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Hansen v. Chelan County

filed: April 4, 1996.

H. P. HANSEN AND EDNA HANSEN, HUSBAND AND WIFE, INDIVIDUALLY AND EDNA HANSEN, AS TRUSTEE OF THE PEARL K. SCAMMAHORN TRUST, APPELLANTS,
v.
CHELAN COUNTY, A MUNICIPAL CORPORATION, ACTING THROUGH ITS BOARD OF ADJUSTMENT, RESPONDENTS, AND CASHMERE VALLEY ORCHARDISTS, AN UNINCORPORATED ASSOCIATION CONSISTING OF ERLAND AND JANICE MILLER, RUSSELL AND TERESA LONG, ERNEST GARRETT, ROY AND GOLDIE SINES, AND NEVA SHELL, DEFENDANTS.



Appeal from SUPERIOR COURT CHELAN COUNTY. Superior Court No: 93-2-00866-4. Date filed in Superior Court: 10/27/94. Superior Court Judge signing: JOHN BRIDGES.

Ray E. Munson, Dennis J. Sweeney & John A. Schultheis, concur

Author: Munson

MUNSON, J. --H.P. and Edna Hansen appeal from a superior court decision upholding the denial of a conditional use permit by the Chelan County Board of Adjustment (the Board). We hold the Board's reasons for denying the permit inadequate and reverse.

In 1992, the Hansens applied for a conditional use permit (CUP) for a 38.9-acre parcel owned by the Pearl K. Scammahorn Trust, of which Mrs. Hansen is trustee. The Hansens proposed to develop a nine-hole golf course on the property. The property had been used as orchard, but the fruit trees were of older, less desirable varieties, and most of the trees had been removed. According to Mrs. Hansen, replanting the orchard was not a viable option

because no financing could be obtained. Most of the adjoining property was in orchards, but some had been developed as residential.

Under the Chelan County Zoning Code (CCZC) the land was zoned "General Use." The CCZC permits general use property to be used outright for single family or duplex dwellings and for agricultural use. CCZC § 11.36.010. The property may also be subdivided for these purposes. CCZC § 11.36.010(4). All other uses require a conditional use permit. CCZC § 11.36.020. CCZC § 11.56.010 addresses the grant or denial of conditional use permits; it states in part:

(c) Conditional uses shall be denied by the board of adjustment only when the board determines, after a public hearing thereon, that the proposed conditional use would be injurious to the public health, safety or welfare, or to the area adjoining the proposed conditional use irrespective of whatever conditions might be imposed, or where the board finds that the proposed conditional use would be incompatible with the adopted comprehensive plan for the area, irrespective of whatever conditions might be imposed.

The Board held a public hearing on the Hansens' proposal on August 10, 1992. The evidence at that hearing was aptly summarized by the superior court:

Agency comments were received from the Department of Ecology, Department of Fisheries, the Yakima Indian Nation, the Chelan County Health District, the County Conservation District, the Public Works Department, the Department of Building and Fire Safety, the Peshastin Irrigation District, and the Chelan County Public Utility District. A fair summary of the Agencies' comments reveal that a majority included the protection of water quality, protection of Brender Creek and the associated wetlands, erosion control, dust control, traffic, fire protection, and the use of irrigation water, all of which could be addressed by appropriate conditions and mitigation measures.

The Board denied the CUP based on four findings of fact:

1) There are no totally effective mitigating measures that could be imposed on the development to eliminate the concerns of physical damage and trespass onto adjacent lands;

2) The project would, in all likelihood, encourage adjoining landowners to prematurely convert their ...


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