Richard Colf v. Clark County ( 2014 )

FILED
COURT OF APPEALS
DIVISION 11
201/ 1111 29 AV 11: 39
OF
T WASHINGTON
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
RICHARD COLF, No. 44818 -1 - II
Appellant,
v.
CLARK COUNTY, UNPUBLISHED OPINION
Respondent.
HUNT, J. — Richard Colf appeals the superior court' s affirmance of the Clark County
hearing examiner' s notice and order finding Colf in violation of Clark County Code ( CCC)
40.260. 210( C)( 3) for having a second mobile home on his property without the required
temporary dwelling permit. Colf argues that the superior court and hearing examiner both erred
in their interpretation of the Clark County Code and in finding ( 1) that he violated CCC
40. 260. 210( C)( 3) ( second mobile home); and ( 2) that CCC 14. 32A. 130( 3) ( " nonconforming"
mobile homes) and CCC 14. 32A. 140( 4) ( " preexisting use" exemption) did not exempt him from
this CCC 40. 260.210( C)( 3) violation. We affirm.
No. 44818 -1 - II
FACTS
I. MOBILE HOME PERMIT
Lingafelt1
On April 1, 1993, Rachel applied for a temporary mobile home placement
permit to install a second mobile home as a residence for her father on her Clark County
property. Lingafelt' s application acknowledged that such a temporary permit would be valid for
up to two years; that when the permit expired, it was subject to review; and that if she met all the
original permit requirements, she could renew the permit for up to two more years.
2
On May 5, 1993, the County approved Lingafelt' s " hardship " temporary dwelling permit
for the second mobile home but set it to expire one year later on May 5, 1994. This temporary
permit actually lapsed and expired sooner, on November 5, 1993, because Lingafelt never
requested or obtained the required inspections and approvals to support her original permit
application. Nor did Lingafelt ever seek to renew her temporary permit after it expired.
Almost five years later, in July 1998, Richard Colf purchased Lingafelt' s property and
homes3
the two mobile situated on it. Colf made improvements to the mobile homes but never
applied for or obtained a mobile home permit from the county.
On October 3, 2011, " Clark County Code Enforcement" ( Code Enforcement) received an
inquiry through its " Permit Service Center" about the expired hardship mobile home permit
issued for Colf' s property in 1993. Clerk' s Papers ( CP) at 100. On October 10, Code
1
Rachel Lingafelt was known as Rachel Cairns when she purchased the property in 1987. She
later changed her name to Rachel Butler. •
2
Clerk' s Papers ( CP) at 6.
3
Only the second mobile home, for which Lingafelt' s temporary permit expired, is at issue in
this appeal.
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No. 44818 -1 - II
Enforcement Coordinator Kevin A. Pridemore issued a notice to Colf that ( 1) the original
temporary dwelling permit for the second mobile home on his property had expired on May 5,
1994; ( 2) such temporary hardship permits require renewal every two years; and ( 3) if the
hardship no longer existed, the owner must remove the mobile home. Colf replied to Pridemore
that under CCC 14. 32A. 130( 3), the mobile home was lawful because Lingafelt had applied for
and had been issued a permit in 1993. Further correspondence between Colf and Code
Enforcement ensued.
On June 4, 2012, Code Enforcement issued a notice to Colf that he had violated CCC
40.260. 210( C)( 3) by failing to obtain temporary occupancy approval for the mobile home, for
which the previous permit ( Lingafelt' s) had expired on May 5, 1994. Code Enforcement ordered
Colf to obtain a permit, to remove the mobile home for the property, or to appeal.
II. PROCEDURE
Colf appealed the Code Enforcement officer' s notice and order to a Clark County Code
Enforcement hearing examiner.
At the hearing, Pridemore testified that Code Enforcement had
sent Colf three letters informing him of the mobile home permit' s 1994 expiration. Colf testified
that ( 1) he had purchased the property with two manufactured homes on it; and ( 2) he had not
obtained a permit for the mobile homes. The hearing examiner reviewed the parties' exhibits,
including: the notice and order to Colf, correspondence between Colf and Clark County Code
Enforcement, Colf s deeds, the real estate contract for the property, a description of and maps of
Colf's property, Lingafelt' s 1993 application and approved temporary permit for her second
mobile home, and printouts of relevant Clark County ordinances.
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No. 44818 -1 - II
The hearing examiner also considered CCC 40.260.2.10( C)( 3) and former chapter 18. 413
CCC4 (
language similar to CCC 40. 260. 210), both of which provide that a temporary dwelling
permit is valid for two years and may be renewed for two years upon written substantiation by
the applicant. The hearing examiner also considered CCC 14. 32A.130( 3) and CCC 14. 32A. 140,
which describe the types of property exempt from chapter 14. 32A (mobile /manufactured home)
requirements.
The hearing examiner ruled that the County had sustained its burden of proving that Colf
was in violation of CCC 40. 260. 210( C)( 3). The hearing examiner noted that ( 1) the second
mobile home had been placed on the property as a temporary dwelling under former chapter
18. 413 CCC; ( 2) the temporary permit, on its face, had expired on May 5, 1994; and ( 3) this
5
temporary permit was not renewed. The hearing examiner issued a final order ( 1) denying
Colf' s appeal; ( 2) affirming Code Enforcement' s order; ( 3) requiring Colf to pay Clark County
750 as the accrued penalty; ( 4) ordering Colf to remove the second mobile home from the
property or to apply for a boundary line adjustment to locate the second mobile home on a
separate parcel; and ( 5) in the latter situation, if a boundary line adjustment was approved, to
obtain all required inspections and approvals for the second mobile home.
4
Repealed by Clark County Ordinance 2003- 11 - 01, § 5.
5 In response to Colf' s argument that the second mobile home was a prior nonconforming use
and, therefore, exempt from chapter 14. 32A CCC requirements, the hearing examiner ruled that
the second manufactured home was not legally on the property as of the effective date of chapter
14. 32A CCC, October 13, 2003, citing CCC 14. 32A. 130( 3) and CCC 14. 32A. 140( 4). In
response to Colf s argument that the second mobile home
temporary dwelling"
was not a "
because it was permanently attached to the property, the hearing examiner noted that the
meaning of the term was clear from the context of CCC 40.260. 210. CP at 11.
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No. 44818 -1 - II
The superior court affirmed the hearing examiner' s order, ruling that Colf had not
6
sustained his burden of proof under the Land Use Petition Act ( LUPA) to show that the hearing
examiner had erroneously interpreted the law, lacked substantial evidence to support his final
order, or erroneously applied the law to the facts of the case. Colf appeals.
ANALYSIS
Colf argues that the superior court and the hearing examiner erred in their interpretation
of the Clark County Code and in finding that he had violated CCC 40. 260. 210( C)( 3) in
maintaining the second mobile home on his property without the required permit because the
second mobile home was exempt from the code requirements under CCC 14. 32A. 130( 3) and
CCC 14. 32A. 140( 4). These arguments fail.
I. STANDARD OF REVIEW
LUPA governs judicial review of Washington land use decisions. HJS Dev., Inc. v.
Pierce County ex rel. Dep' t of Planning & Land Servs., 148 Wn.2d 451, 467, 61 P. 3d 11412003). In a LUPA appeal, an appellate court reviews the decision of the " local jurisdiction' s
body or officer with the highest level of authority to make the determination." RCW
36. 70C.020( 2) 7; Citizens to Pres. Pioneer Park, LLC v. City of Mercer Island, 106 Wn. App.
461, 470, 24 P. 3d 1079 ( 2001). We stand " in the shoes of the superior court," limiting our
6 Ch. 36.70C RCW.
7
The legislature amended RCW 36. 70C. 020 in 2009 and 2010. LAWS OF 2009, ch. 419, § 1;
LAws OF 2010, ch. 59, § 1. The amendments did not alter the statute in any way relevant to this
case; accordingly, we cite the current version of the statute.
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No. 44818 -1 - II
review to the record before the hearing examiner.
Pavlina v. City of Vancouver, 122 Wn. App.
520, 525, 94 P. 3d 366 ( 2004); RCW 36. 70C. 120( 1).
A party seeking relief from a hearing examiner' s land use decision must establish one of
six bases listed in RCW 36. 70C. 130( 1) 8:
a) The body or officer that made the land use decision engaged in unlawful
procedure or failed to follow a prescribed process, unless the error was harmless;
b) The land use decision is an erroneous interpretation of the law, after allowing
for such deference as is due the construction of a law by a local jurisdiction with
expertise;
c) The land use decision is not supported by evidence that is substantial when
viewed in light of the whole record before the court;
d) The land use decision is a clearly erroneous application of the law to the facts;
e) The land use decision is outside the authority or jurisdiction of the body or
officer making the decision; or
f) The land use decision violates the constitutional rights of the party seeking
relief.
Colf asserts that the hearing examiner' s decision was an erroneous interpretation of the law
under RCW 36. 70C. 130( 1)( b). Whether a decision is an erroneous interpretation of the law is a
question of law, which we review de novo. Lauer v. Pierce County, 173 Wn.2d 242, 252, 267
P. 3d 988 ( 2011).
We interpret local ordinances using the same rules of construction that apply to statutes.
Sleasman v. City of Lacey, 159 Wn.2d 639, 643, 151 P. 3d 990 ( 2007). When an ordinance is
unambiguous, we give effect to the plain meaning of an ordinance. State v. Villarreal, 97 Wn.
App. 636, 641 =42, 984 P. 2d 1064 ( 1999), review denied, 140 Wn.2d 1008 ( 2000). That two or
8
The legislature amended RCW 36. 70C. 130 in 2009. LAWS OF 2009, ch. 419, § 2. The
amendments did not alter the statute in any way relevant to this case; accordingly, we cite the
current version of the statute.
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No. 44818 -1 - II
more interpretations are conceivable does not render an ordinance ambiguous. Five Corners
Family Farmers v. State, 173 Wn.2d 296, 305, 268 P. 3d 892 ( 2011). We find no ambiguity here.
II. " TEMPORARY DWELLING"
Asserting that a " temporary dwelling" encompasses more than a manufactured or mobile
home, Colf challenges the superior court' s and the hearing examiner' s interpretation of
9
temporary dwelling" under CCC 40. 260. 210( C)( 3). This code provision sets forth the
following limitations for a " temporary dwelling permit ":
A temporary dwelling permit shall be valid for two (2) years, and may be renewed
by the issuing body for successive two ( 2) year periods upon written
substantiation by the applicant to the continuing hardship or need justification.
Upon the expiration of the two ( 2) year period, or at the end of each successive
two ( 2) year period( s), if granted, the applicant shall notify the responsible official
in writing that the temporary dwelling has been removed and, further, said notice
shall include a request for an inspection to determine that the temporary dwelling
has, in fact, been removed in compliance with the permit.
CCC 40. 260. 210( C)( 3).
Colf incorrectly asserts that the Clark County Code does not define " temporary
dwelling." Br. of Appellant at
. 8. CCC 40.260.210(B)( 1)( c) defines a " temporary dwelling" as
a temporary structure such as a mobile home designed, constructed and maintained in a manner
which will facilitate its removal at such time as the justifying hardship or need no longer exists."
The record shows that ( 1) the mobile home in question on Colf's property had been a temporary
home for Lingafelt' s father, for which the County had granted a temporary dwelling permit on
hardship grounds; ( 2) by its own terms this temporary permit automatically expired in one year if
Lingafelt did not apply for another permit; ( 3) Lingafelt' s temporary permit actually expired
9 Br. of Appellant at 8.
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No. 44818 -1 - II
before this one -year date when she failed to submit the required inspections; ( 4) neither Lingafelt
nor Colf notified the County that the temporary hardship condition had ceased or continued; and
5) neither had applied for a permit to retain the mobile home on the property.
Colf fails to show that the hearing examiner and superior court erroneously interpreted
the term " temporary dwelling" under CCC 40.260.210( C)( 3) or misapplied that code provision to
the second mobile home on his property, for which he had no permit. Thus, his challenge fails.
III. PREEXISTING MOBILE HOME NOT EXEMPT UNDER CHAPTER 14. 32A CCC
Colf next argues that under CCC 14. 32A. 130( 3) and ( 4), and under CCC 14. 32A. 140( 4),
the second mobile home on his property did not violate any Clark County ordinances. More
specifically, he contends that the mobile home was exempt from needing a new temporary
dwelling permit under CCC 14. 32A. 130( 3) and CCC 14. 32A. 140( 4) because ( 1) Lingafelt had
previously obtained a permit for the second mobile home; ( 2) by virtue of this permit, she had
legally" placed the mobile home on the property in 1993; and ( 3) therefore, the mobile home
10]
had been "`` legally installed, placed, or existing prior[ to "' the 2003 effective date of the
applicable ordinances, within the meaning of CCC 14. 32A. 140( 4). Br. of Appellant at 11
quoting CCC 14. 32A. 140( 4)).
10 Colf further asserts that the word " prior" in CCC 14. 32A. 140( 4) means that a manufactured
home is exempt if at any time before the 2003 effective date of chapter 14. 32A CCC, the mobile
home is deemed legally installed, legally placed, or legally existing. Br. of Appellant at 13. Colf
is incorrect.
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No. 44818 -1 - II
We do not consider Colf' s contention that chapter 14. 32A CCC exempts him from having
homer l
to obtain a permit for the second mobile because the County charged him with violating a
different code, CCC 40. 260.210( C)( 3) ( temporary dwelling permit for second mobile home).
And under its plain language, CCC 14. 32A. 130( 4) exemptions apply only to " the requirements
12
set forth in [ chapter 14. 32A CCC]. " Thus, chapter 14. 32A CCC exemptions do not shield Colf
13
from his CCC 40. 260. 210( C)( 3) violation.
11
We recognize that both the hearing examiner and the superior court addressed the merits of
Colf' s chapter 14. 32A CCC exemption argument. We, however, do not find it necessary to
reach this issue.
12
CCC 14. 32A. 130( 3) provides:
All manufactured homes installed in Clark County before the effective date of
ordinance codified in this chapter which do not comply with the requirements set
forth in this chapter are deemed to be nonconforming.
Emphasis added). Addressing placement of a. single mobile home on a property, CCC
14. 32A. 140( 4) provides a limited exemption for "[ m] anufactured homes legally installed, placed,
or existing prior to the effective date of this chapter, as described in Section 14. 32A. 130( 3)"; but
this exemption is limited to exemption from " the requirements of this chapter." CCC
14. 32A. 140 ( emphasis added). By this plain language, this chapter 14. 32A CCC exemption does
not apply to violations charged under other chapters, such as Colf' s violation of CCC
40. 260. 210( C)( 3).
13
We note, however, that even if Colf could claim the CCC 14. 32A. 130( 3) and CCC
14. 32A. 140( 4) exemptions, his arguments would fail. Under CCC 14. 32A. 140( 4) Colf must
show that the manufactured home. legally installed, placed, or existing prior to" that
was "
provision' s 2003 effective date. As we have already explained, Lingafelt' s temporary dwelling
permit for the second mobile home on the property expired on November 5, 1993. Accordingly,
absent an application for renewal of this permit, the second mobile home' s placement on Colf' s
property was no longer " legal" after the permit' s 1993 expiration, well before chapter 14. 32A
CCC' s 2003 enactment. Thus, the second mobile home did " not comply with the requirements
set forth in [ this chapter 14. 32A CCC]," and the second mobile home was not eligible for the
exemptions under CCC 14. 32A. 140( 4), which m] anufactured homes legally .
apply only to "[
installed, placed, or existing prior to the effective date of this chapter."
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No. 44818 -1 - II
We affirm both the hearing examiner' s ruling and order and the superior court' s
affirmance of the hearing examiner.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
10