The opinion
FILED
OCTOBER 17, 2023
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
ICICLE/BUNK, LLC, a Washington )
limited liability company, ) No. 39273-2-III
)
Petitioner, )
)
v. )
) PUBLISHED OPINION
CHELAN COUNTY, a Washington )
municipal corporation, )
)
Respondent. )
STAAB, J. — Icicle/Bunk, LLC owns a parcel of property in Chelan County
containing a primary residence and an accessory dwelling unit. Since 2006, Icicle has
rented both buildings as short-term rentals (STRs). In 2007, the Chelan County Code
was modified to require landowners with an accessory dwelling unit to live in one of the
two residential buildings as a primary residence. In 2021, the Chelan County Code was
No. 39273-2-III
Icicle/Bunk, LLC v Chelan County
modified to regulate short-term rentals and now prohibits more than one short-term rental
per parcel.
After the 2021 code modification, Icicle submitted a permit application to continue
operating two short-term rentals as a nonconforming use. The county denied the permit
application and the hearing examiner affirmed the denial. Icicle appeals, arguing that its
use of the property as two short-term rentals clearly qualifies as an existing
nonconforming use under the Chelan County Code. Alternatively, Icicle argues that its
specific use of two short-term rentals is protected under a vested rights provision in the
Chelan County Code.
The county maintains that Icicle’s proposal fails to meet the definition of a legal
nonconforming use because the proposal seeks to operate more than one short-term rental
per parcel and fails to comply with the requirement that the property owner use one of the
residential buildings as a primary residence. In addition, the county maintains that the
only protection provided by the code and common law is the protection against
immediate termination, not protection against regulation. Requiring Icicle to reduce the
number of buildings used for short-term rentals is a valid regulation and does not
constitute a termination of use.
We agree with the county and affirm the hearing examiner’s denial of Icicle’s
permit application.
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BACKGROUND
Icicle/Bunk, LLC, owned by Robert and Brenda Wilbur, purchased a piece of
property in Leavenworth containing two dwellings, one larger main unit and a smaller
accessory dwelling unit. Both units on the property have been rented out as short-term
rentals since at least 2006.
Sometime after Icicle began operating the STRs on the property, no earlier than
2007, the county passed an ordinance stating that where a property contains an accessory
dwelling unit, the property owner “shall occupy either the primary unit or the accessory
unit as their permanent residence.” Chelan County Code (CCC) 11.88.200(5); Clerk’s
Papers (CP) at 46.
In September 2021, Chelan County adopted ordinances to regulate STRs, codified
in Chelan County Code 11.88.290 (STR Code). CCC 11.88.290(2)(C)(iv)(a). The
purpose of the STR Code was to protect the year-round residents’ ability to enjoy their
neighborhoods and to ensure continued access to affordable housing. CCC
11.88.290(1)(C), (D)(ii). The STR Code contained provisions allowing qualifying
nonconforming properties operated as STRs to continue operating, provided they meet
certain requirements. CCC 11.88.290(2)(E). Under CCC 11.88.290(2)(E)(i)(c), these
requirements include compliance with CCC 11.88.290(3), which in turn prohibits more
than one STR per parcel. CCC 11.88.290(3)(A)(ii).
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Following the enactment of the STR Code, Icicle applied for a permit to continue
renting out the two residential buildings as existing nonconforming STRs. Icicle’s
application for a permit was denied, and Icicle appealed the denial to the Chelan County
Hearing Examiner. The hearing examiner affirmed the denial, finding that while the
property may have qualified as a nonconforming use prior to the adoption of the STR
Code, the provisions of CCC 11.88.290 controlled Icicle’s request. The STR Code does
not allow two STRs on a single parcel. Further, the hearing examiner determined that
Icicle must comply with the requirements of CCC 11.88.200(5).
Icicle appeals.
ANALYSIS
1. STANDARD OF REVIEW
In Washington, the Land Use Petition Act, ch. 36.70C RCW governs “judicial
review of land use decisions made by local jurisdictions.” RCW 36.70C.010. On appeal,
we stand in the same position as the superior court and limit our review to the record
before the hearing examiner. Pinecrest Homeowners Ass’n v. Cloninger & Associates,
151 Wn.2d 279, 288, 87 P.3d 1176 (2004). The party seeking relief bears the burden of
demonstrating that at least one of the six grounds for relief is met. Relevant to this case,
a decision will be overturned where
(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;
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(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.
RCW 36.70C.130(1); see also Pinecrest Homeowners Ass’n, 151 Wn.2d at 288.
The standard in subsection (b) is a question of law reviewed de novo. Cingular
Wireless, LLC v. Thurston County, 131 Wn. App. 756, 768, 129 P.3d 300 (2006).
Subsection (c) requires a factual determination that we review for substantial
evidence. Id. Substantial evidence is evidence sufficient to persuade a fair-minded,
rational person of the truth of an asserted fact. Id. “Our deferential review requires us to
consider all of the evidence and reasonable inferences in the light most favorable to the
party who prevailed in the highest forum that exercised fact-finding authority.” Id.
Finally, a “clearly erroneous” determination under (d) requires the application of
the law to the facts. Id. It requires this court to determine whether it is “left with a
definite and firm conviction that a mistake has been committed” while deferring to the
hearing examiner’s factual determinations. Id.
In addition to the standards set forth above, Icicle’s challenge on appeal requires
us to interpret the Chelan County Code. Statutory interpretation is a question of law
reviewed de novo. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43
P.3d 4 (2002). “The court’s fundamental objective is to ascertain and carry out the
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Legislature’s intent, and if the statute’s meaning is plain on its face, then the court must
give effect to that plain meaning as an expression of legislative intent.” Id. at 9-10. We
may look at the statute in question along with related statutes to discern the plain
meaning of a statute. Id. at 10, 12.
We avoid interpretations that would lead to an absurd result or render parts of the
statute superfluous. State v. Votava, 149 Wn.2d 178, 186-87, 66 P.3d 1050 (2003).
Additionally, “[i]t is an axiom of statutory interpretation that where a term is defined we
will use that definition.” United States v. Hoffman, 154 Wn.2d 730, 741, 116 P.3d 999
(2005). “‘When two statutes appear to conflict, every effort should be made to
harmonize their respective provisions.’” Leson v. State, 72 Wn. App. 558, 563, 864 P.2d
384 (1993) (internal quotation marks omitted) (quoting State v. Lessley, 118 Wn.2d 773,
781, 827 P.2d 996 (1992)).
2. DENIAL OF PERMIT
Icicle argues that the hearing examiner erred in denying its permit because, under
Chelan County’s Short-Term Rental Code, its use of the property for two short-term
rentals clearly qualifies as a legal nonconforming use that is allowed to continue even
after the 2021 modifications to the Chelan County Code. We disagree. While Icicle’s
use of the two residential buildings is nonconforming, its application to continue
operating two short-term rentals on one parcel of land does not qualify as legally
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nonconforming and otherwise fails to comply with regulations that require the owner of
the property to use one of two residential buildings as a primary residence.
We start our analysis of Icicle’s issues by recognizing that nonconforming use is a
principle that finds its roots in common law. City of Univ. Place v. McGuire, 144 Wn.2d
640, 649, 30 P.3d 453 (2001). “‘A nonconforming use is a use which lawfully existed
prior to the enactment of a zoning ordinance, and which is maintained after the effective
date of the ordinance, although it does not comply with the zoning restrictions applicable
to the district in which it is situated.’” Id. at 648 (quoting Rhod-A-Zalea & 35th, Inc. v.
Snohomish County, 136 Wn.2d 1, 6, 959 P.2d 1024 (1998)). A nonconforming use is a
“vested” property right that has protections. Van Sant v. City of Everett, 69 Wn. App.
641, 649, 849 P.2d 1276 (1993). However, a vested right “only refers to the right not to
have the use immediately terminated in the face of a zoning ordinance which prohibits the
use.” Rhod-A-Zalea, 136 Wn.2d at 6 (alteration in original).
The Chelan County Code, consistent with common law, generally defines
“nonconforming” as “a lot, use, building or structure which was lawful prior to the
adoption, revision or amendment of a zoning ordinance, but which fails by reason of such
adoption, revision or amendment to conform to the current requirements of the zoning
district.” CCC 14.98.1300.
With respect to short-term rentals, the Chelan County Code allows a
nonconforming use to continue as legally nonconforming, but only if additional
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conditions are met. The code indicates that a “short-term rental use shall be considered
lawfully established and existing and allowed to continue to operate as a legally
nonconforming use” if the owner demonstrates that they meet seven listed requirements.
CCC 11.88.290(2)(E)(i). One of the requirements is that the short-term rental “meets all
requirements of subsection (3) of this section.” CCC 11.88.290(2)(E)(i)(c). Among
various other standards, subsection three states that only one short-term rental is
permitted per parcel. CCC 11.88.290(3)(A)(ii).
Another requirement to be considered legally nonconforming is that any existing
county code violations must be resolved by December 31, 2022. CCC
11.88.290(2)(E)(i)(g). This includes any violations under Chapter 11 of the Chelan
County Code, which, along with the requirement that only one short-term rental exists
per property, also states that where a property contains an accessory dwelling unit, the
property owner “shall occupy either the primary unit or the accessory unit as their
permanent residence.” CCC 11.88.290(4)(A)(ii), .200(5).
Under the plain language of Chelan County’s short-term rental code, Icicle’s
proposed permit application did not meet the requirements for a legally nonconforming
use. While Icicles’ use may have been nonconforming, it does not meet the requirements
for “legal nonconforming” use. Not only did Icicle propose to operate two short-term
rentals on one parcel of property, but Icicle’s proposal did not meet the requirements for
permanent residency.
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Icicle argues that despite these additional requirements, its nonconforming use was
protected by a vested rights clause in chapter 11.97 CCC. This chapter provides that after
the adoption of Title 11, nonconforming uses of property or structures may be continued
but not enlarged. CCC 11.97.010, .025. A nonconforming use can also be terminated by
discontinuing the use for 12 consecutive months or if the use is marijuana production or
processing related. CCC 11.97.030. Icicle contends that this clause protects “perpetual
nonconforming uses unless such uses are either abandoned or marijuana related.”
Appellant’s Brf. at 18.
Icicle contends that the “use” protected by this chapter was Icicle’s specific
practice of renting two short-term rentals on one parcel. This argument requires us to
interpret the word “use.” “‘Use’ means the purpose or activity for which land or
buildings are designed, arranged, or intended or for which land or buildings are occupied
or maintained.” CCC 14.98.1905. Icicle argues that this definition of “use” should be
interpreted as the specific use intended by the property owner, and since its
“nonconforming” use included two short-term rentals, this “use” is protected by the
vested rights provisions in chapter 11.97 CCC. Icicle continues that if the county can
reduce the number of buildings it uses for short-term rentals, then the county is
improperly terminating one of its two short-term rentals. In support of this position,
Icicle points to the Supreme Court’s decision in Wilkinson v. Chiwawa Communities
Ass’n., 180 Wn.2d 241, 327 P.3d 614 (2014), in their reply brief.
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In Wilkinson, the court held that a property used as a short-term rental did not
violate a covenant barring commercial use of the property because the drafters of the
covenants intended to permit rentals regardless of the length of the rental term, and use of
a vacation home as a short-term rental did not change the nature of the use from
residential to commercial. Id. at 252. In reaching this decision, the court noted that
collective covenants are interpreted favorably, in a manner that protects the homeowners’
collective interests. Id. at 250.
Contrary to Icicle’s characterization of this decision, Wilkinson did not hold that
short-term rentals can never be distinguished or regulated differently than a primary
residence. Notably, our goal in construing an ordinance protecting a nonconforming use
differs from our goal in construing a collective covenant. Unlike collective covenants,
nonconforming uses are disfavored and are intended to preserve only the right not to have
the use immediately terminated. Rhod-A-Zalea, 136 Wn.2d at 7-8. The limited
protection provided by a nonconforming use is still subject to “‘ordinances regulating the
manner or operation of use.’” Id. at 9 (quoting Arden H. Rathkopf, The Law of Zoning
and Planning § 51A.02). As the county points out, if we were to read the term
nonconforming use to include the specific use of the property intended by the owner it
would effectively eliminate the county’s ability to regulate the nonconforming use.
Considering these distinctions, we read “nonconforming use” to mean use as a
short-term rental generally as opposed to the specific manner of use. Applying this
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definition to the facts in this case, we hold that CCC 11.97.010, which allows a
nonconforming use to continue, means that Icicle could continue its nonconforming use
of the property as a short-term rental subject to regulation on the manner or operation of
use. The county ordinance allowing only one short-term rental per parcel is a regulation
of the manner of use. The ordinance does not terminate Icicle’s nonconforming use of
the property.
Finally, in its reply brief Icicle raises constitutional issues including separation of
powers, preemption, and the void for vagueness doctrine. We presume an ordinance or
statute is constitutionally valid, and a party challenging constitutionality has the heavy
burden of showing that it violates the constitution beyond a reasonable doubt. Ringhofer
v. Ridge, 172 Wn. App. 318, 327, 290 P.3d 163 (2012). Moreover, a party must
generally raise an issue below for it to be considered on appeal. RAP 2.5(a). Although
there is an exception where a party can demonstrate a manifest constitutional error, Icicle
does not argue that such an exception applies here. Id. Further, a party must state each
of their issues in their assignments of error and argue them in their opening brief for them
to be considered. See RAP 10.3(g); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d
801, 809, 828 P.2d 549 (1992) (“An issue raised and argued for the first time in a reply
brief is too late to warrant consideration.”). Icicle has neither raised the issues in its
assignments of error nor argued them in its opening brief. Accordingly, we decline to
address the constitutional arguments.
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For the foregoing reasons, we determine that the hearing examiner did not err in
affirming the county’s denial of Icicle’s STR permit.
Affirmed.
_________________________________
Staab, J.
WE CONCUR:
_________________________________
Fearing, C.J.
_________________________________
Cooney, J.
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