Kaimanu v. Washington County

When a development code sets out differing requirements such as setback and parking based on usage to which the structure is put, the nonconforming status of the structure does not foreclose violations of those requirements based on use.

The property that is the subject of this appeal, part of which was built prior to zoning, is located in an area zoned Neighborhood Commercial (NC). The existing structure intrudes on 20-foot minimum setback requirements on three of four of its sides. Without first obtaining a special use permit, the structure was put into use as a preschool. The county later issued the permit, assuming that the structure was nonconforming, and Kaimanu appealed to LUBA. The Board first clarified that it was not the use that was nonconforming, but the structure, noting that the prior and proposed uses were permissible in the NC zone. Kaimanu first argued that the permit was issued in error due to violation of a 30-foot setback requirement for schools. LUBA held that since the special setback requirement was based on use, altering the use would cause a setback violation notwithstanding the nonconforming structure status. Additionally, the Board held that the lack of adequate parking should have barred approval, applying the same use/structure reasoning. Kaimanu next argued that the hearings officer improperly applied the standard of “no greater adverse impact to the neighborhood.” LUBA agreed, holding that the comparison was to be of this property’s proposed use to its prior use, not other potential uses in the NC zone. The Board further agreed with Kaimanu that the county’s assumption of nonconformity together with approval of the permit without proper notice violated procedure. They next found that the buffering and screening requirements were not met in the county’s decision and asked for sufficient explanation on remand as to why the hearings officer approved a different level of screening and structure than that set forth in the code. REMANDED.