yours, T "PHENK. CAUSSEA , JR. Hearing Examiner SKC /jjp cc: Parties of Record OFFICE OF THE HEARING EXAMINER CITY OF YELM REPORT AND DECISION CASE NO.: 20150342 Bichler Appeal of Staff Determination APPLICANT: John Bichler 105 West 1 st Street Ryderwood, WA 98581 AGENT: Law Offices of Allen T. Miller PLLC 1801 West Bay Drive N.W., #205 Olympia, WA 98501 SUMMARY OF REQUEST: Appeal of a Community Development Department Staff Determination that recreational vehicle sales, service and repair is not a pre- existing, non - conforming use on a parcel located at 109 93rd Avenue S.E. SUMMARY OF DECISION: Appeal 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 February 29, 2016, at 9:00 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" - EXHIBIT "2" - EXHIBIT "3" - EXHIBIT "4" - Community Development Department Staff Report with Attachments Appellant's Brief Rental /Lease Agreement Letter from Allen T. Attachments Miller dated March 7, 2016, with The Minutes of the Public Hearing set forth below are not the official record and are provided for the convenience of the parties. The official record is the recording of the hearing that can be transcribed for purposes of appeal. TAMI MERRIMAN appeared, presented the Community Development Department Staff Report, and testified that an RV sales, service, and repair business is not a lawful nonconforming use on Mr. Bichler's 1.06 acre parcel. The property was within the City limits prior to adoption of the 1995 Comprehensive Plan and zoning code. The applicant provides storage for and maintains RVs. The zoning code allows the maintenance of personal vehicles but not RVs. Mr. Bichler stated that RV uses occurred in the past and should be allowed to continue. Mr. Bichler has standing to bring the appeal, and RV maintenance has occurred on the site in the past. In 1994 he applied for RV uses on the site but was advised that such uses were not allowed by the zoning. In 2004 Millennium RV operated from the site and the City determined its business a violation. Between 1996 and 2001 an RV business occurred on the site but was in violation of the zoning code. The code does allow automobile businesses, but these are different uses than RVs. A break of four to five years occurred in the RV use of the site from 2001 to 2005 which greatly exceeds the 18 month discontinuance period allowed by the code. In answer to the Examiner's questions, Ms. Merriman testified that the buildings have been located on the site since 1992 -1995. They were used for RV sales and service to include the period between 1996 and 2001. She noted the Millennium RV use and the involvement of a compliance officer in 2003 that notified the appellant of the violation. In 2004 they met with Millennium and advised that they needed to obtain a rezone. Millennium then left the site. Other businesses that have operated from the site include hulk hauling and an exercise facility after 2005. The site was also used by Prairie Christian Center for food storage, a warehouse use that is also not allowed in the C -1 zone. In October, 2015, the appellant applied for an RV maintenance business. ALLEN MILLER and appellant JOHN BICHLER appeared and Mr. Bichler testified that the parcel is bordered on the west and rear by school athletic fields, a car dealership, a Mr. Electric business, and batting cages. He purchased the property in 1986. In 1991 the R &M RV business started. They conducted retail sales of RVs and sold propane. In 1996 he added the Quality Auto Repair business. Between 1996 and 1998 a feed store was located there as well. Millennium RV occupied the site from 2001 to 2006. Quality Auto Sales began operating at the site in 2008- Between 2008 and 2010 the site was vacant. Between April, 2010, and October, 2010, a metal recycling business located at the site. Then, from November, 2010, to June 6, 2011, it was once again vacant. Between June, 2011, and June, 2012, a gymnasium operated at the site. The site was again vacant between July 12 and August 12, and in September they donated the use of the building to the church for food storage. Between 2013 and 2015, DGB Fabrication and Auto Detailing operated its business from the site, but between February and October, 2015, it was once again vacant. In November, 2015, the JLL business moved onto the site. The site has been constantly used for both RV and car -3- sales and maintenance. Mr. Bichler then testified that he purchased the parcel in the late 1980s and began an auto repair business. He constructed the second building in 1990 to 1991 and used it for an RV business. He operated the business for three years and then applied for a rezone. He was there for another year and then moved the business to his house. He then sold the abutting property to the batting cage business. In the mid -1990s the auto sales business moved as well as the RV business. He restored transmissions on all kinds of vehicles but ceased that business two years ago. Two buildings are on the property. One measures 40 by 84 feet and the other 40 by 60 feet. He has used both buildings for two businesses. Millennium RV came in but the City asked them to leave as they had no permit. A car recycling business was located on the site and then a gymnasium. Then the church came in for 1.5 years. The church tried to purchase the parcel from him but the City would not grant them a permit for their food warehouse. Then BGE Fabrication came in and worked on semis and cars. They were there for about one to one and a half years. Now a new tenant wants to perform work on RVs. They worked on their own RVs at first, but now want to hang out a shingle. MS. MERRIMAN reappeared and testified that the site was within the RM zone between 1991 and 1996. If an applicant changes a nonconforming business to a similar use, the City can allow it. A change of use requires a site plan review approval and compliance with present zoning code requirements. The present tenant on the site has obtained neither a business license nor a site plan review approval. MR. MILLER then reappeared and introduced several exhibits. No one spoke further in this matter and so the Examiner took the request under advisement and the hearing was concluded at 9:50 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. 2. This appeal is exempt from review pursuant to the State Environmental Policy Act (SEPA). 3. The City provided proper notice of the Appeal hearing before the Examiner pursuant to the Yelm Municipal Code. -4- 4. The appellant, John Bichler, appeals an administrative determination issued by the City of Yelm Community Development Department that nonconforming use rights do not exist for recreational vehicle (RV) service, sales, and repair at the appellant's parcel located at 109 -93rd Avenue S.E., within the City of Yelm. Appellant's appeal must be denied because: A. Appellant has not shown by a preponderance of evidence that a RV sales, service, and repair business was legally established on the site; B. Even if a nonconforming business was legally established, the City has shown by clear and convincing evidence that the RV business was abandoned by subsequent utilization of the site for different types of businesses; C. Even if a nonconforming, RV business was established on the site, the appellant did not secure City permits /authority to change the use to other nonconforming uses and thereby lost nonconforming use rights. 5. Based upon testimony and the chronology attached to appellant's brief (Exhibit 2), a chronology of uses on appellant's site is as follows: A. The appellant acquired the property in question in 1986. B. At least as early as 1988 the Yelm City Council placed the parcel within the Commercial (C -1) zone classification. Since 1988, the C -1 classification has not allowed RV sales, service, and repair. C. Between 1991 and 1996 R &M RV operated from the site and performed retail sales and service /repair for RVs. However, said business never acquired any permits and operated in violation of the C -1 zone classification. Thus, the business was not legally established and could not have been legally established without a zone reclassification of the parcel. D. In May, 1994, William Garrett and Ray Ross submitted to the City a Presubmission Meeting Request Form wherein Mr. Ross identified himself as "owner R &M RV Yelm ". The purpose of the request was to ascertain the steps necessary to legalize the R &M RV business. The City advised that such would require a zone reclassification. No further action was taken by R &M or the appellant. E. Between 1996 and 1998 the site supported an automobile repair business and propane sales. During this time the site also supported a feed store and retail sales. -5- F. Millennium RV began operating a RV retail sales and service /repair business. G. In 2004, Millennium RV attended a preapplication meeting with the City on September 8, 2004, for the purpose of legalizing the sales and storage of RVs on the parcel. The City advised in a letter dated April 4, 2005, that the owner would need to obtain a rezone /comprehensive plan amendment to change the designation and zoning from C -1 to C -2. The City received no application from either the appellant or Millennium RV. According to appellant's testimony, Millennium RV vacated the premises in 2006. H. Cruz Auto Sales occupied the site in 2008 and utilized it for retail sales and repair of automobiles. The site was vacant from the end of 2008 to March 20, 2010. J. From April to October, 2010, a metal recycling company occupied the site. K. Following a one month vacant period, a work -out gym occupied the site from June, 2011, to June, 2012. L. Between September, 2012, to August, 2013, appellant donated the use of the building to Yelm Prairie Christian Center for food storage. M. From September, 2013, to January, 2015, DGB Fabrication utilized the site for retail sales and automobile modifications. N. The parcel was once again vacant from February, 2015, to October, 2015. On November, 2015, the current tenant, JLL Investments, LLC, began operation of a car and RV detail service for dealers. The present use does not comply with the applicable C -1 zone classification. 6. Based upon the above chronology the first evidence of RV sales, service, and repair occurring on the site was in 1991, three years subsequent to the effective date of the 1988 City of Yelm Zoning Code that prohibited such uses. The parcel has remained within the C -1 classification subsequent to 1998, and in all editions of the Yelm Municipal Code (YMC), RV sales, service, and repair has not been an allowed use therein. Thus, the appellant has not established by a preponderance of the evidence that a legal nonconforming use previously existed on the site. 7. Furthermore, even if the R &M RV use of the site from 1991 through 1996 is considered a legal nonconforming use, the appellant abandoned such nonconforming use by subsequent utilization of the site for an automobile repair business and a feed store between 1996 and 2001. Millennium RV operated W from the site between 2001 -2006. Following Millennium's vacation of the premises, uses of the site changed to an auto sales business, metal recycling business, work -out gymnasium, food storage warehouse, and retail sales /automobile modifications. Such uses operated from the site between approximately 2006 and 2015. Appellant did not acquire any change of use permits from the City for any such uses. Due to the lengthy periods of time between RV uses and numerous intervening uses, the appellant would have abandoned any nonconforming use rights that previously existed. 8. In a letter to appellant dated November 13, 1996, Catherine Carlson, City planner, advised that: In the future any expansion, remodel or change in use at the site will require full compliance with Site Plan Review, Chapter 17.84 Thus, the City advised appellant that any changes in use (nonconforming or otherwise) would require site plan review. Appellant never requested site plan review for any uses operating on the site from commencement of his ownership. 9. Appellant asserts in his appeal in part: The recreational vehicle service business would be for the sale, maintenance, and storage of vehicles. Maintenance and storage is an allowed use in the C -1 zone... The C -1 zone allows automobile repair businesses. A recreational vehicle service business is allowed as a type of automobile repair facility. Appellant also argues that the proposed use of the site is compliant with the uses authorized in the C -1 classification. Chapter 18.36 YMC sets forth the criteria for the C -1 zone classification. Section 18.36.010 YMC sets forth the intent of the C -1 classification in part as follows: The commercial zone is intended to provide for the location of business centers to serve the needs of the community for convenience, goods, and services such as automobile servicing... and other uses related to, but lesser in scope, than downtown core area uses. (emphasis added) The YMC does not refer to RV uses in the C -1 zone and therefore such uses are not permitted. Chapter 18.37 YMC sets forth the criteria for the Heavy Commercial (C -2) zone. Section 18.37.020 YMC sets forth permitted uses in the C -2 classification and includes the following: -7- J. Recreational vehicle storage K. Recreational vehicle parks L. Sales and servicing of automobiles, boats, recreational vehicles, modular homes and farm equipment. The YMC is unambiguous. It clearly allows appellant's proposed uses of the site in the C -2 classification but does not allow such uses in the C -1 classification. CONCLUSIONS: 1. The Hearing Examiner has jurisdiction to consider and decide the issues presented by this request. 2. Our Washington Court of Appeals in Van Sant v. City of Everett, 69 Wn. App. 641 (1993), sets forth the burden of proof in nonconforming use cases as follows: [T]he initial burden of proving the existence of a nonconforming use is on the land user making the assertion. However, once a nonconforming use is established, the burden shifts to the party claiming abandonment or discontinuance of the nonconforming use to prove such. "Whether abandonment has occurred is a question of fact as to which the municipality has the burden of proof'. This burden of proof is not an easy one. 69 Wn. App. 641 @ 647, 648 Appellant and the City agree that appellant must establish by a preponderance of evidence that a RV sales, service, and repair business was legally established on the site pursuant to a previous zoning code that allowed said use. Only then would the City have the burden of showing that appellant or previous owners abandoned the nonconforming use. In the present case, appellant has not shown that a RV sales, service, or repair business was ever legally established on the site. In Earl L. Miller, et. , al. v. The City of Bainbridge Island, et., al., 111 Wn. App. 152 (2002), our Washington Court of Appeals answered the question of when a lawful nonconforming use is established as follows: A nonconforming use is defined in terms of the property's lawful use established and maintained at the time the zoning was imposed... In 1969, that lawful nonconforming use was a concrete casting supply business. 111 Wn. App. 152 @ 164 In the present case, the applicant did not establish an RV sales, service, or repair business on the site until 1991, three years subsequent to adoption of the C -1 zone classification that prohibited the use. Appellant has not met the burden of proof of showing that a nonconforming use existed on the site in 1988. -8- 3. Appellant essentially asserts that all uses of the site since his acquisition were generally commercial in nature and that continuation of such commercial uses entitles him to nonconforming use rights. Appellant makes a similar argument that was made in Miller, supra, as follows- ... Miller attempts to broaden the scope of the nonconforming concrete casting use by calling it generically "commercial" and then to designate the other uses of the property at the time the concrete casting use ceased as the significant uses at issue. Specifically, Miller characterizes the issue as "whether tenant changes from 1973 forward constituted a discontinuance or abandonment of the lawful nonconforming use established in 1969 "....111 Wn. App. 152 @ 163 The Court rejected Miller's argument. The Court further noted that under the City of Bainbridge Island's zoning code (as under the YMC) a legal nonconforming use could be changed to another nonconforming use but only if approved by the City. The City of Bainbridge Island approves such changes through the Board of Adjustment, and the City of Yelm approves such changes through the site plan review process. Because appellant never applied for a change of use, he is subject to the Miller Court's holding as follows- ... But neither Miller nor his predecessors sought approval for any change in use from the Board of Adjustment; therefore, their changes were unauthorized and are not legal uses. 111 Wn. App. 152 @ 165 Likewise, in the present case, appellant neither applied for nor received approval for any change of use of the site since he acquired it in 1986. Therefore, pursuant to Miller, the present use of the site is not a legal nonconforming use. 4. Section 6.67 of Anderson's American Law of Zoning 4th Edition, written in 1996 and supplemented in 2008 covers some of the period in question, is still accurate today, and is in accord with Miller, supra. Said section provides in part: A change from one nonconforming use to another may be regarded as an abandonment of the former use... Where a change from one nonconforming use to another is proscribed by the ordinance, any such change may be regarded as an abandonment of the original nonconforming use. Under the common provision that a nonconforming use may be changed to one in the same or a more restrictive class, an unpermitted change of use will result in an abandonment of the original nonconforming use... -9- An unpermitted change of use may result in a loss of use through abandonment even though the user did not actually intend to abandon his right.... A right to maintain a nonconforming use may be regarded as abandoned when the use is discontinued, and a new use substituted, without knowledge of the legal significance of the change.... 5. Therefore, the appeal of John Bichler must be denied for the following reasons: A. A legal nonconforming use was never established on the site; B. Even if an RV sales, service, and repair business had been legally established on the site, appellant abandoned said use by authorizing many different uses subsequent to closure of the RV business. C. Appellant abandoned any nonconforming use by failure to obtain change of use permits from the City. DECISION: The appeal of John Bichler is hereby denied. ORDERED this 16th day of March, 2016. - ZZ%� Sf EPHEN K. CAUSSEAU , JR. Hearing Examiner TRANSMITTED this 16th day of March, 2016, to the following: APPLICANT: John Bichler 105 West 1 st Street Ryderwood, WA 98581 AGENT: Law Offices of Allen T. Miller PLLC 1801 West Bay Drive N.W., #205 Olympia, WA 98501 OTHERS: CITY OF YELM -io- CASE NO.: 20150342 Bichler Appeal of Staff Determination NOTICE All final decisions of the hearing Examiner may be appealed to the City Council at a closed record appeal hearing, initiated by a person who has standing to appeal. All appeals must be filed within 21 days from the date of the decision being appealed in accordance with Section 18.10.100 Yelm Municipal Code.