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Cummings v. City of Seattle

April 28, 1997

GRACE ANN CUMMINGS, ERIC BROMAN; RICHARD STOCKINGER, SUSAN STOCKINGER, SUSAN SEIBERT, BRIAN MULVEY, DAVID MARK, AND NANCY RENN, APPELLANTS,
v.
THE CITY OF SEATTLE, A MUNICIPAL CORPORATION; JOHN LEONG AND KARLING LEONG AND THEIR MARITAL COMMUNITY; ANNIE MEADOWS; AND FOUR SEASONS INVESTMENT GROUP, A WASHINGTON BUSINESS ENTITY, RESPONDENTS.



Appeal from Superior Court of King County. Docket No: 94-2-28715-0. Date filed: 06/23/95.

Motion for Reconsideration Granted October 6, 1997,

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

The opinion of the court was delivered by: Cox

COX, J. -- The City of Seattle's Department of Construction and Land Use (DCLU) granted a front yard setback variance to John and Karling Leong with the permit for their proposed construction of a small apartment building. A hearing examiner affirmed the grant of the variance over the protests of Grace Ann Cummings and several other neighbors in the vicinity of the proposed project (Cummings). Cummings then sought a writ of review, which the superior court denied. Because the record before the hearing examiner lacked substantial evidence to support certain factual findings and the decision was contrary to the relevant provisions of Seattle's Land Use Code, we reverse.

The Leongs own a piece of property on Beacon Hill in Seattle that is zoned multifamily residential. The western portion of the property is a steep slope. The Leongs applied to DCLU for a Master Use Permit to construct a 14-unit, three-story apartment building with underground parking. Their application included a request for a variance from the front yard setback required by the Seattle Land Use Code.

Over the objections of Cummings, who protested on various grounds, DCLU granted the permit, subject to certain conditions. Cummings appealed the decision to the hearing examiner, who affirmed DCLU's grant of the variance.

Cummings sought a writ of review, which the superior court denied.

Cummings appeals.

I

Standard of Review

Under the writ of review statute, we apply the standard of review directly to the administrative record that the hearing examiner developed. *fn1

We review factual findings to determine whether they are supported by competent and substantial evidence. *fn2 Substantial evidence is "'evidence which "would convince an unprejudiced, thinking mind of the truth of the declared premise."'" *fn3 The review is deferential and requires us to view the evidence and the reasonable inferences therefrom in the light most favorable to the party who prevailed in the highest forum that exercised fact-finding authority, a process that necessarily entails acceptance of the factfinder's views regarding the credibility of witnesses and the weight to be given reasonable but competing inferences. *fn4

Interpretation of the Land Use Code's variance criteria is a question of law, which we review de novo. *fn5 While this court accords deference to the enforcing agency's interpretation of an ambiguous ordinance, it is not bound by that interpretation. *fn6

II

Variance

Cummings challenges the sufficiency of the evidence in the record to meet the legal requirements for granting a variance set forth in Seattle Municipal Code (SMC) 23.40.020. That ordinance provides in part:

A. Variances may be sought from [the regulations in the Land Use Code], as applicable, except for the establishment of a use which is otherwise not permitted in the zone in which it is proposed . . . .

C. Variances from the provisions or requirements of this Land Use Code shall be authorized only when all the following facts and conditions are found to exist:

1. Because of unusual conditions applicable to the subject property, including size, shape, topography, location or surroundings, which were not created by the owner or applicant, the strict application of this Land Use Code would deprive the property of rights and privileges enjoyed by other properties in the same zone or vicinity; and

2. The requested variance does not go beyond the minimum necessary to afford relief, and does not constitute a grant of special privilege inconsistent with the limitations upon other properties in the vicinity and zone in which the subject property is located; and

3. The granting of the variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the zone or vicinity in which the subject property is located; and

4. The literal interpretation and strict application of the applicable provisions or requirements of this Land Use Code would cause undue and unnecessary hardship; and

5. The requested variance would be consistent with the spirit and purpose of the Land Use Code and adopted Land Use Policies or Comprehensive Plan, as applicable. *fn7

Three things are clear from our reading of the above ordinance.

First, use variances are not allowed. *fn8 Second, those variances that are allowed under this ordinance must satisfy all of the five listed criteria. We therefore must decide whether any one of the five criteria, in whole or in part, has not been met for the setback ...


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