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HomeMy WebLinkAboutMobile Home Park - PLN General - 10/13/2008 From Darin Barry, Robin Hood Village Cel 360-927-1105 To Kell McAboy, Mason County RE Park Models Date October 13th, 2008 ✓ Kell,thanks again for spending time with me going over the issue. I was preparing some notes to take into John Woodring on our meeting so that I don't waste his time and my money, and I ran across a letter regarding the exact space that the park model is in that I'm hoping might resolve this without having to spend money on John Woodring. You'll see in the letter that the space had long-term tenants in it when I bought the park in 2005. You will also see that the tenants(and their attorney)clearly state that they are long-term and that our relationship is governed under the land-lord tenant act. You'll also be able to verify by looking at the letter that there space was right next to the bathrooms(space#10—the one the park model is in). I'm also including 2 different satellite photos from 1989&1990 which clearly shows Mobile Homes in the exact spaces that the Park Models are in today. As I mentioned while you were here, I've also spoke to the previous owners who state that when they bought Robin Hood Village around 1990 there were 6 mobile homes in the lower village and during their ownership period they often rented pads long term. We are contacting people that we believe will have pictures,but you should be able to confirm yourself since you saw the multiple 200 amp electrical boxes that would only be used for Mobile Homes. As for decks and gazebo's, all are in historically defined mobile home spaces, unattached, decks are under 24" high,and gazebo's under 400 sgft which our understanding is that under the IBC no permits are required. I toured a mobile home park on the way out of town the other day and saw dozens of decks and awnings that were attached that I would be greatly surprised if any of them had permits. The photos clearly show that I did not create new spaces for the Park Models in the buffer zone, and in fact these spaces show up clearly on Satellite photos over 15 years before I even bought Robin Hood Village. This should be more than enough evidence to prove that Robin Hood Village should either be treated as legal non-conforming or as a Mobile Home Park. Since I don't know what legal traps claiming one or the other will open me to next, and I don't want to waste legal money in these slow business times, I hope that these 2 satellite photos showing mobile homes in the lower village, letters from an attorney attesting to long-term renters in the lower village,the 200AMP electric boxes that you saw in the lower village(that would only be used for mobile homes),and the fact that even today we have 5— Full Time Rentals on the property will be enough to convince you to close this file. Date 8-18-1989 Aft Zrl yy �1 r , f rlr 1 N a 3 , 1 r. kv NPL w � p Y PL IV ar�w i .n • . ..i. ML Iwo at x, B t y '4 a ice" t ys E r 314 m.'%' T v�y•e,�,�•. ..` ?�- _ '�"sy fix+`_ �a�� � - s-.r qlr•.t< , 1 11 1 11 County commission roundup: P Robin oo ar e s RVI issue The new owner of an historic However, the current county missioner Jayni Kamin said she • Appointed Gayle Weston to for$150;resort appeared before the Mason code limits the number of days visited his park facility over the the Mason County Housing Au- Trucks fc County Commission this week. an RV can remain in a park as a weekend and agreed there could thority Board of Commissioners tist Jerry Darin Barry recently purchased way of discouraging people from be some historical significance for a five-year term, ending July Lorenz of Robin Hood Village, a resort in trying to live in them long-term to some of the antique buildings. 1, 2011 and appointed Sharon $900; Ru: Union, which he said was origi- and from adversely affecting the She said Barry's concerns could Gove to the Lewis-Mason-Thur- ber at no nally designed by the director of park's environment and appear- be something to consider as the ston.Area Agency on Aging for a in the fair the original Robin -Hood movie ance. Another big trend is set by county looks to expand tourism in two-year term, ending January • Autl filmed in the 1930s. - people who rent park-model RVs the area. 2008. Johns Pr: Quaint little cottages are all for a few nights,instead of buying In other business on July 18, • Authorized the county's 911 2.50 to fa around the facilit�,he described. their own. These vehicles look a the commissioners: contracts with the Washington with the Speaking at the regular board little like a cottage and are usual- • Set a public hearing for 9:30 State Military Department for road will c meeting on Tuesday, Barry ex- ly about 400 square feet and built a.m. on Tuesday, August 8, to funds to pay for wireline and wire- day, Augu plained how he; is 'seeking the to specifications. consider adopting changes to the less operations expenses not cov- p.m. on M county's help in dealing with some "It's a huge trend that's opening Mason County Code regarding ered by 911 excise tax. The maxi- also authc recent challenges facing the rec- all over the United States,"Barry the county's smoking policy and mum amount is $259,116. the Yates reational-vehicle- industry, espe- said,providing copies of recent ar- the county parks and fairgrounds. • Authorized an agreement nous surf. cially in light of sky-rocketing gas ticles in publications specializing These policy changes follow the with Jefferson County for a sew- ment proj( prices. in campground management re- Clean Indoor Air Act, which was age management plan as required *Autho) One new trend finds people garding these new patterns in the revised on November 8, 2005 by Washington Administrative the Shell leaving their recreational vehicles, RV industry. through Initiative 901. Follow- Code. The cost is not to exceed Foundatio or RVs, at a park on a long-term "There's some challenges in the ing this act, Mason County Board $70,000. County Fa basis. This enables them.to use Mason County Code that are kind of Health adopted new smoking • Authorized the following con- tion Cent( it more often during the vacation of inhibiting the ability to pursue policies on January 12 of this tracts for the 2006 Mason County OysterFesl season, instead of always hauling those possibilities,"he added. year, banning smoking on county Fair&Rodeo:Jay Sicilia of Planet • Cont it to the destination and then back Barry has been meeting with property, parks and fairgrounds. Percussion and Drum Circle in the ing to cor home again. This is particularly Emmett Dobey, the county's com- In April the board of health rec- amount of $700; Cori Severance tion of Mo true for people living in cities each munity development director, ommended the county code be re- of Miss Mason County Talent Re- of Moore's as Tacoma and Seattle, he saidf to . discuss the situation. Com- vised to reflect these changes. view at no charge; Maria Wirries Shelton, a: and Leah reconsider Mas.o.n an e a continua e rs o n a re�e 9:30 C ndi and then portion of To Commissioner Lynda Ring Erickson Commissioner Tim Sheldon Commissioner Jayni Kamin From Darin Barry Ce1360-927-1105 Owner, Robin Hood Village Union, WA RE Potential Acquisition I appreciate you taking the time to read this and would appreciate any feedback you can offer. I purchased Robin Hood Village(15 acres)late last year. I now have the opportunity to purchase the adjacent property(10 acres w/great Hood Canal views-Currently Union Bay Hot Tub Cabins, and all the land behind it up Orre Nobles). The combination of these two properties would be nearly 25 acres,all of which was platted in the 1930's into 40x100 lots. A good portion of the property is zoned commercial. I also have a water front parcel which the locals have called"the green" in the past. Before going forward with acquiring this property I wanted to get some feedback from you regarding your vision for this area. I could see the combination of the properties developing in 2 ways. 1- Small—We have a great nightly cottage rental business now. We could slowly grow this business, add a few cottages over time and make our grounds better and better for the enjoyment of our guests. 2- Larger—With the 25 acres, density rights, and zoning, we could consider a 50 to 150 unit condo project or perhaps a condo/hotel. I'm finding many locals that are getting to the age that they would prefer a nice condo to a full blown home with all the responsibilities that go along with it. A project this size would enable us to look at the entire Union area and put together a well thought out solution for Water and Sewar which could benefit the entire area. I apologize for sending this in an email, however I needed to get the idea out to you quickly if I expect to be able to get any meaningful feedback by the time I must make a final decision on buying the additional acreage. Thanks Darin Barry 360-927-1105 (cel) MASON COUNTY DEPARTMENT OF COMMUNITY DEVELOPMENT Planning Department P.O. Box 578 MOBILE HOME & Shelton, WA 98584 RV PARKS (360) 427-9670 The purpose of the Mason County Mobile Home and RV Park Ordinance is to regulate mobile home and RV parks in the unincorporated areas of Mason County to insure the development and maintenance of well-planned parks. Mobile home and RV parks shall be separate parks needing separate permits. When do I need a Mobile Home Park Permit? Whenever you want to put two or more mobile homes on a lot, and they will not be utilized for personal and immediate family use,you need an approved Mobile Home Park permit. When four or fewer mobile homes are proposed, a Small Mobile Home Park permit is required. This permit process is streamlined somewhat and requires less processing time. When five or more mobile homes are proposed, a Mobile Home Park permit is required. This process requires approval from both the Planning Commission and the County Commissioners. When do I not need a Mobile Home Park Permit? When four or fewer mobile homes are placed on a lot and they are all utilized for personal and immediate family use,the rules and regulations of the Mobile Home Park Ordinance do not apply. This is provided that all requirements of the Building, Planning, and Health Departments can be met. When do I need a Recreational Vehicle Park Permit? Whenever you want to place two or more RV's on a lot, an RV Park Permit is required. When do I not need a Recreational Vehicle Park Permit? When you have your RV and no more than three guest RV's on your property for personal recreational purposes, and they are not occupied for any longer than three weeks in any sixty day period, an RV Park Permit is not required. Also, if a family or other personal gathering involving more than three RV's takes place and lasts no longer than five days, an RV Park Permit is not required,providing no health, litter, or other problems develop. What are some of the requirements for a Mobile Home Park Permit? * Minimum park size is three acres. * The average maximum density for the entire mobile home park shall not exceed seven mobile homes per acre. * There are specific setback requirements between mobiles and from property lines. * Buffers and Recreation and Open Space considerations must be included. -PLEASE TURN OVER- T * A Drainage Plan is necessary and, depending on the scale of the project, engineering may be required. * A Site Plan showing all specific details relevant to the design of the park must accompany the application. * Applicable fees must be submitted. What are some of the requirements for a_Recreational Vehicle Park? * Minimum park size is two acres provided that RV parks can be established on less than two acres if the average density is less than or equal to five spaces per acre. * There are specific setback requirements between RV's and from property lines. * A Dump Station for the disposal of self-contained sewage shall be provided in RV parks with any spaces designated for self-contained units. * There are specific Road and Parking standards which must be met. * Buffers and Recreation and Open Space considerations must be included. * The Drainage standards found in the ordinance must be met. * A site Plan showing all specific details relevant to the design of the park must accompany the application. * Applicable fees must be submitted. What is the process for approval of Mobile Home and RV Parks? * Preliminary consultation with the Planning, Health, Building, and Public Works Departments is recommended and encouraged. * Submit application, site plan, and applicable fee: »Small Mobile Home Park: $200.00 plus $25.00 per space »Mobile Home Parks: $590.00+ $25.00 per space »RV Park: $590.00+$25.00 per space * Staff review. * Planning Commission public meeting on proposal. (May be waived for Small Mobile Home Parks). * County Commission public meeting on proposal. (May be waived for Small Mobile Home Parks). * Permit can be approved, conditionally approved,or denied. How long does the process take? * 45-90 or more days for Mobile Home Parks and RV Parks; 15-45 or more days for Small Mobile Home Parks. Note: The information on this brochure is for general guidance only. You should not rely on this brochure to identify the specific requirements for your project. A copy of the Mobile Home and Recreational Vehicle Parks Ordinance is available from the Planning Department. For identification or explanation of specific requirements related to your proposal,contact the appropriate County departments. 711 Capitol Way S#704 Olympia WA 98501 360-753-3610,X222 1-888-212-0380 360-753-0174 Fax Northwest Justice Project meaganm@nwjustice.org www.nwjustice.org Patrick McIntyre Executive Director January 27,2006 Jerry McAlpine,General Manager Robin Hood Village 6780 E. State Route 106 Union,WA 98592 Re: Steve Napper, Space 1 Dear Mr. McAIpine: Mr. Napper called me about his tenancy at Robin Hood Village. His caregiver, Joeanne Brown, handles most of his affairs for him. Mr. Napper recently started chemotherapy and is quite incapacitated by the treatments, as well as his underlying health conditions. Given the extent of his care needs, Mr. Napper needs to live near his caregiver. Ms. Brown has been looking for a place to move Mr. Napper and her own family, but is having a very hard time finding a place that will accept their mobiles and pets. My letter to you regarding the Browns'tenancy discusses her attempts in more detail. Mr. Napper wanted me to write to you to explain his situation and propose a solution in case they do not find a place to move in the next few months. When Mr. Napper moved into the park on August 5, 2004, it was with the clear understanding by all parties that his tenancy was long-term. The tenancy has been treated as a permanent one for over a year and a half. In August 2005, Ms. Brown also moved to the park, in large part to help care for Mr. Napper. Had long term tenancy for Mr. Napper and the Browns not been available at that time, Mr. Napper would likely have terminated his tenancy and relocated to wherever the Browns lived. You were aware of Mr. Napper's tenancy and the caregiver situation when you and Mr. Barry purchased and took over management of the park. In around November of last year,you sent Mr.Napper a lease to formalize his rental agreement. The lease was based on the mobile home landlord-tenant act, RCW 59.20, Mr. Napper had some concerns about the lease he received, and about the Browns' continued tenancy. Given his limited income, he was concerned that the lease made him responsible for power fees,which had been.part of his rent of$325/month prior to this time. Mr.Napper was also concerned about paragraph 36 of the lease, which indicated he was offered a one-year agreement and rejected that agreement in favor of a month-to-month agreement. In fact, Mr. Napper never was offered a one- year agreement. When Ms. Brown expressed concerns about the lease on Mr. Napper's behalf, they were told that the monthly rental agreement was not available to them after all and they should move out as soon as _ possible. You offered to give them some time to do so,as you understand, it is not easy to find a long- term tenancy in their situation. Mr. Napper and Ms. Brown have been confused and taken aback by the changes in their tenancy from what was originally agreed to upon move-in, to the November month-to-month proposal,to a request that they move out. lot,M « Board of Directors: Lisa L.Atkinson•Michelle Gonzalez•Celia Guardado•Octavia Hathaway•Barbara Lindley _- Christina Gerrish Nelson•Patrick J.Oshie•Lourdes Reyes•Roger Wynne•Claude M.Pearson,President Emeritus il°LSC Jerry McAlpine January 27, 2006 Page 2 They do not believe you are trying to "pull one over" on them or do anything unfair; they told me they think you are doing your best to manage the park while also getting up to speed on the laws and requirements. The Browns told me they see no reason why we can't work something out that is agreeable to everyone. They called me because they wanted to better understand what their rights are before they agree to something. First, let me say that the Browns' tenancy does fall under the Mobile Home Landlord-Tenant Act. I guess there has been some confusion about that. RCW 59.20.030(6) defines a "mobile home park" subject to the Act as"any real property which is rented or held out for rent to others for the placement of two or more mobile homes, manufactured homes, or park models for the primary purpose of production of income, except where such real property is rented or held out for rent for seasonal recreational purpose only and is not intended for year-round occupancy". Robin Hood Village clearly rents to at least two homes of this type with the mutual understanding by tenant and landlord that the rentals will be occupied year-round. As such, the park falls under the mobile home landlord-tenant act. It seems you have already discovered that such parks must offer tenants a one-year lease (see RCW 59.20.050). That law also provides that, if the landlord allows the tenant to move a mobile home, manufactured home, or park model into a mobile home park without obtaining a written rental agreement for a term of one year or more, or a written waiver of the right to a one-year term or more, the term of the tenancy shall be deemed to be for one year from the date of occupancy of the mobile home lot. At the end of the year, the law provides that a tenant can require the landlord to provide a written rental agreement for a term of one(more)year. The Browns understand that are making you ak changes to the ark and would refer that the move out. Y g g P P Y They are willing to do so. They have secured a long term tenancy in Lewis County, but cannot occupy the space until September 2006.They propose that they stay in Robin Hood Village under the current terms of their tenancy (Space rent of$325/month including utilities, occupancy of Mr. and Mrs. Brown, one child and two dogs) through August 31, 2006. Although this may not be an ideal solution for anyone (you would like them out sooner,they planned to stay permanently), it is a good middle ground. The Browns consistently pay their rent on time and will continue to abide by park rules. Given their strong legal right to continued tenancy through at least August 2006, and the lack of any real loss to the park if they stay,this seems to be an imminently reasonable compromise. Will you please contact me at your earliest convenience to discuss this offer so we can finalize the terms in writing?Thank you. Sincerely, NORTHWEST JUSTICE PROJECT AI . MeaganTJacK1zie Attorney at Law MJM:ch cc: Jerry and Joeanne Brown 711 Capitol Way S#704 Olympia WA 98501 360-753-3610,X222 - 1-888-212-0380 � 360-753-0174 Fax Northwest Justice Project meaganm@nwjustice.org oly.nwjustice.org Patrick McIntyre Executive Director January 27,2006 Jerry McAlpine, General Manager Robin Hood Village 6780 E. State Route 106 Union,WA 98592 Re: Jerry and Joeanne Brown, Space 10 Dear Mr.McAlpine: The Browns called me about their tenancy at Robin Hood Village.They have been looking for a place to move, but are having a very hard time finding a place that will accept their mobiles and pets. They appreciate the information you gave them about possible park vacancies. They have looked into all the places on the list you gave them, as well as 6 more they found through other means, but unfortunately,none of them will work at this time. The Browns will keep looking for a new place. They asked me to write to you to explain their situation and propose a solution in case they do not find a place to move in the next few months. When the Browns moved into the park last July, it was with the clear understanding by all parties that their tenancy was long-term. They would not have moved to Robin Hood Village otherwise. Due to their age and disability issues, as well as Ms. Brown's caregiver relationship with another park tenant, Mr.Napper,the Browns needed permanent housing. When they moved in, you and Mr. Barry were in the process of purchasing and taking over management of the park. You helped rent the Browns their space. After the sale was final, you sent all the tenants leases around November of last year to formalize the rental agreements. These leases were based on the mobile home landlord-tenant act, RCW 59.20. The. Browns had some concerns about the lease they received. It did not mention their two dogs, although they had the dogs since moving in and were approved to do so. They were also concerned that the lease made them responsible for power fees, which had been part of their rent of$325/month prior to this time. Finally, the Browns were concerned about paragraph 36 of the lease, which indicated they had been offered a one-year agreement and rejected that agreement in favor of a month-to-month agreement. In fact,the Browns never were offered a one-year agreement. When the Browns expressed some concerns about the lease,ffiey were told that the monthly rental agreement was not available to them after all and they should move out as soon as possible. You offered to give them some time to do so, as you understand it is not easy to find a long-term tenancy in their situation. The Browns have been a bit confused and taken aback by the changes in their tenancy from what they .originally agreed to`upon move-in, to the November month-to-month proposal,to a request that they move out. I ME�`►I(I Board of Directors: Lisa L Atkinson•Michelle Gonzalez•Celia Guardado•Octavia Hathaway•Barbara Lindley w_--- Christina Gerrish Nelson•Patrick J.Oshie•Lourdes Reyes•Roger Wynne•Claude M.Pearson,President Emeritus u LSC 69 Wn. App. 641 849 P.2d 12 pp 76, VAN SANT v. EVERETT � May 1993 [No. 28049-0-I. Division One. May 3, 1993.] VAN SANT v. EVERETT CRAIG VAN SANT, ET AL, Respondents, v. THE CITY OF EVERETT, Appellant. Here the hearing examiner erred.Because Van Sant had established the prior existence of a nonconforming commercial use,the burden shifted to the City to prove abandonment or discontinuance of that nonconforming use. The City should have been required to show(1)intent and(2)an overt act or failure to act which demonstrates that the owner does not claim or retain an interest in the right to the nonconforming use.The hearing examiner's requirement that Van Sant prove that the nonconforming commercial use had continued and had not been abandoned indicates that this burden was improperly placed on the owner of the vested property interest. The City asserts,in the alternative,that even if the hearing officer erred in allocation of the burdens of proof,the burden of proof issue is a red herring because the hearing examiner allowed in all evidence without restriction and made credibility determinations.Therefore,the City concludes,a remand would be a waste of time.We disagree. [4]The result of the hearing examiner's misallocation of the burdens of proof was not minor.Nonconforming uses are vested property rights which are protected.Missouri Rock,Inc.v.Winholtz,614 S.W.2d 734,739(Mo.Ct.App. 1981);Martin v.Beehan,689 S.W.2d 29,31 (Ky.Ct.App. 1985).Protected property rights cannot be lostor voided easily:There is properly a high burden of proof that must be met by the City before Van Sant loses what was a vested property right. Here,the burden of proof is an important factor.The neighbors are saying that there is no nonconforming use.On the other hand,the property owner and his employees claim that there is a nonconforming use.Because any arbitrary and capricious standard applies to that factual determination,the burden of proof may well decide who wins the case.:Therefore,if the City is unable to prove(1)intent to abandon and(2)action or failure to act that would constitute abandonment,Van Sant gets to keep his nonconforming use. Vil Next,the City asserts that under State ex rel.Lige&Wm B.Dickson Co.v.Pierce Cy.,65 Wn.App.614,829 P.2d 217,review denied, 120 Wn.2d 1008(1992.),the landowner claiming a nonconforming use has the burden of establishing all the elements of a nonconforming use.In Pierce the Court of Appeals affirmed a hearing examiner's finding of a nonconforming use where the property owner had used his property as a storage yard for equipment and materials both before and after the zoning changed to prohibit such activity.Pierce,65 Wn.App.at 623. However,Pierce is distinguishable as it involved whether the landowner could establish a nonconforming use,not whether a previously established nonconforming use had been abandoned.Pierce,65 Wn.App.at 616.We believe that the Pierce court intended no departure from the normal burden of proof rules.But to the extent it may have so intended,we respectfully disagree. In conclusion,misallocation of the burden of proof was a significant error,warranting affirmance of the trial court's remand of the case. 3.Reviewing the Evidence [5,6]Next,the City asserts that in setting aside the hearing officer's decision the trial court improperly substituted its judgment on the issue of business license and business tax records.On factual questions the reviewing court cannot substitute its interpretation of the facts for the agency's interpretation or reweigh the evidence.Franklin,at 325;Balser Invs.,Inc.v.Snohomish Cy.,59 Wn.App.29,36-37,795 P.2d 753(1990).Rather,the superior court, like this court,must review the agency decision for arbitrary and capricious actions.Balser,at 36-37.However,as this appeal requires a review of the agency action,rather than a review of the superior court record,the conclusions of the trial court are surplusage and do not require further analysis.Grader,at 879. 4.Business License and Taxes H:\WP\PROJECTS\2008proV&o-Woodring abandon nonconforming-van sant.doc Pagel of 3 The City contends that the trial court's other basis for reversal,that the hearing examiner improperly relied on the absence of business licenses and records and tax records,is not supported by the record.We disagree. In examining the record,the hearing examiner's decision does indeed appear to be based primarily,and improperly, on the absence of a business license and tax records.In his original decision the hearing examiner stated that: The weakness in the Applicant's argument is the fact that no licensed or taxed commercial activity has occurred on the site.At no time during the previous ownership was there a Business License issued by the City of Everett for the business activity on-site;and,at no time during the previous ownership were Business and Occupation taxes ever paid to the City of Everett for the business conducted on site. .. .Thus,because no official or documented activity has been transacted on the property,the use cannot be considered non-conforming for commercial use in the R-2 zone. Similarly,in his decision concerning the request for reconsideration the hearing examiner made the following conclusions: The activity on the subject property in the past has been in conjunction with other business uses.However,there were no business records,taxation records or any permits from the City of Everett with regard to the commercial activity of the subject property noted. The use must have lawfully existed.No evidence has been submitted to prove that the use was a legal commercial use. Courts have repeatedly found that licensing and other regulations unrelated to land use approval,whether business licensing,business and occupation tax regulations,or building permits,are not per se determinative of the continuance of a nonconforming use.In Hooper v.St.Paul,353 N.W.2d 138, 141 (Minn. 1984),the Minnesota Supreme Court reversed a trial court's determination that a nonconforming use was lost,in part because the property owners failed to get a building.permit for a carriage house.The court held that"[v]iolations of ordinances unrelated to the land use planning do not render the type of use unlawful."See also Bartz v.Board of Adj.,80 Wn.2d 209, 221,492 P.24"1374(1972)(affaming permit to expand a nonconforming use and stating that there existed a different forum to seek remedy for ordinance violations);Derby Ref.Co.v.Chelsea,407 Mass.703,711,555 N.E.2d 534,539(1990)(rejecting argument that absence of a requisite governmental approval invalidated a nonconforming use);Trailer City,Inc.v.Board of Adj.,218 N.W.2d 645,648(Iowa 1974)(failure of owners of mobile home park to renew health license did not void park's status as nonconforming use);Board of Selectmen v. Monson,355 Mass.715,716,247 N.E.2d 364,365(1969)(failure to get license did not void nonconforming use where defect can be easily remedied);Mellow v.Board of Adj.,565 A.2d 947,955(Del.Super.Ct. 1988)(failure to get license does not void nonconforming use where law violated does not relate to zoning),affd,567 A.2d422(Del:, 1989). Moreover,the City's cases are distinguishable.In In re Chamberlin, 134 Vt.359,360 A.2d 100(1976)there was no previous finding of a nonconforming use.In Smalls v.Board of Standards&Appeals,28 Misc.2d 147,211 N.Y.S.2d 212(Sup.Ct.),affd, 14 A.D.2d 548,218 N.Y.S.2d 1005(1961),the New York Supreme Court held a nonconforming use void where the landowner had relied on an illegal permit.The court held that the landowner's right to nonconforming use had never actually vested.Smalls,at 148.In contrast,in the present case the nonconforming commercial use clearly vested in 1972. [7]Still,violation of such ordinances may be evidence of an intent to abandon and may constitute an overt objective failure to act,as.noted in Sullivan v.Zoning Bd.of Adj.,83 Pa.Commw.228,478 A.2d 912(1984):<Q» «2»Sullivan was abrogated-as incorrect statement of the law regarding amortization provisions in zoning ordinances.PA Northwestern Distribs.,Inc.v.Zoning Hearing Bd.,526 Pa. 186,584 A.2d 1372(1991).However, the abrogation does not affect Sulhvan's logic regarding abandonment of nonconforming uses. Consequently,the abandonment of a nonconforming Vuse and the consequent termination of any legal rights thereto results from a concurrence of facts,circumstances,and the intention of the owner of the premises or other person entitled to the use."The intent cannot be inferred from or established by a period of nonuse alone,but must be shown by the owner or occupier's overt acts or failure to act,such as written or oral statements evincing an intent to abandon the use,structural alterations to the building inconsistent with the continuance of the nonconforming use,or failure to take some step such as license renewal necessary to the continuance of the use. Sullivan,at 234-35(quoting in part Marchese v.Norristown Borough Zoning Bd.of Adj.,2 Pa.Commw.84,95, 277 A.2d 176, 183(1971)). H:\WP\PROJECTS\2008pro\info-Woodring abandon nonconforming-van sant.doc Page 2 of 3 Moreover,there is evidence in the record on appeal that the City of Everett business license ordinance is not entirely unrelated to land use planning.Everett Municipal Code 5.04.020 is regulatory in purpose.Section 5.04.030(A)(3) requires applicants to comply with zoning ordinances.Section.030(B)provides that failure to so comply is grounds for denial or revocation of licenses. Section.030(C)provides that these requirements do not apply to general business license and business and occupation taxes assessed under chapter 3.24 of the code.Finally,Everett Municipal Code 5.04.060(B)enables the director of community development to inspect locations of proposed business establishments to determine whether the property is in conformity with the zoning code.In sum,the provisions of chapter 5.04 appear to have a dual purpose of ensuring compliance with land use regulations and are not entirely unrelated. Thus,it was proper for the hearing examiner to consider the property owner's failure to comply with chapter 5.04 in determining whether the nonconforming commercial use had been abandoned.However,failure to comply with chapter 5.04 is not per se determinative of the question of whether the nonconforming use status had been abandoned.The examiner must look at the totality of the circumstances.We affirm the trial court on this point. H:\WP\PROJECTS\2008pro\info-Woodring abandon nonconforming-van sant.doc Page 3 of 3 I Page 1 of 1 Kell McAboy - Darin Barry / Robin Hood Village From: darin barry <darinbarry@hotmail.com> To: Kell McAboy <kellm@co.mason.wa.us> Date: 10/26/2008 5:32 PM Subject: Darin Barry / Robin Hood Village Hi Kell, I trust you received my packet with more proof that I didn't create those spaces the park models are in. Is that enough or do I still have a problem with Mason County? Darin Barry 360-927-1105 As promised, here is the notes for the "2 year abandoment issue". Washington Statute : RCW 36.70.493 provides: After June 10, 2004, a county may designate a manufactured housing community as a nonconforming use, but may not order the removal or phased elimination of an existing manufactured housing community because of its status as a nonconforming use. (Emphasis added). This Washington statute prohibits a county from removing or phasing out mobile home parks as non-conforming uses. The law passed in 2004. Under the fact scenario and the County ordinance, the mobile home park was in existence on the date the law went into effect. The County cannot terminate the subject property on a two-year abandonment ordinance or any other theory as a non-conforming mobile home park. This law makes mandatory, not permissive, the continuance of a mobile home park as a non-conforming use. The intent behind the statute is to preserve mobile home park use as affordable housing. Store, manage and share up to 5GB with Windows Live SkyDrive. Start uploading now file:HC:\Documents and Settings\Ke11M\Local Settings\Temp\XPgrpwise\4904A9B6Mas... 10/27/2008 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II FIRST PIONEER TRADING COMPANY, No. 31291-3-II INC., a Washington corporation; MICHAEL CARLMAN and BARBARA CARLMAN, husband and wife, Appellants, V. PIERCE COUNTY, a subdivision of the state PUBLISHED OPINION of Washington, Respondent. Hunt, J. — First Pioneer Trading Company, Inc. appeals the trial court's affirmance of the Pierce County hearing examiner's land use decision denying First Pioneer's claim of a legal, nonconforming use of its property. First Pioneer argues that (1) the hearing examiner erred by finding that it failed to meet its burden of proof that the legal nonconforming use existed, and (2) the hearing examiner improperly applied the burden-shifting framework. We disagree and affirm. FACTS I. Background A. Land Use First Pioneer Trading Company, Inc., owns and occupies a 2.94-acre, rectangular parcel of land located at 14505 Old Military Road East in Puyallup(Property). The Burlington Northern and Santa Fe Railroad Company (BNSF)owned this land until 1999, when it sold the property to ANT, L.L.C. ANT conveyed the property to First Pioneer Trading Company by quitclaim deed in 2000. First Pioneer operates a steel fabrication business on the property, in two commercial 31291-3-II I. Standard of Review Under LUPA, an applicant may apply for judicial review of a local land use decision. RCW 36.70C.130. The applicant must show that (1) the hearing examiner mistakenly interpreted the law; (2) there was insufficient evidence to support the decision; or (3) the hearing examiner's decision was clearly erroneous. City of Univ. Place v. McGuire, 144 Wn.2d 640, 647, 30 P.3d 453 (2001) (citing RCW 36.70C.130(b)-(d)). We review the hearing examiner's decision as a whole under a substantial evidence standard. Id. Substantial evidence exists where there is "a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the order." City of Redmond v. Cent. Puget Sound Growth M8 t. Hearings Bd., 136 Wn.2d 38 46 959 P.2d 1091 (1998) (quoting Callecod v. State Patrol, 84 Wn. App. 663, 673, 929 P.2d 510, review denied, 132 Wn.2d 1004 (1997)). Because our review of facts is deferential to the trier of fact, we view the evidence and reasonable inferences in the light most favorable to the party who prevailed in the highest forum exercising fact-finding authority. State ex rel. Lige & Wm. B. Dickson Co. v. County of Pierce, 65 Wn. App. 614, 618, 829 P.2d 217 (citing Fisher Properties, Inc. v. Arden-Mayfair, Inc., 115 Wn.2d 364, 369-70, 798 P.2d 799 (1990)), review denied, 120 Wn.2d 1008 (1992). Here, that forum was the County hearing examiner. II. Legal Nonconforming Use First Pioneer argues that the hearing examiner misapplied the burden-shifting framework applicable to legal nonconforming use cases. We disagree and hold that the hearing examiner applied the burden-shifting framework properly. Legal nonconforming uses are vested legal rights. Skamania County v. Woodall, 104 Wn. App. 525, 539, 16 P.3d 701, review denied, 144 6 31291-3-I1 Wn.2d 1021 (2001) (citing Van Sant v. City of Everett, 69 Wn. App. 641, 649, 849 P.2d 1276 (1993)). Washington law allows preexisting legal nonconforming uses to continue in spite of a subsequent contrary zoning ordinance. Jefferson County v. Lakeside Industries, 106 Wn. App. 380, 385, 23 P.3d 542 (2001), review denied, 145 Wn.2d 1029 (2002). But an applicant asserting a prior legal nonconforming use bears the initial burden to prove that (1) the use existed before the county enacted the zoning ordinance; (2) the use was lawful at the time; and (3) the applicant did not abandon or discontinue the use for over a year. Jefferson County, 106 Wn. App. at 385. Once the applicant establishes that such a legal nonconforming use existed before enactment of a contrary zoning ordinance, the burden of proof shifts to the municipality to show that the applicant abandoned or discontinued the use after the ordinance's enactment. Van Sant, 69 Wn. App. at 648 (citing 8A E. McQuillan, Municipal Corporations § 25.191 (3d ed. 1986)). A. First Pioneer's Failure to Carry its Burden of Proof Substantial evidence supports the hearing examiner's conclusion that First Pioneer failed to meet its burden of proof to show that its metal fabrication business on the property predated 1988, when the County first required permits for such industrial uses. As both the hearing examiner and trial court note, First Pioneer submitted numerous business documents addressed to "14505 Old Military Road East"; nevertheless, First Pioneer does not show that this address correlated with the property at issue for purposes of establishing a prior legal nonconforming use because the driveway to this address accessed two adjacent properties, only one of which was the property at issue here.' ' Puget Power owns the other land adjacent to the Property. First Pioneer and Puget Power's parcels share a driveway, which segregates the two parcels. 7 31291-3-II Furthermore, residents of neighboring properties testified that there was no metal fabrication business on the property at issue before 2000. In particular, the aerial photographs show no activity on the property other than a residence and a storage shed in 1991, in stark contrast to First Pioneer's contention that it had operated a metal fabrication business outside on the property's grounds since 1985. The 1991 photograph, which the County took three years after requiring permits for industrial activity, shows the unlikelihood of First Pioneer's claim that it operated a significant metal fabrication business on the property for five to six years before 1998, when the County passed the ordinance requiring industrial use permits. The evidence on which First Pioneer relied to establish that its steel fabrication business existed before the County enacted the 1988 zoning ordinance was not sufficiently conclusive to shift the burden of proof to the County. On the contrary, the County and neighbors of the property offered substantial evidence to support the hearing examiner's conclusion that First Pioneer failed to meet its initial burden of proving the existence of a prior legal nonconforming use. We further note that the hearing examiner was in the best position to judge credibility of testimony presented at the public hearings. As the hearing examiner's findings demonstrate, he concluded that the County and neighboring residents' evidence was more persuasive than First Pioneer's. We defer to the fact finder's assessment of witnesses' credibility and the weight given to competing evidence. Accordingly, we hold that First Pioneer failed to establish the existence of a prior legal nonconforming use and, therefore, the burden of proof did not shift to the County. See Fisher Properties Inc., 115 Wn.2d at 369-70. 8 31291-3-I1 B. First Pioneer's Failure to Establish a Vested Right First Pioneer next contends that the hearing examiner erred in finding that its failure to obtain the correct permits for the property precluded it from claiming that its nonconforming use was "legal." Again, we disagree. Pierce County Code 18.140.030 provides: Pierce County regulations require acquisition of permits or approvals before certain activity may be performed. It shall be unlawful to conduct these regulated activities without first obtaining a written permit or approval. When a permit or approval has been issued, it shall be unlawful to act in a manner which is inconsistent with such permit or approval. In 1988, the County passed Pierce County Code 18.10.390, which required land occupiers engaged in metal manufacturing to obtain conditional use permits before commencing such activities. It is undisputed that First Pioneer failed to obtain any permits for the property, including building permits,business permits, and environmental assessments. First Pioneer relies heavily on Van Sant, 69 Wn. App. 641, in which Division One of this, court held that a land occupier's failure to obtain business licenses and permits was "not per se determinative of the continuance of a non-conforming use." Id at 652. Emphasizing that the hearing examiner based his decision primarily on the absence of a business license and tax records, the appellate court held that because "the non-conforming commercial use clearly vested," the hearing examiner focused improperly on the landowner's lack of permits and licenses. Id. at 652.' But such is not the case here. ' Both the Van Sant court and First Pioneer's brief discuss cases from other jurisdictions. See Van Sant, 69 Wn. App. at 651-53. These cases also distinguish between vested rights and non- vested rights. 9 31291-3-II First Pioneer's claimed legal nonconforming use did not vest before 1988, when the use became illegal without a permit. The Van Sant court held that the trial court erred by determining that a property owner had abandoned a vested preexisting use, based on the absence of business permits or licenses. Id. at 651-53. Here, in contrast, the hearing examiner considered First Pioneer's failure to obtain permits in determining whether First Pioneer had established the existence of a legal, preexisting use. Specifically, the hearing examiner found that First Pioneer failed to "demonstrate that [its] use of the site was lawful at the time the Pierce County Code changed and therefore [it] is not entitled to a nonconforming use classification." CP at 18. Also, as the hearing examiner noted, First Pioneer submitted "no records of any type, such as tax records, business licenses, or any other formal records indicating that the site was used to conduct a business. The property tax records indicate it was conducted as a residential use and not as a commercial use." CP at 16 (emphasis added). First Pioneer failed to show that its industrial use of the property was legal at any time, before or after the County required permits for metal fabrication. Therefore, we affirm the hearing examiner's finding that First Pioneer failed to carry its initial burden to establish a prior legal nonconforming uses s First Pioneer briefly argues that because the property is located on a railroad right-of-way, federal law preempts "the County's ability to regulate activities on railroad property, including the regulation of building permits, site plans, or grading permits." Br. of App. at 18-19. This argument also fails. First, the hearing examiner specified in his "Findings Conclusions and Decision" that "[t]he Hearing Examiner has jurisdiction to consider and decide the issues presented by this appeal." CP at 15. We treat such unchallenged findings as verities on appeal. RAP 10.3(g). Thus, we need not consider First Pioneer's federal preemption argument because it failed to assign error to the hearing examiner's jurisdiction below. Second, we may refuse to consider arguments raised for the first time on review. RAP 2.5(a). Because First Pioneer failed to raise federal preemption below, we do not consider it for the first time on appeal. 10