Christianson v. Snohomish Health District , 133 Wash. 2d 647 ( 1997 )

Madsen, J.

— The Christiansons seek review of a Court of Appeals decision affirming the Health District’s denial of a construction clearance for an addition to their lakeside cabin. They argue that the District’s decision is not supported by substantial evidence and that their right to substantive due process has been violated. We affirm the Court of Appeals.

STATEMENT OF THE CASE

In August of 1990, the Christiansons purchased a cabin on the south shore of Lake Bosworth. They use the cabin for weekend recreation. The cabin is on a small lot, steeply sloped downward toward the lake from the road on the south. There is no public sewer system available to serve the property.

The cabin is a small (24’8” by 18’1”), single story structure with a 10’ by 22’4” deck that that runs across the north and east side of the cabin. Prior to 1991, the interior was divided into a full living room, a small sleeping area, a kitchen and a closet-sized room containing a toilet. The only plumbing structures in the cabin were a kitchen sink and a toilet. A well was located about 16 feet south (uphill) of the cabin, a septic tank was located under the deck near the northwest corner of the cabin and a drainfield for the septic tank was located between the deck and the Lake Bosworth shoreline.

During the summer of 1991, the Christiansons began building an addition to their cabin, expanding it by 10 feet across the full width of the south side of the cabin. The Christiansons failed to acquire permits for the addition from either Snohomish County or the Snohomish Health District (the District). The addition relocates and enlarges the bedroom area, creates a storage room that is comparable in size to the bedroom, relocates the bathroom, and enlarges the existing kitchen. The original structure was 432 square feet and the addition increases the size of the cabin by 180 square feet.

In August of 1991, the District responded to a complaint of foul odors and exposed sewage on the Christiansons’ property and discovered that the old septic system on the Christiansons’ lot was failing. The investigator also discovered that an addition was being built to the existing cabin without a permit. The investigator found that the old septic system was being drained through an open ditch running towards the lake into a gravel-filled pit situated approximately 10 feet from the lake shoreline. The District notified the Christiansons that they would have to repair their failing septic system. On August 27, 1992, the Christiansons installed a new system which was approved by the District. Although the repaired system does not meet District standards provided in WAC 246-272 for a new onsite sewage disposal system, in many respects, the District believes that the repaired system is the best that can be obtained for the site. The District also determined that the repaired system will fail hydraulically before the cabin fails, even if the cabin is not enlarged.

At the same time the Christiansons were obtaining a repair permit for their failing septic system, they also sought a construction clearance permit for the addition to their cabin. The District denied the permit, citing Resolution 87-35, which prohibits the construction of additions to buildings with substandard septic systems. Resolution 87-35 provides that every building to which "additions, alterations, or improvements are made” must be served by an onsite sewage disposal system which meets District standards as provided in WAC 246-272. The Resolution does permit the District to waive its requirements in cases meeting certain prescribed criteria. The District, however, determined that the waiver criteria were not met in this case.

In a Step One Appeal, the Environmental Health Division sustained the District’s decision to deny the Christiansons construction clearance permit. The Christiansons appealed the District’s decision to the Environmental Health Hearing Examiner. In a fact-finding hearing, the Hearing Examiner found that the denial of the construetion clearance permit application was justified under Resolution 87-35.

The Board of Health denied the Christiansons’ appeal from the Hearing Examiner’s decision. The Christiansons sought a writ of review in Superior Court. The Superior Court found substantial evidence to affirm the decision of the Hearing Examiner and concluded that Resolution 87-35, as applied to the Christiansons, does not violate substantive due process. In a published opinion, the Court of Appeals affirmed. See Christianson v. Snohomish Health Dist., 82 Wn. App. 284, 917 P.2d 1093 (1996). Petitioners sought review before this court and their petition for review was granted.

SUBSTANTIAL EVIDENCE

Petitioners assert that the Hearing Examiner’s findings are not supported by substantial evidence. The Hearing Examiner’s findings are reviewed for substantial evidence and alleged errors of law are reviewed de novo. See Hilltop Terrace Homeowner’s Ass’n v. Island County, 126 Wn.2d 22, 29, 891 P.2d 29 (1995). "The test of substantial evidence is whether evidence is sufficient to persuade a fair-minded person of the truth of the declared premise.” Sparks v. Douglas County, 127 Wn.2d 901, 910, 904 P.2d 738 (1995). The burden is on the challenging party to show that the decision is not supported by substantial evidence. See Nordstrom Credit, Inc. v. Department of Revenue, 120 Wn.2d 935, 939-40, 845 P.2d 1331 (1993).

There are separate and distinct review criteria for the repair of failing systems and for systems installed in conjunction with remodeling. Onsite sewage systems which are failing must be repaired "to the maximum extent permitted by the site.” WAC 246-272-16501(l)(e). This criterion does not mean that the site must be in full compliance with WAC 246-272; it requires only that the site be repaired to the greatest extent possible given the site conditions. Conversely, onsite sewage systems which will serve buildings being remodeled must meet the criteria of Resolution 87-35, which requires compliance with WAC 246-272 unless the criteria for issuance of a waiver are met.

The Christiansons challenge the denial of a construction clearance permit to remodel their cabin. The Christiansons repaired their failing septic system "to the maximum extent permitted by the site” as required for failing septic sewage systems. WAC 246-272-16501(l)(e). However, when determining whether the construction clearance permit for the addition should be approved, the Hearing Examiner found that the repaired system failed to met the standards of WAC 246-272. The repaired sewage system has an inadequate setback from the lake shoreline, inadequate separation from one or more domestic water wells, inadequate vertical separation above the seasonal high water table, inadequate reserve area, and unsuitable soil conditions. The Christiansons do not dispute these findings.

Thus, the issuance of a construction clearance permit in this case depends on whether the Christiansons can meet the waiver criteria. Section 4 of Resolution 87-35 sets forth three threshold criteria for grant of a waiver. Compliance with the requirements of WAC 246-272 may be waived for existing structures (1) if the addition is compatible with and does not adversely impact the existing onsite sewage system and potential reserve area, (2) if the system is adequate to treat the onsite sewage expected to be generated over the remaining useful life of the structure, and (3) if the continued operation of the system will not adversely affect public health, surface water quality or ground water quality.

Additionally, Resolution 87-35, Section 4.B.1 lists eight interpretive factors to consider when determining whether the primary criteria have been met. These factors include:

a. location of septic tank and drainfield in relation to existing foundation and proposed improvements;

b. size of drainfield in relation to proposed use;

c. condition of existing onsite sewage disposal system;

d. useful anticipated life of the existing onsite sewage disposal system;

e. potential for reconstruction, replacement, and/or repair of the existing onsite sewage disposal system;

f. ultimate purpose of the remodeling;

g. approved source of water; and

h. potential use of the structure after remodeling.

Resolution 87-35, Section 4.B.I. The Hearing Examiner decided that none of the three threshold criteria were met in this case. He also evaluated the eight specific criteria and concluded that six of the eight factors disfavor a waiver.

Turning to the three waiver criteria, the Hearing Examiner found that the addition will adversely affect the existing onsite sewage system and potential reserve area. First, the Hearing Examiner found that because the existing drainfield is so close to the shoreline there is no possible reserve area between the cabin and the shoreline. This leaves only the area south of the cabin for a reserve drainfield. The Hearing Examiner found that because the addition occupies the area south of the cabin it reduces any potential reserve area. Second, the Hearing Examiner found that the addition will adversely impact the existing system. Because the addition makes the cabin more commodious, he stated that it is reasonable to assume it will be used more, thereby increasing sewage flows into an already substandard system. Based on these findings, the Hearing Examiner concluded that the first criterion was not met.

Regarding the second criterion, the Hearing Examiner found that the existing system is not adequate to treat the onsite sewage expected to be generated over the remaining useful life of the cabin since the repaired system is expected to fail before the cabin. Consequently, the Hearing Examiner explained that it is contrary to public health to permit an addition which may further extend the life of the structure. Based on that finding, he concluded the second criterion was not met.

As to the third criterion, the Hearing Examiner found that the continued operation of the existing system will adversely affect surface and groundwater quality. He found at least three inadequacies in the present system— proximity to the lake shoreline, inadequate vertical separation above the seasonal high water table and inadequate soil type—strongly indicate the existing system will adversely affect both surface water and groundwater. The Hearing Examiner thus concluded the third criterion was not met.

The Hearing Examiner also analyzed the eight interpretive factors set forth in Resolution 87-35, Section 4.B.1 and found that the Christiansons’ property failed to meet six of the eight factors.¹ First, the Hearing Examiner examined the size of the drainfield and determined that it is inadequate for existing use. He explained that since the addition will make the cabin more habitable it is reasonable to assume it will be used more, thus increasing the strain on an already inadequate drainfield. Next, he examined the condition of the existing onsite system and determined that it still fails to meet many of the WAC standards. Additionally, the Hearing Examiner considered the existing useful life of the repaired system and found that it will fail before the cabin reaches the end of its useful life.

The Hearing Examiner then considered the potential for reconstruction, replacement, and/or repair of the existing onsite disposal system. He explained that the site has been repaired to the maximum extent possible and allowing an addition that would increase the life of the structure would be contrary to public health considerations. Next, the Hearing Examiner considered the purpose of the addition and found that it was being built to improve the livability of the cabin. This, he states, will likely result in an increase in the Christiansons’ use of the cabin, which will increase sewage flows. The Hearing Examiner came to the same conclusion when he considered the potential use of the cabin after the addition is built.

The Christiansons contend that the denial of their permit was not supported by substantial evidence. They assert that no evidence exists in the record supporting the Hearing Examiner’s conclusion that, in light of the structural changes which make the cabin more commodious, it follows that the Christiansons will use the cabin more. They do not dispute that the addition will make the cabin more livable. Instead, they contend the Hearing Examiner erroneously relied on a presumption that a more livable cabin will result in increased use.

The record does not support Christiansons’ assertion that the Hearing Examiner was merely relying on a presumption. It is apparent that the Hearing Examiner was considering the specifics of the addition in this case when he determined that use of the cabin would likely increase after the addition was built. The living space was nearly doubled and the division of space indicated the strong possibility of a second bedroom.²

The only contradictory evidence in the record are the Christiansons’ assurances that they will not increase the use of their cabin. Even with these assurances, there is substantial evidence to support the District’s conclusion that an increase in size of this proportion will invite increased use.³

The Petitioners also argue that the District must show the addition will actually increase sewage, thereby, adversely affecting public health or water quality. However, the waiver criteria does not require the Hearing Examiner to make findings as to whether the addition will actually increase sewage. Rather, the three threshold criteria and eight interpretive factors are designed to determine whether a waiver of compliance with WAC 246--272 would adversely affect public health or water quality.

More importantly, the Hearing Examiner’s finding regarding the potential for increased use of the cabin was only one of several findings which support the Hearing Examiner’s decision not to grant a waiver. The current system fails to meet many of the applicable standards, the addition will compromise any potential reserve drainfield area, and the addition will increase the life of the structure which will indisputably outlast the existing septic system. These findings are not challenged by the Christiansons.

Finally, the Christiansons assert that their proposed addition poses no threat to water quality because when their repaired system fails they will be required to abandon the cabin. Since the Hearing Examiner has determined that the existing structure will already outlast the existing system, they argue it will not make any difference to build the addition. This assertion, however, carries no weight. Initially, this argument is more properly a challenge to the criteria than to the sufficiency of evidence. Additionally, the Christiansons cannot use the inadequacy of their system as an argument to further exacerbate the situation. It is only because of the special grandfather provisions for failing systems that the Christiansons are permitted to use their cabin at all. Nonconforming uses are "in fact detrimental to some one or more of those public interests (health, safety, morals or welfare) which justify the invoking of the police power .... The present use of a nonconforming building may be continued but it cannot be increased . . . .” State ex rel. Miller v. Cain, 40 Wn.2d 216, 220-21, 242 P.2d 505 (1952).

We cannot accept the Christiansons’ argument that because the existing sewage system has been "grandfathered” that "it became an island surrounded by property subject to the exercise of the police power . . . but itself untouched.” State ex rel. Miller, 40 Wn.2d at 220 (this court rejected the argument by a property owner that structural alterations to a grandfathered building should be allowed in spite of a Seattle zoning ordinance until the structure is determined to be a nuisance). The resolution is designed to prevent public health problems, not to abate them after the fact.

The Christiansons have failed to establish that the Hearing Examiner’s decision was not supported by substantial evidence.

BURDEN OF PROOF

Next, the Christiansons assert that Resolution 87-35, as applied to their property, violates substantive due process. Before reaching the substantive due process analysis, the Christiansons raise an issue concerning who has the burden of proof regarding the constitutionality of the resolution. Clear authority provides that in a substantive due process challenge the person challenging the regulation has the burden of proof. See Margola Assocs. v. City of Seattle, 121 Wn.2d 625, 649, 854 P.2d 23 (1993). The Christiansons argue, however, that the Supreme Court’s decision in Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994), shifted the burden of proof to the government to show that the regulation is constitutional.

In Dolan, the Supreme Court placed the burden on the city to show that requiring the dedication of property as a condition to receiving a permit was roughly proportional to a legitimate state interest. See id. at 391 n.8. The Christiansons argue that although Dolan is a takings case, the Court’s holding with regard to the burden of proof is applicable any time an adjudicatory decision is challenged. The Christiansons contend that since the District’s decision was adjudicatory, relating solely to how they may use their property, Dolan shifts the burden to the District to show the regulation is constitutional.

Contrary to arguments made by the Christiansons, Dolan does not shift the burden of proof in this case. We have emphasized the problems of blurring the takings and substantive due process doctrines, stating that "[i]t is critical that these two grounds [takings and substantive due process challenges] be separately considered and independently analyzed . . . .” See Presbytery of Seattle v. King County, 114 Wn.2d 320, 329, 787 P.2d 907 (1990).

In Dolan, the Court emphasized that the burden shifted to the city because it exacted a property interest as a condition to a permit. See Dolan, 512 U.S. at 391 n.8. The Court noted that, generally, the burden of proof will rest on the challenging party to show that a land use regulation amounts to an unconstitutional taking of property. See id. The burden shifted to the city in Dolan only because it exacted a property interest as a condition to a permit. See Dolan, 512 U.S. at 391 n.8. The Christiansons do not argue that a taking has occurred here. Moreover, they cite no authority for their sweeping assertion that Dolan shifts the burden of proof to the government in any challenge to an adjudicatory decision.

The Christiansons also point to this court’s decision in Rivett v. City of Tacoma, 123 Wn.2d 573, 870 P.2d 299 (1994) to support their argument. Although the substantive due process test was applied in that case, the court did not find that the burden of proof shifted from the person challenging the regulation to the government. Petitioners also cite North Suburban Sanitary Sewer Dist. v. Water Pollution Control Comm’n, 281 Minn. 524, 162 N.W.2d 249, 32 A.L.R.3d 199 (1968). However, this case provides no support for their position as it does not involve a substantive due process challenge nor does it discuss burden of proof.

The Christiansons have the burden of proving that Resolution 87-35, as applied to their property, violates substantive due process.

SUBSTANTIVE DUE PROCESS

In Presbytery, 114 Wn.2d at 330, this court has adopted a three-prong test to determine whether a regulation violates substantive due process. The court must determine "(1) whether the regulation is aimed at achieving a legitimate public purpose; (2) whether it uses means that are reasonably necessary to achieve that purpose; and (3) whether it is unduly oppressive on the land owner.” Id. Every presumption is in favor of the constitutionality of board of health regulations, since the board of health was functioning as a legislative body when the regulations were adopted. See Ford v. Bellingham-Whatcom County Dist. Bd. of Health, 16 Wn. App 709, 713, 558 P.2d 821 (1977); Snohomish County Builders Ass’n v. Snohomish Health Dist., 8 Wn. App. 589, 598, 508 P.2d 617 (1973).

In examining the first prong, the Christiansons concede that Resolution 87-35 is aimed at achieving a legitimate public purpose. Resolution 87-35 is aimed at protecting public health and preventing contamination of surface or ground water quality through proper disposal of sewage. This is clearly a legitimate public purpose and satisfies the first prong of the substantive due process analysis. See Ford, 16 Wn. App at 712 (the promotion and protection of public health and public sanitation within the municipalities of the state constitute important and far-reaching functions of municipal government). Protection of the public health is such an important concern the Washington Constitution provides for the establishment of a state board of health to carry out its powers as the Legislature may direct. See Washington Const, art. XX, § 1. Resolution 87-35 was passed in accordance with Washington State board of health regulations.

The second question examines whether the means used are reasonably necessary to achieve the purpose. The Christiansons argue that requiring compliance with Resolution 87-35 as a condition for all structural additions is not reasonably necessary to achieve the purpose of the resolution. They assert that this prong fails because the District cannot show that the Christiansons’ addition will create or add to a public health or water quality problem by increasing sewage flows. This argument implies that the District must show the application of the regulation, in this instance, solves a presently existing water quality problem. Petitioners, however, cite no authority for their proposition that public health regulations must be so narrowly tailored.

Additionally, the court has already considered this argument. See State ex rel. Miller, 40 Wn.2d 216. In State ex rel. Miller, a property owner also argued that since the nonconforming use of the property had been recognized and permitted, structural alterations should be allowed although prohibited by a Seattle ordinance⁴ unless the city could show that the public health, safety, morals or welfare was at risk. See id. at 222-23. We soundly rejected the appellants argument in State ex rel. Miller and likewise do so in this case.

If courts were to consider each individual lot separate and apart from every other lot in a particular use district, and try to determine whether any given structure erected or to be erected on it is dangerous or inimical to the public health, safety, morals or welfare, there could be no successful zoning.

" '. . . Upon what logic may that permission [permission to continue a nonconforming use] be transferred into a right to obtain more than the ordinance gives? No one in the district may build a new store, and it would be unwarranted discrimination in favor of plaintiffs to permit them to enlarge their existing store in this residential district. The finding that the public welfare would not be endangered is beside the point.’ ”

Id. at 223.

We have emphasized that public policy and the intent of zoning measures are "to restrict and not to increase nonconforming uses.” Coleman v. City of Walla Walla, 44 Wn.2d 296, 299-300, 266 P.2d 1034 (1954).

Consistently, zoning policy is against the indefinite extension of nonconforming uses. The public effort is not to extend a nonconforming use but rather to permit it to exist as long as necessary and then to require conformity in the future. Indeed, the public intent is the eventual elimination of nonconforming uses. It is only to avoid injustice that zoning ordinances generally except existing nonconforming uses.

Id. at 300.

We have further explained:

"An ordinance requiring an immediate cessation of a nonconforming use may be held to be unconstitutional because it brings about a deprivation of property rights out of proportion to the public benefit obtained, but an ordinance prohibiting the enlargement of a nonconforming building is not subject to the same infirmity. This more limited restriction on the owner’s rights in the use of his property is within the police power and such ordinances have been held valid.”

See State ex rel. Miller, 40 Wn.2d at 222 (quoting Austin v. Older, 283 Mich. 667, 278 N.W. 727, 730 (1938)).

Requiring the Christiansons to comply with minimum health code regulations when building an addition is a reasonable means to protect public health and water quality. It is common for ordinances "to provide that the life of nonconforming buildings cannot be increased by structural alterations and when a change is made by the owner in the building, he must make it conform to the ordinance.” Id. at 221. Thus, Resolution 87-35 in this instance uses a means that is "reasonably necessary” to protect the public health and water quality.

Petitioners also argue that the means used is unreasonable because it does not require a permit in other situations that may make a living space more habitable, such as buying a television or adding a skylight. Petitioners contend that these types of unregulated improvements may also increase the comfort of the home, which would invite increased use, and, consequently, increase sewage. However, the mere existence of another means does not establish that the means chosen were not reasonably necessary. See Margola, 121 Wn.2d at 649. Thus, Petitioners have not satisfied their burden of proving that the District’s means were not reasonably necessary to effectuate the purpose of the resolution.

The third prong examines whether Resolution 87-35, as applied to the Christiansons, is unduly oppressive. The court in Presbytery recognized that the unduly oppressive prong "will usually be the difficult and determinative one.” Presbytery, 114 Wn.2d at 331. Courts have wide discretion in determining whether a regulation is unduly oppressive. See id. Since the police power is inherent in the effective conduct and maintenance of government, it is to be upheld even though it adversely effects the property rights of some individuals. Ford, 16 Wn. App. at 712. Thus, the purpose of this prong is to prevent excessive police power regulations that require the landowner "to shoulder an economic burden, which in justice and fairness, the public should rightfully bear.” Orion Corp. v. State, 109 Wn.2d 621, 648-49, 747 P.2d 1062 (1987); see also Guimont v. Clarke, 121 Wn.2d 586, 610-11, 854 P.2d 1 (1993); Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 22, 829 P.2d 765 (1992); Robinson v. City of Seattle, 119 Wn.2d 34, 55, 830 P.2d 318 (1992).

In analyzing this element, the court must balance the public’s interest against those of the regulated landowner. Presbytery, 114 Wn.2d at 331. The factors to be considered when determining if a regulation is unduly oppressive include: the nature of the harm sought to be avoided; the availability and effectiveness of less drastic protective measures; and the economic loss suffered by the property owner. See id. This court also provided a set of nonexclusive factors to aid in balancing the public’s interests and those of the regulated landowner. See id. On the public side the court considers "the seriousness of the public problem, the extent to which the owner’s land contributes to it, the degree to which the proposed regulation solves it and the feasibility of less oppressive solutions would all be relevant.” Id. On the landowner’s side, the court considers "the amount and percentage of value loss, the extent of remaining uses, past, present and future uses, temporary or permanent nature of the regulation, the extent to which the owner should have anticipated such regulation and how feasible it is for the owner to alter present or currently planned uses.” Id.

The Christiansons rely on this court’s decisions in Sintra and Guimont to support their argument that Resolution 87-35 is unduly oppressive. Sintra considered the impact of Seattle’s Housing Preservation Ordinance. This housing preservation ordinance required developers who demolished or changed the use of low-income housing to pay large fees to a city fund used to construct low income housing. The ordinance was found to be unduly oppressive because it placed upon a discrete group of individuals and developers the responsibility of solving the society-wide problem of homelessness. This was accomplished by levying exorbitant fees, even though the developers were not responsible for the problem. See Sintra, 119 Wn.2d at 22. In Guimont, the court reached a similar conclusion in the context of low-income mobile home owners. See Guimont, 121 Wn.2d at 611-13.

The present case, however, is clearly distinguishable from the above cited cases. Unlike Sintra and Guimont, in this case no fees have been imposed and the Christiansons have not been asked to "shoulder” a burden of society. This resolution holds each individual responsible for the inadequacies of his or her septic system. This obligation is required of all individuals who decide to add onto their existing homes.

The Christiansons also argue that the resolution is unduly oppressive because it singles out individuals who want to add onto their home instead of regulating actual use of a building. The Christiansons state that homeowners with inadequate sewage systems can, without consequence, increase usage from weekend recreation to full-time, thus increasing sewage production where the Christiansons are unable to build their addition even though they promise not to increase their use. This argument, however, is not persuasive because it does not create an unequal burden on the Christiansons. The Christiansons may also increase the use of their existing cabin without consequence and others with substandard septic systems may be restricted from building an addition to their home. Moreover, regulating actual use of a home would be a more oppressive method than restricting an addition.

Consideration of the factors set forth by the court in Presbytery confirms that the application of Resolution 87-35 to the Christiansons is not unduly oppressive. Protecting public health and preventing contamination of ground and surface water are serious concerns. The Christiansons’ substandard system creates a threat to water quality. This court has recognized that in certain cases the extent to which an owner’s land particularly contributes to a public problem may be determinative. See Robinson, 119 Wn.2d at 55. The resolution prevents potential public health threats by preventing an addition to a structure served by a substandard system unless certain criteria are met. As noted above, other methods advocated by the Christiansons, such as regulating actual use or sewage production, would be less feasible and more oppressive. The resolution does not require the expenditure of money by the Christiansons and they may continue to use their cabin as they have in the past. Additionally, there is no reason why the Christiansons should not have anticipated the resolution’s impact on their plans. Thus, the Christiansons have failed to show that the resolution is unduly oppressive. Resolution 87-35 as applied to the Christiansons does not violate substantive due process.

CONCLUSION

We affirm the decision of the Court of Appeals finding that the Hearing Examiner’s decision to deny the Christiansons construction clearance permit was supported by substantial evidence and did not violate their right to substantive due process.

Durham, C.J., and Dolliver, Smith, Guy, Johnson, and Alexander, JJ., concur.

1 The Christiansons’ property satisfied two of the eight factors. The site has a proper source of water and it has an adequate distance between the existing foundation and addition to the septic tank and drainfield.

2 ^here was concern at the hearing that the new area is large enough to be used as a second bedroom area. However, the Christiansons stated that the remodeling will not result in two bedrooms and that they will use that room only for storage. Also, in previous testimony the Christiansons indicated that they would eventually put in a shower in the new bathroom. Later, the Christiansons testified that they would not proceed with plans to install a shower without obtaining the necessary permits.

3 Citing In re Indian Trail Trunk Sewer Sys., 35 Wn. App. 840, 670 P.2d 675 (1983), Petitioners argue that they have rebutted the District’s presumption with their testimonial assurances that they will not increase their use of the cabin. The inquiry, however, is whether there is substantial evidence, not whether there is controverting evidence. Sparks v. Douglas County, 127 Wn.2d 901, 904 P.2d 738 (1995).

4 The Seattle Zoning Ordinance in question in State ex rel. Miller v. Cain, 40 Wn.2d 216, 218, 242 P.2d 505 (1952), allowed nonconforming uses to continue "provided that no structural alterations are made except such as the Superintendent of Buildings shall deem necessary for the safety of the building.” (quoting Seattle Zoning Ordinance § 9(b)).