Resolution 1294011
Setback Variance, Side Yard Setback Variance and a Critical Areas Reasonable Setback
Variance in order to construct a single family home on property located at 1139 Sierra Place in
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WHEREAS, on March 14, 2013, the City Hearing Examiner conducted a public hearing
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WHEREAS, the applicants Hillman and the City requested reconsideration of the
Hearing Examiner's decision, and on April 16, 2013 the Examiner entered an Order on
Reconsideration allowing all persons who submitted written or oral comment on the Hillman
applications prior to the close of the public hearing to provide written responses to the
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• Examiner's decision • Edmonds Municipal •• Section 20,07.005; Now,
THE CITY • • THE CITY • EDMONDS, • HEREBY
B. Hearing. The closed record public hearing r-'I• the City Council was convened
C. Appearance of Fairness, Conflict of Interest and Ex Parte Communications. At
the outset of the closed record public hearing on June 18, 2013 and prior to voting on the draft
Findings of Fact and Conclusions of Law on July 2, 2013, the decision makers were individually
asked to disclose any appearance of fairness, conflict of interest and ex parte communications.
Each Councilmember and the Mayor stated that he/she had none to disclose. The Mayor asked
the members • the audience whether any • wished to challenge any decision maker's
19
D. Exhibits. Continuing the list of Exhibits in the Hearing Examiner's Final
Exhibit No. Description
50 Hearing Examiner's Final Decision on Reconsideration (4-24-13);
51 Appeal from Final Decision Upon Reconsideration (5-8-13);
52 Letter from Alvin Rutledge (5-28-13);
54 Response from Applicants Hillman (,��
57 Sur -rebuttal of Applicants to Appellants' Reply Brief (6-14-13).
E. General Jurisdiction of the City Council. "An appeal must be filed within 14
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days after the issuance of the hearing body's decision. The appeal filed by Stephen Schroeder,
Cheryl Beighle, Candy Brown and Todd Brown (hereinafter referred to as the "Appellants") was
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F. Notice. Public Notice of the Council's Closed Record Appeal Hearing was
published in the Herald on June 2, 2013.
ort.' The facts presented by Senior Planner Kemen Lien at the Close2
Record Hearing can be summarized as followm
Proposal: To construct a single family residential home on a vacant lot. The house
1 The list of Exhibits begins on page 0008 of the administrative record.
2 ECDC Section 20.07.004(B).
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and 1,596 square feet of living space on the first floor and 1,027 square feet of living space on
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Site, limitations, The lot is .93 acres in size. A category 3 wetland is locate across e
fish bearing perennial stream, Type Np, is located on the northern side of the western half of the
much of the northern portion of the site. Additionally, an erosion hazard area is located on the
Applications submitted- Development Of the site is impossible, given the above
limitations, without some impact on the critical areas and/or critical area buffers. Therefore, the
1 . A critical areas reasonable use variance under ECDC 23.40,210(A)(2), based
would deny all reasonable economic use of the property;5
2. A setback variance under Edmonds Community Development Code (EDCD)
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12 Zone from 25 feet to 12 feet for the placement of the residence and to 3 feet for a retaining
3 The Staff Report begins on page 0081 of the administrative record.
4 All of these facts are displayed in a map prepared by Wetland Resources, located at page 189 of the
administrative record.
5 See, description in the Staff Report for the manner in which the proposed construction of the home will impact the
critical areas on the property, pages 0088-0095.
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3. A setback variance under EDCD Section 20.85.010, to reduce the minimum
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The variance applications are intertwined so all have been consolidated into a single
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G. Appeal Issues. The Appellants have identified the following appeal issues to b2
conditionally approving all variances be reversed because he did not make the required findings
that all of the criteria for approval of the street setback and side yard setback variances under
ECDC 20.8 5.01 O(F) or the critical areas variance under ECDC 23.40.21 O(A)(2)(c) had been
satisfied?6
approving the critical areas reasonable use exception be reversed because the Hillman's purchase
of the property for a price that reflects the application of the City's critical areas regulations
eliminates any argument that they have suffered a "taking" of their property as a result of those
regulations?7
H. oral Argument by Appellants and Applicants. A detailed and complete summary
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6 Exhibit 511 p. 1,
7 Id., p. 3.
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1. Chronology Pertinent to Appeal. Here is a chronology of the events relating to
the Hillman's variance applications, up to the time of the Hillman's submission of the
Date Description of Event�
5-28-03 The subject property was purchased by Darryl and Shari Lewis for
$190,000.
�03 The subject property was included in a Critical Areas Study by Wetlar,,O
Resources. As a result of the Study, the wetland and stream boundaries
and their buffers were delineated.
1-15-04 Darryl and Shari Lewis filed an application for a critical areas reasonable
use variance and north property line setback variance. The Lewis family
planned to construct a single family home on the property,
4-19-05 After the variances were approved, the City Council heard an appeal of the
variances.
7-24-05 After a remand, the Hearing Examiner approved the variances. Howeve
the Lewis house was never built. I
8-1-12 The Hillmans submit applications (starting on page 0 10 1) for the critical
areas reasonable use variance, the street setback variance and the side yard
setback variance.
Applicable Code. The criteria for approval of the variances that are at issue in
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Setback Variances. The setback variances are governed by chapter 20.85
2085 , 010 Findings. No variance may be approved unless all of thefindings in
this section can be made.
A * Special Circumstances. That ' because of special circumstances relating to
the property, the strict enforcement of the zoning ordinance would deprive the
owner of use rights and privileges permitted to other properties in the vicinity
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with the same zoning.
I. Special circumstances include the size, shape, topography, location
or surroundings of the property, public necessity as of public structures and uses
as set forth in ECDC 17.00.030 and environmental factors such as vegetation,
streams, ponds and wildlife habitats;
2. Special circumstances should not be predicated upon any factor
personal to the owner such as age or disability, extra expense which may be
necessary to comply with the zoning ordinance, the ability to secure a scenic
view, the ability to make more profitable use of property, nor any factor resulting
from the action of the owner or any past owner of the same property;
B. Special Privilege. That the approval of the variance would not be a grant
of special privilege to the property in comparison with the limitations upon other
properties in the vicinity with the same zoning;
C. Comprehensive Plan. That the approval of the variance will be consistent
with the comprehensive plan.
D. Zoning Ordinance. That the approval of the variance will be consistent
with the purposes of the zoning ordinance and the zone district in which the
property is located;
E. Not Detrimental. That the variance as approved or conditionally approved
will not be significantly detrimental to the public health, safety and welfare or
injurious to the property or improvements in the vicinity and same zone;
F. Minimum Variance. That the approved variance is the minimum
necessary to allow the owner the rights enjoyed by other properties in the vicinity
with the same zoning.
2. 'Reasonable Use Variance. The criteria for a reasonable use variance for a
private development in ECDC 23.40.210 are:
The application of this title would deny all reasonable economic use (see
the definition of 'reasonable economic uses) 'in ECDC 23.40.320) of the subject
property. A reasonable use exception may be authorized as a variance only if an
applicant demonstrates that:
a. The application of this title would deny all reasonable economic
use of a property or subject parcel;
b. No • reasonable economic use • the property consistent with
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critical area;
C. The proposed impact to the critical area is the minimum necessary
to allow for reasonable economic use of the property;
d. The inability of the applicant to derive reasonable economic use of
the property is not the result of actions by the applicant after the effective date of
the ordinance codified in this title or its predecessor;
e. The proposal does not pose an unreasonable threat to the public
health, safety, or welfare on or off the development proposal site;
f. The proposal minimizes net loss of critical area functions and
values consistent with the best available science; and
9. The proposal is consistent with other applicable regulations and
standards.
K. Hearing Examiner Final Decision on Reconsideration. The Hearing Examiner
conditionally approved the variances (including the reasonable use exception).' The following
Page 0001: The Examiner founa
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the encroachment into the wetland itself There is insufficient evidence in the
record to determine if the proposal has been designed to minimize wetland
encroachments as required by the variance criteria9. . . . Further information is
needed to determine whether the direct encroachment of this proposal should or
can be avoided.
minimum necessary to grant relief from the City's critical area regulations. It
appears that encroachments into the wetland could be almost entirely avoided by
8 See, page 0001 of the administrative record.
9 Emphasis added.
8
limiting the building footprint to 1,600 square feetinclusive of garage space.
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applicant's desire to have vaulted ceilings and a driveway that could be larger
than necessary to serve the property. Almost [all] of the living space and the
garage could be located within the footprint proposed outside of the wetland if the
applicant fully built out the second story of the proposed home in lieu of vaulted
ceilings.
ff,age 0014- The Examiner found.
If only a buffer encroachment were proposed, as opposed to encroachment into
the wetland itself, the size of the proposed home would clearly be considered a
minimum variance request given the larger sizes of surrounding homes.
However, a significant complicating factor in this application is that it appears
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is redesigned to replace the vaulted ceiling space with additional living space.
The only reasons for not fully using second floor living space presented by the
applicant were that they have a preference for first floor living space as they grow
older and they want to avoid a boxy appearance for their home. The author of the
wetland report, Andrea Bachman, was not able to provide any reason why the
home couldn't be redesigned to avoid encroachment into the wetland. These are
not sufficient reasons to justify an encroachment into wetlands, 11
Page 0016: In his finding with regard to the criterion in ECDC 20.85.010(F), the
Examiner stated:
As discussed in FOF No. 3, the purpose of the variance is to maximize the
distance of the proposal from the Category III wetland and so should be
considered the minimum necessary to enjoy the same development rights as
others in the vicinity with the same zoning. The size of the home, which is
referenced in the staff report under the analysis of the criterion quoted above, is
irrelevant since any reduction in building size would not result in any reduction of
the setback encroachment. Any reduction in home size should be used to increase
the separation from the wetland.
PageOO17-18: In his finding with regard to the criterion in ECDC 23.40.210(A)(2)(c),
the Examiner found:
[T/here is an open question as to whether the home has been designed to
minimize impacts to the on -site wetland The conditions of approval require
fe.ilfl, ect t* &e ert - t,,vecess�Fry
10 As stated on page 0009, the applicant seeks to construct a house that is 2,623 square feet in size, with a footprint
of 2,174 square feet.
11 Emphasis added.
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gate project impacts. 12 According to the testimony of Mr. Brown, the
applicants had to pay $75,000 for their lot whereas other lots in the vicinity
average approximately $500,000. Although Mr. Brown did not provide any hard
data to substantiate his cost estimates, his assertions were undisputed by the
applicants and it is fair to conclude that the purchase price of the applicant's
property was substantially reduced as a result of the wetland and stream. As
discussed in the Order on Reconsideration, investment backed expectations are
one of the factors involved in assessing reasonable use. I the iving space an
garage is limited to the footprint identified in Condition No. 1 of this decision, the
applicants would still have 2,600 square feet of living space, This would be 1,200
square feet less than the average living space available to other homes that the
applicant identified in the vicinity, but given the significantly reduced land value
this would still qualify as a reasonable use if there was an appreciable
environmental benefit to not building in the wetland.
Page 0020: The Examiner approved all variances subject to conditions. Condition No.
I requires the staff to consult with a qualified wetland biologist:
to determine whether removing the proposed wetland encroachment would
appreciably improve upon impacts to wetland functions. If there is any
appreciable environmental benefit to avoiding the proposed wetland
encroachment, the building footprint for the home, inclusive of the garage, will be
limited to the squared building space (including the west bay window) depicted in
Ex. 4, Sheet 2, excluding the garage area and the room appended to the north of
the garage to the extent it encroaches into the wetland. The southeast wetland
encroachment of this living space is authorized. The driveway shall be located
outside the wetland. Retaining walls may be built into the wetland to the extent
necessary to support the home and driveway. If the driveway cannot be built to
City standards without encroaching more than a foot into the wetland, the
applicants may build the home as proposed with the 1,790 square foot
encroachment.
L. Evidence in the Administrative Record. Here are specific references to the
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Page 0105-6: Here, the applicant states that the "proposed home is smaller than the
smallest home of all the properties adjoining it as shown in the comparison in Table 3 in the WRI
study.
Page 0106: Under No. 6, "Minimum Variance," the applicants state that "without this
variance, the applicants would be denied construction of any reasonable home on the property."
12 Emphasis added,
ID]
Page I7: Under ECDC Section 23.40.21 1(A)(2)(c)'s requirement for "minimum
necessary impact," the applicants state:
The applicant has carefully considered the house size and design in order to
minimize critical area impacts. The total footprint and living space are the
smallest of all of the adjoining properties. The research and design work clearly
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Due to the predominance of the site's critical areas, it is not possible to place a
dwelling on the lot and provide access to it without a variance to the code
requirements for wetland and stream buffers. The buffer/setback reductions
requested herein are the minimum necessary to allow a modest -size house to be
placed on the property in the only location where it makes sense to develop. The
•
-•licant is not y,•r•sing to build "n ithing more than a reasonable single familk;
home in keeping with what the neighboring properties have.
Page 0194: In their "Response to City of Edmonds' Request for Additional
Informationthe applicants state:
5. Regarding the size of the proposed house, the requirement of ECDC is that
the proposal be 'for reasonable economic use of the property,' and that the
'proposed impact to the critical area is the minimum necessary to allow for' that
reasonable use. Reasonable use for the RS-12 zone is one single-family home for
each 12,000 square feet of lot area, with no more than a 35% lot cove range. The
maximum allowed footprint for a 12,000 square foot lot would be 4200 square
feet. There is no minimum requirement for area of a second floor. The
previously approved variance for this property which expired in 2012 was for a
house with a footprint of 4146 square feet. The current proposal is for 2174
square feet of footprint (plus 163 square feet of porches), which is considerably
smaller.
As part of the research for designing the house for this project, the sizes
and footprints of neighboring homes were tabulated and averaged to determine
what should be considered reasonable for this street in this zone, with emphasis
on the only 2 critical area variances that have been granted in recent history (the
Hachler home at I I 11 Sierra Place, and the Lewis Variance for 113 9 Sierra Place,
granted but expiredounty records do not show footprint amounts
specifically, they do show ground floor and garage areas. The average ground
floor plus garage area for homes in the immediate neighborhood is 2936 square
feet, compared to 2174 square feet for the proposed house. The Hachler home's
footprint is 2492 square feet (measured from a plan sketch in the city's file) and
the Lewis proposal was for 4146 square feet; both granted through critical areas
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variances. Although the code does not demand 'the smallest house one could
possibly build' nor 'the smallest ground floor area possible' as requirements for
development in a critical area site, the minimizing of critical area impacts has
been a major consideration.
Applicant's Sur -rebuttal, Page 5- The applicant states -
While the code makes it fairlyi clear that- for reasonabli i f•ses one should
be able to build a single-family home on a conforming single-family lot, it is
silent as to how one should determine whether the 'minimum necessary' impact
prong has been satisfied. For example, there is no minimum or maximum square
footage in the code to help staff or the hearing examiner decide when a footprint
is small enough to be considered the 'minimum necessary.'
Neither code nor previous variance precedent requires a house footprint
smaller than what we have proposed. It does not define nor require a minimum
singlefamily residence or minimum house size, nor a minimum footprint as
suggested by the appellants ... but rather requires that 'the approved variance is
The applicants suggested that if the Council were to decide not to affirm the Aearing Examiner's
decision, it could strike Condition No. I of that decision, and modify it, as suggested by the
applicants, (This appears on page 10 of the Sur -rebuttal,)
Applicants' Argument at the Closed Record Appeal- The Applicants did not point to
any evidence in the record to contradict the Hearing Examiner's pertinent findings of fact.' 3
Instead, they described the calculations they used to determine the size of their proposed home,
contended that a previous variance on the same piece of property had been granted (but not
utilized) by the City, and explained the reason for the size of the proposed driveway.
A Conclusions ofLaw.
1. Burden of Proof The aimellant bears the burden to demonstrate that the
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2. Standard of Review. The City Council "shall determine whether the
13 That the applicants' "need to encroach into 1,790 square feet of Class III wetland is based upon the applicants'
desire to have vaulted ceilings .. ." Or that "[a]lmost all of the living space and the garage could be located within
the footprint proposed outside of the wetland if the applicant fully built out the second story of the proposed home in
lieu of vaulted ceilings." And that the "author of the wetland report ... was not able to provide any reason why the
home couldn't be redesigned to avoid encroachment into the wetland." These findings appear on page 0014 of the
administrative record.
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decision made by the hearing body/officer is clearly erroneous given the evidence in the
record." 14 The Council shall affirm, modify or reverse the decision of the Hearing Examiner. 15 A
finding is "clearly erroneous ... when, although there is evidence to support it, the reviewing
court on the record is left with the definite and firm conviction that a mistake has been
committed. 06
that is presented for the first time in the appeal. Therefore, if the Council decides to modify or
trial court.As this standard is interpreted by the Washington •
The purpose • findings • fact is to ensure that the decision maker 'has •
fully and properly with all the issues in the case before he • she] decides it and
so that the parties involved' and the appellate court 'may be fully informed as to
the bases of his [or her] decision when it is made. . . . Findings must be made on
matters 'which establish the existence or nonexistence of determinative factual
matters ... 9 18
a. All • the variance applications (street setback, side yard •. and the
• proceed • approval • all • the variances. Therefore, the Council's decision • the
14 ECDC Section 20.07.005(H).
15 ECDC Section 20.07.005(H).
16 Phoenix Development, Inc. v. City of Woodinville, 171 Wash.2d 820, 829,256 P.3d 1150 (2011).
17 Weyerhaeuser v. Pierce County, 124 Wash,2d 26, 35, 873 p.2d 498 (1994).
8 Weyerhaeuser, 124 Wn.2d at 35-36.
19 See, page 0082, No.-1 Staff Report.
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appeal issue.20
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determine whether this criterion had been satisfied. 2 1 He described the rationale for the
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to consult with the applicant's wetland biologist and as to the wetland impacts, and to then
evaluate the need to reduce the size of the building footprint. The Hearing Examiner cited to no
code provision or other authority that allows this procedure, which delegates his authority on a
final decision as to the applicant's satisfaction of a variance criterion to the City staff, and
terminates with a decision (on the wetland impacts and size of building footprint in the wetlands)
Reasonable Use and Takings. "Reasonable economic use" is defined, in
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20 Identified herein Section G(1) on page 5.
21 See, page 0001 of the administrative record.
In
taking and/or violation of substantive due process."
Here, the City has adopted critical areas regulations affecting property, and the Hillmans
bear the burden of establishing that application of those regulations "destroys any fundamental
attribute of ownership, including the right to possess, to exclude others or to make economically
viable use of the property."23 "[T]he party claiming a taking has the burden of showing
governmental conduct that will constitute a taking is not justified as a valid exercise of the police
power."24 "Even though the Government may 'take' private land ... it can justify its conduct as
a proper exercise of its police power, if it shows that it is merely restricting, but not eliminating
the use of such land. ,25
An owner claiming loss of the economically viable use of property must show that the
challenged governmental regulation proximately caused the loss of all such use. 26
"Proximate cause means a cause with, in a direct sequence unbroken by any new independent
cause, produces the injury complained of, and without which, such injury would not have
happened. ,27 In other words, the applicants' business decision to purchase a lot heavily
encumbered by critical areas for $75,000, which is significantly lower than the amount paid by
others for property in the area without critical areas, is the proximate cause of their loss, if any.
The Washington courts have held that a purchaser cannot sue for a taking or injury relating to the
property that occurred prior to his or her acquisition of title:
Because the right to damages for an injury to property is a personal right
belonging to the property owner, the right does not pass to a subsequent purchaser
unless expressly conveyed. . . . Furthermore, the court has found that no taking
22 See, page 0014 of the administrative record.
2' Guimont v. Clark, 121 Wash.2d 586, 605, 854 P.2d I (1993).
24 Burton v. Clark County, 91 Wash. App, 505, 516, 958 P.2d 343 (1998).
25 id.
26 Guimont, 121 Wash.2d at 604.
27 Ventures Northwest Ltd. Partnership v. State, 81 Wash. App. 353, 364, 914 P.2d 1180 (1996)
In
damages should be awarded to plaintiffs who acquired property for a pri
commensurate with its diminished value. 28 1
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the same piece of property entitles them to approval of this variance. However, the Washington
courts have held that "[i]f existing land regulations limit the permissible uses of the property at
the time of acquisition, a purchaser usually cannot reasonably expect to use the land for
prohibited purposes."29 The Washington courts have also ruled that no one is entitled to
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The Hearing Examiner should have denied the applicants' variances because thl
07•sajja • • • •IIII III IIIIIIIIIIIII III I I 1111 111 1 . . -
28 Hoover v. Pierce County, 79 Wash. App, 427, 434, 903 P.2d 464 (1995).
29 Buechel v. State of Washington Department ofEcology, 125 Wash.2d 196, 210, 884 P.2d 901 (1994). In
Buechel, the property owner Buechel purchased a narrow waterfront lot 8,500 square feet in size, on Hood Canal,
and zoned for residential use. The minimum lot size in the zone was 10,000 square feet. Buechel admitted that
most of the lot was underwater and that the buildable lot area was less than 1,000 square feet. Buechel applied for a
variance to allow construction of a 20 x 35 foot, 2-story home on the property. The decision to deny the variance
was upheld because the administrative record demonstrated that water -dependent recreational use of the property
was a "reasonable use," providing Buechel with some economic value. As stated by the Buechel court:
To some extent the reasonable use of property depends on the expectations of the landowner at the
time of purchase of the property. If existing land regulations limit the permissible uses of the
property at the time of acquisition, a purchaser usually cannot reasonably expect to use the land
for prohibited purposes. Although not necessarily determinative, courts may look to the zoning
regulations in effect at the time of purchase as a factor to determine what is a reasonable use of the
land. Presumably regulations on use are reflected in the price a purchaser pays for a piece of
property. This landowner knew when he purchased this lot that it did not satisfy the minimum lot
size or the setback requirements of the [Mason County Shoreline Master Program].,
30 The Washington courts have held that each application must be independently reviewed by the decisionmakers
to determine whether it satisfies the laws in effect at the time the application was filed, and no application is entitled
to automatic approval because other, similar applications were approved. CROP v. Chelan County, 105 Wash. App,
753, 760, 21 P.3d 304 (2001).
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the critical area is the minimum necessary to allow for reasonable economic use of the property,"
as required by ECDC Section 23.40.210(A)(2)(c). So that there is no confusion on this point,
any subsequent application(s) for variances submitted by the applicants must address the central
questions posed by this appeal -- if the applicant fully built out the second story of the proposed
home, could all of the living space and the garage be located within a building footprint situated
outside of the wetland?31 In brief, can this home be redesigned to avoid encroachment into the
wetland? Until these questions are answered, no critical areas reasonable use variance may be
approved.
From the evidence in the administrative record, it appears that the applicants
misinterpreted these criteria for the variance(s), and instead developed their own formula for
"reasonable use. The applicants asserted that "reasonable use" entitles property owner to "one
single family home for each 12,000 square feet of lot area"32 and therefore concluded that for
their property, the "maximum allowed footprint for a 12,000 square foot lot would be 4200
square feet."33 Because the applicants' proposed house was for 2,174 square feet of building
footprint, they erroneously believed that the application should be approved regardless of
whether it was the "minimum necessary to provide the applicant" with a "reasonable use" of
their property.
Based on the above, the City Council concludes that the Hearing Examiner's failure to
make findings on all of the criteria necessary for approval of the critical areas reasonable use
variance is clearly erroneous. Because the City's code specifically provides that all criteria must
be satisfied before a variance may be approved, he clearly erred in determining that the variance
31 Administrative record, page 0013-14.
32 Administrative record, page 0194.
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could be approved with a condition that would delegate the responsibility for ascertaining
compliance with the code criteria to the City staff. Implementation of this process could have at
least two deleterious effects. First, it would result in a decision by staff on the application that
would be binding on all interested parties, without their consent or participation. Second, it
would arguably create a precedent for future action. In other words, if the City allows variances
to be granted without making a finding that all criteria for approval have been satisfied, then at
some point in the future, another applicant will make the argument that his/her application
should benefit from the same deficient treatment.
The City Council notes that its decision to reverse the Hearing Examiner's Decision on
Reconsideration does not preclude the applicants from submitting future variance applications to
build a house on the subject property.34Nor does the Council believe that denial of these
applications constitute a take or an argument that the applicants' constitutional rights have been
violated.35
The City Council reverses the Hearing Examiner's Decision on Reconsideration on
the critical areas reasonable use variance without prejudice. The critical areas reasonable
use variance is denied.
DATED this 10th day of July, 2013.
33 id.
34 However, the applicants should note that there are restrictions on the resubmittal of applications. "[A] second -
application may be considered if there is a substantial change in circumstances or conditions relevant to the
application or a substantial change in the application itself." West Coast, Inc. v. Snohomish County, 104 Wash. App.
735, 742, 16 P.3d 30 (2000).
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0
ITY CLERK, SARA S. CHASE
Mril Iq rill 0118 toin IM11117-jak'Arm" MIqI pope M-I
Appeals. This decision may be appealed to superior court according to chapter 36.70C RCW,
within the deadlines set forth in RCW 36.70C.040.
35 "The mere denial of a permit for one particular us does not establish the absence of any economically viable
use." Ventures Northwest, 81 Wash. App. at 366.
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