                                                                                                                  FILED
                                                                                                          COURT OF APPEALS
                                                                                                                DIVISION 11
                                                                                                         201/ 1111 29 AV 11: 39
                                                                                                                OF
                                                                                                            T        WASHINGTON



     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II

RICHARD COLF,                                                                     No. 44818 -1 - II


                                     Appellant,


          v.



CLARK COUNTY,                                                            UNPUBLISHED OPINION


                                     Respondent.




          HUNT, J. —      Richard Colf appeals the superior court' s affirmance of the Clark County

hearing    examiner' s    notice    and   order   finding   Colf in   violation   of   Clark    County   Code ( CCC)


40.260. 210( C)( 3)      for having a second mobile home on his property without the required

temporary dwelling        permit.    Colf argues that the superior court and hearing examiner both erred

in their interpretation       of   the    Clark   County    Code   and   in   finding (   1)   that he violated CCC


40. 260. 210( C)( 3) (   second mobile       home);    and (   2) that CCC 14. 32A. 130( 3) ( " nonconforming"


mobile    homes)   and    CCC 14. 32A. 140( 4) ( " preexisting        use" exemption) did not exempt him from

this CCC 40. 260.210( C)( 3)        violation.    We   affirm.
No. 44818 -1 - II



                                                        FACTS


                                            I. MOBILE HOME PERMIT

                                            Lingafelt1

          On April 1,    1993, Rachel                     applied for a temporary mobile home placement

permit to install a second mobile home as a residence for her father on her Clark County

property. Lingafelt' s application acknowledged that such a temporary permit would be valid for

up to two years; that when the permit expired, it was subject to review; and that if she met all the

original permit requirements, she could renew the permit for up to two more years.
                                                                                              2
          On   May   5, 1993, the   County   approved     Lingafelt'        s " hardship " temporary dwelling permit

for the   second mobile    home but    set   it to   expire one year          later   on    May    5, 1994.   This temporary

permit    actually lapsed     and   expired   sooner,     on          November 5,          1993, because Lingafelt never


requested or obtained the required inspections and approvals to support her original permit


application. Nor did Lingafelt ever seek to renew her temporary permit after it expired.

          Almost five years later, in July 1998, Richard Colf purchased Lingafelt' s property and
                     homes3

the two    mobile             situated on    it. Colf made improvements to the mobile homes but never


applied for or obtained a mobile home permit from the county.

          On October 3, 2011, " Clark        County     Code Enforcement" ( Code Enforcement) received an


inquiry    through its " Permit Service Center"               about the expired hardship mobile home permit

issued for Colf' s property in 1993.                 Clerk'   s       Papers ( CP)    at    100.     On October      10, Code



1
    Rachel Lingafelt    was   known   as   Rachel Cairns              when she purchased          the property   in 1987.   She
later changed her name to Rachel Butler. •

2
    Clerk' s Papers ( CP) at 6.

3
    Only the second mobile home, for which Lingafelt' s temporary permit expired, is at issue in
this appeal.




                                                                  2
No. 44818 -1 - II



Enforcement Coordinator Kevin A. Pridemore issued                       a   notice   to Colf that ( 1)   the original



temporary dwelling permit for the second mobile home on his property had expired on May 5,

1994; ( 2)     such   temporary      hardship    permits   require   renewal    every two    years;   and (   3)   if the


hardship   no    longer   existed,   the   owner must remove     the   mobile   home. Colf replied to Pridemore


that   under   CCC 14. 32A. 130( 3), the mobile home was lawful because Lingafelt had applied for


and    had been issued        a     permit   in 1993.      Further correspondence between Colf and Code


Enforcement ensued.


         On June 4, 2012, Code Enforcement issued a notice to Colf that he had violated CCC


40.260. 210( C)( 3) by failing to obtain temporary occupancy approval for the mobile home, for

which    the   previous permit ( Lingafelt' s)     had   expired on    May   5, 1994.   Code Enforcement ordered


Colf to obtain a permit, to remove the mobile home for the property, or to appeal.

                                                    II. PROCEDURE


         Colf appealed the Code Enforcement officer' s notice and order to a Clark County Code

Enforcement       hearing    examiner.
                                             At the hearing, Pridemore testified that Code Enforcement had

sent Colf three letters informing him of the mobile home permit' s 1994 expiration. Colf testified

that ( 1) he had purchased the property with two manufactured homes on it; and ( 2) he had not

obtained a permit         for the   mobile   homes.     The hearing examiner reviewed the parties' exhibits,

including: the notice and order to Colf, correspondence between Colf and Clark County Code

Enforcement, Colf s deeds, the real estate contract for the property, a description of and maps of

Colf's property, Lingafelt' s 1993 application and approved temporary permit for her second

mobile home, and printouts of relevant Clark County ordinances.




                                                             3
No. 44818 -1 - II




               The hearing examiner also considered CCC 40.260.2.10( C)( 3) and former chapter 18. 413
CCC4 (
               language     similar   to CCC 40. 260. 210),       both of which provide that a temporary dwelling

permit is valid for two years and may be renewed for two years upon written substantiation by

the applicant. The hearing examiner also considered CCC 14. 32A.130( 3) and CCC 14. 32A. 140,

which describe the types of property exempt from chapter 14. 32A (mobile /manufactured home)

requirements.




               The hearing examiner ruled that the County had sustained its burden of proving that Colf

was       in   violation    of   CCC 40. 260. 210( C)( 3).        The   hearing   examiner      noted     that ( 1)   the second



mobile home had been placed on the property as a temporary dwelling under former chapter

18. 413 CCC; (           2) the temporary permit, on its face, had expired on May 5, 1994; and ( 3) this
                                                     5
temporary          permit was      not renewed.           The   hearing   examiner    issued    a   final   order (   1)   denying

Colf' s        appeal; (   2) affirming Code Enforcement'          s order; (   3) requiring Colf to pay Clark County

    750    as    the   accrued    penalty; (   4) ordering Colf to remove the second mobile home from the

property or to apply for a boundary line adjustment to locate the second mobile home on a

separate parcel; and ( 5) in the latter situation, if a boundary line adjustment was approved, to

obtain all required inspections and approvals for the second mobile home.




4
    Repealed        by   Clark   County     Ordinance 2003- 11 - 01, § 5.


5 In response to Colf' s argument that the second mobile home was a prior nonconforming use
and, therefore, exempt from chapter 14. 32A CCC requirements, the hearing examiner ruled that
the second manufactured home was not legally on the property as of the effective date of chapter
14. 32A CCC, October                  13,    2003,   citing CCC        14. 32A. 130( 3)   and   CCC       14. 32A. 140( 4).     In
response          to   Colf s    argument      that the   second   mobile     home
                                                                         temporary dwelling"
                                                                                      was   not     a "

because it was permanently attached to the property, the hearing examiner noted that the
meaning of the term was clear from the context of CCC 40.260. 210. CP at 11.



                                                                   4
No. 44818 -1 - II




            The superior court affirmed the hearing examiner' s order, ruling that Colf had not
                                                                                                   6
sustained        his burden       of proof under      the Land Use Petition Act ( LUPA)                to show that the hearing

examiner had erroneously interpreted the law, lacked substantial evidence to support his final

order, or erroneously applied the law to the facts of the case. Colf appeals.

                                                              ANALYSIS


            Colf argues that the superior court and the hearing examiner erred in their interpretation

of    the    Clark        County     Code     and    in   finding     that he had      violated   CCC 40. 260. 210( C)( 3)        in


maintaining the second mobile home on his property without the required permit because the

second mobile              home    was      exempt   from the       code requirements under           CCC 14. 32A. 130( 3)      and



CCC 14. 32A. 140( 4). These arguments fail.


                                                      I. STANDARD OF REVIEW


            LUPA          governs    judicial      review   of   Washington land        use    decisions.      HJS Dev., Inc. v.


Pierce       County        ex rel.   Dep' t   of   Planning &       Land Servs., 148 Wn.2d 451, 467, 61 P. 3d 1141


 2003).          In   a   LUPA    appeal, an appellate court reviews             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) 7; Citizens to Pres. Pioneer Park, LLC v. City of Mercer Island, 106 Wn. App.
461, 470, 24 P. 3d 1079 ( 2001).                     We     stand "   in the   shoes   of   the superior court,"      limiting our




6 Ch. 36.70C RCW.

7
     The legislature         amended        RCW 36. 70C. 020 in 2009            and    2010.   LAWS OF 2009,         ch.   419, § 1;
LAws OF 2010,              ch.   59, § 1.    The amendments did not alter the statute in any way relevant to this
case; accordingly, we cite the current version of the statute.



                                                                       5
No. 44818 -1 - II



review   to the    record   before the   hearing   examiner.
                                                                Pavlina v. City of Vancouver, 122 Wn. App.

520, 525, 94 P. 3d 366 ( 2004); RCW 36. 70C. 120( 1).


         A party seeking relief from a hearing examiner' s land use decision must establish one of

six bases listed in RCW 36. 70C. 130( 1) 8:

         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.




Colf asserts that the hearing examiner' s decision was an erroneous interpretation of the law

under   RCW 36. 70C. 130( 1)( b).        Whether a decision is an erroneous interpretation of the law is a


question   of law,    which we review       de   novo.   Lauer v. Pierce County, 173 Wn.2d 242, 252, 267

P. 3d 988 ( 2011).


         We interpret local ordinances using the same rules of construction that apply to statutes.

Sleasman    v.    City   of Lacey, 159 Wn.2d 639, 643, 151 P. 3d 990 ( 2007).          When an ordinance is


unambiguous, we give effect          to the   plain   meaning   of an ordinance.   State v. Villarreal, 97 Wn.


App. 636, 641 =42,        984 P. 2d 1064 ( 1999),     review   denied, 140 Wn.2d 1008 ( 2000).     That two or




8
    The legislature      amended   RCW 36. 70C. 130 in 2009.           LAWS OF 2009,     ch.   419, §   2.   The
amendments did not alter the statute in any way relevant to this case; accordingly, we cite the
current version of the statute.




                                                           6
No. 44818 -1 - II



more    interpretations     are   conceivable        does   not render an       ordinance   ambiguous.   Five Corners


Family   Farmers     v.   State, 173 Wn.2d 296, 305, 268 P. 3d 892 ( 2011).                 We find no ambiguity here.

                                              II. " TEMPORARY DWELLING"


         Asserting that a " temporary dwelling" encompasses more than a manufactured or mobile

home,    Colf challenges the superior court' s and the hearing examiner' s interpretation of
                                                                           9
 temporary dwelling"           under    CCC 40. 260. 210( C)( 3).               This code provision sets forth the


following limitations for a " temporary dwelling permit ":

         A temporary dwelling permit shall be valid for two (2) years, and may be renewed
         by the issuing body for successive two ( 2) year periods upon written
         substantiation by the applicant to the continuing hardship or need justification.
         Upon the expiration of the two ( 2) year period, or at the end of each successive
         two ( 2)   year period( s),   if granted, the applicant shall notify the responsible official
         in writing that the temporary dwelling has been removed and, further, said notice
         shall include a request for an inspection to determine that the temporary dwelling
         has, in fact, been removed in compliance with the permit.


CCC 40. 260. 210( C)( 3).


         Colf incorrectly         asserts     that    the   Clark      County    Code   does   not   define " temporary


dwelling."    Br.    of Appellant at
                        .                8.    CCC 40.260.210(B)( 1)( c) defines a " temporary dwelling" as

 a temporary structure such as a mobile home designed, constructed and maintained in a manner

which will facilitate its removal at such time as the justifying hardship or need no longer exists."

The record shows that ( 1) the mobile home in question on Colf's property had been a temporary

home for Lingafelt' s father, for which the County had granted a temporary dwelling permit on

hardship   grounds; (     2) by its own terms this temporary permit automatically expired in one year if

Lingafelt did       not   apply for    another       permit; (   3)   Lingafelt' s temporary permit actually expired


9 Br. of Appellant at 8.



                                                                  7
No. 44818 -1 - II



before this   one -year   date   when she       failed to   submit     the   required     inspections; ( 4) neither Lingafelt


nor Colf notified the County that the temporary hardship condition had ceased or continued; and

 5) neither had applied for a permit to retain the mobile home on the property.

        Colf fails to show that the hearing examiner and superior court erroneously interpreted

the term " temporary dwelling" under CCC 40.260.210( C)( 3) or misapplied that code provision to

the second mobile home on his property, for which he had no permit. Thus, his challenge fails.

           III. PREEXISTING MOBILE HOME NOT EXEMPT UNDER CHAPTER 14. 32A CCC


         Colf next   argues      that   under   CCC 14. 32A. 130( 3)            and ( 4),   and under CCC 14. 32A. 140( 4),


the   second mobile       home    on    his property did      not violate             any Clark   County   ordinances.   More


specifically, he contends that the mobile home was exempt from needing a new temporary

dwelling   permit under      CCC 14. 32A. 130( 3)           and       CCC 14. 32A. 140( 4) because ( 1)        Lingafelt had


previously    obtained a permit         for the    second mobile         home; (       2) by virtue of this permit, she had

 legally" placed the mobile home on the property in 1993; and ( 3) therefore, the mobile home
                                                                                10]
had been "`     legally   installed,     placed,    or   existing      prior[          to "' the 2003   effective date of the


applicable    ordinances,     within      the meaning        of   CCC 14. 32A. 140( 4).             Br. of Appellant at 11


 quoting CCC 14. 32A. 140( 4)).




10 Colf further asserts that the word " prior" in CCC 14. 32A. 140( 4) means that a manufactured
home is exempt if at any time before the 2003 effective date of chapter 14. 32A CCC, the mobile
home is deemed legally installed, legally placed, or legally existing. Br. of Appellant at 13. Colf
is incorrect.




                                                                  8
No. 44818 -1 - II




              We do not consider Colf' s contention that chapter 14. 32A CCC exempts him from having
                                                          homer     l
to   obtain a permit       for the   second mobile                      because the County charged him with violating a

different       code,    CCC 40. 260.210( C)( 3) (         temporary dwelling permit for second mobile home).

And under its plain language, CCC 14. 32A. 130( 4) exemptions apply only to " the requirements
                                                  12
set   forth in [ chapter 14. 32A CCC]. "                Thus, chapter 14. 32A CCC exemptions do not shield Colf

                                                            13
from his CCC 40. 260. 210( C)( 3)              violation.




11
     We recognize that both the hearing examiner and the superior court addressed the merits of
Colf' s chapter 14. 32A CCC exemption argument.      We, however, do not find it necessary to
reach this issue.

12
     CCC 14. 32A. 130( 3) provides:
              All manufactured homes installed in Clark County before the effective date of
              ordinance codified in this chapter which do not comply with the requirements set
              forth in this chapter are deemed to be nonconforming.
 Emphasis         added).        Addressing      placement          of      a. single    mobile   home    on   a   property, CCC
14. 32A. 140( 4)        provides a    limited    exemption        for "[ m] anufactured        homes legally installed, placed,
or    existing    prior   to the   effective   date    of this chapter, as           described in Section 14. 32A. 130( 3)";    but
this    exemption         is   limited to      exemption          from " the         requirements    of this   chapter."       CCC
14. 32A. 140 (         emphasis added).        By this plain language, this chapter 14. 32A CCC exemption does
not     apply to        violations     charged     under         other      chapters,     such as    Colf' s violation of CCC
40. 260. 210( C)( 3).

13
      We       note,    however, that     even        if Colf      could       claim     the   CCC   14. 32A. 130( 3)   and CCC
14. 32A. 140( 4)         exemptions,     his    arguments        would       fail.     Under CCC 14. 32A. 140( 4) Colf must
show      that the       manufactured       home.      legally installed, placed, or existing prior to" that
                                                       was "

provision' s       2003    effective   date. As we have already explained, Lingafelt' s temporary dwelling
permit        for the   second mobile     home on the property expired on November 5, 1993. Accordingly,
absent an application for renewal of this permit, the second mobile home' s placement on Colf' s
property        was no     longer " legal"      after the permit' s 1993 expiration, well before chapter 14. 32A
CCC'      s   2003     enactment.    Thus, the second mobile home did " not comply with the requirements
set    forth in [ this     chapter    14. 32A CCC]," and the second mobile home was not eligible for the
exemptions           under     CCC 14. 32A. 140( 4),        which       m] anufactured homes legally .
                                                                            apply only to "[
installed, placed, or existing prior to the effective date of this chapter."


                                                                        9
No. 44818 -1 - II




        We affirm both the hearing examiner' s ruling and order and the superior court' s

affirmance of the hearing examiner.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




We concur:




                                              10
