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Lundstrom v. City of Everett

December 19, 1996


Appeal from Superior Court of Snohomish County. Docket No: 94-2-07725-1. Date filed: 06/23/95. Judge signing: Hon. Ronald L. Castleberry.

Petition for Review Denied July 8, 1997,

Authored by Faye C. Kennedy. Concurring: Mary K. Becker, Ronald E. Cox.

The opinion of the court was delivered by: Kennedy

KENNEDY, A.C.J. -- Donald Lundstrom appeals a judgment of the Snohomish County Superior Court affirming the approval of Diana Sterling's application to establish an accessory dwelling unit in her residence. Lundstrom argues that the trial court erred in affirming the Hearing Examiner's approval of Sterling's application because the uncontroverted evidence indicated that the legal nonconforming use of the stairs and porch providing access to the accessory dwelling unit had been abandoned.

Lundstrom thus argues that Sterling's application should have been approved subject to a requirement that she remove the existing stairs and construct a new, independent entrance to the accessory dwelling unit. We conclude, however, that Lundstrom failed to meet his burden of proving abandonment of the nonconforming uses below, and accordingly affirm the trial court's decision.


In April of 1994, Diana Sterling filed an application with the City of Everett Planning Director to establish an accessory dwelling unit in the second story of her residence. The Planning Director determined that the accessory dwelling unit was a permitted use, and on May 11, 1994, approved Sterling's application. The Planning Director's approval was conditioned on Sterling's full compliance with "all 13 conditions of Section 39.020 D of the City's Zoning Code, as well as all other provisions of the City's Zoning Code and all other applicable City codes." Motion for Reconsideration Exhibit 15. One of the conditions of Everett Municipal Code sec. 19.39.020(D) specifies that the residence "shall comply with all applicable requirements of the Uniform Building Code as adopted or amended by the City." EMC sec. 19.39.020(D)(9).

Donald Lundstrom, a neighbor who lived within 300 feet of Sterling's residence, was provided notice of the Planning Director's approval of Sterling's application. On May 20, 1994, Lundstrom appealed the Planning Director's decision to the City of Everett Hearing Examiner, arguing that the decision was inconsistent with the criteria of EMC sec. 19.39.020(D).

In particular, Lundstrom argued that the residence does not comply with the Uniform Building Code because the stairway and porch providing access to the second story are located inside the side yard setback area. *fn1

In its staff report to the Hearing Examiner, the Planning Department explained that the encroachment of the stairs and porch into the setback area did not preclude the approval of Sterling's application because, based on affidavits submitted by neighboring property owners, it appeared that the porch and stairs existed prior to 1956 when the Zoning Code was adopted, and thus had "legal nonconforming status." Exhibit 1 at 5.

At the hearing before the Hearing Examiner on July 7, 1994, the parties submitted contradictory evidence regarding the continuous existence of the porch and stairs. Sterling submitted affidavits of adjoining property owners that the porch and stairs had been in existence prior to the adoption of the Zoning Code in 1956. Lillian Blendheim, a neighbor of Sterling's, testified by affidavit that "the porch [on] the north side of the home has been there 74 years." Exhibit 8 at 2. Lucille Chester, who had lived in the neighborhood since 1955, stated in her affidavit that the porch and stairs "have been there the entire time I have lived here."

Exhibit 8 at 1. When she testified at the hearing, however, Chester stated that the stairs "were falling down for about five years there weren't any stairs there." Report of Proceedings at 27.

Lundstrom submitted the affidavit of his son, Carl Lundstrom, stating that in the middle 1970's there was a porch on the second story of the residence, but no stairs descending to the ground. A member of the City Planning Staff testified that a photograph taken of the residence in the 1980's "seems to indicate that maybe the porch and stairs weren't there at the time." Report of Proceedings at 14. Sterling similarly testified that the photograph indicated that the stairs had been removed, and that she did not know when they reappeared.

The Hearing Examiner affirmed the decision of the Planning Director approving Sterling's application. In the findings of ...

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