Donald I. Berg, Et Ano., Appellants V. City Of Kent, Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
No. 	73269-2-1
CITY OF KENT, a Washington
Municipal Corporation,
Respondent,
v.
DONALD I. BERG and KAREN BERG,
Appellants.
DIVISION ONE
UNPUBLISHED OPINION
FILED: December 5, 2016
C2"">
WG
CD
m
CD
--(
i
en
3t3» 	Ol p' i
3 	S '•••'••
en 	?•::':;::
Mann, J. — Donald and Karen Berg seek review of a decision by the City of
Kent's hearing examiner affirming a notice of violation citing the Bergs with illegally
expanding 	a 	nonconforming 	commercial 	outdoor storage 	yard 	within 	a 	residential
neighborhood without obtaining a conditional use permit. 	The Bergs petitioned for
review to the King County Superior Court under the Land Use Petition Act (LUPA),
chapter 36.70C RCW. 	The superior court upheld the 	hearing examiner's decision
affirming the notice of violation. 	Finding no error of law and that substantial evidence
supports the hearing examiner's determination that the Bergs illegally expanded and
intensified the nonconforming storage yard, we affirm.

No. 73269-2-1/2
FACTS
Donald and Karen Berg own two parcels of property at 27918 and 27824 152nd
Avenue SE in Kent, Washington. 	The combined properties are approximately three
acres in size and known as Shady Park. 	There is a small grocery store and an auto
repair business located on the west side of Shady Park adjacent to 152nd Avenue SE.
The grocery store was established in the 1920s. 	The auto repair shop was established
in the 1940s. 	Prior to 1996, the property was in unincorporated King County. 	Between
1958 and 1996, the property was zoned "residential" under King County's zoning code.
Commercial 	uses, 	including 	grocery 	stores, 	auto 	repair, 	and 	commercial 	outdoor
storage, were prohibited in King County's residential zone.
The City of Kent (City) annexed Shady Park and surrounding properties in 1996.
During the annexation process, the City accepted public testimony concerning future
zoning 	of the 	properties. 	David 	Spencer, 	the owner of 	Shady 	Park at the time,
submitted testimony requesting that either all, or at least a portion, of his property be
zoned commercial so that he could continue use of the property for the existing grocery
store and auto repair business. 	The City planning director acknowledged that the
grocery store and auto repair business existed but was opposed to commercial zoning
out of concern for increased commercial uses within the residential area. 	The City
ultimately 	compromised 	and 	zoned 	the 	Shady 	Park 	property 	Neighborhood
Convenience Commercial (NCC).1 	Under NCC zoning the grocery store is an allowed
use, but other commercial uses, including auto repair and outdoor commercial storage
1 Kent City Code (KCC) 15.03.010.
-2-

No. 73269-2-1/3
are prohibited. 	The City agreed, however, that the Shady Park auto repair business
could remain as a legal nonconforming use.
In 2001, the grocery store burned down and Spencer notified the City that he
wanted to rebuild the store. 	Based on Spencer's inquiry, the City inspected the property
and discovered an outdoor storage area east of the grocery store. 	In January 2002, the
City notified Spencer of "possible land use violations" on his property and informed him
that outdoor storage was not permitted as an accessory or principal use in the NCC
zone.2 	As the permitting process for the grocery store ran its course, the City continued
to inspect the Shady Park property. 	On September 6, 2002, the City issued a notice of
violation to Spencer for the "illegal storage of recreational vehicles, boats, equipment
and 	miscellaneous 	inoperable 	and/or 	disassembled 	vehicles."3 	The 	City's 	notice
required the removal of the stored items.
Spencer continued to move forward with the permitting promise to rebuild the
grocery store. 	In a September 11, 2002, letter summarizing a preapplication meeting,
the City confirmed that outdoor storage was not allowed on the Shady Park property:
The review of this application does not constitute approval of the outdoor
RV [(recreational vehicle)] and boat storage, self service mini-warehouse
storage, impounded vehicle storage, or vehicle dismantling and salvage.
These uses are not allowed under the current zoning of NCC .... To be
considered 	legal, 	non-conforming 	these 	uses 	must have 	been 	legally
established with King County at this location prior to being annexed into
the City of Kent in January 1996. 	Documentation of this prior approval
from King County must be submitted to the City of Kent in order for the
City to recognize these uses as legal, non-conforming.[4]
No documentation of prior approval by King County was ever submitted.
2 Certified Administrative Record (CAR) at 17-18.
3 CAR at 19-20.
4 CAR at 27.
-3-

No. 73269-2-1/4
The Bergs purchased the Shady Park property in June 2006. 	In 2009, the City
began receiving neighborhood complaints concerning increased storage of vehicles,
heavy equipment, recreational vehicles, and boats stored on the Shady Park property.
In February 2009, the City notified the Bergs by letter that the outdoor storage was not
allowed within the NCC zone:
The 	zoning 	for this 	property 	is 	NCC. 	. . . Outdoor storage 	is 	not 	a
permitted use in this zone. 	To be considered a legal, non-conforming use,
the outdoor storage must have been legally established with King County
at this location prior to being annexed into the City of Kent in January
1996. 	After reviewing the site history!,] 	... the City determined that
outdoor storage was legally established on the site prior to annexation and
that the degree of outdoor storage allowed on the site is that which is
depicted on aerial photos taken in 1996, the same year the property was
annexed to the City of Kent. 	A clearer image of the site taken in 1999
shows a similar level of outdoor storage. 	Enclosed are copies of both
images for your use. 	Based on a site visit on January 21, 	2009, the
degree of outdoor storage has greatly increased beyond that which was
legally established 	as a 	non-conforming 	use. 	Furthermore, 	Kent 	City
Code 	Section 	15.08.100.C 	states 	that 	no 	land 	devoted 	to 	a 	non
conforming 	use 	shall 	be 	expanded, 	enlarged, 	extended 	or 	intensified
unless the use is changed to a use permitted in the district in which such
land is located.[5]
The City ordered the Bergs to reduce the size of the outdoor storage area to the 1996
and 1999 levels.
Between February 2009 and March 2011, the Bergs increased the use of their
property for outdoor storage despite ongoing inspections and demands by the City that
they reduce usage to the level that existed in 1996. 	Based on the Bergs' assurance that
they would comply, the City did not take enforcement action. 	In March 2011, the Bergs'
property manager, Tom 	Glenn, 	met with City planning staff to discuss the outdoor
storage. 	The City provided Glenn with an annotated 1999 aerial photo that outlined
5 CAR at 37.
-4-

No. 73269-2-1/5
approximately 34,000 square feet of property on the west side of the Shady Park
property that could be used for storage related to the auto repair business. 	Consistent
with the City's previous position, the area outlined was based on the area of storage
visible in the 1996 and 1999 aerial photos. 	The City informed the Bergs that they could
apply for a conditional use permit (CUP) if they wanted to use the property in a manner
inconsistent with the City's zoning. 	The Bergs did not apply for a CUP. 	Instead, in
August 2011, the Bergs informed the City that they intended to use the entire site for
storage, claiming the entire property was "grandfathered" into the zone.
In February 2012, after receiving new complaints about increasing use of the
Shady Park property for storage, City Planning Director Fred Satterstrom met with
Glenn to resolve the issue. 	The parties were unable to resolve the dispute. 	On March
9, 2012, the City issued a 50 page correction notice that contained 9 pages of detailed
findings 	along 	with 	multiple 	exhibits 	documenting 	the 	history of 	the 	property 	and
violations of the City zoning code. 	The correction notice required the owners to remove
and cease operating the outdoor storage yard. 	After the Bergs failed to comply, on May
24, 2012, the City issued a notice of violation (2012 NOV) fining the Bergs $500 per day
for the ongoing violations. 	The 	2012 	NOV incorporated the findings 	and 	exhibits
included in the correction notice.
The Bergs filed an administrative appeal of the 2012 NOV with the City's hearing
examiner claiming that the storage on the entire property was legal nonconforming use.
The Bergs' appeal was heard by the City's hearing examiner over eight days between
June 13 and September 15, 2013. 	The hearing examiner issued his final findings,
conclusions, and order on December 3, 2013 (decision). 	The decision identified the
-5-

No. 73269-2-1/6
hearing dates, testifying witnesses, and the exhibits submitted into the record during the
hearing. The decision included the following findings:
1. 	The Notice of Violation Issued on May 24, 2012 alleged that violations
of the 	Kent 	City Code 	have occurred 	at 27918 and 27824 152nd
Avenue SE, in Kent, Washington, 98043, Parcel Number 3522059154;
and, named the following persons as being responsible for the Code
Violations: Donald I and Karen Berg; .. .
2. 	The Notice of Violation dated May 24, 2012 referenced a, Correction
Notice dated March 9, 2012 (which was attached and incorporated by
reference) for the legal and factual basis for this violation: "Outdoor
storage 	including 	truck, 	heavy 	equipment, 	Recreational 	Vehicles,
boats[,] and contractor storage yards."
3. 	The 	aforementioned 	Correction 	Notice 	alleged 	that 	the 	persons
responsible for the violations included Donald I. and Karen Berg.
4. 	Mr. 	and 	Mrs. 	Berg 	were 	notified 	of 	and 	were 	given 	several
opportunities to correct the violations and/or to work with the City of
Kent to settle the dispute, which did not occur.
5. 	A preponderance of the evidence supports a finding that Mr. and Mrs.
Berg violated the King County Code. 	For violations of the Code, the
Notice of Violation assess a total fine of $500.00.
6. 	Mr. 	and 	Mrs. 	Berg 	are 	subject 	to 	additional 	civil and/or 	criminal
penalties 	if any violation 	subject to 	the 	Notice 	of 	Violation 	is 	not
corrected or abated. 	KCC 1.04.18D.A.4.
7. 	Abatement of the violations by the City is authorized, at the Berg[s']
expense. 	KCC 1.04.180.A.5.
8. 	Mr. and Mrs. Berg failed to provide credible evidence regarding the
nature of the violations, why the violations exist, and why the violations
have not been abated or corrected.'61
Based on the findings, the hearing examiner concluded that: 	(1) "The Bergs
violated the Kent City Code as set out in the Notice of Violation;" and (2) "The Bergs
6 Clerk's Papers (CP) at 23.
-6-

No. 73269-2-1/7
must carry out the correction action and 	pay applicable unpaid monetary penalties
required in the Notice of Violation."7
The Bergs challenged the decision by filing a LUPA petition for review in the King
County Superior Court. 	The superior court affirmed the hearing examiner's decision.
The Bergs filed a timely appeal to this court on March 30, 2015.
Over two months after filing their appeal, the Bergs filed a CR 60 motion with the
superior 	court 	seeking 	relief 	from 	the 	final 	judgment 	for 	"'excusable 	neglect 	or
irregularity,'" "'newly discovered evidence,'" or "'misrepresentation or other misconduct
of an 	adverse party.'"8 	On August 28, 2015, 	the superior court denied the CR 60
motion. 	The Bergs then recommenced their appeal adding an assignment of error for
the denial of their CR 60 motion.
ANALYSIS
I.
Review of the hearing examiner's decision is governed by LUPA. 	We review the
decision of the "local jurisdiction's body or officer with the highest level of authority to
make the determination." 	RCW 36.70C.020(2); Citizens to Preserve Pioneer Park. LLC
v. City of Mercer Island. 106 Wn. App. 461, 474, 24 P.3d 1079 (2001). 	We stand "in the
shoes of the 	superior court" and 	limit our 	review to the 	record 	before the 	hearing
examiner. 	Pavlina v. Citv of Vancouver. 122 Wn. App. 520, 525, 94 P.3d 366 (2004).
Under LUPA, the party seeking reversal of a hearing examiner's decision must establish
7 CP at 24.
8 CP at 702-15 (quoting CR 60).
-7-

No. 73269-2-1/8
that one of six bases listed in RCW 36.70C.130(1) has been satisfied.9 	McMilian v.
King County. 161 Wn. App. 581, 589-90, 255 P.3d 739 (2011).
The Bergs seek relief from the hearing examiner's decision pursuant to RCW
36.70C.130(1)(a), (b), (c), (d), and (f), contending that the hearing examiner engaged in
unlawful procedure, erroneously interpreted the law, erroneously applied the law, failed
to 	base 	the 	findings 	of 	fact 	on 	substantial 	evidence, 	and 	violated 	the 	Bergs'
constitutional rights in making his decision.
Claimed 	errors of law are 	reviewed 	de 	novo. 	Phoenix 	Dev.. 	Inc. 	v. 	Citv of
Woodinville. 171 Wn.2d 820, 828-29, 256 P.3d 1150 (2011). 	When reviewing a local
government 	ordinance 	the 	"'reviewing 	court 	gives 	considerable 	deference 	to 	the
construction 	of 	the 	challenged 	ordinance 	'by 	those 	officials 	charged 	with 	its
enforcement.'" 	Ford Motor Co. v. Citv of Seattle. 160 Wn.2d 32, 42, 156 P.3d 185
(2007) (quoting Gen. Motors Corp. v. Citv of Seattle. 107 Wn. App. 42, 57, 25 P.3d
1022 (2001)). The decision as a whole is reviewed for substantial evidence. 	Citv of
Univ. 	Place 	v. 	McGuire. 	144 Wn.2d 	640, 	647, 	30 	P.3d 	453 	(2001). 	Under the
substantial evidence test "there must be a sufficient quantum of evidence in the record
9 RCW 36.70C. 130(1) provides six bases for relief:
(a) The body or officer that made the land use decision engaged in unlawful
procedure or failed to follow a prescribed process, unless the error was harmless;
(b) The land use decision is an erroneous interpretation of the law, after allowing
for such deference as is due the construction of a law by a local jurisdiction with
expertise;
(c) The land use decision is not supported by evidence that is substantial when
viewed in light of the whole record before the court;
(d) The land use decision is a clearly erroneous application of the law to the
facts;
(e) The land use decision is outside the authority or jurisdiction of the body or
officer making the decision; or
(f)The land use decision violates the constitutional rights of the party seeking
relief.
-8-

No. 73269-2-1/9
to persuade a 	reasonable person that the declared premise is true." 	Phoenix. 171
Wn.2d at 831. 	The court does not weigh the evidence or substitute its judgment.
Phoenix, 171 Wn.2d at 832. 	We "view facts and inferences in a light most favorable to
the party that prevailed in the highest forum exercising fact-finding authority," in this
case, the hearing examiner. 	Phoenix. 171 Wn.2d at 831.
II.
As a preliminary matter, the Bergs contend the hearing examiner failed to follow
the prescribed process set out in Kent City Code (KCC) 1.04.160, by not providing
sufficient findings of fact and conclusions of law. 	Under RCW 36.70C.130(1)(a), relief
will be granted if the appellant demonstrates that the hearing examiner engaged in
unlawful procedure or failed to follow a 	prescribed process. 	However, a 	harmless
procedural error may not serve as a basis for the reversal of a land use decision. 	RCW
36.70C.130(1)(a).
The 	KCC 	requires 	the 	hearing 	examiner 	to 	issue 	a 	written 	order 	at 	the
conclusion of contested 	case 	proceedings. 	The 	order 	must contain findings 	and
conclusions based on the record including:
1. For 	each 	alleged 	violation 	of the 	city code, 	a 	statement indicating
whether the violation has been found committed or not committed;
2. For violations found committed, the monetary penalties and costs being
assessed pursuant to this chapter;
3. For violations found committed, any required corrective actions;
4. For 	violations 	found 	committed, 	a 	finding 	that 	abatement 	of 	the
violations 	by 	the 	city 	is 	authorized, 	at 	the 	expense 	of 	the 	person
responsible for the violations; and
-9-

No. 73269-2-1/10
5. A statement notifying the person responsible for the violation that he or
she is subject to additional civil and/or criminal penalties if any violation
that was the subject of the hearing has not been corrected or abated.'101
The Bergs are correct that the hearing examiner's findings of fact are minimal,
but they are not so incomplete that they prevent meaningful judicial review. 	See, e.g..
Tuowell v. Kittitas County. 90 Wn. App. 1, 14, 951 	P.2d 272 (1997). 	The decision
contains sufficient findings. 	The findings 	meet the minimum 	requirements of KCC
1.04.160 by confirming that a code violation was committed, setting forth the monetary
penalty and costs, identifying corrective actions, authorizing abatement, and notifying
the Bergs that they will be subject to additional penalties if the code violations are not
cured. Further, the combination of the notice of violation and correction notice, along
with the finding 	that the 	Bergs did 	not present credible evidence to 	the contrary,
"addressed and resolved the factual issue[s]" and resolved the "major issues involved."
Tugwell, 90 Wn. App. at 14. While the hearing examiner did not expressly state that the
decision incorporated the notice of violation by reference, it is clear that this was the
intent. Any procedural error was harmless. RCW 36.70C.130(1)(a).
III.
A.
A legal nonconforming use is a use that "lawfully existed" before a change in
zoning regulations and is allowed to continue even though it no longer complies with
current zoning. 	Rhod-A-Zalea & 35th. Inc. v. Snohomish County. 136 Wn.2d 1, 6, 959
P.2d 1024 (1998). 	While a property owner has a right to continue a protected legal
10 KCC 1.04.160.
•10-

No. 73269-2-1/11
nonconforming use, there is no right to "significantly change, alter, extend or enlarge the
existing 	use. 	Rhod-A-Zalea. 	136 	Wn.2d 	at 	7. 	"Under Washington 	common 	law,
nonconforming uses may be intensified, but not expanded." 	McGuire. 144 Wn.2d at
649. 	Intensification of a nonconforming use is "permissible . . . where the nature and
character of the 	use is unchanged and substantially the same facilities are 	used."
Keller v. Citv of Bellinoham. 92 Wn.2d 726, 730, 600 P.2d 1276 (1979).
The Washington State Legislature "has deferred to local governments to seek
solutions to the nonconforming use problem according to local circumstances." 	Rhod-
A-Zalea. 136 Wn.2d at 7. 	As a result, "local governments are free to preserve, limit, or
terminate nonconforming 	uses subject only to the broad limits of applicable zoning
enabling acts and the constitution." 	Rhod-A-Zalea. 136 Wn.2d at 7.
Consistent 	with 	Washington 	law, 	the 	City 	adopted 	nonconforming 	use
regulations. The City defines a nonconforming use as:
the use of land, a building, or a structure lawfully existing prior to the
effective date of this title or subsequent amendments thereto, which does
not conform with the use regulations of the district in which it is located on
the effective date of such use regulations.'111
The 	KCC prohibits the expansion 	or 	intensification of conforming 	uses 	unless the
property owner first obtains a CUP:
No existing building, structure, or land devoted to a 	nonconforming use
shall 	be 	expanded, 	enlarged, 	extended, 	reconstructed, 	intensified, 	or
structurally altered unless the use thereof is changed to a use permitted in
the district in which such building, structure, or land is located except as
follows: When authorized by conditional use permit, a nonconforming use
11 KCC 15.02.285.
-11-

No. 73269-2-1/12
may 	be 	expanded, 	enlarged, 	extended, 	reconstructed, 	intensified, 	or
structurally altered.'121
B.
The Bergs challenge both the legal analysis and factual basis for the hearing
examiner's 	decision 	confirming 	they 	had 	violated 	the 	KCC 	by 	expanding 	a 	legal
nonconforming use. 	The Bergs first contend that the hearing examiner erred in defining
the scope of their nonconforming use. 	The Bergs rely on the definition of the general
term "use" in KCC 15.02.532. 	Because a "use" is defined as "an activity for which land
or 	premises or a 	building thereon 	is designed, 	arranged, 	or intended." the 	Bergs
maintain that the City must take into account their intended use of the property.
This argument ignores that the zoning code has distinct definitions for "use" and
"nonconforming use." 	As set out above, a "nonconforming use" is limited to "the use of
land, a building, or a structure lawfully existing prior to the effective date of this title."
KCC 15.02.285 (emphasis added). 	Giving due deference to the City's construction of
its code, it is clear that by including separate definitions for "nonconforming use" and
"use" the City intended to treat nonconforming uses differently than other uses. 	Ford
Motor Co.. 160 Wn.2d at 42.
Further, 	nonconforming 	uses 	are 	uniformly disfavored 	by 	courts 	and 	local
governments as they limit the effectiveness of land use controls, imperil the success of
community 	plans, 	and 	injure 	property 	values. 	Rhod-A-Zalea. 	136 	Wn.2d 	at 	8-10;
12 KCC 15.08.100(C)(2) (emphasis added). 	The Bergs cite Kitsap County v. Kitsap Rifle and
Revolver Club. 184 Wn. App. 252, 268, 337 P.3d 328 (2014), review denied. 183 Wn.2d 1008, 352 P.3d
187 (2015) for the proposition that intensification of nonconforming uses is generally allowed. The Bergs
ignore, 	however, 	that 	the 	City, 	unlike 	Kitsap 	County, 	expressly 	prohibits 	the 	intensification 	of
nonconforming uses. 	Compare KCC 15.08.100(C)(2) wjth Kitsap County Code 17.460.020(C). Kitsap
County. 184 Wn. App. at 270.
-12-

No. 73269-2-1/13
McMilian. 161 Wn. App. at 591. 	As the Supreme Court explained in Anderson v. Island
County:
The use of property must actually be established prior to the adoption of
the zoning ordinance to qualify as a nonconforming use thereafter. 	It is
almost universally held that the mere purchase of property and occupation
thereof are not sufficient factors, either severally or jointly, to establish an
existing nonconforming use, and a vested right to a nonconforming use
cannot exist unless the particular use in question is in fact established
prior to the enactment of the zoning ordinance. 	"Before a supposed non
conforming use may be protected, it must exist somewhere outside the
property owner's mind." Therefore, mere intention or contemplation of an
eventual 	use 	of 	land 	is 	insufficient 	to 	establish 	an 	existing 	use 	for
protection 	as 	a 	nonconforming 	use 	following 	passage 	of 	a 	zoning
ordinance-
Anderson v. Island County.. 81 Wn.2d 312, 321-22, 501 	P.2d 594 (1972) (emphasis
added) 	(internal citations omitted) (quoting Cook v. Bensalem Two. 	Zoning 	Bd. of
Adjustment. 413 Pa. 175, 196 A.2d 327, 330 (1963)).
Reliance on a landowner's intent contradicts the rules and policies meant to limit
nonconforming 	uses. 	The 	hearing 	examiner did 	not err 	in finding 	that the 	Bergs'
intended 	use 	before 	the 	zoning 	enactment 	was 	not 	sufficient 	to 	create 	legal
nonconforming use.
C.
The Bergs also challenge the sufficiency of the evidence asserting that they
submitted substantial evidence that the legal nonconforming use was not expanded.
The 	standard 	of 	review, 	however, 	is 	not whether the 	Bergs submitted substantial
evidence contrary to the hearing examiner's decision. 	Instead, the Bergs bear the
burden 	of 	showing 	the 	"land 	use 	decision 	is 	not 	supported 	by 	evidence 	that 	is
substantial." 	RCW 36.70C. 130(c); McGuire. 	144 Wn.2d at 652. 	Since the hearing
•13-

No. 73269-2-1/14
examiner found that the nonconforming use had expanded, the Bergs have the burden
to demonstrate that the record is void of supporting substantial evidence.
The parties may establish use by comparing the scope of the prior and current
uses. 	Johnson v. Citv of Seattle. 184 Wn. App. 8, 14-15, 335 P.3d 1027 (2014). 	King
County zoned the Shady Park property as residential in 1958.13 The property remained
under residential zoning through the City's annexation in 1996. 	The auto repair shop
and grocery store were allowed to continue on the property as legal nonconforming
uses because they were legally established on the land before the land was zoned
residential. 	The rest of the property was restricted to uses permitted in residential
zones. 	After the property was annexed in 1996 and rezoned to NCC, the grocery store
became an allowed use. The auto repair shop and the associated outdoor storage were
allowed to continue as legal nonconforming uses because they existed at the time of the
original zoning. The City limited the outdoor storage to the area illustrated by the line of
vehicles stored behind the grocery store, and limited the auto repair shop as shown on
the 1990 to 1999 aerial photos.
At the time the property was annexed in 1996, the majority of the undeveloped
area consisted of trees and bushes with a narrow portion directly outside the existing
businesses being used for vehicle storage. 	By 2002, Spencer began clearing away the
vegetation and parking vehicles throughout the rest of the property. 	Over time the
property began filling up with vehicles and the use changed from vehicles linked to the
auto repair shop to a full storage business. 	This continued after the Bergs purchased
the land. 	The record clearly demonstrates an expansion and intensification of the use
13 Both parties stipulate that there may have been a break in zoning at this time.
-14-

No. 73269-2-1/15
as it changed from auto 	repair shop storage to a separate storage business. 	The
hearing examiner's decision is supported by substantial evidence.14
IV.
The 	Bergs 	also contend that the 	hearing 	examiner made several erroneous
interpretations 	of law including: 	failing 	to 	indicate whether 	a 	code 	violation 	was
committed, shifting the burden of proof, and basing part of the decision on the Bergs'
failure to reach a settlement with the City. Each argument fails.
A.
The KCC requires the hearing examiner's written order to include a "statement
indicating whether the violation has been found committed or not committed." 	KCC
1.04.060. 	The Bergs argue that the hearing examiner erred in failing to cite the three
provisions of the KCC that that the City claimed they violated. 	The Bergs ignore,
however, that the decision expressly concludes that "the Bergs violated the Kent City
Code 	as set out in the 	Notice of Violation."15 	Because the notice of violation and
correction notice clearly set out the code provisions the City accused the Bergs of
violating, the hearing examiner's conclusion was not erroneous.16
14 The Bergs argue that the City acquiesced in their expansion of the storage after the area was
annexed in 1996. 	Their argument fails. 	Any failure by the City to enforce its zoning code or any
representations made that the uses were legal does not constitute approval. 	Miller v. Citv of Bainbridge
Island. 111 Wn. App. 152, 165, 43 P.3d 1250 (2002). The KCC specifically prohibits expansion of a legal
nonconforming use except "when authorized by conditional use permit." KCC 15.08.100(C)(2). Because
neither the Bergs nor their predecessors obtained a CUP prior to expanding and intensifying the outdoor
storage, the expansion violated the City code.
15 CAR at 985.
16 The Bergs also argue that the hearing examiner improperly cited to the King County code
instead of the KCC in finding of fact 5. But read in context this was nothing more than a scrivener's error.
Conclusion of law 1 confirms that "[t]he Bergs violated the Kent City Code as set out in the Notice of
Violation." CAR at 985.
-15-

No. 73269-2-1/16
B.
The Bergs are correct that in contested hearings concerning code enforcement,
the KCC places the initial burden on the City to prove "by a preponderance of the
evidence, that a violation has occurred." 	KCC 1.04.150(A). 	But once the City meets its
initial burden of showing that a violation exists, the burden shifts to the landowner to
establish that the 	nonconforming 	use was lawfully established prior to adoption of
contrary zoning and that the use was never abandoned or discontinued. 	King County
Dep't of Dev. And 	Envtl. Servs. v. King County. 177 Wn.2d 636, 643, 305 P.3d 490
(2013); McMilian v. King County. 161 Wn. App. 581, 591, 255 P.3d 739 (2011).
The City met its initial burden by demonstrating that the entire site was being
used for outdoor storage—a use prohibited in the NCC zone. 	At that point, the burden
shifted to the Bergs to demonstrate that the entire undeveloped portion of their land was
protected legal nonconforming use. 	McMilian. 161 Wn. App. at 591. 	The hearing
examiner applied the correct burden of proof.
C.
The Bergs argue that the hearing examiner improperly based his decision in part
on the Bergs' failure to reach a settlement with the City. 	This argument is based on
finding of fact 4 which states "[The Bergs] were notified of and were given several
opportunities to correct the violations and/or work with the City of Kent to settle the
dispute, which did not occur."17 This statement, which is supported by the record, is an
acknowledgement that, consistent with due process, the City provided the Bergs with
CAR at 984.
-16-

No. 73269-2-1/17
several warnings and opportunities to cure the code violation prior to issuing the 2012
NOV. The hearing examiner did not err in making this finding.
V.
The Bergs contend, pursuant to RCW 36.70C.130(1)(f), that their constitutional
rights were violated in the process of limiting their use of the land for storage. 	A "vested
right to a nonconforming use cannot exist unless the particular use in question is in fact
established prior to the enactment of the zoning ordinance." 	Anderson. 81 Wn.2d at
321. 	Mere contemplated or intended use prior to the 	passage of a contrary zoning
ordinance does 	not create an existing 	right that implicates due process concerns.
McMilian. 161 Wn. App. at 593: see Anderson. 81 Wn.2d at 321-22.
VI.
Over two months after filing their initial appeal, the Bergs filed a CR 60 motion
with the superior court seeking relief from the final judgment for "'excusable neglect or
irregularity,'" "'newly discovered evidence,'" "'misrepresentation or other misconduct of
an adverse party,'" or for manifest injustice.18 	The primary basis of the Bergs' motion
was the "newly discovered" testimony of Brian Swanberg, a former City inspector.
A trial court's decision whether to vacate a judgment or order under CR 60 is
reviewed for abuse of discretion. 	Shaw v. Citv of Pes Moines. 109 Wn. App. 896, 900-
01, 37 P.3d 1255 (2002). 	The decision will not be overturned on appeal unless it plainly
appears 	that the 	trial 	court 	exercised 	its 	discretion 	on 	untenable 	grounds 	or 	for
untenable reasons. 	Shaw. 109 Wn. App. at 900-01.
18 CP at 702-15 (quoting CR 60).
-17-

No. 73269-2-1/18
Here, the superior court reviewed the legal arguments, considered the evidence,
and carefully explained its analysis and decision in its oral ruling. 	The superior court's
reasons included: (1) the City did not conceal the identity of Swanberg—the Bergs were
informed during the hearing process that Swanberg was retired, that the City had no
plans to call him as a witness, and that the Bergs could issue a subpoena for his
attendance; (2) Swanberg was easily located by either an internet search or private
locator service; and (3) that there was no misconduct on the part of the City—the City
was not required to provide the Bergs with contact information for the witness or instruct
them on how to file a subpoena. 	The superior court did not abuse its discretion in
denying the Bergs' CR 60 motion.
VII.
As the prevailing party, the City is entitled to attorney fees on appeal pursuant to
RCW 4.84.370(2). 	The City was the prevailing party on the merits at the trial court and
on appeal. 	Durland v. San Juan County. 182 Wn.2d 55, 78-79, 340 P.3d 191 (2014);
Habitat Watch v. Skagit County. 155 Wn.2d 397, 413,120 P.3d 56 (2005).
Affirmed.
^/
WE CONCUR:
^-T
-18-