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2005-08-18 Hearing Examiner MinutesCITY OF EDMONDS VERBATIM TRANSCRIPTS OF HEARING EXAMINER HEARING Hearing Examiner: Don Largent FILE NUMBER AP-05-73 August 18, 2005 Appeal by Walter Day of staff decision regarding the discontinuation of a duplex use in a single-family zone. The site is located at 18727 — 94' Avenue West and is zoned Single -Family Residential (RS-10) Mr. Largent: Good evening. My name is Don Largent. I am the Hearing Examiner on today's agenda, which involves three cases. Without any further adieu, I will get rolling here. The first case, let the record show that the hearing opened at 3:03 p.m. It is File Number AP-05-73, appeal of staff decision regarding a non -conforming duplex. Mr. Largent: I have before me a packet of information that includes a staff report prepared by Mr. Mike Thies, the Code Enforcement Inspector, and a variety of attachments. In large part, the attachments represent correspondence that occurred between both City staff and the appellant. I guess my first question to both parties is are you all in agreement that Section B, Chronology of Actions, is accurate as presented in the staff report? Specifically for the appellant? Mr. Maduell: Yes. Mr. Largent: Okay. The City has responded to the appellant's file of appeal with a memorandum that is attached to this report. I guess my question to staff at this point is if there anything else that I need to know that has come up since the preparation of the staff report in addition to what has been presented her and/or would you like an opportunity to go through this and clarify or enlighten us to any of the details. Mr. Thies: The only thing that has come up is we have received some letters over the course of the week that I have got over there that I will get to you later or right now if you want. Mr. Largent: Let's enter those into the record now, if you may. A little bit of housekeeping. Exhibit A will be the staff report dated August 11 with the before mentioned set of attachments. Exhibit B is an attached list of letters regarding this particular case. There are eight letters that have been submitted. This will be Exhibit B. Has the appellant gotten a copy of these also? Mr. Thies: Yes. Mr. Largent: Okay. Mr. Thies: I would add that the City Attorney is here if there are any legal questions. Mr. Largent: And where is he? Okay. Sorry. We have never met. At this point then, I am assuming that the appellant would like to respond to the staff memorandum and some of the issues that they have raised. Please come on forward. I am new to this facility. Do you want them up at the podium, or do these microphones also work? Why don't you have a seat at the table then? You can get started any time that you like. If you would just please state your name and address for the verbal record, please. Verbatim Hearing Examiner Hearing Transcripts File No. AP-05-73 August 18, 2005 Page 1 Mr. Maduell: My name is Chuck Maduell. I am an attorney at Davis Wright Tremaine, 1501 Fourth Avenue, Suite 26, Seattle, Washington, 98101. With me is the appellant, Walter Day. Before we... Mr. Day is going to testify about some of these issues and we have a few exhibits to present, as well. A member of the audience: Could you speak a little louder please? Thank you Mr. Maduell: Mr. Day is going to testify and we are going to present some additional evidence and exhibits. But before we do that, could I ask a few questions of Mr. Thies, is it, about the staff report? Mr. Largent: Why don't you go ahead and raise your questions directly to me right now, and then we can proceed and I will have him answer those in whatever order you like. But I would like to hear them first. Mr. Maduell: Okay. We don't object to the attachments to the staff report, and I assume they are made exhibits in the record? Mr. Largent: Yes. Mr. Maduell: I did not, though, that there are various records from Snohomish County zoning ordinances, from Snohomish County, and some ordinances from the City of Edmonds. I wanted to ask some questions about whether the Snohomish County Ordinance that was adopted in 1957 is the first ordinance that he could find that governs the property at issue and whether he found any prior to that that imposed any zoning requirements that are relevant to the issues in this case. Mr. Maduell: Also, there are references in the record to the accessory dwelling unit provisions. They appear to me to be adopted in 2000. My question to him is whether there were any accessory dwelling unit provisions adopted by the City of Edmonds prior to that time. Mr. Maduell: There's a letter attached to the staff report from a city planner named, I believe, Mr. Wallace or Waller, let me find that. Mr. Largent: Joseph Wallace. Mr. Maduell: It is dated 1976. 1 was wondering if Mr. Thies or anyone he is aware of that the City has any personal knowledge of that particular letter. I am assuming that employee is no longer with the City. Mr. Largent: Okay. Mr. Maduell: And then, upon annexation, what was the zoning of the property? Under what zoning code was the property given a zoning designation? Mr. Largent: When you ask what zoning code, are you talking about the date of the code or jurisdictions? Mr. Maduell: The date of the zoning code. There is an Attachment 3a, and I am not exactly sure if that's the ... I am not sure what the date of these zoning code provisions are and if these are the zoning code provisions that applied upon annexation of the subject property. Mr. Largent: Are those your questions at this point? Mr. Maduell: That's pretty much it, I think, at this time. Mr. Largent: Mr. Thies, if you would be kind enough to respond to those questions, I would appreciate it. Mr. Thies: Can everybody hear? As far as I know, the first ordinance is that the County provided there in 1957 that governed land use. As far as the ADU provisions, they were first put in in 1980 and modified 2000. I don't have any personal knowledge of Mr. Wallace or his letter. That was the first time I had seen it when Mr. Day Verbatim Hearing Examiner Hearing Transcripts File No. AP-05-73 August 18, 2005 Page 2 provided that letter to me. The date of the zoning code, when that was annexed in 1963, was the original zoning code adopted around the same time as the County adopted theirs in 1956. Mr. Largent: So the City and the County basically adopted their zoning codes concurrently? Mr. Thies: I am not sure how the timing between the two of them worked. Mr. Largent: But the same year? Mr. Thies: Well, 1956 and the County did in 1957, I believe. Mr. Largent: Okay. Mr. Maduell: Can I ask one follow up question on that? Mr. Largent: Certainly. Mr. Maduell: I think in the materials and the staff report, it says that the zoning of the property upon annexation was RS-12, and it has remained so since then. Is that 5-12, then, according to Attachment 3a? Mr. Thies: Correct. Mr. Maduell: Okay. I would like to ask a few questions of Mr. Walter Day, the appellant in this matter. Mr. Largent: That's fine. Mr. Maduell: Before I do, I would like to submit a hearing brief on the legal issues. Mr. Largent: Thank you. Exhibit C is entered as appellant's hearing brief for this case. Mr. Maduell: Mr. Day, would you please state your name and address for the record. Mr. Day: Walter Day, 12020 Phinney Avenue North, Seattle, Washington. Mr. Maduell: And you are the owner of the property located at 18728 and 18730 — 941 Avenue? Mr. Day: Yes. Mr. Maduell: When did you purchase that property? Mr. Day: 1956, is that right? Mr. Maduell: The staff report states that you purchased it in 1976. Mr. Day: Oh yes, sorry. It was 1976. Mr. Maduell: And from whom did you purchase the property? Mr. Day: Mr. Shields. Mr. Maduell: Would you please describe how you came to purchase that property? Mr. Day: Briefly. He is a fellow member of Master Mates and Pilots. In talking with him back in the 1970's or something, I expressed an interest in buying investment property, and he says, well, I will be selling my residence in Edmonds. Let me know if you are interested. Eventually, we did get together, and eventually, I did buy it. Verbatim Hearing Examiner Hearing Transcripts File No. AP-05-73 August 18, 2005 Page 3 Mr. Maduell: And could you please describe the property when you purchased it? Mr. Day: It is located in Edmonds on 94r' Avenue West, and it's a roman brick structure, two stories high. The upper apartment is on the street level and the lower apartment is directly underneath it. Both apartments have two kitchens and bedrooms and bathrooms and so forth, separate entrances. Mr. Maduell: Did Captain Shields tell you that it was a duplex? Mr. Day: No, I don't think he ever did in those words. Mr. Maduell: Were there any tenants in the residents when you purchased it? Mr. Day: No. Captain Shields was in the process of moving into an apartment, and the other residents had just moved out. So, in essence, the property was vacant. Mr. Maduell: Did you purchase the residence as a duplex? Mr. Day: I believe I did. I purchased it as an investment, with two rentals. And that's where we went from there for 28 years. Mr. Maduell: After you purchased the property, how soon did you rent it out? Mr. Day: Probably within a month, both units. Mr. Maduell: Has it been rented continuously since that time? Mr. Day: Yes, except this last year. My health has kept me from renovating the lower apartment as fast as I wished. Mr. Maduell: When you purchased the property, did you have any reason to believe that it was not an allowed use under the zoning in effect then? Mr. Day: Nothing. I knew nothing about that. Mr. Maduell: Now soon after you purchased the property, did you have any work done on it? Mr. Day: We did extensive cleaning and painting. Mr. Maduell: And did you have your son do any work on the property? Mr. Day: Yes, he was in Seattle, and I asked him to come down to the property and look at it. We agreed that wall heaters would be more appropriate for the lower unit than the stand alone radiator type heaters that were there, which I didn't like. At the same time, we put in a Westco electric furnace for the upper apartment. Mr. Maduell: And this was soon after you purchased the property? Mr. Day: I would say within a month or two, a month. It was summer time. Mr. Maduell: Have you spoken to your son recently about that work that he had done back in 1976? Mr. Day: Yes. I approached him about what he remembered. In essence, it was the same as I remembered it. Mr. Maduell: Did you ask him to prepare a letter for you about the work that he had done? Verbatim Hearing Examiner Hearing Transcripts File No. AP-05-73 August 18, 2005 Page 4 Mr. Day: Yes. It came down to that. Mr. Maduell: So a copy of this letter I would like to introduce as an exhibit. Mr. Largent: Exhibit D has been entered. It is a letter dated August 15' of this year from Richard T. Day to Walter R. Day. Mr. Day: Is this the letter? I don't have glasses. Mr. Maduell: Oh, okay. You can't see it at all? Mr. Day: I can't read it. It is single spaced, and I can't read it. Mr. Largent: I think we can assume that it is accurate. Mr. Maduell: Okay. Thank you. I also... Mr. Largent: While you are looking for something, I have one question for Mr. Day, if I may please. Mr. Day, at the time of purchase of the property, were you at all aware or had done any research into the zoning requirements at that time? Mr. Day: I didn't understand the questions. Mr. Largent: When you were looking to purchase this property in 1976, had you done any research at all into what the zoning requirements were at that time? Mr. Day: No. Mr. Maduell: I was using the letter to refresh Mr. Day's memory, but he couldn't read unfortunately. But I do have a declaration. Mr. Richard Day, his son, is in Idaho and could not be here. So I have a declaration from him that says essentially the same thing, but at least he has attested to what he is saying in the letter. Mr. Largent: Let's bring it forth then. Exhibit E — a declaration by Richard T. Day, signed and dated, essentially going through the same points as in Exhibit D. Mr. Maduell: In the letter of declaration, Mr. Day indicates that he upgraded the existing 230 volt heating system, and during this change out it became apparent to him, upon further examination of the original wiring methods, that the house had originally been built and wired as a duplex, with two kitchens, etc. using separate panels and meters. Is this essentially what he told you when you talked with him? Mr. Day: Yes. Mr. Maduell: Okay. Mr. Thies: That last exhibit was what letter? Mr. Largent: That would be Exhibit E. I am curious on one statement in Mr. Day's declaration, where it says "it became apparent, upon further examination of the existing original wiring methods." There is no clarification of how he determined this was original wiring methods from the time of 1956. I was curious what kind of indication that would have been. Mr. Maduell: Well, he did speak with his father about that, and perhaps he can shed some light on that. Mr. Largent: That would be fine, Mr. Day. Verbatim Hearing Examiner Hearing Transcripts File No. AP-05-73 August 18, 2005 Page 5 Mr. Day: May I reply the best I can? Mr. Largent: Certainly. Mr. Day: Having owned the property for 30 years and been in the lower unit many times, I could, myself, see that the romax wiring that existed in the 1950's, which was kind of a cotton -wrapped, two -conductor cable. Mr. Largent: Okay, so we are talking about a twin conductor system then, was what was in evidence at that time? Mr. Day: Pardon me. Mr. Largent: I said, a twin conductor wiring, where you have the two wires going through the little ceramic insulator's that was the wiring that was in place at the time that you purchased? Mr. Day: Yes, that was acceptable in the early 1950's, and the 1960's, I believe. Mr. Largent: Do we have a building official here today? Mr. Day: Pardon me. Mr. Largent: I have a quick question for you, if I may please. Could you come to the podium? And if you could state your name for the record. Ms. Graf. Jeanine Graf, Building Official for the City of Edmonds. Mr. Largent: I am going to put you on the spot here, and you may not have this answer off the top of your head. I know that the codes changed relative to wiring a number of years ago, with this particular kind of wiring. Do you have any idea when the UBC changed on those items? Ms. Graf. No I do not. Mr. Largent: Okay. Thank you. Sorry for the interruption. Please proceed. Mr. Maduell: Mr. Day, you indicated that you have been renting out both units for approximately 30 years. Could you please describe your maintenance of the property during that time? Mr. Day: Normal maintenance involved taking care of tenants' complaints, plugged drain lines, trying to upgrade the wiring in the kitchens to handle the increasing load by modern appliances such as toaster and what have you. What else did we do? Painting. We put on a new roof several years, $15,000 worth of tile. Mr. Maduell: How would you describe the condition in the house in comparison to the houses in the neighborhood? Mr. Day: It is equal to or above standards of housing built and renovated. There were a lot of houses built in the 1950's and this one would stand on its own feet. Mr. Maduell: Now since you have owned the property, have you had any complaints from neighbors about it or about its use? Mr. Day: No. Mr. Largent: Exhibit F consists of two black and white copies of photographs. One showing in the foreground some mailboxes and some structures in the background. The other, what I am going to assume is the driveway of the property. Verbatim Hearing Examiner Hearing Transcripts File No. AP-05-73 August 18, 2005 Page 6 Mr. Maduell: These are actually documents we obtained from the City pursuant to a public disclosure request. Is that correct, Mr. Thies? Mr. Thies: Yes. The second picture of the house is from the assessor's record. Mr. Maduell: The first photo that shows two of the mailboxes for the residences, is that correct? Mr. Day: I believe it is. My vision is not what it should be. Mr. Maduell: Let me ask you this. When you purchased the property, were there two mailboxes for the residence? Mr. Day: Yes. Mr. Maduell: And the second is a photo of the front of the house, is that correct to the extent that you can see that? Mr. Day: Yes. Mr. Maduell: Now, attached to the staff report is a letter from City Planner, E Joseph Wallace to Captain Shields dated July 8, 1976. Do you recognize that letter? Mr. Day: Yes, I have seen it. Mr. Maduell: How did you obtain a copy of that letter? Mr. Day: Captain Shields passed away in... Anyway, the executor of his estate was his brother, who was a doctor down in Auburn. During the probation, I received a copy of this letter in the mail from him saying this might be of interest to me or to us. That's how it came about. It came from the executor. He had found it in Mr. Shield's papers. Mr. Maduell: The letter that is attached to the staff report does not have an attachment to it. Was there an attachment? Mr. Day: Yes. Mr. Maduell: All right. Mr. Largent: Exhibit G is the letter dated July 8, 1976 from an E. Joseph Wallace, City Planner, to a Captain A. G. Shields, with a single attachment that appears to reference Case Number AP-2-75 and addressed, 755 Bell Street. Mr. Maduell: Attached to this letter is a copy of approval of minutes from the Edmonds Board of Adjustment dated March 19, 1975. Is this what was attached to the letter you received? Mr. Day: Yes, I think so. Mr. Maduell: Okay. What you take from this letter when you received a copy of it? Mr. Day: Well, it came as a surprise to me, and I didn't know anything about it really. Somebody had requested this letter, which was probably Mr. Shields, and this is the best answer that the City Council or something could reply to whatever questions he had asked. At that time, the letter, itself, states that there was a lot of non- conforming problems in the area of the annexation, and I would have to believe that this had aroused, from whatever Mr. Sheilds' position was, it aroused his curiosity, what these errors in non -conforming properties in the annexation. It didn't specify, clarify, nothing. But it was a letter stating that, yes, there was errors in the annexation and didn't specify anything further. Verbatim Hearing Examiner Hearing Transcripts File No. AP-05-73 August 18, 2005 Page 7 Mr. Maduell: The letter states that "based on the foregoing, the non -conforming property may be sold and the use continue as stipulated." Was this letter issued around the time that you purchased the property? Mr. Day: Yes, it appears so. Mr. Maduell: There is also a letter... Oh, one other question with that. Why did you give a copy of that letter to the City? Mr. Day: Pardon me. Mr. Maduell: Why did you give a copy of that letter to the City? Mr. Day: They were asking me, they wrote me a letter or a phone call, asking me to explain the duplex I think it was. I don't remember their exact words. I am not sure there was a letter. Maybe it was just a phone conversation. Mr. Maduell: You did give the City a copy? Mr. Day: Yes, I did. Mr. Maduell: And this was in response to the City's questions about the non -conforming use of the property? Mr. Day: A request about 18728 and 30. Mr. Maduell: Okay. There is a letter attached to the staff report, which I am attempting to find. I apologize. From the Snohomish County PUD Public Utility District Number 1 to you and your wife from Don Holdridge, Distribution Services Manager. How did this letter come about? Mr. Largent: Excuse me. Which attachment number is that that you are looking at? Mr. Maduell: Attachment 18. Mr. Largent: Okay. Thank you. Mr. Day: I went to the PUD and asked them if they could furnish me any information regarding the electrical supply to this property in Edmonds. A very nice letter came back saying that in 1980, they had computerized their records, and all records prior to that date were deemed not of sufficient importance to be included in their computer system. That's what the letter says, and he couldn't help me any further. He was very helpful and very kind and very considerate, but he said I can't give you information when I have nothing to go to. Mr. Maduell: Did you research any records over at Snohomish County concerning your property? Mr. Day: Every time I approached the City employees they were very cooperative. Going back 50 years, they admitted they were in a bind. They showed at that time what they called a green ledger, which was recovered and a new cover put on it, which is now the black journal, showing that about 1956 to (the portion I looked at) 1976, 20 years or something. At that time, when people applied for building permit or development of a lot or something, all they did was write their name down and the best address that they could give, and that was the end of it and things went on from there. No further building permits, no further inspections, nothing from what I could understand. Mr. Maduell: Okay, let me stop you there for a moment. To staff, a quick question. I know that none of us were around back then. However, my experience in other communities who have similar ages suggest that there was permitting of some kind going on back then. I find it, and I am not saying that you are wrong here, but I am finding it a little difficult to comprehend a permit system that someone simply writes their names down. I am guessing there was more involved at that point in time. Mr. Largent: Yes, thank you. Just state your name again. Verbatim Hearing Examiner Hearing Transcripts File No. AP-05-73 August 18, 2005 Page 8 Ms. Graf. Jeanine Graf. Part of my supervising duties is the record retention for the building permits. Our records go back to 1956 for permit records. Mr. Largent: Okay, and those are full permits. We have applications and drawings and things of that nature? Ms. Graf. For residential, it would be the front page of the building permit, a plot plan and then the inspection record. If there was any City correspondence associated with the permit that would have also been filmed. Mr. Largent: Okay, thank you. Mr. Maduell: Could I ask one question here? Mr. Largent: Certainly. Mr. Maduell: Is Jeanine Graf the City Building Official? Mr. Largent: Yes, she is. Mr. Thies: I need to that. The County, you know, records can get spotty back in that area. Mr. Largent: I understand. Mr. Thies: But they did keep I think a master list. We did pretty much the same research, I sure, that they did. Mr. Maduell: You said you have gone through a green book. There's a page marked index to building permits, is this one of the pages you are talking about? Mr. Day: Yes. Mr. Maduell: I would like to introduce this as an exhibit. Mr. Largent: Exhibit H is an index to building permits and the dates run from what appears January 1956 to February 1956. Mr. Maduell: I also retraced some of the steps I think that Mr. Thies took, so it looks like we found the same documents. But this is a page from the index of building permits. It does list a permit issued to Mr. A. G. Shields. According to staff there, even though the address doesn't quite match, the lot apparently does. So this is the closest we could find to evidence that a building permit was obtained for the structure by Mr. Shields. It also conforms to the date in the tax records as to when this particular residence was constructed. Also, according to County staff, there were no other permit records, and I think Mr. Thies will probably agree with that. Mr. Thies: Yes. Mr. Largent: Okay. Mr. Maduell: Do you know when Captain Shields died? Mr. Day: My wife keeps better numbers on this than I do. I think it was 1987, just after I retired. Mr. Maduell: Had you spoken with anyone about the rental of the duplex prior to your purchase? Mr. Day: No. Have I spoken to about the rental part of my purchase? Verbatim Hearing Examiner Hearing Transcripts File No. AP-05-73 August 18, 2005 Page 9 Mr. Maduell: Anyone who gave you information about rental of the residence prior to your purchase of it? Mr. Day: Yes, I was heard and talked to adjoining neighbor there that she had rented the property from Captain Shields in 1956 or something while her property was being built. Mr. Maduell: Okay. Any other information you have obtained from people who may have rented that apartment. Mr. Day: She mentioned to me that somebody prior to her had rented it from Captain Shields, had also rented it. Mr. Maduell: That's all the testimony and evidence we have to present. Mr. Largent: Okay, thank you very much. I was going to ask you if you would like to make statement or two. Mr. Snyder: I do not. Scott Snyder, Ogden, Murphy, Wallace, representing the City of Edmonds. At an appropriate time with the staff I would have some comments. But in keeping with your procedure, I had two questions that we would like you to direct to Mr. Day. Mr. Largent: That would be fine. Mr. Snyder: Mr. Day had testified regarding work which he had done on the property. So our first question was whether an application for a building permit was submitted or obtained for any of the work which Mr. Day did? Secondly, with regard to the last testimony, to clarify whether the rental that was being discussed was the apartment or the main dwelling within in the unit? Mr. Largent: Okay, thank you. Mr. Day: Well, I didn't quite understand it, but as owner, we painted, replaced carpets, did minor repairs to clear out drains and so forth and I don't know where a permit comes into this. My boy, Richard Day, is a fully qualified master electrician in the State of Washington, and replacing wall heaters or furnace or so forth, he is fully qualified to do this. I believe that, at that time, there was somebody there that came by on the replacement of the furnace, and that was the end of it. Mr. Largent: So your recollection is that the work involved wasn't work that actually required a permit at the time. Mr. Day: I don't know of anything that might require a permit except that electric furnace. I don't think a wall heater falls under that. The main heating system might, I don't know. Mr. Largent: As to the other, in your conversations with the woman who had rented from Mr. Shields in the past, do you know whether the rental of that structure at the time involved the whole structure or just the apartment? Mr. Day: Just the lower apartment. Mr. Largent: And this is what she indicated to you when you talked to her? Mr. Day: Pardon me. Mr. Largent: That's what she indicated to you when you spoke with her, that it was just the apartment that she was renting? Mr. Day: Yes. Mr. Largent: Captain Shields lived in the unit at the time? Mr. Day: Yes, I believe so. Again, I wasn't there. Verbatim Hearing Examiner Hearing Transcripts File No. AP-05-73 August 18, 2005 Page 10 Mr. Largent: Right, I understand. Would the appellant like to say anything else today? That's it. Would staff like to add anything or make any clarifications or have a response? Mr. Thies: I guess a short summary in that we worked just as vigorously trying to determine whether the property is non -conforming or whether it is not non -conforming. We just looked for the information that we are trying to find. We went through County planning, County assessor records, site inspection, City utility, building/planning records, street files, a lot of the same road that Mr. Day and his attorney went down and couldn't find any evidence. Mr. Day provided us with the letter from Mr. Wallace, which is in the report. The letter from Mr. Wallace, I believe, represents what was discussed at the Board of Adjustment hearing, which it appeared that the Board of Adjustment was trying to clarify the difference between a non -conforming commercial use in a residential area as opposed to a residential use in a residential area. And both of these documents do discuss this in general, but neither represents the property as a non -conforming. Mr. Thies: I think that's it, except for the I guess final point being that an owner -occupied dwelling with an accessory dwelling unit or accessory apartment, as the County calls it, is currently a legal use, a permitted use. Mr. Largent: Just state your name one more time, please. Mr. Snyder: Scott Snyder. I am the City Attorney. Just a few points. This is, we understand, very difficult for Mr. Day. The City is certainly not trying to take something away. But the way Washington Law is constructed, a person who is claiming a non -conforming use has the burden of proof to establish it. Because few records exist, what we do have seems to be clear that Mr. Shields built a structure that had to units in it. The City does not contest that the structure. .. The only available evidence is that the structure was constructed with two residential units. But all the evidence appears to show that one of the units was owner occupied from 1956 until the date that it was purchased by Mr. Day. The ordinances throughout, both Snohomish County and City after 1957 required single- family residential use. We see the issue, from the City's perspective, as what use was lawfully established in 1956, prior to the establishment of the Snohomish County zoning code. It can't be expanded under City ordinances in effect continuously since prior to the date that Mr. Day took it over. On the other hand, the City is not contending that the use was abandoned. The City has the burden of proof to show abandonment, and you must show either non- use or abandonment with an intent to abandon or some act, and we have no indication that Mr. Day or Mr. Shields intended to abandon any use that had been lawfully established. Mr. Snyder: The amortization schedule that as previously established because I handled a number of the cases in the 1980's, the focus of the discussion, as noted in the attachment to the Wallace letter, was the amortization of commercial uses within 15 years after the date of annexation. I handled a number of those cases. These documents, as Mr. Thies has indicated, are what they say they are. They are a statement of what the law was understood to be and the City's current position. We see the issue here as a difficult one for Mr. Day. It is just very difficult to establish what someone else did in 1956 when nobody has kept records. For better or worse, Washington Law places the burden on him to do so, and we ask that the Examiner consider what has been brought forward and weight it. Thank you. Mr. Snyder: Oh, one more point. In the brief, which I saw today for the first time, Mr. Da 's attorne raises to As we noted in our brief, under , a hearing examiner has only that jurisdiction which he is granted under the ordinance. That case specifically dealt with constitutional inequitable defenses. As I am sure you are aware, while that may be relevant, it's not relevant in some other context. It is not relevant in this proceeding or within your jurisdiction. The other thing, too, that I think we should state is if mistakes were made, that's why the City has insurance, that we don't compromise enforcement cases if someone in the past made an error. We don't think an error has been made. Again, Mr. Wallace's letter states the obvious. But we are not in the position of giving someone something that they can't prove or establish under Washington Law. Thank you. Mr. Largent: Thank you, Mr. Snyder. Verbatim Hearing Examiner Hearing Transcripts File No. AP-05-73 August 18, 2005 Page 11 Mr. Maduell: Mr. Examiner, can I make a few closing remarks? Mr. Largent: Absolutely. Mr. Maduell: This is a difficult case in the sense that it is hard to prove the establishment of a legal non- conforming use that took place prior to even adoption of Snohomish County's first comprehensive zoning code. But nonetheless, we think we have presented sufficient evidence to indicate that Captain Shields obtained a permit for and constructed a duplex, a two-family dwelling and that he did that in 1956 before a 1957 zoning code prohibited a duplex in that particular zone. He has used and maintained that use until he sold the property to Mr. Day, and Mr. Day has maintained that use up to and including the present. So we believe we have demonstrated that this property is a legal, non -conforming use. Mr. Maduell: The issue seems to be, as I understand the City's argument, is what that legal, non -conforming use is. That legal, non -conforming use is a duplex. A two-family dwelling. It does not matter that Captain Shields lived in that house any more than it would matter if he were talking about a non -conforming single-family dwelling whether it is owner occupied or not because, prior to 1980, if I understand Mr. Thies' testimony, there were no accessory dwelling unit provisions. You either had a single-family residence or you had a multiple -family residence. I hadn't intended on doing it because of the testimony of the testimony of Mr. Thies in that regard where he did testify that the first accessory dwelling units provisions were not adopted until 1980, I could only see reference in the codes for them having been adopted in 2000. But taking him at his word, still the accessory dwelling unit provisions were not in place until after Mr. Day had purchased the property and established or continued the legal, non -conforming duplex use. The two-family dwelling use. Mr. Maduell: Just to kind of make the record a little bigger, I would like to just introduce the 1957 zoning resolution and the various zoning codes, portions of that we got in a public disclosure request from the City. What these will show is that, at least prior to 1980, at least, there were no provisions governing accessory dwelling units. So there has been no expansion of use. It was established as a duplex or whatever you want to call it, a two-family dwelling. It doesn't matter whether the owner lived in the apartment or if he didn't. It is the same case now. It might be a different case had their been an accessory dwelling unit at the time of annexation or at the time Mr. Day purchased the property, but that wasn't the case. So there has been no expansion of use. It is a duplex use that was established as a legal, non -conforming use, and it should be allowed to continue. So I would like to just to, this can all be one exhibit, if you would like, or they could be separate exhibits. I have a few more. In the staff report, there are attached some excerpts from the zoning regulations. I have a few more pages from that. Mr. Largent: I have access to all of this material, myself. Mr. Maduell: The 1957 Snohomish County one, as well. Mr. Largent: I can get that, as well. Mr. Maduell: Okay, well it defines single-family dwelling, two-family dwelling, multiple -family dwelling. So. I mean, this idea of an owner occupied accessory dwelling unit is, you know, one that has become very popular in the last few years, but it did not exist in the form we are talking about in those zoning codes beforehand. So in other words, the use that vested, and it does vest under the law, non -conforming uses do vest, it is a vested right, vested to the duplex use, and it has been maintained. Mr. Maduell: The reason we have mentioned Estopple, Waiver, Latches, whatever, is that the City knew at least back in 1976 that there was a legal, non -conforming duplex, because the letter does mention duplex, in a single- family zone, and they didn't do anything about it. Now maybe there is not obligation for them to do anything about it, but the problem is because they didn't and have allowed it to continue for 30 years is that my clients find themselves in a position of having to prove something that is extremely difficult to prove. Had the City brought that issue to their attention back then or even close to back then, Mr. Shields was alive and he could have given us information we think would support the position we are taking here and maybe there would have been building records from the County that were still in existence at that time. So the problem, because the City didn't take any Verbatim Hearing Examiner Hearing Transcripts File No. AP-05-73 August 18, 2005 Page 12 action after all that time, all during this time, is it has made the burden the appellant already has that much more difficult. So what certainly the Hearing Examiner can look at in considering the credibility of the witnesses and the amount and weight of the evidence is that fairness issue. That even if the evidence is not as strong as it could have been had this matter been decided 20 or 30 years ago, we think it is still sufficient and we ask you to hold that it is efficient to establish a legal, non -conforming duplex for this particular property. Mr. Maduell: Finally, there were concerns raised by neighbors about the precedence of this. There is no precedence. This is a very, very unique situation. I think this won't result in a proliferation of multi -family units in these neighborhoods. And by the way, this particularly structure obviously has blended in quite nicely all this time, because there have never been any complaints about it until just very recently. Thank you. Mr. Largent: Okay. Thank you. Mr. Snyder, you look like you would like to say something. Mr. Snyder: Just only, I don't want to get in a back and forth, but just with regard to the last exhibit. We stipulate that those are the laws, that's the way it is. We would point the Hearing Examiner on this last point to the case we cite of Coleman versus Walla Walla. Washington Law is clear that you don't establish a non -conforming use as to what you intend to do, but was the use that was actually established. The Coleman case was a lady who had a rooming house who wanted to sell that non -conforming rooming house as a fraternity house. Pretty darn close, maybe there is more dirty laundry in the latter case, but again, Washington Courts found that was an expansion of a non -conforming use. And we see moving from an owner -occupied, we can call it a duplex, two -unit dwelling, to one in which the owner is not present, as an expansion of the use. Mr. Maduell: Let me play devil's advocate, just for a moment for the record. In a sense, and I am not trying to argue one position or another, I am just trying to clarify this for myself. In a sense, before there is legislated action that defines something as X, in this case the legislative action being this is what an ADU is. Prior to that, where no such definition exists, I am having a hard time getting my head around the idea that what we are talking about in terms of an expansion of use is purely definitional at this point, given that prior ordinances did not recognize the use, had no definition. Therefore, it is hard to see how the expansion occurs if you are simply looking at how the code defines certain uses. Mr. Snyder: Two points. Again, because this issue has come up late in the brief you presented today, we didn't have a chance to provide you other additional ordinances. The City had mother-in-law apartments ordinances before it had ADU ordinances. I think, more importantly noted, the codes have consistently recognized the difference between a non -conforming building, that is the structure and the way it is, and a non -conforming use, which is how a structure is used. We think that is the key difference. Again, and Mr. Maduell has said very well, it's difficult. We're here because the burden is to Mr. Day to establish it. We have seen a lot more evidence today than the Building Official and Code Enforcement Officer has seen to date. Thank you. Mr. Largent: Very good. Thank you. I don't have any further questions. Is there anything else you would like to say? Mr. Maduell: No. Mr. Largent: Okay. To be quite honest with you, and Mr. Snyder, could you please guide me on this? This is an appeal hearing. Under your rules, and to be quite honest with you, I wasn't able to find them in your code, am I required or am I allowed to take testimony from neighbors, etc. Mr. Snyder: Generally, these proceedings permit an opportunity for public comment. Mr. Largent: In some cases, that is not the case. Is there anyone here today, a neighbor or a concerned citizen, who would like to speak to this issue. If you would please come up to the podium, I would appreciate it. And if you could please state your name and address for the record, please. Mr. Martin: It is a pleasure not to be limited by the red light going off in my face while I am trying to talk. I am Ray Martin, 19704 — 941h Avenue West. I live to the north of this house. There is one strip of property between the Verbatim Hearing Examiner Hearing Transcripts File No. AP-05-73 August 18, 2005 Page 13 Day's property and ours that belong to the Patience whose house is set down below. I am not here to define Captain Day nor to suggest that you should hang him or anything like that. What I would like to do is present what I know and the facts that I have. I have lived on that property since 1970, and I was a good friend of Captain Shields and he was my good neighbor. Captain Shields told me some things, and I believe that he was an honest man and I respected him. I think I will probably have all my neighbors upset with me because a quick glance through indicates that most of them do not like a duplex in a single-family residence and I can understand that. I have the same type of feelings. But also, I am pulled by some of the other things on the other side. So I won't make any recommendation to you, just perhaps I'll say what I know after living there for 35 years. A couple of years I lived across the street in 18701. Mr. Martin: Just incidentally, you asked a question on the electrical code. 18701 was built in 1969, and it has the circuit breaker panels on it, so I imagine that is updated from my old house on 18704, which I tore down and I built my new home there. Captain Shields originally explained to me that he didn't own just that one plot. He owned a larger plot, and 187 ... Mr. Largent: With respect, what happened on other parts of the lots aren't really germane here. If you could just kind of keep it to what is specific to this case, I would appreciate it. Mr. Martin: Okay. Captain Shields' house, I believe, is built on fill -dirt property, as a note. I am going to skip around here a little bit. I asked Captain Shields, he was renting out the bottom apartment to someone while we lived there and he lived there. We would socialize once in a while. There was a stairway that I understand has been sealed up between the two units, and I believe that there was at that time when Captain Shields was around, single electrical service for both units. Captain Shields, I believe had split the water service because he had a young couple that lived below that used lots of diapers. He wanted the water changed. He also told me that the house was built under Snohomish County, as you have been talking about, and that it was built as a duplex. Built to serve as a duplex. When it came into the City, it was grandfathered into the City of Edmonds because it had been an allowable duplex in Snohomish County. Mr. Largent: Did he have any paperwork at the time that documented that? Mr. Martin: I never saw any paperwork, no. Now let's see here. Well, a couple of my comments. Mr. Bullock here will tell you that he has, on several occasions, argued for affordable housing in Edmonds. Well, this is certainly one sign of affordable housing in Edmonds. The 35 years that I have lived there, both units have been rented most of the time. Captain Day has never lived there to my knowledge. There has never been any problems with any of the residents. In fact, some of them have been pretty nice people that I have got to know a little bit. And I don't think the casual observer would ever recognize the fact that it was operating as a duplex. Just a general comment. Mr. Martin: I always forget something when I get up. I think I have covered most of it. But it seems to me, now this is a personal opinion, but it seems to me that if you allow a situation to go on for what is it, 35, what is it now, it must be 35 years, somewhere in that neighborhood, as a duplex, it seems a abrupt and harsh to suddenly cut a man down and say, hey, we can't have this. I can show you one property in my neighborhood that has less than 12,000 feet and it is in a RS-12,000. Should we go in and knock that house down and tell him he can't have that. Mr. Largent: The situations are exactly comparable, but I understand your point. Mr. Martin: I know. There is also two houses that were built well within the authorized setback area. I could point those out to you, too. And you could knock their houses down. I don't think anyone is going to do that. Now in 1977, I can give you this little bit of information, in my own house at 18704 I replaced the oil heater with an electric heater and I specifically remember that the electrician that did that did not need to get a permit to do that at that time. So if that's useful, I hope it is. So I would offer one possible suggestion as a possible solution, and I don't know if this even feasible or reasonable under the law or what have you. But why would it not be fair and reasonable to allow the Days to continue as they are now until the property is passed on to someone else? That's about it. Thank you. Verbatim Hearing Examiner Hearing Transcripts File No. AP-05-73 August 18, 2005 Page 14 Mr. Largent: Thank you Mr. Martin. Is there anyone else who can illuminate this case today? Come on up. Mr. Scheetz: Ray Scheetz. I live next door at 18810. Ms. Gruwell: How do you spell that last name, please. Mr. Scheetz: S C H E E T Z. Mr. Largent: Thank you. Mr. Scheetz: The City Attorney was alluding to the fact that this originally was a mother-in-law apartment. I think there is a quantitative difference between having an owner living upstairs and having a house rented out totally to two tenants. With the owner there, there is a little bit more control. If there is noise, the owner takes care of it. The neighbors can come to the owner and talk to the owner. Mr. Day is very hard to get a hold of. So that's one issue. Mr. Scheetz: Another issue is this is a residential area. We just bought our house next door three and a half years ago. We assumed it was all residences. We only found out afterwards that there was kind of, like I said in my letter, a bootleg duplex going on next door. The tenants at the time, the gal that was upstairs was very nice. She told us, at that time, that Mr. Day, maybe because of ill health, I don't know, but was very reluctant to do any kind of repairs inside when they had problems. She said this kind of in conjunction with us approaching him to prune some of his trees. She didn't think that was going to happen. Mr. Largent: With respect. Really what I need to hear is evidence or testimony that gives me a better idea of the timing, the nature of the use. Mr. Scheetz: I have only been here three and a half years. I don't have that. The feeling of the neighborhood is we don't want this situation. If Mr. Day sells the property as a duplex that kind of casts it in concrete that that property will always be a duplex. Whereas, in fact, what he bought was a house with a mother-in-law. He didn't choose to live upstairs, that was his choice, but that was all he bought at the time. It wasn't a duplex at the time. I guess that's all I can lend. Mr. Largent: Okay. Thank you. Would anyone else like to speak today? Hearing no offers let the record show that the hearing on this case closed at 4:13 p.m. I appreciate all of your participation and everyone who has shown up today. Thank you. I TESTIFY THAT THESE VERBATIM TRANSCRIPTS ARE COMPLETE AND ACCURATE TO THE BEST OF MY ABILITY TO TRANSCRIBE THE PROCEEDINGS. Karin Noyes, Transcriber Date Verbatim Hearing Examiner Hearing Transcripts File No. AP-05-73 August 18, 2005 Page 15