Cooke v. City of East Wenatchee, Ct. of Appeals Div. III Case No. 25376-7-III (unpublished opinion)*

* This post is published here under the Creative Commons License. The post was authored by Keith Ganey and originally published to his blog at http://www.walaw.org. Ganey is a 2008 graduate of the University of Washington School of Law.

Go to slip opinion

Discussion

The Division Three panel applied the wrong standard of review and may have reached the wrong result in reviewing a variance dispute.

Clark Cooke owns Lot 31 in the Briarwood Subdivision of East Wenatchee. Lot 31 is 12 acres in area and has express approval in the CCR for further subdivision of the land. Mr. Cooke sought to exercise that provision and divide his lot into land for three homes. He proposed that the new houses would be accessed by a private access easement and therein lays the problem.

The East Wenatchee Municipal Code requires new lots to have public street access and 70 feet of public street frontage. In order to qualify for a variance from this requirement, the landowner has to show that there are geographical constraints that make compliance unusually burdensome in his case.

2.  That such variance is necessary, because of special circumstances relating to the size, shape,  topography,  location or surroundings of the subject property,  to provide it with use rights and privileges permitted to other properties in the vicinity and in the zone in which the subject property is located.

The language is identical to that used many Washington cities.

The East Wenatchee review board twice denied Mr. Cooke’s request for the variance twice, only providing a formal opinion the second time. The formal opinion is on review here. The city department’s report to the board included statements that the situation did qualify under the variance standards.

The opinion is too short to review effectively, but the Court of the Appeals improperly switched the burden of proof in its analysis. Instead of examining the record to see if substantial evidence supported the Board’s denial of the variance, the court reviewed the record to see if substantial evidence supported the trial court’s grant of the variance.

Looking over the lot in question, emergency access looks like it could be a problem. Without street frontage, it is harder for emergency responders to find their destination. Without a public street, the fire trucks generally have to back out instead of turning around. The road in question does not look amenable to either backing out or to seeing the homes in danger.

See also: Subdivision Map (click second link); Google Map