Opinion Information Sheet

			

     Keith Rosema and Anee Brar, and City of Seattle v. An Yu, Shui-Xian Fu, and                 

                                  David Lee, No. 65607-4-I

       Schindler, J. (concurring)  --  I concur with the analysis of the majority but write 

separately to also point out and emphasize the intent of the City to preserve a 

nonconforming use.  A city has the right "to preserve, limit or terminate nonconforming 

uses subject only to the broad limits of applicable enabling acts and the constitution."  

Rhod-A-Zalea & 35th, Inc. v. Snohomish County, 136 Wn.2d 1, 7, 959 P.2d 1024 

(1998).  The City of Seattle adopted regulations that favor permitting a nonconforming 

use and are designed to avoid inadvertently discontinuing a legally established 

nonconforming use.  SMC 23.42.100(B) states:

       It is the intent of these provisions to establish a framework for dealing with 
       nonconformity that allows most nonconformities to continue.  The Code 
       facilitates the maintenance and enhancement of nonconforming uses and 
       developments so they may exist as an asset to their neighborhoods.  The 
       redevelopment of nonconformities to be more conforming to current code 
       standards is a long term goal.[1]

The SMC also defines "use" to include what the building is designed for as well as how 

the building is used.  "Use" means the purpose for which land or a structure is designed 

or maintained.  SMC 23.84A.040.  Here, Rosema cannot show that DPD did not 

correctly interpret and apply the provisions of the SMC in concluding the residence was 

designed and "continuously maintained" as a duplex.

       1 (Emphasis added.) 

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