Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION ONE

KEITH ROSEMA and ANEE BRAR,                 )       No. 65607-4-I
                                            )
                      Respondents,          )
                                            )
              v.                            )
                                            ) 
CITY OF SEATTLE,                            )
                                            )
                      Respondent,           )       PUBLISHED OPINION
                                            )
AN YU, SHUI-XIAN FU, DAVID LEE,             )
                                            )
                      Appellants.           )       FILED: January 30, 2012
                                            )

       Ellington, J.  --  This land use action concerns whether the owners of a legally 

nonconforming duplex abandoned the nonconforming use.  We hold that under the 

definitions in the Seattle Municipal Code (SMC), they did not.

                                      BACKGROUND

       In 1956, the City of Seattle (City) allowed a single-family residence near the 

University of Washington to be converted to a duplex.  The upper floors retained 

house number 5211 and the basement unit was given number 5215.  The following 

year, the City changed the neighborhood zoning to single-family residence.  The 

property retained a legal nonconforming use status as a duplex.  

       In 1991, Sue and Jerry Nelson purchased the property, which by then had  

No. 65607-4-I/2

been used illegally as a triplex and had three kitchens.  The Nelsons removed the 

third unit.  They did not change the original permitted basement unit, which had a 

kitchen, two bedrooms and an external entrance.  The Nelsons lived there for 18 
years as their family home.1 They apparently never rented the basement unit and 

used only 5211 as their house number.  

       The Nelsons obtained a permit for home improvements in 1993.  The permit 

listed the property as a duplex.  At some point, they sought to change the designation 

to single-family residence, but City officials refused to make the change unless the 

Nelsons removed the electrical junction box that serviced the second stove.  The 

Nelsons did not do so because of the expense, and so continued to pay separate bills 

for the electric meters associated with each house number.  They also paid for two 

garbage collection containers because the second kitchen in their basement made the 

basement a possible rental unit.  They did not remove the appliances in the second 

kitchen.

       In 2009, the Nelsons listed the property for sale.  They described it as a single-

family residence.  An Yu and Shui-Xian Fu (Yu) bought the property and applied for a 

permit to "[e]stablish use for the record as a duplex" and for interior alterations, 
including an increase in the number of bedrooms from six to nine.2  

       Neighbors Keith Rosema and Anee Brar (Rosema) requested a formal 

interpretation of the SMC, contending that the nonconforming use as a legal duplex 

       1 Interior access between the basement and first floors remained intact, 
although separated by a door.

       2 Documentary Record (DR) at 1.

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No. 65607-4-I/3

had lapsed during the Nelson's ownership.  Rosema further argued that, if the 

property was recognized as a legal nonconforming duplex, the addition of three 

bedrooms would require off-street parking that would unlawfully increase the 

nonconformity of the property.

       The City Department of Planning and Development Services (DPD) issued a 

formal Interpretation of the director determining that the property retained its legal 

nonconforming use status as a duplex.  DPD issued a permit for the structural 

alterations, and determined that one additional off-street parking space would satisfy 

requirements if Yu increased the number of bedrooms as planned.

       Rosema filed an action under the Land Use Petition Act (LUPA), ch. 36.70C 

RCW, in King County Superior Court.  The court reversed and remanded, but granted 

a stay pending our review.

                                       DISCUSSION

                                    Standard of Review

       We review the City's actions on the administrative record, without reference to 
the superior court decision.3 Under LUPA, the party who filed the petition must 

establish that one of the standards in RCW 36.70C.130(1) is met.4  The statute 

provides, in pertinent part:

              (b) The land use decision is an erroneous interpretation of the 
       law, after allowing for such deference as is due the construction of a 

       3 HJS Dev., Inc. v. Pierce County, 148 Wn.2d 451, 468, 61 P.3d 1141 (2003).

       4 Quality Rock Products v. Thurston County, 139 Wn. App. 125, 134, 159 P.3d 
1 (2007).  Rosema argues that, under the SMC, Yu bears the burden of showing the 
legal nonconforming use was not discontinued, but presents no compelling authority 
to support overriding the burden clearly set forth in LUPA.

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No. 65607-4-I/4

       law by a local jurisdiction with expertise;

              (c) The land use decision is not supported by evidence that is 
       substantial when viewed in light of the whole record before the court; 

              (d) The land use decision is a clearly erroneous application of 
       the law to the facts.[5]

       Neither party challenges DPD's findings, so they are verities on appeal.6 We 

review alleged errors of law de novo, after giving due deference to the local 

jurisdiction's interpretation of its codes and standards where there is ambiguity or 
conflict.7 We review a challenge to the sufficiency of the evidence under the 

substantial evidence standard,8 viewing the evidence and reasonable inferences in 

the light most favorable to the prevailing party in the highest forum that exercised fact-
finding authority.9 We review application of the law to the facts under the clearly 

erroneous standard, reversing only when, after considering the entire record, we are 
firmly convinced the administrative body erred.10

       5 RCW 36.70C.130(1).

       6 In re Marriage of Akon, 160 Wn. App. 48, 57, 248 P.3d 94 (2011); 
RAP 10.3(g).

       7 RCW 36.70C.130(1)(b); Miller v. Bainbridge Island, 111 Wn. App. 152, 162, 
43 P.3d 1250 (2002); Quality Rock, 139 Wn. App. at 133.

       8 RCW 36.70C.130(1)(c); Miller, 111 Wn. App. at 162 (appellate court will 
overturn findings only if not supported by substantial evidence).

       9 Friends of Cedar Park Neighborhood v. Seattle, 156 Wn. App. 633, 641, 234 
P.3d 214 (2010).  Rosema contends this standard is not applicable here because it 
originated in cases predating LUPA, and because DPD does not constitute a forum 
that exercised fact-finding authority.  But this standard has, in fact, been applied in 
LUPA decisions, see id., and DPD has the authority to issue an interpretation of the 
Land Use Code, Title 23 SMC, including findings and conclusions. SMC 23.88.020.

       10 Woodinville Water Dist. v. King County, 105 Wn. App. 897, 904, 21 P.3d 309 
(2001); Quality Rock, 139 Wn. App. at 133.

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No. 65607-4-I/5

                                    Nonconforming Use

       A legal nonconforming use is a vested right.  The right may be lost by 

abandonment or discontinuance, but a party so claiming has a heavy burden of
proof.11 Abandonment or discontinuance is a question of fact, and ordinarily depends 

upon a concurrence of two factors:  "'(a) an intention to abandon; and (b) an overt act, 

or failure to act, which carries the implication that the owner does not claim or retain 
any interest in the right to the nonconforming use.'"12  

       Nelson stated it was his family's intent to use the house as a single-family 

residence, as opposed to a duplex.  But intent alone is not enough.  To show 

discontinuance of the property's preexisting nonconforming use, Rosema must show 

an overt act or failure to act by the Nelsons that satisfies the standards for 

discontinuance as defined by the SMC.

       The SMC provides that a legal nonconforming use is discontinued where, for 

more than 12 consecutive months, "[t]he structure or a portion of a structure is not 
being used for the use allowed by the most recent permit."13 The most recent permit 

is the Nelson's 1993 permit for home improvements, which notes the property is a 
duplex.14

       11 Van Sant v. City of Everett, 69 Wn. App. 641, 648, 849 P.2d 1276 (1993).  

       12 Id. (quoting 8A E. McQuillin, Municipal Corporations §§ 25.191, .192 (3d ed. 
1986)).

       13 SMC 23.42.104(B)(2).

       14 The 1993 application described the project as "interior alterations to SFR 
[(Single Family Residence)]," but "SFR" was struck and the word "duplex" added in its 
place.  There is also a note in the header area of the application that says, "Duplex?"  
These are apparently notes and changes made by the City.  DR at 163.

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No. 65607-4-I/6

       Under the SMC, the noun "use" means "the purpose for which land or a 
structure is designed, built, arranged, intended, occupied, maintained, let or leased."15  

The SMC does not explicitly define the purpose of a duplex, but it does offer clear 

indications that its purpose is to house multiple families as independent households.  

"Multifamily residential use" under the SMC means "a use consisting of two or more 

dwelling units in a structure or portion of a structure, excluding accessory dwelling 
units."16 Thus, because a duplex contains two dwelling units, its purpose is to house 

multiple households.17

       The question here, then, is whether the Nelsons' failure to use the basement 

unit of their property to house an independent household, while maintaining the 

structural capability to do so, was an overt act or failure to act sufficient to imply 

disclaimer of their interest in the property's intended purpose as a duplex.  

       DPD determined the evidence was equivocal as to whether the Nelsons 

abandoned the right to the nonconforming use and as to whether the structure was 

used for the use allowed.  Given that ambiguity and given the heavy burden to prove 
lapse of nonconforming use, DPD ruled the nonconforming use did not lapse.18

       15 SMC 23.84A.040.

       16 SMC 23.84A.032.  A "dwelling unit" means "a room or rooms located within a 
structure, designed, arranged, occupied or intended to be occupied by not more than 
one household as living accommodations independent from any other household.  
The existence of a food preparation area within the room or rooms shall be evidence 
of the existence of a dwelling unit." SMC 23.84A.008.  And "household" means "a 
housekeeping unit consisting of any number of related persons." SMC 23.84A.016.

       17 A "duplex" is defined as "a single structure containing only two dwelling units, 
neither of which is an accessory dwelling unit authorized under [SMC] 23.44.041."
SMC 23.84A.008.

       18 It is DPD practice to assume that a use established by permit remains valid 

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No. 65607-4-I/7

       We are not persuaded this conclusion was error.  Despite living with their 

family in the entire structure, the Nelsons maintained the separate basement unit, 

which was legal only if the structure was a nonconforming duplex or the unit was 

permitted as an 

absent clear evidence it has lapsed.

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No. 65607-4-I/8

additional dwelling unit.  They declined to make the structural changes required by the 

City for recognition as a single-family home or to seek an additional dwelling unit

permit, which would have allowed continued maintenance of a second kitchen in a 

single-family residence. These failures to act do not fairly imply discontinued interest 

in the property's use as a duplex.  Under the code, the legal status of the property 

necessarily retained its preexisting nonconforming use as a duplex. 

       The Rosemas failed to meet the burden of establishing that a nonconforming 

use has been abandoned.  We reverse the superior court and affirm DPD on the issue 

of nonconforming use.

                             Off-Street Parking Determination

       The parties do not dispute DPD's determination that the SMC requires a third 

parking space if the number of bedrooms are increased as proposed.  Yu's plans 

reflect a total of five parking spaces, three of which are located in the front and side 

yard.

       The SMC prohibits parking more than three vehicles outdoors on a lot in a 
single-family zone and prohibits parking in required front and side yards.19 A legally 

established nonconforming parking space may continue to be used.20

       The superior court ordered DPD to limit the number of outdoor parking spaces 

on the property to three as required by the code, and to prohibit those spaces from 

being located in the front or side yard except to the extent Yu can establish that one 

       19 SMC 23.44.016(C)(3), (D).

       20 SMC 23.42.100, .102.

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No. 65607-4-I/9

or more such parking spaces were legally established by prior owners.  We agree.  

We remand to DPD to determine whether any of the apparently nonconforming 

parking spaces on Yu's plans were legally established by prior owners.

                                       Attorney Fees

       Rosema requests attorney fees under RAP 18.9 for a frivolous appeal and for 

failure to cite to the superior court decision.  He also requests this matter be 

remanded to the superior court for determination of compensatory damages for loss of 
"peaceful enjoyment of their property."21 But this appeal was not frivolous, and failure 

to reference the superior court decision is not grounds for sanctions, especially where 

our review is on the administrative record.

       We reverse the superior court and affirm DPD as to the nonconforming use, 

and affirm the superior court and remand to DPD as to the parking issues.

WE CONCUR:

       21 Resp't's Br. at 42.

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