Full Text
DECISION DENYING APPEAL BY LARRY HOOPER, LAND-2016-02140 Page 1 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 REDMOND HEARING EXAMINER’S OFFICE C/O CITY CLERK’S OFFICE 15670 NE 85 TH STREET REDMOND, WASHINGTON 98052 Before Hearing Examiner Gary N. McLean BEFORE THE HEARING EXAMINER FOR THE CITY OF REDMOND In the Matter of the Appeal of the Director’s Determination that a wooden structure destroyed by fire in May of 2016 was an Illegal Nonconforming Structure; LARRY HOOPER, Appellant, City of Redmond Planning and Community Development Department, Respondent (14609 NE 91st Street is the location of the structure at issue) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal File No: LAND-2016-02140 DECISION DENYING APPEAL I. BACKGROUND AND PROCEDURAL SUMMARY1. On or about May 6, 2016, a wooden portion of a larger building located on Larry Hooper’s property, located at 14609 NE 91st Street, was destroyed by fire. Following the fire, Mr. Hooper had informal contacts with various city staff to explore his options to rebuild the structure. He has never applied for any building permit to rebuild or replace the wooden structure. Instead, he requested and received a response from the City, in the form of a November 16, 2016 letter from Redmond Planning and Community Development Director, Robert Odle, explaining that the wooden building located on Mr. Hooper’s property is/was an Illegal Nonconforming Structure for purposes of applying Redmond development codes so it is not covered by various city codes that apply to legal nonconforming structures. Mr. Odle’s letter expressly provided that it was a final decision of the Department regarding the illegal nonconforming status of the wooden structure lost 1 There is no factual dispute regarding any portion of this summary. ---PAGE BREAK--- DECISION DENYING APPEAL BY LARRY HOOPER, LAND-2016-02140 Page 2 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 REDMOND HEARING EXAMINER’S OFFICE C/O CITY CLERK’S OFFICE 15670 NE 85 TH STREET REDMOND, WASHINGTON 98052 to fire on Mr. Hooper’s property, and that such decision could be appealed to the Hearing Examiner. On or about November 29, 2016, Mr. Hooper submitted a timely written appeal. The appeal was set for hearing on January 18, 2017. Shortly thereafter, the appellant requested a continuance, in the form of a letter from his attorney dated January 6, 2017. Under terms of a prehearing order issued on January 11, 2017 by the previous Examiner handling this matter, Ms. Rice, the hearing was re-set for February 15, 2017 (with applicable review timelines extended until sometime in March of 2017) and re-assigned to the City’s undersigned pro tem Hearing Examiner. The open record appeal hearing occurred on February 15, 2016, where the Examiner received sworn testimony from witnesses called by the respective parties. At the conclusion of the hearing, the parties were granted an opportunity to submit legal briefs addressing case-law or legal authority that would support their positions in this appeal. The Examiner received copies of post-hearing briefs on February 24th. Following review of the parties’ briefs, the Examiner determined that no further briefing would be necessary, so the Record for this matter closed on February 27th. This Decision is now in order. II. RECORD. True and correct copies of all exhibits, briefs, and materials submitted into the record for this appeal, as well as a digital recording of all hearing testimony, are maintained by the City Clerk’s Office. EXHIBITS City Documents C-1 Appeal Report C-1 Updated Appeal Report C-1 Attachment A: King County Parcel Data C-1 Attachment B: Application for Appeal C-1 Attachment C: Notice of Appeal Hearing C-1 Attachment D: Redmond Response C-1 Attachment E: Property Map with Measurements C-1 Attachment F: Building Permit 1971 C-2: PowerPoint Presentation Proposed Witness and Exhibit List City’s Post-Hearing Supplemental Brief Appellant Documents A-1: Hearing Memorandum with Exhibits A-F ---PAGE BREAK--- DECISION DENYING APPEAL BY LARRY HOOPER, LAND-2016-02140 Page 3 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 REDMOND HEARING EXAMINER’S OFFICE C/O CITY CLERK’S OFFICE 15670 NE 85 TH STREET REDMOND, WASHINGTON 98052 A-1: Resubmitted Color Printouts of Exhibits B-E A-2: Statement A-3: Public Records Request Printout Notice of Appearance Appellant’s Post-Hearing Supplemental Brief WITNESSES. 1. Larry Hooper, the appellant, part owner of property at issue; 2. Mark Hooper, the appellant’s brother, part owner of property at issue; 3. Sarah Pyle, Senior Planner for the City of Redmond; and 4. Steven Fischer, Manager of the Development Review Division for the City of Redmond. During the hearing process, both parties were represented by counsel. Attorney Aaron Okrent appeared on behalf of the appellant. Attorney Daniel Kenny appeared on behalf of the City. The attorneys submitted post-hearing briefs on behalf of their clients. III. FINDINGS OF FACT. Based on the testimony and evidence included as part of the Record for this matter, the Examiner issues the following findings of fact regarding this appeal: 1. Any statements of fact in previous or following sections of this document that are deemed findings of fact are hereby adopted as such, and are incorporated herein by this reference. Standard of Review; Substantial Weight; Burden of Proof. 2. Under RZC 21.76.060(I)(4), the standard of review for the pending appeal is whether the challenged decision or determination is supported by a preponderance of the evidence or if it was clearly erroneous. 3. Under RZC 21.76.060(I)(4), the Hearing Examiner is required to accord substantial weight to the challenged decision of the Department Director. 4. The same provision of the city’s code includes language assigning the burden of proof to the appellant in matters such as this. See RZC 21.76.060(I)(4). 5. Based on all the evidence included in the Record, and granting deference required to the Director’s challenged determination, the Examiner finds that the appellant failed to meet his burden of proof. Instead, the preponderance of the evidence supports the Director’s decision. ---PAGE BREAK--- DECISION DENYING APPEAL BY LARRY HOOPER, LAND-2016-02140 Page 4 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 REDMOND HEARING EXAMINER’S OFFICE C/O CITY CLERK’S OFFICE 15670 NE 85 TH STREET REDMOND, WASHINGTON 98052 Summary of key findings. 6. There was no testimony or evidence that would establish that the wooden structure at issue was constructed under authority granted by any city or other government-issued permit. The burden was not on the city to find a permit, as the appellant sought to shift the argument. 7. Testimony by the Hooper’s established that they could not locate any records in their possession, or previous owners of their property, to support any allegation that the wooden building was built under a lawfully issued city building permit. They were questioned extensively about their efforts to locate a permit, and their responses were clear – they could not find a permit, and had no compelling explanation for why one did not exist. They were also unable to point to any evidence that might support the possibility that a permit was issued, in the form of witness testimony by a contractor who did any work, or from a previous owner or tenant who might have first-hand knowledge about the subject. Instead, the appellant relied on conclusory statements, implying that the City must have lost the permit for the building, without any credible or convincing proof to support such claim. 8. City evidence and records support the more likely conclusion – that no permit was ever issued to authorize construction of the wooden structure. The City witnesses did not dispute the appellant’s claims that the wooden structure was built at some point in the 1970s. 9. King County Tax Assessor records introduced into evidence reflect that the wooden structure is not/ was not ever included as part of the building square footage listed for the property. Smaller buildings generally face smaller assessed values, and smaller property tax bills. The Assessors office has no compelling reason to omit reference to any legal building space that it could tax. City witnesses credibly and convincingly offered testimony summarizing how city-issued building permits have been collected by the Assessor’s office for many years, as a means to keep their valuation records current for tax purposes. If a permit had been issued for the wooden building, then it is likely that the Assessor’s office would have included new square footage for the building size reported for the Hooper’s property. The appellant could not provide any convincing evidence or argument to refute such scenario. 10. The examiner finds on a more likely than not basis that, if the wooden structure was built under authority granted by a city building permit, that the county tax assessor records would include such space on the property summary for the parcel. ---PAGE BREAK--- DECISION DENYING APPEAL BY LARRY HOOPER, LAND-2016-02140 Page 5 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 REDMOND HEARING EXAMINER’S OFFICE C/O CITY CLERK’S OFFICE 15670 NE 85 TH STREET REDMOND, WASHINGTON 98052 Highlights from witness testimony and exhibits. 11. Larry Hooper testified that he purchased the property in 2004. He summarized points raised in his one-page type written statement, with 6 paragraphs, addressed to the undersigned Examiner. Mr. Hooper’s written statement, submitted into the record at the hearing, describes some of the relief requested as follows: “[t]he purpose of appearing before you is [to] ask for equity. The city employees must follow it to the letter and it is not up to them to interpret or judge. The sole purpose of my appeal is to appear before a person of reasonable judgment and the authority to grant me a permit to rebuild or any remedy or recommendation to overcome this hardship.” 12. Larry Hooper2 submitted appellant’s Exhibit C, a photo of a mark made in the wooden structure’s concrete foundation, that appears to read: “RPB-76”. Based on this mark, Mr. Hooper generally explained that he felt such mark on the concrete foundation means that the foundation was poured in 1976, and the wooden structure must have been constructed in that time period. In follow-up questions, Mr. Hooper explained that the “76” mark appears in the rear, center portion of the foundation. His testimony was credible. In the absence of any contrary evidence, the Examiner finds that it is likely that the foundation for the wooden structure was poured at some point in 1976, with the building placed on top of the foundation shortly thereafter. Without any evidence to support his claim, Mr. Hooper testified that he believes the wooden structure complied with city setback requirements in effect in or about 1976. 13. Larry Hooper testified that he accepts that the City of Redmond cannot find a permit for the wooden-structure addition. He believes that it is improper to shift the burden of proof onto a landowner to prove that an old permit exists. He asserts that the city lost the permit. He noted that the impact of the loss to his family business is particularly significant, because they are a small business, and rely on rental income from the wooden structure. He testified that it was a great hardship to continue without the wooden structure, as it existed before the fire. 14. Mark Hooper testified that he typically handles paperwork and bookkeeping for issues concerning the building at issue. He was present for several inspections by City officials who appeared at the building over the years, for electrical and fire permits issued for items inside the buildings on the site. The City cross-examined Mr. Hooper, focusing on whether such permits involved structural or building permit information submittals for either the wooden or concrete structure on the site. He confirmed that the City did not 2 To avoid confusion, because Larry Hooper and his brother Mark Hooper both testified at the hearing, they are frequently referenced using their full names. When the term Mr. Hooper is used in a particular paragraph, it refers to the person first noted using their full name in the same paragraph, i.e. Larry or Mark Hooper. ---PAGE BREAK--- DECISION DENYING APPEAL BY LARRY HOOPER, LAND-2016-02140 Page 6 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 REDMOND HEARING EXAMINER’S OFFICE C/O CITY CLERK’S OFFICE 15670 NE 85 TH STREET REDMOND, WASHINGTON 98052 require any building permit to be submitted in order to obtain electrical permits. The line of questioning pursued by the city during Mark Hooper’s cross-examination was not a picture of clarity, and holds little value to the disposition of this appeal. 15. Shortly after the appellant rested, the Examiner clarified that the appellant did not offer any testimony focusing on the proximity of the wooden structure to city hall, which was one of the items listed as supporting his written appeal. 16. Ms. Pyle testified for the City, partly relying on a slide presentation, which is included in the Record as Exhibit C-2. Her testimony and the City’s appeal response statement was mostly a criticism of the appellant’s appeal submittal, as to form, with argumentative points and minimal reference to substantive authority to support the City’s positions and statements. 17. On clarification, Ms. Pyle confirmed that the appellant has never applied for any building permit to rebuild the structure destroyed by fire. She expressed the city’s deep felt concern for the plight of the appellant. City staff is not opposed to rebuilding the structure, but notes that any new structure will be required to comply with current city codes and setbacks. 18. Ms. Pyle testified that City record retention requirements provide that Building Permits and Site Plans are maintained beyond the regular 6-year period used for most other records. She confirmed that she and Lawrence Chung searched through city records to locate a building permit for the wooden structure, but could not find one. She noted that the city was able to locate electrical and other non-building permits obtained by the appellants, as referenced in their testimony. 19. To the credit of City staff over the years, and in a manner consistent with the City’s record retention requirements for building permits, Ms. Pyle was able to retrieve and produce copies of building permit materials from 1970, for the concrete building that still stands on the Hooper property, located at 14609 NE 91st Street. The type of construction is listed as “concrete”, and the size of the building is shown to be “100 x 75”, presumably in feet, for 7,500 square feet of space. City Ex. C-1, attachment F, City of Redmond Building Permit Application, stamped received on September 29, 1970 [lower right corner]. 20. The most helpful portion of Ms. Pyle’s testimony and evidence came in the form of a single slide, which cross-references key information shown in City Exhibit C-1, attachments A and F. See City Ex. C-2, Ms. Pyle’s slideshow presentation, on page 11, captioned “Building Permit (Exhibit A and The slide shows that the King County Assessor’s Office identifies a single building on the site, with 7,500 gross square feet, the same size as the concrete structure authorized in the permit issued in 1970 for the concrete building that still stands on the site. ---PAGE BREAK--- DECISION DENYING APPEAL BY LARRY HOOPER, LAND-2016-02140 Page 7 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 REDMOND HEARING EXAMINER’S OFFICE C/O CITY CLERK’S OFFICE 15670 NE 85 TH STREET REDMOND, WASHINGTON 98052 21. The appellant stipulated that the concrete building is 7,500 square feet. The wooden structure that was destroyed by fire was approximately 2,500 square feet. Testimony of Larry Hooper, and “Hooper Memorandum for Hearing of February 15, 2017, included in the record as Ex. A-1, on page 2. 22. Larry Hooper testified that he experienced a 20+% loss in revenues after the fire, based on lost rental income for the wooden structure. His hearing memorandum alleges that: “when the property is sold the reduction in warehouse space would create a $400,000 loss. This is calculated at $175 per square foot.” (Ex. A-1, at page 23. Applying Mr. Hooper’s reasoning, the Examiner finds that if the wooden structure was ever properly permitted, then it would have been included in King County tax assessments for his property, because it carried a significant value. Tax-related exhibits included in the hearing record establish that the appellant’s property taxes have never included any valuation attributed to the 2,500 square foot wooden structure. Thus, it is highly likely that the appellant has benefited from a reduced property tax bill, which could have been significantly higher if the total square footage of the wooden structure was considered when the property’s assessed value was determined. For instance, the King County tax records included in the record for the Hooper parcel show the same appraised improvement and taxable improvement value for the 7,500 sq./ft. concrete building on the site, which comes to $402,800 in 2016 (as the “Valued Year”). Ex. C-1, attachment A. In other words, King County values the building at $53.71 per square foot. Even if the 2,500 sq./ft. wooden structure was included at less than half the sq./ft. value as the concrete structure, at $25 per sq./ft., the value of taxable improvements on the parcel would have been increased by $62,500. The end result is this: whatever the tax rate applicable over time, the final property tax bill applied to the Hooper parcel has been substantially smaller than it could have been, if the wooden structure was ever included as part of the valuation process. 24. The Hooper’s argue that the photos used on King County tax records clearly show the wooden structure on their property before it was destroyed, so the City should have known that it existed. While they are correct – that the tax records include pictures showing the existence of the wooden structure on the property – the significance of such fact is greatly diminished by the Hooper’s admission that they never noticed how the Tax Assessor only included the 7,500 sq./ft. concrete building as an ‘improvement’ on their property. There is no evidence in the record to show that the Hooper’s asked to correct their tax valuation, to include the approximately 2,500 sq./ft. wooden structure as a valuable ‘improvement’ on their property. 25. Mr. Fischer testified that he generated the letter signed by Mr. Odle, which is the subject of this appeal. He described his professional duties and city staff efforts taken under his oversight to locate permits issued by the City for the Hooper property. He testified that the City has exhausted all research opportunities to find a permit for the ---PAGE BREAK--- DECISION DENYING APPEAL BY LARRY HOOPER, LAND-2016-02140 Page 8 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 REDMOND HEARING EXAMINER’S OFFICE C/O CITY CLERK’S OFFICE 15670 NE 85 TH STREET REDMOND, WASHINGTON 98052 property. Mr. Fischer provided substantial, credible testimony to support the statements and determination explained in Mr. Odle’s letter, particularly the Planning Department’s final decision deeming the Hooper’s wooden structure that was lost to a fire on May 6, 2016 to be an illegal nonconforming structure built without a permit. Ex. C-1, attachment D, Odle letter dated Nov. 16, 2016. 26. Mr. Hooper’s written appeal statement, his written materials submitted as part of this hearing process, and his testimony in the hearing, all allege that the City must have lost the permit issued for construction of the wooden building. 27. Based on the City’s ability to locate permit records that authorized construction of the concrete building on the site, which are from 1970; that City staff credibly confirmed their exhaustive efforts to locate all archived permit records for the Hooper property; and that City staff was able to locate a number of electrical and other non-building permits issued for the subject property over the relevant time period, the Examiner finds that it is more likely than not that the City staff would have been able to locate copies of any building permit documents authorizing construction of the wooden structure from or about 1976, if such permit was ever really issued. 28. Mr. Hooper’s appeal statement and testimony generally alleges that he should be allowed to rebuild the wooden structure, as-it-was before the fire, because the building stood on the site and was used without interruption for 30 years. His Appeal Memorandum and testimony generally asserts that he believes the multiple building inspections performed by city employees on his buildings since he owned the property (since 2004) could have or should have provided an opportunity for him to be told that his wooden structure had a nonconformity issue. He alleges that City staff was aware of the wooden structure’s existence, and should have known that it had a nonconformity issue and told him about it. His written statement reads in relevant part: “The City, being aware of an alleged nonconforming issue, could have informed me of a potential issue and I could have sought to have it classified as an “as built construction.” Ex. A-1, at page 4. 29. City witness testimony established that, because the wooden structure was built without a building permit, Mr. Hooper would have never been able to obtain an “as-built” approval for his wooden structure that would deem the building to be a “legal nonconforming structure”. Ms. Pyle testified that an “as-built” approval is generally an after-the-fact determination issued by the City, after construction is complete. She credibly explained that Mr. Hooper would not have been able to use the “as-built” approval process to render his wooden building to be a legal nonconforming structure. Presumably, if a building is constructed fairly recently without a building permit, it may be able to obtain as “as-built” after-the-fact permit approval, and if the structure was built in compliance with all city development regulations in effect at the time, it would then be considered a “Legal” conforming structure. On the other hand, as with Mr. Hooper’s wooden structure which was built without any city building permit, any request for an “as-built” approval may ---PAGE BREAK--- DECISION DENYING APPEAL BY LARRY HOOPER, LAND-2016-02140 Page 9 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 REDMOND HEARING EXAMINER’S OFFICE C/O CITY CLERK’S OFFICE 15670 NE 85 TH STREET REDMOND, WASHINGTON 98052 record the existence of the structure, but it would not necessarily allow the nonconformities to continue if they are capable of correction, and it would certainly not entitle the illegal nonconforming structure to be rebuilt as-was before the fire or other casualty. If anything, an “as-built” review process would have merely placed Mr. Hooper on notice that his wooden building was an illegal nonconforming building that is not entitled to restoration and reconstruction rights provided to legal nonconforming structures. 30. Testimony by City witnesses conceded the fact that numerous city personnel have performed inspections on Mr. Hooper’s buildings located on his property over the years. However, they maintain that Fire and Electrical inspectors are not performing inspections that include determinations as to the legal conforming status of any structure. The City asserts that it is not reasonable to expect such inspectors to know if an older structure was built with a valid city building permit. Instead, City witnesses allege that Fire inspectors are conducting inspections to observe compliance with relevant fire and life safety codes, and that electrical inspectors look for compliance with relevant electrical codes. 31. The appellant submitted a collection of City inspection worksheets, fire and electrical permits, written or issued for his property from 2014-2016, obtained using public record requests submitted to the City. Ex. A-1-F. These records corroborate the Hooper’s testimony that they regularly obtained fire and electrical permits for necessary work on their property while they owned the site. All evidence in the record indicates that the Hooper’s have conducted themselves as responsible property owners in the City of Redmond. 32. Larry Hooper testified that the “Correction Required” as noted on page 3 of his Exhibit A-1-F, captioned “City of Redmond Inspection Worksheet (INSP-2015-16326)”, dated March 2, 2016, was caused by his tenant in the Concrete Building on his property. He testified that the tenant built a “box inside the box” of his building without a permit, to apply decals on cars or some other purpose. He only learned of the problem after the City issued its inspection report. The comment section of the inspection worksheet reads in relevant part: “3/2/15 gs [initials for Gary Smith, Primary Inspector] Room inside of the warehouse did not have sprinkler coverage. This room was added without a permit. Will need to come to city to obtain a permit and plan to install sprinkler coverage to the room. Other possibility is to remove this additional room.” 33. The “Inspection Worksheet” was not challenged by the City. It establishes that at least one city inspector took the time and initiative to note where some work on Mr. Hooper’s building was performed without a permit. It reduces the weight of city witness testimony and arguments to the effect that Fire inspectors do not look for building permit violations, just Fire code violations. 34. Based on all the evidence and testimony contained in the Record for the this appeal – including without limitation all reasonable inferences and conclusions that can be drawn ---PAGE BREAK--- DECISION DENYING APPEAL BY LARRY HOOPER, LAND-2016-02140 Page 10 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 REDMOND HEARING EXAMINER’S OFFICE C/O CITY CLERK’S OFFICE 15670 NE 85 TH STREET REDMOND, WASHINGTON 98052 from city staff’s inability to find a building permit for the wooden structure, despite exhaustive efforts to locate such document; and the appellant’s failure to offer any credible evidence to establish that a permit was ever issued for the wooden structure, despite the opportunity to locate witnesses like prior owners, tenants, or contractors to support such assertion – the Examiner finds and concludes that the wooden structure was built without a city issued building permit. 35. Because the wooden structure was constructed without authorization provided by a city building permit, it was not a legal structure since the time of its construction. 36. There is no dispute that city zoning codes, particularly setbacks, have changed over the relevant time period, and that any building legally constructed in the mid-1970s may be deemed a legal non-conforming structure under today’s zoning code, due to changes in setbacks and the like. 37. Unfortunately, the wooden structure on the Hooper property was not a legal nonconforming building at the time of its destruction by fire in May of 2016. 38. City protections and special code exceptions are available for owners of legal nonconforming structures that are destroyed by fire or other casualty. See RZC 21.76.100(F), particularly subsections re: continuance of legal nonconformities, re: restoration, and re: alteration or expansion. The same is not an option for illegal nonconforming structures. RZC 21.76.100(F)(9)(f), captioned “Illegal Uses or Structures” reads as follows: “Illegal uses or structures have no vested rights, and no rights or privileges are conferred upon such uses or structures by this section. Illegal uses and structures shall either be brought into legal conforming status or shall be removed”. 39. Despite an invitation to provide citations to legal authority supporting their respective positions in their post-hearing briefs, neither party cited to any legal authority that would serve as a basis for the Examiner to apply equitable relief in this situation, essentially waiving city code requirements that must be satisfied for a building to qualify as a “Legal Nonconforming Structure.” 40. Instead, Washington case law has long established that a Hearing Examiner only holds specific authority and jurisdiction over matters as specified in ordinances and resolutions adopted by the local government. Redmond codes do not grant explicit or implied powers for any hearing examiner to consider the issue of equitable estoppel, or to grant the kind of equitable relief sought in this appeal by Mr. Hooper. See Chaussee v. Snohomish County Council, 38 Wn.App. 630 (Wash. Ct. App. 1984)(A hearing examiner and the council lacked jurisdiction to consider the issue of equitable estoppel). In Chaussee, the Court ruled that the Examiner had no discretion to exempt a landowner from specific code requirements based on what he deemed equitable without regard to statutory ---PAGE BREAK--- DECISION DENYING APPEAL BY LARRY HOOPER, LAND-2016-02140 Page 11 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 REDMOND HEARING EXAMINER’S OFFICE C/O CITY CLERK’S OFFICE 15670 NE 85 TH STREET REDMOND, WASHINGTON 98052 requirements and the need for substantial evidence to meet statutory requirements. The case is controlling legal authority in this appeal. 41. With respect and sympathy to the appellant, the Examiner cannot waive city codes and allow him to rebuild his structure as it was before the fire. IV. CONCLUSIONS OF LAW. 1. Based on testimony and evidence in the Record and all findings set forth above, the Examiner finds and concludes that Mr. Odle’s challenged determination is fully supported by substantial and credible evidence. His determination was not a mistake. It was not arbitrary or capricious, but was instead a reasonable and accurate application of facts to the codes at hand. The end result is his conclusion – that Mr. Hooper’s wooden structure was NOT a legal nonconforming structure at the time of the fire. 2. Any legal conclusions or other statements made in previous or following sections of this document that are deemed conclusions of law are hereby adopted as such, and are incorporated herein by this reference. V. DECISION. For the reasons set forth above, the appellant failed to meet his burden of proof, and the Examiner is without jurisdiction or authority to consider the equitable forms of relief requested herein. Accordingly, Mr. Hooper’s appeal is respectfully denied. ISSUED this 14th Day of March 2017 Gary N. McLean Hearing Examiner ---PAGE BREAK--- DECISION DENYING APPEAL BY LARRY HOOPER, LAND-2016-02140 Page 12 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 REDMOND HEARING EXAMINER’S OFFICE C/O CITY CLERK’S OFFICE 15670 NE 85 TH STREET REDMOND, WASHINGTON 98052 REQUEST FOR RECONSIDERATION, APPEAL TO CITY COUNCIL This Decision has been issued by the Hearing Examiner who has specific authority to address Appeals of Type I decisions following an open record hearing. See RZC 21.76.060(D)(4). Request for Reconsideration. Any designated party to this appeal who participated in the hearing may file a written request with the Hearing Examiner for reconsideration within 10 business days of the date of the Hearing Examiner’s decision. The request shall explicitly set forth alleged errors of procedure or fact. The Hearing Examiner shall act within 10 business days after the filing of the request for reconsideration by either denying the request or issuing a revised decision. The decision on the request for reconsideration and/or issuing a revised decision shall be sent to all parties of record. See RZC 21.76.060(I)(5) Appeal. Appeals of this Decision by the Hearing Examiner may be appealed to the City Council in a closed record appeal proceeding as provided in RZC 21.76.060(M). Type I reviews are exempt from the procedures of RZC 21.76.040, Time Frames for Review. For more information on procedures and timelines applicable to any appeal of this Decision, please see relevant provision of the City’s Municipal Code, including without limitation RZC 21.76.050(D)(4) and