HARBOR PUBLIC HOUSE2
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3 c��
CORR LOG
Mayor
City Administrator
City Council
-ra Director /Staff W*
Vault
BEFORE THE CITY OF BAINBRIDGE ISLAND \
HEARING EXAMINER
PARFITT WAY MANAGEMENT )
CORPORATION, )
Appellant, )
V. )
CITY OF BAINBRIDGE ISLAND, acting )
through its Director of the Department of )
Community Development, )
Respondents. )
No. ADM 12755
APPEAL OF ADMINISTRATIVE
DECISION
Appellant Parfitt Way Management Corporation, pursuant to City of Bainbridge
Island Municipal Code § 2.16.130, hereby appeals to the Bainbridge Island Office of
Hearing Examiner that certain Administrative Decision dated June 1, 2006 (the
"Decision"), issued by Mr. Larry Frazier, Director of the City of Bainbridge Island
Department of Planning and Community Development, File No. ADM 12755. The
Decision denies in part Appellant's request for a Code Interpretation required to facilitate
existing and future development and use of its property.
I. NAME AND IDENTITY OF APPELLANT
1.1 Parfitt Way Management Corporation ("Parfitt") is the applicant for a
shoreline substantial development permit and site plan approval to construct an addition to
the existing Harbour Public House Restaurant ("the Addition") located at 231 Parfitt Way,
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Bainbridge Island, Washington 98110. Parfitt is also considering other possible
development and future use of its property located within the City of Bainbridge Island.
1.2 Appellant's legal representative in this matter is Davis Wright Tremaine
LLP, Dennis D. Reynolds, 1501 Fourth Avenue, Suite 2600, Seattle, Washington 98101;
telephone: (206) 903-3967; fax: (206) 628-7699.
1.3 Appellant is an aggrieved party with standing to seek review to contest the
Decision specified below. Parfitt is prejudiced or likely to be prejudiced by the actions
specified below if no relief is granted. A ruling in favor of Parfitt will substantially
eliminate or redress the prejudice that the Decision has caused, or likely will cause, for
which review and relief is requested.
II. DECISION APPEALED
2.1 Parfitt appeals an Administrative Decision, dated June 1, 2006, by the
Director of the Bainbridge Island Department of Planning and Community Development
("Director"), denying in part its request for a Zoning Code Interpretation. A true and
correct copy of the Decision for which review is sought is annexed hereto to this appeal as
Ex. A, by reference made part hereof. A true and correct copy of Appellant's Code
Interpretation Request dated March 3, 2006, is annexed to this appeal as Ex. B, by
reference made a part thereof.
2.2 One part of Parfitt's Code Interpretation Request addresses the development
of on -street parking on Parfitt Way to service existing and future uses of its property. The
Decision appears to deny Parfitt the ability to construct any on -street parking off-site to
serve its existing or future commercial uses in the following statement:
On -Street Parking
Footnote 7. of the development standards for the Mixed Use
Town Center, contained in BIMC 18.40.030, states that:
On -street parking legally created in conjunction with and
adjacent to a project may be included in the parking space
calculation.
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Parfitt Way proposes to create 20 angled parking spaces in
the South side of Parfitt Way S.W., from Wood Avenue
S.W. to the East boundary of the Junkoh and Christina Harui
property. As stated previously, none of the Parfitt property
abuts Parfitt Way S.W.
Here, the Eastern portion of the Parfitt property is separated
from Parfitt Way S.W. by a parcel owned by the Harbourside
Condominium Owners Association. The Western portion of
the Parfitt property is separated from Parfitt Way S.W. by
not only the Association property, but also a parcel owned by
Junkoh and Christina Harui. The Association and Harui
parcels also are located in the Mixed Use Town Center zone.
The Association property has recently been developed with
condominium buildings, and is fully developed. The Harui
property contains a single-family residence and is likely to
be re -developed. If Parfitt Way is allowed to create parking
spaces on the South side of Parfitt Way S.W. along the entire
length of the Harui property, and to claim those spaces in its
parking space calculation for the PUB addition, then neither
the Harui's nor the Association will be able to create parking
spaces on the South side of Parfitt Way S.W. to satisfy
parking space requirements. When adopting footnote 7, the
City Council probably intended only to address the situation
where parcels using a street right of way physically touch
that right of way. In such a situation, each parcel could
"claim" parking spaces in the portion of the right of way
directly next to the parcel. The City Council probably did
not consider the situation where additional parcels access the
right of way through the parcel that abuts or touches the right
of way, and all of the parcels might claim parking spaces in
the right of way.
Where multiple parcels access a right of way through the
parcel touching the right of way, a logical and reasonable
interpretation of City Council intent, to avoid absurd and
strained consequences, is to allow pro rata use of the right of
way for on -street parking legally created in connection with
a project. This interpretation is consistent with the principle
that a parcel abutting a right of way can claim parking spaces
in the portion of the right of way directly next to the parcel.
In other words, a parcel that accesses a right of way through
another parcel, can only create parking spaces in the right of
way frontage abutting the parcel through which access is
gained.
Here, Parfitt Way does not propose to create parking spaces
in the portion of the South side of Parfitt Way S.W. that
abuts the Association property. Parfitt Way proposes to
create all parking spaces in the portion of the South Side of
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Parfitt Way S.W. that abuts the Harui property. Therefore,
Parfitt Way cannot create parking spaces as proposed. In
light of this analysis and conclusion, it is unnecessary to
determine the percentage of the South Side of Parfitt Way
S.W. that the Association and Parfitt Way could claim for
parking spaces in the portion of Parfitt Way S.W. that abuts
the Association property.
Decision, Ex. A, hereto.
III. RELEVANT FACTS
3.1 The subject property is located within the City of Bainbridge Island ("the
City"). It is approximately 34,151 square feet, including tidelands. The property is located
on the shore of Eagle Harbor at 231 Parfitt Way, a city street. The tax parcel number is
272502-4-136-2003. The zoning is Mixed Use Town Center—CORE ("MUTC"). The
Shoreline environmental designation is Urban.
3.2 The property slopes gently to the south. There is an existing rock bulkhead
on Eagle Harbor, running the length of the property. The bulkhead is approximately
12 feet in height. A pedestrian boardwalk and public trail ("the Boardwalk") runs between
the existing buildings on the site and the bulkhead.
3.3 The subject property is surrounded by a multi -family condominium
development on the adjacent north and west parcels. There is a single family residence to
the north across Parfitt Way operated as a commercial bed and breakfast. On the east,
there is commercial/office space, and to the south, there is the existing marina owned and
managed by Parfitt and the waters of Eagle Harbor.
3.4 The site contains the existing Harbour Public House Restaurant (the "Pub")
and the Harbour Marina ("the Marina"), both owned and managed by the Parfitt Way
Management Corporation. The marina and restaurant uses are permitted in the urban
shoreline designation under the City's Shoreline Master Program ("SMP"). A separate
small office building is on the site and two developed paved parking lots. Both parking
lots are shared with the adjacent property, which contains 30 condominiums. The shared
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parking lot services the Pub, the Marina, and the condominiums. The condo owners have
dedicated 73 parking stalls, a number which exceeds applicable requirements. A large
shared private garden is located between the condominiums and the Pub and Marina.
3.5 Vehicular access to the Pub and Marina is located off of Parfitt Way,
directly into the shared parking lot. Both cars and delivery vehicles use this access. A
public easement exists along a sidewalk that runs along the west side of the parking lot.
This easement provides physical and visual access from Parfitt Way to the shoreline, as
does the Boardwalk.
3.6 There are two parking lots which serve the Pub and Marina, one off of
Wood Avenue and the other off of Parfitt Way. Parfitt and Wood Avenue are city streets.
Parfitt encourages its patrons to use multiple forms of transportation. The Pub's customers
come by foot, bicycle, public transportation, boat, and car. The peak times for the Pub and
Marina uses rarely, if ever, coincide.
3.7 Parfitt's existing Marina is a water dependent use, and its restaurant use is a
water oriented use, both of which are preferred uses under the SMP. The Marina and the
Pub provide joint use activities. The SMP's economic development policies encourage
joint use activities in the proposed shoreline developments. The SMP also encourages
"new economic development to locate in areas already developed with similar uses which
are consistent with the master program." SMP, p. 11, Economic Development Element.
3.8 The SMP has specific policies and use regulations for parking in shoreline
areas. These are: parking as a primary use is prohibited in shoreline designations.
Parking is allowed only as an accessory to a permitted shoreline use. Where parking is
allowed, it should serve more than one use. Parking is allowed in public view corridors,
according to the SMP. SMP, p. 37, General Policies and Regulations, Sub. f, Parking.
3.9 The Bainbridge Island Comprehensive Land Use Plan goals and policies
address development and use of the Winslow downtown urban core, called the Central
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Core Overlay District, where Parfitt's property is located. Goal number 1 of the
Comprehensive Plan is to "retain and enhance a diversified local economy." Policy E.1.12
states that downtown Winslow is to be a "pedestrian oriented town center" that provides "a
mix of commercial and residential uses ...." The Plan further specifies that the Central
Core Overlay District is the most intense area of the City and that design standards should
"recognize the more urban character in this area," so that highly intensive urban
development is encouraged.
3.10 The Comprehensive Plan "encourages the identification of small, public,
non -commuter parking lots ... and increased on -street shared parking." Plan, p. 58.
3.11 The City of Bainbridge Island is actively looking at providing additional
parking in the Central Core Overlay District. In this regard, the Comprehensive Plan,
states:
A series of 3-4 smaller surface lots (20 — 30 cars) also would
be sited around the core within 200 feet of Winslow Way
and lower Madison (south of Wyatt), or one or two small lots
and structured parking of approximately 190 spaces would
be developed in conjunction with the new City Hall. These
lots would be acquired, developed and operated by a City of
Bainbridge Island Parking Authority or another agency or
entity designated by the City. Suggested "target" locations
are shown on Figure 22. The increased parking supply may
require a more focused parking enforcement effort to assure
that these spaces are not utilized for ferry terminal parking.
On -street parking would continue to be allowed on Winslow
Way and would be added to a portion of High School Road.
Comprehensive Plan, p. 68.
3.12 The Comprehensive Plan, p. 68, specifically provides that parking standards
in the Central Core Overlay District can be met by providing funds "for off-street parking."
3.13 The City of Bainbridge Island currently has under way a long range
planning process called "Winslow Tomorrow." The Winslow Tomorrow planning effort is
a collaborative process to look at strategies to increase urban infilling within Bainbridge
Island's Winslow urban core. Parfitt's property is located within the Winslow Tomorrow
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planning study area. The Winslow Tomorrow planners have come up with a number of
recommendations for amendments to the City's parking regulations in order to implement
the desired urban in -filling goals and objectives. These amendments are aimed at retaining
the viability of the Winslow commercial core. One of the recommended strategies is to
increase on -street parking to service commercial uses located within the Winslow urban
core. This on -street parking would be located off site from the local commercial
establishments.
3.14 By memo dated May 25, 2006, to the Bainbridge Island Planning
Commission, Mr. Bob Katai, Division Manager for the Winslow Tomorrow Team, has
recommended reducing the number of parking spaces for various permitted uses, including
restaurants, and to allow for and promote development of new on -street parking. In this
regard, the City is recommending that in order to satisfy parking requirements for
commercial uses, owners should be allowed to create new on -street parking within 1,000
feet of their commercial establishments. This recommendation would not require that the
benefiting commercial use be immediately adjacent to the public street, that is, physically
touching City right-of-way, only that the newly created on -street parking be located within
1,000 feet of the commercial use.
3.15 On July 1, 2004, Parfitt applied for a shoreline substantial development
permit and site plan approval for expansion of the Harbour Public House Restaurant,
Application No. SSDP/SPR 12755. Prior to fling its application, the City approved a
pre -application conference waiver dated February 17, 2004. Parfitt requested the waiver
based upon recommendations of Staff Planners. The waiver as executed by Director of
Planning and Community, Mr. Larry Frazier, states that the project as proposed is "a small
project and well within zoning requirements."
3.16 Parfitt's application provided six new parking spaces to service the
proposed addition to the Pub, although its consultants determined under applicable codes
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that only five spaces were required. In this regard, its consultants determined that the Pub
with the Addition required 28 parking spaces, and that 23 spaces were currently assigned
for restaurant.
3.17 Upon receipt of Parfitt's application, City Staff reviewed code parking
requirements. After extensive analysis, on September 3, 2004, the City concluded that
only four additional spaces were required for the Pub Addition, taking into account all of
the circumstances:
In reviewing the parking requirements for the proposed
expansion, the Department has found the following:
• The existing parking requirements are based on the
requirements of the Planned Unit Development
(PUD) approved by Ordinance 91-35.
• The PUD required the following parking spaces for
each use:
Condominiums 60
Yacht Services/Office 4
Harbour Pub 19
Marina 30
Total 113
• A memo to the file, dated October 1, 1997, indicates
the occupancy for the Pub to be 90 seats, thereby
requiring 23 parking stalls for the pub use.
• This brings the total required spaces to 117.
• A physical site visit on August 27, 2004 resulted in a
count of 119 existing parking spaces serving the uses
in the PUD. Sixty of these spaces are reported to
exist inside or underneath the condominium units, as
indicated by the Condominium Association president,
Richard Daniels. The remaining 59 spaces are
exterior parking spaces shared between the Yacht
Services/Office, the Marina, the Pub, and the
condominiums.
As you indicated in your August 23, 2004 letter, the
proposed expansion to the pub will result in 6,846 square
feet of space. Current code, under BIMC 18.40.030 requires
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four parking spaces per 1000 square feet of building.
Twenty-seven total parking spaces would therefore be
required to accommodate the proposed expansion.
Twenty-three parking spaces out of the existing 119 spaces
are currently allocated for use by the Pub. Therefore, four
additional spaces are required. Since there appear to be two
spaces in excess of the 117 required for the PUD, two
additional spaces for the proposed Pub expansion would be
required to meet the requirements of BIMC 18.40.030, as
long as this determination does not conflict with any existing
agreements regarding allocation of the shared parking
spaces.
Letter, Mr. Frazier to Mr. Chester, Parfitt Project Architect, dated September 3, 2004.
3.18 On November 23, 2004, a letter noticing a public meeting on Parfitt's
application to be held before the Planning Commission on December 9, 2004, was mailed
to all parties of record.
3.19 The December 9, 2004, Planning Commission meeting occurred as
scheduled. The Commission, after hearing public comment, held the record open until
December 21, 2004, and continued the matter for consideration of issuance of an advisory
opinion at its regularly scheduled meeting on January 13, 2005.
3.20 In the Staff Report submitted to the Planning Commission, Staff changed its
position as to parking and raised the required number of new parking spaces from 4 to 17
stalls. Also, the first time, Staff applied a new parking standard of one space per four
patrons. The December 1, 2004 Staff Report further stated as to parking:
The parking requirement for Central Core of the Mixed Use
Town Center is a minimum of four spaces per 1,000 square
feet of building. Footnote #8 places a cap of four spaces per
1,000 square feet of building for restaurants in the MUTC,
using the procedures in 18.81.030(M). Using the maximum
of 4 spaces per 1,000 square feet of building, only two
additional spaces would be required for the project.
There is evidence in the file that the current parking situation
is inadequate. The addition of seating for 80 patrons with
only two additional parking spaces will not be sufficient.
Therefore, SEPA (sic) Condition #12 requires parking to be
calculated as one space per four occupants. This results in a
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requirement for 17 additional parking spaces, based on the
plans submitted on July 1, 2004. The building occupancy
shall be determined by the building official at the time of
building permit issuance. At that time, the required parking
spaces shall be calculated based on one space per four
occupants. The additional parking may be provided on or
off-site.
Staff Report, p. 11.
3.21 The December 1, 2004 Staff Report did not assess whether provision of
additional off street parking was feasible per BIMC § 16.08.130.
3.22 On December 27, 2004, Ms. Marja Preston, City Planner, solicited
additional information from Parfitt "to clarify the actual parking need for the proposed
project." The City's December 27, 2004 letter, for the first time, explicitly stated Addition
Project qualified as a "special case," under the Zoning Code, citing BIMC § 18.81.030(0),
taking by now the third Staff position as to required parking for the project. According to
the City, Parfitt was required to provide information "so that the Director can establish
parking requirements." The December 27, 2004 letter further stated:
Accordingly, the Department is requesting you provide one
of the following to assist us in reviewing your application.
(1) Documentation regarding actual parking demand for the
proposed use; (2) technical studies relating the parking need
for the proposed use; (3) require parking for the proposed
use as determined by other comparable jurisdictions.
Staff Letter, December 27, 2004.
3.23 On January 5, 2005, Parfitt replied to the City's letter, objecting to its
application (1) being characterized as falling into a "special case" category, and (2) use of
the "one space per four occupants" standard. Parfitt pointed out that parking requirements
for restaurants are explicitly delineated in Bainbridge Island Municipal Code. Parfitt's
letter further stated, in part:
BIMC 18.81.030.F. For retail, commercial and personal
services in a building with 1,000 square feet of floor area or
more, four spaces per 1,000 square feet shall be provided,
except as modified by BIMC 18.40.030.
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BIMC 18.81.030 Parking Requirements Chart.
Maximum Spaces per 1,000 sq. ft. Note 8. Up to a
maximum of four spaces per 1,000 square feet for restaurant
use, using procedures set out in BIMC 18.81.030.M.
BIMC 18.81.030.M. For other educational, governmental,
health care and recreation facilities not covered in
subsections K and L of this section, the number of spaces
must be adequate to accommodate the peak shift as
determined by the director.
As each of these citations are pertinent to setting numbers for
facilities of differing square footage and occupancy BIMC
18.40.030 Note 8. specifically and unequivocally places a
maximum on all restaurants of four spaces per 1,000 sq.
ft. There is no room for interpretation here or debate.
Restaurant parking has been specifically identified and
restricted to this maximum.
Therefore, any additional information or study as you have
asked for referring to BIMC 18.81.030.0 is superfluous.
This is not an "other" or "special case" as explained by the
code. BIMC 18.81.030.0 does not apply to this application.
Requiring the applicant to supply that additional information
is needlessly adding to the costs of permitting and openly
gerrymandering to the applicant's opponents.
In addition, for your information, another means of gaining
parking spaces is outlined in the following citation:
BIMC 18.81.030.P. Subject to approval as part of the site
plan review, the parking requirement in the central core
district of the Mixed Use Town Center zoning district may
be met by contributing into a public or cooperative
commercial effort to create new structured or surface parking
in that zone. The amount of the contribution shall be
equivalent to that necessary to provide the required number
of parking spaces.
In closing, we have asked in writing and in person on
numerous occasions to discuss the parking standards with
you and have received no reply. We believe that with a face
to face conference, collectively we would be able to resolve
this issue as well as any others that may occur.
Parfitt letter, January 5, 2005.
3.24 In an Administrative Decision issued January 24, 2005, the City changed its
views of required parking for a fourth time, concluding 14 additional spaces were required.
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This decision denied Parfitt's application, concluding that the proposed Addition was a
"special use" in terms of calculating required parking and that Parfitt had not submitted
sufficient information as to how it would satisfy the 14 new parking spaces figure.
3.25 In February 2005, Parfitt timely appealed the January 24, 2005
Administrative Decision to the Office of Hearing Examiner.
3.26 On May 9, 2005, the Examiner issued her decision on Parfitt's appeal. The
Examiner affirmed in part the Administrative Decision of the Director of the Department
of Planning and Community Development issued January 24, 2005 denying Application
No. SSDP/SPR 12755. The Examiner held that the Pub Addition constituted a "special
case," thereby allowing the Director to insist upon a calculation of new parking
requirements different than those set out in the Zoning Code for a restaurant use. The
Examiner declined to issue any additional interpretive or declaratory ruling relating to
parking, including strategies to create new parking stalls or places.
3.27 The Director's January 25, 2005 Administrative Decision as noted had
denied Parfitt's application for a site plan approval for a "failure to provide information" or
show how it will meet new parking requirements for its proposed restaurant use. The
Decision and Order of the Examiner states:
The decision is REMANDED for the Director to consider:
(1) parking information [see Conclusions 5, 6, and 8]
provided by the applicant to the satisfaction of the Director,
in order that the Director establish the parking requirement
for the proposal; and (2) the applicant's parking plan
demonstrating how the parking requirement would be met
[see Conclusion 8].
The Director shall issue a decision on the applications after
consideration of (1) and (2); that decision will be subject to
appeal as provided by the Bainbridge Island Municipal Code
(consistent with treatment of these parties as noted in the
Prehearing Order issued this matter).
Examiner's Decision, Ex. C, p. 12.1
I A true and correct copy of the Examiner's Decision is annexed hereto as Ex. C, by
reference made a part hereof.
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3.28 The Examiner determined that in lieu of denying Parfitt's application, "the
applicant should have an opportunity to provide parking information (to the satisfaction of
the Director) as authorized by BIMC 18.81.030(1) and (2)." Decision, Ex. C, pp. 11-12,
Conclusion of Law No. 8. The Examiner further ruled that Parfitt need not file a new site
plan review application, but could continue with its existing application, in terms of
submitting additional information. The Examiner's Decision by operation of City Code,
Section 2.16.130(F)(1)(d), vacates the denial of Parfitt's site plan application,2 and
remands the matter back to the Director for additional decision making.
3.29 In its Request for Zoning Code Interpretation, Parfitt indicated how it could
create 20 new on -street parking spaces between its entrance off of Parfitt Way over to
Wood Avenue. Both of these public streets allow access into Parfitt's two parking lots.
Parfitt's proposal for new on -street but off-site parking is set out in a diagram to its Zoning
Code Interpretation Request, Attachment B, by reference made a part hereof.
IV. GROUNDS FOR RELIEF
4.1 Note 7 to the minimum parking requirements of the Bainbridge Island
Zoning Code, in BIMC § 18.40.030, allows "[o]n street parking legally created in
conjunction with and adjacent to a project" to be "included in the parking calculation" for
determining required parking for a proposed use.
4.2 The Appellant proposed but was denied the option by the Director, without
adequate justification, to utilize off-site on -street parking. Regarding the parking off -set
allowed by note 7, of BIMC § 18.40.030, the Appellant proposed to provide on -street
parking in conjunction with improvements to Parfitt Way. The Director illegally denied
Parfitt's proposal on the grounds that the proposed improvements would not be "adjacent"
to the proposed project. In fact they would be, and the Director erred in determining
otherwise.
2 No decision on Parfitt's shoreline permit application has yet been made by the City.
APPEAL OF ADMINISTRATIVE DECISION - 13
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4.3 The City's Code Interpretation acknowledges the accepted meaning of the
word "adjacent" but claims that the definition of that word in reputable dictionary sources
is somehow "ambiguous" and must, therefore, be interpreted and applied "narrowly."
First, the word is not ambiguous but includes within its plain meaning the concept of being
"near by" or "close to." Under the plain meaning of the word "adjacent," Parfitt's
on -street off-site parking proposal is adjacent within the meaning of BIMC § 18.40.030,
Note 7. Second, the City states that its obligation when construing its own laws is to give
effect to the purposes of those ordinances, and to avoid unlikely, absurd, or strained
consequences. Yet, the City's interpretation violates this very standard of statutory
interpretation, because it fails to give effect to the Zoning Code, which is to encourage
on -street parking at private expense to meet the goals and policies of the Comprehensive
Plan and other City laws. As noted, those goals and policies encourage urban infilling and
economic development within the Winslow core.
4.4 Zoning codes are to be liberally construed to effectuate their purpose, which
includes implementing the goals and policies of the Comprehensive Plan. Indeed, zoning
codes must be interpreted and administered to implement and be consistent with the
Comprehensive Plan. The City takes the contrary view, restrictively construing its Zoning
Code, thereby failing to effectuate the purposes of the Bainbridge Island Comprehensive
Plan and its policies, including to promote economic development and urban infilling.
These purposes are effectuated by encouraging development of more on -street parking.
4.5 The Growth Management Act, Ch. 36.70A, RCW, has strong policies
encouraging urban infilling, and the development of new public infrastructures such as
on -street parking at developer expense. These policies are made part of the City's
Comprehensive Land Use Plan. The City's Code interpretation is contrary to, inconsistent
with and fails to effectuate these policies.
APPEAL OF ADMINISTRATIVE DECISION - 14
SEA 1821997v1 65473-1
Davis Wright Tremaine LLP
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4.6 State law, Ch. 36.70B, RCW, provides for use of development agreements.
These development agreements are contracts between a city and private property owner/
developer which provide for the construction of public infrastructure at private expense.
The City's Code interpretation fails to consider the ability of Parfitt to utilize a
development agreement to implement and achieve its planned on -street off-site parking
proposal, Attachment B, to its Code Interpretation Request.
4.7 State and local laws provide for the use of other devices to effectuate
payment of public infrastructure at private expense, such as the creation of new on -street
parking. RCW 35.43.050 provides for creation of a local improvement district or utility
local improvement district to fund the creation of new public infrastructure. BIMC
§ 13.32.130 allows use of latecomer agreements for a private developer to recoup part of
the cost of street improvements. Under both state law (a local utility improvement district)
and local law (a latecomer preliminary reimbursement charge area), the laws provide that
benefiting property owners can be charged and reimbursed for public improvements. This
is so "even though the improvements thus made are not connected or contiguous" to the
benefiting property. BIMC § 13.32.130. The City wholly failed to consider these statutory
requirements or policies when issuing its Decision. Had it considered these policies, it
would have properly concluded that the term "adjacent" includes properties not directly
connected to a city street, except by an access easement, as is the case with Parfitt's .
situation, but with a location that was close to or sufficiently near enough to fall within
BIMC § 18.40.030, fn. 7, because benefited by the creation of new parking opportunities
V. RELIEF REQUESTED
Parfitt Way Management Corporation requests that the Office of Hearing
Examiner, upon review:
APPEAL OF ADMINISTRATIVE DECISION - 15
SEA 1821997v1 65473-1
Davis Wright Tremaine LLP
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5.1 Reverse the Administrative Decision and approve Parfitt's requested Code
Interpretation as to its proposed on -street off-site parking plan, Attachment B to its Code
Interpretation Request.
5.2 Grant any other further relief that is just and fair under the circumstances.
VI. APPEAL FEE
6.1 Enclosed with this appeal is the required $500 appeal fee.
DATED this 14th day of June, 2006.
Davis Wright Tremaine LLP
Attorneys for Appellant
Parfitt Way Management Corporation
By 5'0--7tt�&_
Dennis D. Reynolds, WSBA #4762
APPEAL OF ADMINISTRATIVE DECISION - 16
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fr,
CITY OF BAINBR DGE ISLAND
Department of Planning and Community Development
June 1, 2006
Mr. Dennis Reynolds
Davis Wright Tremaine LLP
2600. Century Square
150I Fourth Avenue
Seattle, WA 98101-1688
Re: City File No, ADM 1.2755 -- Harbour Pub/PWM Request for Administrative Code
Int pretation - Property at 231 Parfitt Way S.W., Bainbridge Island, Washington
Dear Mr. Reynolds:
On behalf of Parfitt Way Management, Inc, (Parfitt Way), you requested an
administrative code interpretation with respect to the above referenced property, having Tax
Parcel No. 272502-4-136-2003 (Parfitt property), Parfitt Way requests that the City issue an
interpretation regarding potential location of an underground parking garage on the Parfitt
property and regarding potential creation of on -street parking along Parfitt Way S.W. The two
interpretation requests are as follows:
1. Does Parfitt's underground parking garage in the approximate location shown in
Attachment A hereto (proposed garage) comply with the Zoning Code,
§ 18.81.050(A), the Shoreline Master Program use regulations, BIMC
§16.12.100(b)(2), Comprehensive Plait policies and any other applicable
development regulations administered by the City of Bainbridge Island?
2. Does Parftt's on -street parking plan set out in Attachment :B hereto comply with
applicable development regulations and comprehensive plan policies?
Underground Parking Garage
BIMC 18.81.050(A)--Locatt*on of Prosed Crarao
The Parfitt property is located in the Mixed Use Town Center district. BIMC
18.81.050(A) states as follows:
Parking in the Mixed Use Town Center ... shall be located
behind, to the side or under buildings. Parking shall not be located
between a building and the front lot line, unless an applicant can
A
280 MADISON AvFwE- NoRm - BAU"RIDGE ISLAND, WA - 98110
PHONF (206) 842-25.52 - FAx (206) 780-0955 - E.n,�,jL: pcd@c.,bajab_ dge isl.vwaAj5
demonstrate that locating parking between a building and the front
lot line is the only feasible location.
Read as a whole, this code provision orients the location of parking to the front, side and rear lot
lines. The term "front lot line" means "the lot line separating the lot from any street." BIMC
18.06.660. The Parfitt property does not abut, either of the closest streets, which are Wood
Avenue S.W. or Parfitt Way S.W. It is landlocked. An access easement connectsthewestern
part of the Parfitt property to Woad Avenue S.W,, and another access easement connects the
northern part of the Parfitt property to Parfitt Way S.W. For purposes of applying the parking
location requirements of BIMC 18.81.050(A), the Parfitt property must have a "front lot line. A:
parcel cannot have two "front lot lines." A reasonable and logical application of BIMC
18.91.050(A) to the Parfitt property is that Parfitt Way S.W. is the "front lot line," because the
building on the property requiring parking spaces --the Harbour Public House restaurant
("PUB") --is accessed from an easement that connects the Parfitt property to Parfitt Way S.W.
The proposed garage is located to the Northwest of the existing PUB. It is not located to
the "side," technically, of the existing PUB. The proposed PUB addition, however, will be
located in part to the "side" of the proposed. garage. BIMC 18.5I.050(A) should be applied to
the existing PUB, as well as to the proposed PUB addition. Thus, the PUB (existing and
proposed) is located "to the side" of the "building."
If ,Te assume that the proposed garage will not be located to the side of the PUB, then
locating the proposed garage between the PUB and front lot line could be "the only feasible
location." The portion of the Parfitt property directly in front of and North of the PUB appears
to be too small to accommodate a parking garage that meets City Code requirements. The
location of the proposed garage appears large enough to accommodate a parking garage that
meets City Code requirements, Thus, Parfitt Way may be able to demonstrate to the City's
satisfaction that the location of the proposed garage is the only "feasible location."
This Code interpretation is limited to the question of whether the proposed garage will
satisfy the requirements of BIMC 18.81.050(A): It does not address, and is subject to, the legal
right of Parfitt Way to construct the proposed garage on. the Parfitt property and to access the
proposed garage through the access easement that connects the Parfitt ,property to Parfitt Way
S.W.
BIMC 16.12.100 --SMP Parking Requirements
The proposed garage further is consistent with the Shoreline Master Program parking
requirements contained in .BIMC 16.12.100. That provision states in relevant part as follows:
A. Applicability. The following provisions apply only to parking
that is accessory to a permitted shoreline use. Parking as a primary
use is prohibited within the shoreline jurisdiction ...
B . Regulations.
2. Parking in the shoreline jurisdiction shall directly serve a
shoreline use. .
3. Parking facilities shell be designed and landscaped to minimize
adverse impacts to adjacent shorelines and properties.
Landscaping shall consist of native vegetation or species contained
in an approved plant list or landscape plan and shall be designed
and installed to provide effective and appropriate screening within
three years of planting.
4. .Parking facilities serving individual buildings on the shoreline
shall be located landward from the principal building being served,
except where the parking facility is within or beneath the structure
and screened, or in cases when an alternate orientation would have
less adverse impact on the shoreline..
5. Parking, facilities shall provide safe and convenient pedestrian
circulation within the parking area and to the shoreline.
The proposed garage will be utilized. as a parking facility for the uses on the Parfitt
property, and not as a commercial parking facility for a fee. Therefore, consistent with BIMC
16.12.100(A) and 16.12.100(,B)(2), the parking garage will be accessory to the permitted
shoreline uses on the .Parfitt property, which are the PUB and the marina, and will directly serve
those uses.
The proposed parking garage will be underground. We assume that the roof of the
proposed garage will be at the same elevation as the current landscaped area, and will be
replanted with landscaping similar to the current landscaping. If this is true, the proposed garage
will be designed and landscaped to "rninimim adverse impacts to adjacent shorelines and
properties." The landscaping over the proposed garage also will have "species contained in a
landscape plan." The interesting requirement is that the landscaping shall "provide effective and
appropriate screening within three years of planting." Because this screening requirement is to
protect the adjacent property, it can be satisfied if the current landscaping is replaced in
substantially the same way.
The proposed garage is located landward from the PUB, which as discussed above, is the
"principal building being served." Finally, given the location of the proposed garage, and the
ability to connect it to the existing sidewalk and the access from Wood Avenue S.W., the
proposed garage will be able to provide safe and convenient pedestrian circulation within the
proposed garage and to the shoreline.
For these reasons, the proposed garage would satisfy BIMC 16.12.100. Again, this Code
interpretation is limited to the question of whether the proposed garage will satisfy the
requirements of BIMC 16.12.100. It does not address, and is subject to, the legal right of Parfitt
Way to construct the proposed garage on the Parfitt property and to access the proposed garage
through the access easement to Parfitt Way S.W.
Comprehensive Plan --Goal 3
Goal 3 of the General band Use Section of the Comprehensive Plan states that parking
lots shall be constructed to minimize visual and environmental impacts. The proposed garage
will be underground, and presumably the existing type and elevation of the landscaping will be
replaced. Therefore, assuming that stormwater and similar environmental impacts can be
minimized, both during construction and thereafter, the proposed garage meets Goal 3.
On -Street Parkins
Footnote 7 of the development standards for the Mixed Use Town Center, contained in
BIMC 18.40.030, states that:
On' -street parking legally created in conjunction with and adjacent
to a project may be included in the parking space calculation.
Parfitt Way proposes to create 20 angled parking spaces on the South side of Parfitt Way S.W.,
from Wood Avenue S.W. to the Past boundary of the Junkoh and Christina Harui property. As
stated previously, none of the Parfitt property abuts Parfitt Way S.W.
The first portion of footnote 7 provides that on -street parking must be "legally created."
In the context of footnote 7, the phrase "legally created" means with the approval of the City,
because the right-of-way is governed and controlled by the City. In other words; a property
owner cannot create parking spaces on City streets in connection with a project without City
approval, or despite City disapproval. For example, the City Engineer will have to assess the
feasibility and safety of any on -street parking that is proposed to be created.
The word "adjacent" means "close to; next to; lying near, adjoining." The American
Heritage Dictionary of the English Language. The word "adjoining" means "neighboring;
contiguous; next to." Irl. The word "contiguous" means "sharing an edge or boundary;
touching; nearby; neighboring; adjacent." Id. In another dictionary, the word "adjacent" is
defined as "not distant or far off; relatively near and having nothing of the same kind
intervening; having a common border: abutting, touching." Webster's Third New International
Dictionary. Thus, the word "adjacent" means immediately next to, or touching; as well as
nearby but not touching.
Because the meaning of the word "adjacent" in the dictionaries is ambiguous, we must
apply a principle of ordinance interpretation to determine the meaning of the word "adjacent" as
used in footnote 7. One such principle is that an ordinance must be construed to give effect to its
purpose, and to avoid unlikely, absurd or strained consequences. State v. Stannard, 109 Wn.2d
29, 742 P.2d 1244 (1987).
Here, the Eastern portion of the Parfitt property is separated from Parfitt Way S.W. by a
parcel owned by the HArbourside Condominium Owners Association. The Western portion of
the Parfitt property is separated from Parfitt Way S.W. by not only the Association property, but
also a parcel owned by Junkoh and Christina Harui. The Association and Harui parcels also are
located in the Mixed Use Town Center zone. The Association property has recently been
developed with condomium buildings, and is fully developed. The Harui property contains a
single-family residence and is likely to be re -developed, If Parfitt Way is allowed to create
parking spaces on the South side of Parfitt Way S.W. along the entire length of the Harui
property, and to claim those spaces in its parking space calculation for the PUB addition, then
neither the Harui's nor the Association will be able to create parking spaces on the South side of
Parfitt Way S.W. to satisfy parking space requirements. When adopting footnote 7, the City
Council probably intended only to address the situation where parcels using a street.right of way
physically touch that right of way. In such a situation, each parcel could "claim" parking spaces
in the portion of the right of way directly next to the parcel. The City Council probably did not
consider the situation where additional parcels access the right of way through the parcel that
abuts or touches the right of way; and all of the parcels might claim parking spaces in the right of
way.
Where multiple parcels access a right of way through the parcel touching the right of
way, a logical and reasonable interpretation of City Council intent, to avoid absurdand strained
consequences, is to allow No. rata use of the right of way, for on -street :parking legally created in
connection with a project. This interpretation is consistent with the principle that a parcel
abutting a right of way can claim parking spaces in the portion of the right of way directly next
to the parcel. In other words, a parcel that accesses a right of way through another parcel, can
only create parking. spaces in the right of way frontage abutting the parcel through which access
is gained.
Here, Parfitt Way does not propose to create parking spaces in the portion of theSouth
side of Parfitt Way S.W. that abuts the Association property. Parfitt Way proposes to create all
parking spaces in the portion of the South Side of Parfitt Way S.W. that abuts the Harui property.
Therefore, Parfitt Way cannot create parking spaces as proposed. In light of this analysis and
conclusion, it is unnecessary to determine the percentage of the South Side of Parfitt Way S.W.
that the Association and Parfitt Way could claim for _parking spaces in the portion of Parfitt Way
S.W. that abuts the Association property.
We trust that this Zoning Code interpretation answers your request. As with all
administrative decisions, this determination may be appealed to the Hearing Examiner in
accordance with the procedures of BIMC 2.16.130.
Sincerely,
Larry . Frazier, AICP
Director
cc: Director's Pile
LAWYERS
Davis Wright Tremaine LLP
ANCHORAGE BELLEVUE LOS ANGELES
NEW YORK PORTLAND
SAN FRANCISCO
SEATTLE SHANGHAI WASHINGTON, D.C.
DENNIS D. REYNOLDS
2600 CENTURY SQUARE
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DIRECT (206)903-3967
1501 FOURTH
AVENUE
FAX (206) 628-7699
dennisreynolds@dwt.com
SEATTLE, WA
98101-1688
www_dwt.com
March 3, 2006
HAND DELIVERED
Larry Frazier, Director
Bainbridge Island Department of Planning
and Community Development
280 North Madison
Bainbridge Island, WA 98110
Re: Parfitt Way Management, Inc. — Request for Zoning Code Interpretation
Dear Mr. Frazier:
I am writing on behalf of Parfitt Way Management, Inc. to request that you make an
administrative zoning code interpretation decision pursuant to BIMC § 2.16.025(A) in
connection with its property located at 231 Parfitt Way Southwest, City of Bainbridge Island.
1. Background
Parfitt Way Management Corporation is the applicant for a shoreline substantial development
permit and site plan approval to construct an addition to the existing Harbour Public House
Restaurant, Application No. SSDP/SPR12755 (the "Addition"). The proposal would be located
within the City of Bainbridge Island, Kitsap County, Washington. The subject property is
approximately 34,151 square feet, including tidelands. The property is located on the shore of
Eagle Harbor at 231 Parfitt Way. The tax parcel number is 272502-4-136-2003. The zoning is
Mixed Use Town Center -CORE ("MUTC"). The Shoreline environmental designation is Urban.
The subject property is surrounded by a multi -family condominium development on the adjacent
north and west parcels. There is a single family residence to the north across Parfitt Way
operated as a commercial bed and breakfast. On the east, there is commercial/office space, and
to the south, there is the existing marina owned and managed by Parfitt and the waters of Eagle
Harbor.
SEA 1761858v1 65473-1 EXHIBIT B
Larry Frazier, Directorwo
March 3, 2006 l
Page 2
The site contains the existing Harbour Public House restaurant (the "Pub") and the Harbour
Marina (the "Marina"), both owned and managed by the Parfitt Way Management Corporation.
The marina and restaurant uses are permitted in the urban shoreline designation under the City's
Shoreline Master Program ("SMP'). The site also contains a separate small office building for
management of the marina and two developed paved parking lots, one off Wood Avenue and one
off Parfitt Way. Both parking lots are shared with the adjacent property, which contains
30 condominium units ("the Condo Owners"). The shared parking lot off Parfitt Way services
the restaurant, the marina and the condominiums. The Wood Avenue lot is shared with condo
and marina users. The Condo Owners have dedicated for the exclusive use of themselves and
their guests 73 parking stalls both above and below ground within the condo facilities and
associated grounds. This number exceeds applicable requirements. The Condo Owners and
their guests do not need the Parfitt Way lot although they claim use of the lot.
Vehicular access to the restaurant and marina is off Parfitt Way, directly into the shared parking
lot. This lot is located uphill from and between the Pub/Marina site and Parfitt Way. Both
customer and delivery vehicles use this access. A public easement exists along a sidewalk that
runs along the west side of the parking lot. This easement provides physical access from Parfitt
Way to the shoreline. Parfitt encourages its patrons to use multiple forms of transportation. The
Pub's customers come by foot, bicycle, public transportation, boat and car. The peak parking
times of the marina and restaurant uses rarely coincide. The Pub is not the primary use of
Parfitt's ownership. The primary use of the property according to the Bainbridge Island
Shoreline Master Program, is for a Manna, but the Marina is not being expanded at this time.
Upon receipt of Parfitt's application, City Staff reviewed code parking requirements. After
extensive analysis, the City on September 3, 2004 concluded that only four additional spaces
were required for the Pub Addition, taking into account all of the circumstances:
In reviewing the parking requirements for the proposed expansion,
the Department has found the following:
• The existing parking requirements are based on the
requirements of the Planned Unit Development (PUD)
approved by Ordinance 91-35.
• The PUD required the following parking spaces for each
use:
Condominiums
60
Yacht Services/Office
4
Harbour Pub
19
Marina
30
Total
113
SEA 1761858v1 65473-1
Larry Frazier, Director
March 3, 2006
Page 3
• A memo to the file, dated October 1, 1997, indicates the
occupancy for the Pub to be 90 seats, thereby requiring 23
parking stalls for the pub use.
• This brings the total required spaces to 117.
A physical site visit on August 27, 2004 resulted in a count
of 119 existing parking spaces serving the uses in the PUD.
Sixty of these spaces are reported to exist inside or
underneath the condominium units, as indicated by the
Condominium Association president, Richard Daniels. The
remaining 59 spaces are exterior parking spaces shared
between the Yacht Services/Office, the Marina, the Pub,
and the condominiums.
As you indicated in your August 23, 2004 letter, the proposed
expansion to the pub will result in 6,846 square feet of space.
Current code, under BIMC 18.40.030 requires four parking spaces
per 1000 square feet of building. Twenty-seven total parking
spaces would therefore be required to accommodate the proposed
expansion.
Twenty-three parking spaces out of the existing 119 spaces are
currently allocated for use by the Pub. Therefore, four additional
spaces are required. Since there appear to be two spaces in excess
of the 117 required for the PUD, two additional spaces for the
proposed Pub expansion would be required to meet the
requirements of BIMC 18.40.030, as long as this determination
does not conflict with any existing agreements regarding allocation
of the shared parking spaces.
Letter, Mr. Frazier to Mr. Chester, dated September 3, 2004.
On January 24, 2005, the Director of the Department of Planning and Community Development
issued an Administrative Decision. The Decision denied Parfitt's application for a site plan
approval] for a "failure to provide information" or show how it will meet new parking
requirements for its proposed restaurant use.
On May 9, 2005, the Bainbridge Island Hearing Examiner issued a decision on appeal. The
Examiner's Decision by operation of City Code, Section 2.16.130(F)(1)(d), vacates the denial,
1 According to the Director and City Attorney, no decision has yet been made on Parfitt's shoreline substantial
development permit.
SEA 1761858v1 65473-1
Larry Frazier, Director
March 3, 2006 MU
Page 4
and remands the matter of Parfitt's site plan approval back to the Director for additional decision
making. In this regard, the Decision and Order of the Examiner states:
The decision is REMANDED for the Director to consider:
(1) parking information [see Conclusions 5, 6, and 8] provided by
the applicant to the satisfaction of the Director, in order that the
Director establish the parking requirement for the proposal; and
(2) the applicant's parking plan demonstrating how the parking
requirement would be met [see Conclusion 8].
The Director shall issue a decision on the applications after
consideration of (1) and (2); that decision will be subject to appeal
as provided by the Bainbridge Island Municipal Code (consistent
with treatment of these parties as noted in the Prehearing Order
issued this matter).
Decision, Exhibit C, p. 12. The Examiner determined that in lieu of denying Parfitt's
application, "the applicant should have an opportunity to provide parking information (to the
satisfaction of the Director) as authorized by BIMC § 18.81.030(1) and (2)." Decision,
pages 11-12, Conclusion of Law No. 8. The Examiner further ruled that Parfitt need not file a
new site plan review application, but could continue with its existing application, in terms of
submitting additional information.
Since issuance of the Examiner's decision, Parfitt and City of Bainbridge Island staff have
discussed various ways to address provision of additional parking to serve the Pub expansion.
Without either side conceding their respective legal positions, these discussions have focused
upon creation of additional on and off-site parking. The City, as Parfitt understands it, expresses
a position that favors creation of additional on-site parking, where practical.
To facilitate an examination of potential alternatives, Parfitt is in the design stage for an
underground parking garage located on property it owns on the project site and on -street parking
alternatives. The proposed underground parking garage would serve the existing mixed uses on
the site, including the Pub and Marina. Its purpose is so limited. It will not be used as a
commercial parking structure for a fee. On site parking alternatives were constrained by a recent
decision of the Fire Marshal to designate a second emergency vehicle access lane on the shared
parking lot off Parfitt Way.
The location of the proposed underground garage is shown on Attachment A. The facility is
approximately 120 feet by 70 feet. The facility would be accessed from the Wood Avenue
and/or the Parfitt Way parking lots. After construction of the proposed facility is completed, the
project area will be restored to existing uses and structures. Parfitt's on -street parking alternative
is set out in Attachment B, hereto.
SEA 1761858vI 65473-1
Larry Frazier, Director ffil
March 3, 2006
Page 5
2. Zoning Code Interpretation Requests
(1) Does Parfitt's underground parking garage in the approximate location shown in
Attachment A hereto comply with the Zoning Code, § 18.81.050(A), the Shoreline
Master Program use regulations, BIMC § 16.12. 1 00(b)(2), Comprehensive Plan policies
and any other applicable development regulations administered by the City of Bainbridge
Island? (Parfitt asserts the correct answer is "yes.")
(2) Does Parfitt's on -street parking plan set out in Attachment B hereto comply with
applicable development regulations and comprehensive plan policies? (Parfitt asserts the
correct answer is "yes.")
3. Justification for Requested Code Interpretation: Parking Garage
Parking in the Mixed Use Town Center Zone must not be located behind, to the side, or under a
building. BIMC § 18.81.050(A). An exception is provided if an applicant can demonstrate that
locating parking between a building and the front lot line is the "only feasible location." The
first sub -question is whether the location of the proposed underground garage is to the "side" of
the Pub Addition. If not, a second sub -question is whether the Zoning Code § 18.81.050(A)
treats the "front lot line" as Parfitt Way, a city street. If so, a third sub -question is whether under
the facts and circumstances locating an underground garage between the proposed building, and
the "front lot line (Parfitt Way) is the only "feasible location," for this facility.
As proposed, the underground parking structure would actually be on the side of the existing
marina and Pub facilities. However, if not, the location is the only "feasible location." First, the
recent actions of the Fire Marshal unilaterally designating an additional emergency access lane in
the parking lot off Parfitt Way has taken available space from the Parfitt Way lot. This action,
done without any amendment to the approved site plan frames the feasibility analysis. Second,
the Condo Owners have taken the position that the Parfitt Way lot is already "at capacity," and
oppose any reallocation of existing uses or its expansion. Third, the City has imposed an
interpretation to the effect that the Pub is "a special case" thereby requiring additional on-site
and off-site parking as specified by the Zoning Code for the proposed restaurant expansion.
While some additional on-site parking could be created in the Parfitt Way lot with a combination
of new spaces and limiting uses by marina patrons, short of an underground garage, there is no
other feasible alternative to the City's directives to place as much of the additional parking
required for the expansion of the Pub on Parfitt's ownership which appears to satisfy the Condo
Owners.
The Bainbridge Island Comprehensive Land Use Plan goals and policies address development
and use of the Winslow downtown core, called the Central Core Overlay District, where Parfitt's
project is located. Goal number 1 of the Comprehensive Plan is to "retain and enhance a
diversified local economy." Policy E.1.12 states that downtown Winslow is to be a "pedestrian
oriented town center" that provides "a mix of commercial and residential uses...." The
Comprehensive Plan states that vehicular use should be de-emphasized. The Plan further
SEA 1761858v1 65473-1
Larry Frazier, Director Me
March 3, 2006
Page 6
specifies that the Central Core Overlay District is the most intense area of the City and that
design standards should "recognize the more urban character in this area," so that highly
intensive urban development is encouraged.
The Comprehensive Plan "encourages the identification of small, public, non -commuter parking
lots, reduction of parking requirements within the MUTC and increased on -street and shared
parking." Plan, page 58. The Plan also states that "the more often people use means of
transportation other than the auto, the longer existing roads will have an acceptable level of
service." Plan, page 58. Overall, these policies are intended to provide for mixed uses in the
City's MUTC zone, with a de -emphasis on encouraging automobile use. Both the proposed
underground garage and an on -street parking proposal meet these policies.
Under the Shoreline Master Program, parking as primary use is prohibited in all shoreline zones,
including the urban environment. BIMC § 16.12.150, Table 4-1, Shoreline Use and
Modification Activity Matrix. Parking within the shoreline jurisdiction area is allowed if
required to "directly serve a shoreline use...." BIMC § 16.12. 1 00(b)(2). The proposed parking
garage is directly serving a "shoreline use" and, therefore, meets the stated policy.
4. Justification For Requested Code Interpretation:
On -Street Parking Proposal
Within the Mixed Use Town Center/Central Core Overlay Zone, the Zoning Code allows a
property owner to include on -street parking as one option to meet minimum parking
requirements. Specifically, BIMC § 18.40.030 states that "[o]n-street parking legally created in
conjunction with and adjacent to a project may be included in the parking space calculation."
BIMC § 18.40.030 (Development Standards Table, Parking Requirements For Other
Commercial and Non -Residential Uses in the Mixed Use Town Center Central Core Overlay
District, and footnote 7).
Parfitt's on -street parking proposal as shown in Attachment B hereto is adjacent to the proposed
project. The word "adjacent" is not defined in the Zoning Code. It is defined by Webster's
Third International Dictionary as "not distant or far off. nearby but not touching." The proposed
on -street parking improvements as set out in the attachment meet this definition as they are right
next to the proposed Addition. In this regard, the Code uses the term "adjacent" not "adjoining."
Of interest is the Winslow Tomorrow Circulation and Access Recommendations. Chapter 2,
Recommendations, provides a specific list of actions to meet the strategies for infilling the
Winslow core area. The proposed parking garage and on -street parking proposal fall within the
suggested actions to implement Winslow Tomorrow Circulation and access goals. These
include:
E.1. Maximize the availability of on -street parking supply.
a. Prevent any net loss of on -street parking in connection with
either private sector developments or City Public Works projects.
SEA 1761858v1 65473-1
Larry Frazier, Director
March 3, 2006
Page 7
Where site-specific conditions absolutely require elimination of
on -street parking spaces, ensure that these are replaced (at least
one-for-one) with new on -street parking spaces at nearby locations.
(Policy)
b. Add on -street parking wherever feasible, either by creating on -
street spaces where there were none previously, by converting
parallel spaces to diagonal or by including on -street parking spaces
in the design of new streets. Specifically, investigate the following
locations for potential addition of on -street parking: (Policy,
Further Planning Action)
- Madison Avenue between Parfitt Way and Wyatt Way (new
spaces);
- Bjune Drive (conversion of parallel to diagonal);
- Winslow Way west of Madison Avenue (new spaces).
- Winslow Way just west of SR -305;
- Erickson north of Winslow Way.
c. Credit new on -street parking spaces created in conjunction with
development projects against that project's off-street requirements,
including spaces created on new streets. (Ordinance)
E.S. Ensure the right amount of off-street parking.
For sites of less than 8,000 square feet (parcel size) allow 100% of
development off-street parking requirements to be met off site
within a 1,320 walking distance of the edge of the development
parcel. Limit this off-site allowance to spaces acquired through the
City's fee -in -lieu program or spaces secured in fee simple
ownership by the developer.
For sites of 8,000 to 12,000 square feet (parcel size) allow 75% of
development off-street parking requirements to be met off site
within a 1,320 walking distance of the edge of the development
parcel. Limit this off-site allowance to spaces acquired through the
City's fee -in -lieu program or spaces secured in fee simple
ownership by the developer.
For sites larger than 12,000 square feet (parcel size), allow up to
50% of development off-street parking requirements to be met off
site within a 1,320 walking distance of the edge of the
development parcel. Limit this off-site allowance to spaces
acquired through the City's fee -in -lieu program or spaces secured
in fee simple ownership by the developer.
SEA 1761858v1 65473-1
Ufl
Larry Frazier, Director
March 3, 2006
Page 8
G.1. Retool the Fee -in -Lieu (FIL) program.
a. Create a ten-year revenue forecast and capital plan for the FIL
program. Identify specific capital investments to be made in off-
street parking supply annually during the ten-year plan. Reframe
the FIL program as a bona fide commitment on the part of the City
to provide parking spaces using revenues from FIL payments and
financing backed in part by FIL revenues. Update the ten year
capital plan annually. (Policy, Operations — Parking District)
b. Set each year's FIL price equal to the estimated average cost of
spaces to be built in the ten-year capital plan. Revise the FIL price
annually based on cost experience and anticipated unit cost trends.
Do not subsidize FIL price from general revenues. For 2006, the
FIL payment should be set to at least $23,000 per space. (Policy,
Operations — Parking District)
c. Allow pre -purchase and banking of FIL spaces at current year
prices as an incentive for revenues into the system. (Policy,
Operations — Parking District)
MU
Thank you for your attention to Parfitt's requests for code interpretations. Enclosed is the
required fee for a code interpretation.
Very truly yours,
Davis Wright Tremaine LLP
%,
SPI -7 ,&,—
Dennis D. Reynolds
Enclosure
cc: Rod Kaseguma,
Office of City Attorney
Jeff Waite,
Parfitt Way Management, Inc.
SEA 1761858v1 65473-1
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ATTACHMENT B
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A
OF THE HEARING EXAMINER <=
CITE' OF BAINBRIDGE ISLAND
In the Matter of the Appeal of
HARBOR PUBLIC HOUSE SSDP/SPR 12755
[Parfitt Way Management Corporation]
of the PCD Director's Decision to
Deny Requested Permits
introduction
The Director denied the requested permits and the property owner appealed that decision_
A prehearing conference was held on February 24, 2005 [see Findings 30 and 31 ]. The
hearing began on March 10, 2005 and continued on March 24, 2005 and April 8, 2005_
Parties represented at the hearing were: the Director, Planning and Community
Development Department (PCD or Department), by Rod Kasaguma, City Attorney; the
Appellant, Parfitt Way Management Corporation (Parfitt), by Dennis D. Reynolds,
attorney at law; and, the Intervenor, Harbourside Condominium Homeowners
Association (Harbourside), by Anne DeVoe Lawler, attorney at law.
After due consideration of all the evidence in the record, the following constitutes the
findings, conclusions, and decision of the Hearing Examiner on this appeal_
Findings of Fact
Site and Vicinity
1. The subject property, addressed as 231 Parfitt Way SW, is on the northern shore
of Eagle Harbor, in the western portion of Winslow just west and south of "Downtown".
Development includes the "Harbour Public House" restaurant and the Harbour Marina,
both owned and operated by the appellant, Parfitt Way Management Corporation
(Parfitt). Shaped something like an inverted "L", the Parfitt property includes shoreline
frontage on the west, but does not have street frontage. [Exhibit 1, Survey; Exhibit 28;
Attachment G, Exhibit 63; Exhibit 73, Staff Report, pages 1-3; Testimony of Waite]
Credible testimony at hearing indicates that another commercial use, kayak rental,
operates at the subject property, and may include some customer use of the Parfitt Way
parking lot [Testimony of Waite; Testimony of Daniel].
2. The Harbour Public House (Pub) is a popular tavern with the capacity to serve
approximately 90 (52 interior and 38 exterior). Parfitt indicates that the maximum
SPR 12755
Page 1 of t2
EXHIBIT C
number of seats (in summer) is 81. Initially established as the "Jolly Roger Pub" in 1987
[see Finding 151, the Pub has been operated by Parfitt since 1991 as the Harbour Public
House. The Jolly Roger served beer, ale, wines and light food. The Pub has continued to
do that, but with a increased emphasis on food service_ [Exhibit 73, Attachment G,
Attachment H, pages 2-4; Testimony of Waite ]
3. Vehicular and pedestrian access from Parfitt Way approximately 250 ft. to the
north, is through the adjacent parking lot_ This paved and landscaped parking tot has 34
parking spaces and a designated (striped) truck tum -around. A concrete sidewalk extends
along the western edge of the lot from Parfitt Way to the subject property. Pedestrian
access can also be had from the Wood Avenue parking lot to the west. As noted below,
Parfitt has access and parking easements for use of both parking lots_ [Exhibit 9; Exhibit
28].
4. The Pub, the Harbourside Condominiums, and the Harbour Marina share the
Parfitt Way parking lot. Parfitt owns the southernmost part (approximate 40 ft.) of this
parking lot and has an easement for vehicular and pedestrian access to and from Parfitt
Way and an easement for parking in the rest of the lot. [Exhibit 9; Exhibit 28] By the
terms of the PUD approved in 1991 and associated covenants [see Finding 161, five
parking spaces are for Condo use and 20 spaces are for the Harbour Marina [Attachments
E, F, G, K Exhibit 731. The Appellant asserts that 19 spaces are for Pub use [Testimony
of Waite and Exhibit 28 indicate 29 stalls for "Joint Marina[Pub use"]. The Intervenor
disputes this and claims that 23 spaces are required and 14 "at most" are actually for the
Pub [Exhibit 1541. The Director indicates that 19 spaces were required for the pub with
the PUD (based on Code required ratio at the time of one space for each four seats). In
1997 that requirement was revised to 23 spaces [Attachment G, Exhibit 731. The parking
lot accessed from Wood Avenue has 17 spaces, with 10 spaces reserved for the Harbour
Marina and 7 for the Harbour Marina Condominiums; no spaces are allocated for the Pub
[Exhibit 28].
5. In September and October 2004 [Exhibits 29 and 39], the Director reported that
surface spaces had been counted and that there are a total of 59 spaces shared between the
yacht services/office, the Marina, the Pub, and the condominiums_ Other references in
the record consistently refer to 17 spaces in the Wood Avenue lot and 34 in Parfitt Way
lot (for a total of 5 1).
6. A Fire Lane to the subject property is designated through the Wood Avenue
parking lot. There is a fire hydrant nearby the western edge of the Parfitt Way parking lot
(about 175 ft. south of Parfitt Way)_ Emergency vehicles have used the Parfitt Way
parking lot for access (it may be the more obvious route to access the subject property).
[Exhibit 9; Exhibit 41; Exhibit 42; Exhibit 47, page 3]
7. The current use of the subject site is commercial and the zoning and
Comprehensive Plan designation of the property is Mixed Use Town Center — Core
(MLJTQ. The Shoreline Master Program designation is Urban. The Urban environment
SPR 12755
Page 2 of 12
accommodates high intensity commercial, industrial or recreational use, or multifamily
residential development). [Exhibit 73, Staff Report, pages 1-31
8. In the immediate vicinity the Pub, the zoning, Comprehensive Plan, and shoreline
designations are similar to that of the subject site. Uses to the east include commercial
and office development. Multifamily development is adjacent to the north (Harbourside
Condominium) and to the west (Marina Condominium). Further west, across Wood
Avenue, zoning and use is single -residential, and residential uses and zoning predominate
north of Parfitt Way. [Exhibit 1, Survey; Exhibit 73, Staff Report, pages 1-3]
Proposal
9. Parfitt proposes to make alterations in the existing building and to expand the
restaurant to the north, into the area between the existing building and the parking lot.
Along with these structural changes there would be an operational change in focus "from
looking and functioning as a tavern to looking and functioning as a neighborhood
restaurant." [Exhibit 24; Exhibit 2]
10. The size of the restaurant and deck areas would be increased, as would the kitchen
and storage areas. The proposed additions would approximately double the current size.
The existing restaurant/pub is approximately 1878 sq. ft. (including 630 sq. ft_ on the
deck) and has a seating capacity of approximately 90 [Attachment G, Exhibit 73]_ The
restaurant space would be increased by 1,784 sq, ft., and 237 sq. ft. of deck space would
be added. The restaurant/pub (i.e., the area where customers could be seated) after
expansion, including deck space, would be 3,899 sq. ft., with an added seating capacity
for 50-60 persons. [Exhibit 73, pages 4 and 5 (capacity), Attachment A (square footage);
Exhibit 6 (seating proposed)].
Space
Existing
New
Totals
Pub/restaurant
1248 sq. ft.
1784 sq. ft.
3032 sq. ft.
Deck
630 sq. ft.
237 sq. ft.
867 W. ft.
Subtotals Service areas:
1878 sq. ft.
2021 sq. ft-
3899 sq. ft.
Ritchen storage, office, etc.
1985 sq, ft-.
1807 sq. ft.
3792 sq- ft.
Totals all spaces_ 3863 sq. ft. 3828 sq. ft. 7691 sq. ft.
11. The figures used in Finding 10 are based upon the applicant's square footage
estimates presented in the SSDP and SPR applications [see Attachment A, Exhibit 73 and
Exhibit 11]. However, these figures are not consistent with other information in the
record. Both the applicant and the Director [Exhibit 26 and Exhibit 29] refer to a "6,846
square -foot pub"; perhaps this agreement signals that this total is more accurate than that
calculated in Finding 10. At least one square footage reference [Staff Analysis, issued
December 1, 2004, Exhibit 77] omits the deck seating area (perhaps this is because decks
are outside the exterior walls and therefore not "floor area" - see Finding 37). Other
figures include: in the SEPA Checklist [page 2, Attachment C, Exhibit 731 the applicant
SPR 12755
Page 3 of 12
indicates additions of "1784 sf first floor & 1806 sf daylight basement"; and, the Design
Review Board describes the proposal as totaling 6,720 square feet, with a proposed
addition of 3,628 square feet [Attachment D, Exhibit 731. As it is not critical to this
decision, no attempt has been made to reconcile the different figures.
12. Six new parking spaces were originally proposed in the Shoreline Substantial
Development Permit application [Attachment A, Exhibit 73; Exhibit 21. In November
2004, believing that the proposed spaces would exceed the maximum allowed and require
approval by the Planning Commission, the applicant revised the site plan to eliminate
those spaces from the proposal [Exhibit 9; Testimony of Waite].
13. In August 2004, Parfitt proposed to provide additional parking for the proposed
expansion by reallocating the spaces in the Parfitt Way and Wood Avenue parking lots.
The 10 liveaboard slips in Parfitt's Harbour Marina would be rcassigned as moorage slips
to free up 10 spaces and the Parfitt Way parking lot spaces allocated as follows= 2 spaces
for the Marina, 27 for the Pub, and 5 for the Harbourside Condominium. The Wood
Avenue lot would continue to have 10 spaces for the Marina. A total of 44 spaces would
be available for Pub and Marina use_ [Exhibit 26] It is not clear that Parfitt has the
ability to make these types of changes without the agreement of affected property owners
and/or revision of the PUD [Exhibit 31 ].
Background [see also Exhibit 73, Staff Report, "History", pages 3-5]
14. In 1980, a Shoreline Management Substantial Development Permit was issued for
development of a commercial moorage facility (50 boat slips approved and 30 parking
spaces required) at the subject site_ [Exhibit 73, Attachment E, page 6]
15. In 1987, the City Council issued a Shoreline Substantial Development Permit and
a Conditional Use Permit for conversion of an existing building at the site into an
"English style" pub, called the Jolly Sailor Pub. This project included 13 parking spaces
for the pub.
16. In 1991, the marina [see Finding 14] and the Jolly Roger Pub [see Finding 15]
were included in the Harbourside Planned Unit Development (PL'D) along with the
property adjacent to the west and north [Exhibit 73, Staff Report, pages 1-3; Exhibit 163],
This PUD involved development of 30 condominiums (10 -unit "Harbour Marina
Condominiums" and 20 -unit "Harbourside Condominiums", see Exhibit 3), replacement
of the marina, and construction of an owner residence and space for yacht brokerage.
Parking requirements were calculated to include shared spaces for the pub (now the
Harbour Public House), the marina (now the Harbour Marina), and the condominiums.
The Parfitt Way parking lot was "to contain 29 parking spaces for the joint use of the
Marina and pub parking" [Exhibit 163 notes 19 spaces required for the pub based upon
one space for each four seats.] The marina's 30 -space parking requirement included 10
spaces in the Wood Avenue lot [pages 6-8, Attachment D, Exhibit 73].
SPR 12755
Page 4 of 12
i
17. In 1997, the City building official determined that the capacity of the Pub is 90
persons. Based upon that revised capacity, and the ratio of one space for each four seats,
23 parking spaces are required. [Exhibit 73, Attachment G]
Director's Decision
18_ On July 1, 2004, Parfitt Way Management, Inc. applied for a Shoreline
Substantial Development Permit (SSDP) and Site Plan Review (SPR) to expand and
make alterations to the Pub as described above. [Exhibit 11 ]
19. On August 11, 2004, the Department requested submittal of a new site plan to
revise the location of the proposed parking spaces that were shown off-site. The
applicant submitted a revised site plan, eliminating the proposed parking spaces and
proposing that the existing Harbour Marina parking spaces be reallocated to
accommodate the proposed restaurant expansion was also submitted on this date.
20_ The Planning Commission considered the proposal at a public meeting on
December 9, 2004. Following presentations by staff and the applicant, the Commission
permitted public comment on the project. The Commission subsequently asked the
applicant for further information and delayed making a recommendation until the next
Commission meeting. The Planning Commission continued the meeting on January 13,
2005, did not hear further public comment, and voted unanimously to recommend denial
of the project.
21. On December 27, 2004, the Department [Exhibit 27] requested that that Parfitt
provide parking information pursuant to BIMC 18.81.030(0). Parfitt's architect
responded by letter [Exhibit 71], objecting to the Pub being considered a "special case"
and declining to provide the requested information asserting that it "is superfluous"
because BINIC 18,81.030(0) "does not apply to this application." The Staff Report
includes these letters in a list of events in the "history" of the review of the subject
applications [see Items 5 through 151-
22. The Hearing Examiner takes official notice that the types of parking information
requested by the Director is often used in assessing the parking. impacts of new
development. Parking studies (e.g., surveying actual use, determining peak demand
time(s) for various uses, etc.) to document current demand and existing surplus or
deficient parking supply, are common analyses used in land use planning and impact
analysis (and frequently presented in land use appeals). It is also common for planners
and/or engineers to reference the average or typical parking ratios found in technical
studies or reference documents (e -g-, for many years the Institute of Transportation
Engineers has published a Parking Generation manual to assist with making estimates
likely parking demand by type of land use).
23. Comment letters [Exhibits 80-83, 86-95, 98, 101-117, 119, 121-123, 125-127,
129-134,136] written by neighboring residents indicate that the Parfitt Way parking lot is
SPR 12755
Page 5 of 12
often full and overflowing (i.e., parking along the entrance drive, in places marked for no
parking, in undeveloped "spaces" in the street right-of-way). The residents believe that
Pub patrons are the source of the demand for parking that exceeds the available space in
the Parfitt parking lot. Photos [Exhibit 981 taken by a Harbourside resident were offered
to show that the demand for parking in Parfitt parking lot already exceeds the supply. An
incident where emergency vehicles had to double park [Testimony of Putnam] is also
indicative that parking is problematic.
24_ Expanding the Pub as an all -ages restaurant is intended to bring in more
customers. The record does not include, and the Director did not have, an estimate of
what parking demand would likely result from the change in focus. A good parking
demand analysis would define the timing and extent of the likely future demand.
Without that information, the Director has no rational. way to estimate the number of
spaces needed to meet the future demand or to determine what the appropriate parking
requirement should be.
25. In trying to be specific, but lacking existing and future parking demand
information, the Director indicated different numbers (e.g., 4 spaces, 14 spaces, 17
spaces) at different times [Testimony of Chester]. The last indication of a parking
requirement, based on review of what other jurisdictions require for restaurants, was a
ratio of one parking space for every four patrons [Staff Report, pageIO, Exhibit 73]_ (A
ratio requirement can be met by increasing the supply of parking or decreasing size of the
square footage, or a combination of the two.)
26. On January 24, 2005, the Director issued a Notice of Administrative Decision
denying SSDP/SPR12755. The Notice references the Staff Report as "containing the
statement of facts upon which the decision is based". [Exhibit 73; Testimony of Preston]
27. As noted in the excerpt from the "Conclusions" section of the Staff Report
[Exhibit 73, page 13] that follows (with emphasis added), the basis for the Director's
denial was "insufficient information regarding parking":
Site Characteristics ... The site is not suitable for the proposed project
because the applicant has failed to provide sufficient information
regarding parking
History ... The proposal was forwarded to the Planning Commission for
review and recommendation. The Planning Commission recommended
denial of the project on January 13, 2005---
Land
005___
Land Use Code Analysis ... The application contains insufficient
information to determine that the project is in conformance with B1MC
18.81.
SPR 12755
Page 6 of 12
28. Regarding site plan review [Exhibit 73, Staff Report, page 111, the Director
concluded that--
The
hat:
The site plan is not in conformance with the applicable sections of BIMC
18.81. The applicant has not shown any additional parking spaces on the
site plan; therefore, the Director does not have enough information to
make the determination that the application is consistent with the parking
requirements ofBIMC 18.81.
Appeal
29. Parfitt and Harbourside timely filed appeals of the Director's decision. Parfitt
appealed the Director's denial of its requested SPR and SSDP and both parties appealed
SEPA conditioning.
30. A prehearing conference, attended by all parties, was held on February 24, 2005.
The Hearing Examiner ruled that there would not be consideration of issues raised by
Harbourside related to the legality of Parfitt's application absent Harbourside's consent,
need for PUD amendment, need for amendment of concomitant agreement, and, violation
of covenants, as these matters are not within the jurisdiction of the Hearing Examiner to
decide.
31. The Prehearing Order, issued February 24, 2005 included rulings on issues raised
and discussed at the prehearing conference:
(1) SEPA Appeals: The appeals filed by the Applicant - and the
Intervenor regarding of approval are moot unless the application is
approved. As the permits sought were denied, appeals of the adequacy
and appropriateness of the conditions is not germane or timely. These
appeals are to be held in abeyance, to be heard in a later proceeding if the
subject application is approved and SEPA conditions become a proper
subject for appeal.
(2) Public View Protection Issue: The Intervenor requested an
opportunity to present evidence on the issue of public view protection.
However, whether public views have been correctly considered by the
Director could be in dispute only if the application had been approved, but
given the nature of the appeal and the potential relief, it is not a proper
issue in this proceeding.
(3) Party Status of Harbourside: As Harbourside Condominium
Homeowners Association is not aggrieved by the Director's decision (i.e.,
Harbourside does not oppose the Director's denial), Harbourside is not
properly an appellant, but can participate as an Intervenor.
SPR 12755
Page 7 of 12
(4) Motion to Dismiss Partitt's Appeal: The Intervenor's motion to
dismiss Parfitt's appeal is denied as the bases cited for dismissal are not
within the jurisdiction of the Hearing Examiner to decide.
32. At hearing the Appellant presented a plan for how the parking space requirement
could be met. The options cited included: northerly expansion of the Parfitt Way parking
lot, reallocation/reassignment of existing spaces in the Wood Avenue and Parfitt Way
lots, joint use credit, shared use of off-site parking facility, in lieu contribution for
development of off-site parking facility. [Testimony of Waite; Testimony of Chester;
Exhibit 159; Exhibit 1601
33. The Director presented evidence at hearing regarding the legislative history of the
zoning regulations in the MUTC zone [Exhibit 171; Testimony of Cook]. This
information, while worthy of note and credible for an argument that a different parking
requirement (i.e., a higher number) was intended to be applied to restaurants, is not
necessary to deciding the fundamental issue of this appeal_ Also, if the Code presently
does not accurately express the parking requirements intended by the City Council, the
Council, not the Hearing Examiner, can amend the Code.
Bainbridge Island Municipal Code (BIMC)
Appeal of Director's Administrative Decision
34. The administrative decision procedures of BIMC 2.16.095 instructs that the
Director is to consider "applicable decision criteria... all other applicable law, and any
necessary documents and approvals" including Planning Commission recommendations
[BIMC 2.16.095(D)1. In making an administrative decision, the Director may approve,
approve with modifications, or deny an application [BIMC 2.16.095(E)]. Appeals of the
D'irector's decisions are to the Hearing Examiner "in accordance with the procedures of
BIMC 2.16.130" [BIMC 2.16.095(H)1.
35. In considering appeals of "administrative decisions, departmental rulings and
interpretations... ", BEMC 2.16.130(F) provides:
1. Hearing. In considering appeals, the hearing examiner shall do
one of the following.
a. Affirm the decision;
b. Reverse the decision;
c. Affirm the decision with modifications, or
d. Remand the decision to the department director for further
consideration. The hearing examiner shall include in the order the issues
to be reviewed on remand
36_ Site plan review is required pursuant to BIMC 18.105.020(A) for the "new
construction of a building or other structure.._ " and the "expansion. remodel, or exterior
alteration of any building or other structure by more than five percent of its existing floor
SPR 12755
Page 8 of 12
area-- Site plan review decision criteria of BIMC 18.105.060 mandate that to be
approved, the site plan is to be "in conformance with applicable code provisions and
development standards of the applicable zoning district"'. The applicant or other
aggrieved party may appeal the Director's decision "to the hearing examiner in accord
with BIMC 2.16.130" [BIMC 18.105.1201.
Parking Regulations
37_ BIMC 19. 06.390 defines `;floor area" to mean "the total area of all the floors
within the exterior vertical walls of a building. "
38. BIMC 18.81.030, in pertinent part, provides the basic development standards as to
the required number of parking spaces as follows:
B. parking lots exceeding the number of spaces required by this
section are not allowed unless approved by the planning commission.
F. For retail, commercial and personal services it, a building with
1,000 square feet of floor area or more, four spaces per 1, 000 square feet
shall be provided except as modified by BIMC18.40.030.
H For places of public accommodation serving food and beverage,
one space for each four occupants as determined by the department shall be
provided
M. For other educational, governmental, health care and recreational
facilities not covered in subsections K and L of this section, the number of
spaces must be adequate to accommodate the peak shift as determined by the
director.
O. For other uses or special cases, parking requirements shall be
established by the director. For determination by the director, the applicant
shall supply=
L Documentation regarding actual parking demand for the
proposed use; or
2. Technical studies relating the parking need for the
proposed use; or
3. Required parking for the proposed use as determined by
other comparable jurisdictions.
P. Subject to approval as part of site plan review, the parking
requirement in the central core overlay district of the Mixed Use Town Center
zoning district may be met by contributing into a public or cooperative
commercial effort to create new structured or surface parking in that zone.
SPR 12755
Page 9 of 12
The amount of the contribution shall be equivalent to that neces arto
provide the required number of parking *paces.
39. BIMC 18.40.030 provides the development standards for the Central Core of the
Mixed Use Town Center (MUTC) zone. The development standards table specifies four
spaces per 1,0(10 sq. ft " as the minimum number of parking spaces required, and five
spaces `per 1,000 sq. ft_' is the maximum_ These requirements have footnotes: #7 is
referenced by the minimum requirement, and #8 and 49 are referenced by maximum
requirement. These footnotes provide:
#7: On street parking legally created in conjunction with and adjacent to a
project may be included in the parking space calculation.
#8: Up to a maximum of four spaces per 1,000 square feet for restaurant
use, using procedures set out in BWC 18.81.030.M.
#9: Exceptions to the maximum commercial parking may be granted in
accordance with BIMC 18.81.030.0
Conclusions
1. The Hearing Examiner has jurisdiction to hear and decide this matter and, in
making that decision, must give substantial weight to the decision of the department
director.
2. The fundamental question here is whether the Director erred in denying the
requested permits when the information requested regarding the parking, as authorized by
BIMC 18.81.030(0), was not forthcoming from the applicant. The pivotal issue is
whether the Director was incorrect in treating the Pub as a special case . If the Director
cannot or should not treat this as a "special case ", then the decision to deny on the basis
cited by the Director could not be sustained. If the Director's treatment of the Pub as a
"special case" is appropriate, then Parfitt's failure to submit a satisfactory response to
the Director's request for information is an acceptable basis for denial.
3. The Code does not define "special cases "_ A dictionary definition of "special" as
meaning "of a kind different from others; distinctive, peculiar or unique" [Webster's New
World Dictionary, Third College Edition], suggests a useful plain meaning. This is not a
typical situation: parking is via an easement for access and use; that parking is in a lot
required to be shared by three uses (pub, marina, condo); a fourth, unauthorized, use may
also be using the lot; the terms of use for the parking lot are included in a private
agreement and a PUD; the amount of "required" parking in the lot was established in a
PUD; and, the allocation/assignment of spaces in the lot was established by a PUD and
may be proscribed by covenants running with the land. BIMC 18.81.030(0) anticipates
and provides for unusual situations ("special cases') where, rather than apply the general
SPR 12755
Page 10 of 12
standard for a use, Director is to establish a parking requirement appropriate to the
situation. Characterized as it is by complicated interrelated legal and physical factors and
thorny use questions, it is not difficult to appreciate why the Director treated this as a
"special case ".
q. The Director interpreted `special cases" to include the subject proposal. That
was not a mistake or an illogical, unreasoned choice in these circumstances.
5. For "special cases" the applicant is required to supply information regarding
parking demand, parking need, and/or parking requirements in comparable jurisdictions.
Objective, empirical data documenting the existing "demand" " from the various uses, and
an accurate, competently prepared estimate of future "need", are both needed for the
Director to make an informed decision as to what the parking requirement should be for
this `special case ". Harbourside residents gave anecdotal evidence that existing demand
for parking exceeds the available supply, but without an objective survey of the sources
and extent of current demand, there -is not sufficient basis for establishing a parking
requirement. The parking requirements of other jurisdictions suggest a range of
possibilities, but without existing and future demand data, the Director had insufficient
information to establish the appropriate parking requirement.
b. Without empirical information about existing demand and a technically
competent and realistic estimate of likely future demand, the Director could not establish
the parking requirement and the decision to deny on the basis cited is neither erroneous
nor arbitrary.
7. Notwithstanding the several days of hearing, the numerous motions with
extensive. supporting documentation, the considerable size of the record, and the time
involved in considering all relevant evidence, this appeal presents only one issue [see
Conclusion 21, and that is all that is appropriately decided here. As articulated in the
Prehearing Order, there are legal issues associated with this matter that are not properly
decided in the context of this appeal as they are outside the Hearing Examiner's
jurisdiction. Also, Land Use Code and practical questions (e.g., appropriateness of joint
use complimentary use credit, the potential for "fee in lieu", legitimacy of reallocation of
spaces, physical and legal limitations of expanding in the Parfitt Way lot, realistic
potential for developing on -street spaces, existence/feasibility of community off-site
parking facilities, etc.) have been raised regarding how and where additional parking
spaces could be provided. It is not necessary to answer these questions to make this
decision and consequently those questions are not addressed. (These questions would be
appropriately addressed in the context of a parking plan responsive to the Director's
specification of an applicable parking ratio.)
8. The language of the Code is mandatory= "the applicant shall supply... " (emphasis
added) If the applicant desires to pursue the proposal, the information requested by the
Director must be provided. This could be done in the context of a new application, but
that would be an unnecessary burden (and cost) for the applicant. Instead, the applicant
SPR 12755
Page 11 of 12
should have an opportunity to provide parking information (to the satisfaction of the
Director) as authorized by BIIVIC 18.81.030(0)(1) and (2). (As the Department has
surveyed other jurisdictions, information responsive to' BRAC 18.81.030(0)(3) is already
available_) With the appropriate information the Director can establish the parking
requirement and the applicant can revise the application with a parking plan that
demonstrates how that requirement would be met.
Decision and Order
The decision is REMANDED for the Director to consider: (1) parking information [see
Conclusions 5, 6, and 81 provided by the applicant to the satisfaction of the Director, in
order that the Director establish the parking requirement for the proposal; and, (2) the
applicant's parking plan demonstrating how the parking requirement would be met [see
Conclusion 8].
The Director shall issue a decision on the applications after consideration of (1) and (2);
that decision will be subject to appeal as provided by the Bainbridge Island Municipal
Code (consistent with treatment of these parties as noted in the Prehearing Order issued
this matter)_
1
Entered this 9th day of May 2005. `
4eredith A. Getches
City of Bainbridge Island
Hearing Examiner pro tem
CONCERNING FURTHER REVIEW
NOTE: It is the responsibility of a person seeking review of a Hearing Examiner
decision to consult applicable Code sections and other appropriate sources,
including State law, to determine his/her rights and responsibilities relative to
appeal.
Request for judicial review of this decision by a person with standing can be made by filing a
land use petition in superior court within 21 days in accordance with the Land Use Petition Act,
Revised Code of Washington (RCI), Chapter 36.70C.
SPR 12755
Page 12 of 12
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vECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of
HARBOR PUBLIC HOUSE SSDP/SPR 12755
[Parfitt Way Management Corporation]
of the PCD Director's Decision to
Deny Requested Permits
Introduction
The Director denied the requested permits and the property owner appealed that decision.
A prehearing conference was held on February 24, 2005 [see Findings 30 and 31]. The
hearing began on March 10, 2005 and continued on March 24, 2005 and April 8, 2005.
Parties represented at the hearing were: the Director, Planning and Community
Development Department (PCD or Department), by Rod Kasaguma, City Attorney; the
Appellant, Parfitt Way Management Corporation (Parfitt), by Dennis D. Reynolds,
attorney at law; and, the Intervenor, Harbourside Condominium Homeowners
Association (Harbourside), by Anne DeVoe Lawler, attorney at law.
After due consideration of all the evidence in the record, the following constitutes the
findings, conclusions, and decision of the Hearing Examiner on this appeal -
Findings of Fact
Site and Vicinity
1. The subject property, addressed as 231 Parfitt Way SW, is on the northern shore
of Eagle Harbor, in the western portion of Winslow just west and south of "Downtown".
Development includes the "Harbour Public House" restaurant and the Harbour Marina,
both owned and operated by the appellant, Parfitt Way Management Corporation
(Parfitt). Shaped something like an inverted "L", the Parfitt property includes shoreline
frontage on the west, but does not have street frontage. [Exhibit 1, Survey; Exhibit 28;
Attachment G, Exhibit 63; Exhibit 73, Staff Report, pages 1-3; Testimony of Waite]
Credible testimony at hearing indicates that another commercial use, kayak rental,
operates at the subject property, and may include some customer use of the Parfitt Way
parking lot [Testimony of Waite; Testimony of Daniel].
2. The Harbour Public House (Pub) is a popular tavern with the capacity to serve
approximately 90 (52 interior and 38 exterior). Parfitt indicates that the maximum
SPR 12755
Page 1 of 12
T
number of seats (in summer) is 81. Initially established as the "Jolly Roger Pub" in 1987
[see Finding 15], the Pub has been operated by Parfitt since 1991 as the Harbour Public
House. The Jolly Roger served beer, ale, wines and light food. The Pub has continued to
do that, but with a increased emphasis on food service. [Exhibit 73, Attachment G,
Attachment H, pages 24; Testimony of Waite ]
3. Vehicular and pedestrian access from Parfitt Way approximately 250 ft. to the
north, is through the adjacent parking lot. This paved and landscaped parking lot has 34
parking spaces and a designated (striped) truck turn -around. A concrete sidewalk extends
along the western edge of the lot from Parfitt Way to the subject property. Pedestrian
access can also be had from the Wood Avenue parking lot to the west. As noted below,
Parfitt has access and parking easements for use of both parking lots. [Exhibit 9; Exhibit
28].
4. The Pub, the Harbourside Condominiums, and the Harbour Marina share the
Parfitt Way parking lot. Parfitt owns the southernmost part (approximate 40 ft.) of this
parking lot and has an easement for vehicular and pedestrian access to and from Parfitt
Way and an easement for parking in the rest of the lot. [Exhibit 9; Exhibit 28] By the
terms of the PUD approved in 1991 and associated covenants [see Finding 16], five
parking spaces are for Condo use and 20 spaces are for the Harbour Marina [Attachments
E, F, G, H, Exhibit 73]. The Appellant asserts that 19 spaces are for Pub use [Testimony
of Waite and Exhibit 28 indicate 29 stalls for "joint Marina/Pub use"]. The Intervenor
disputes this and claims that 23 spaces are required and 14 "at most" are actually for the
Pub [Exhibit 154]. The Director indicates that 19 spaces were required for the pub with
the PUD (based on Code required ratio at the time of one space for each four seats). In
1997 that requirement was revised to 23 spaces [Attachment G, Exhibit 73]. The parking
lot accessed from Wood Avenue has 17 spaces, with 10 spaces reserved for the Harbour
Marina and 7 for the Harbour Marina Condominiums; no spaces are allocated for the Pub
[Exhibit 28].
5. In September and October 2004 [Exhibits 29 and 391, the Director reported that
surface spaces had been counted and that there are a total of 59 spaces shared between the
yacht servicesloffice, the Marina, the Pub, and the condominiums. Other references in
the record consistently refer to 17 spaces in the Wood Avenue lot and 34 in Parfitt Way
lot (for a total of 51).
6. A Fire Lane to the subject property is designated through the Wood Avenue
parking lot. There is a fire hydrant nearby the western edge of the Parfitt Way parking lot
(about 175 ft. south of Parfitt Way). Emergency vehicles have used the Parfitt Way
parking lot for access (it may be the more obvious route to access the subject property).
[Exhibit 9; Exhibit 41; Exhibit 42; Exhibit 47, page 31
7. The current use of the subject site is commercial and the zoning and
Comprehensive Plan designation of the property is Mixed Use Town Center — Core
(MUTC). The Shoreline Master Program designation is Urban. The Urban environment
SPR 12755
Page 2 of 12
accommodates high intensity commercial, industrial or recreational use, or multifamily
residential development). [Exhibit 73, StaffReport, pages 1-31
8. In the immediate vicinity the Pub, the zoning, Comprehensive Plan, and shoreline
designations are similar to that of the subject site. Uses to the east include commercial
and office development. Multifamily development is adjacent to the north (Harbourside
Condominium) and to the west (Marina Condominium). Further west, across Wood
Avenue, zoning and use is single -residential, and residential uses and zoning predominate
north of Parfitt Way. [Exhibit 1, Survey; Exhibit 73, Staff Report, pages 1-3]
Proposal
9. Parfitt proposes to make alterations in the existing building and to expand the
restaurant to the north, into the area between the existing building and the parking lot.
Along with these structural changes there would be an operational change in focus "from
looking and functioning as a tavern to looking and functioning as a neighborhood
restaurant." [Exhibit 24; Exhibit 2]
I0. The size of the restaurant and deck areas would be increased, as would the kitchen
and storage areas. The proposed additions would approximately double the current size.
The existing restaurant/pub is approximately 1878 sq. ft. (including 630 sq. ft_ on the
deck) and has a seating capacity of approximately 90 [Attachment G, Exhibit 73]. The
restaurant space would be increased by 1,784 sq, fl., and 237 sq. ft. of deck space would
be added. The restaurant/pub (i.e., the area where customers could be seated) after
expansion, including deck space, would be 3,899 sq. ft., with an added seating capacity
for 50-60 persons. [Exhibit 73, pages 4 and 5 (capacity), Attachment A (square footage);
Exhibit 6 (seating proposed)].
Space Existing New Totals
Pub/restaurant 1248 sq. ft. 1784 sq. ft. 3032 sq. ft.
Deck 630 sq. ft. 237 sq. ft. 867 N. ft.
Subtotals Service areas: 1878 sq. ft. 2021 sq. ft. 3899 sq. ft.
Kitchen storage, office, etc. 1985 N. ft. 1807 sq. ft. 3792 sq_ ft.
Totals all spaces: 3863 sq. ft. 3828 sq. ft. 7691 sq. ft.
11. The figures used in Finding 10 are based upon the applicant's square footage
estimates presented in the SSDP and SPR applications [see Attachment A, Exhibit 73 and
Exhibit 11]. However, these figures are not consistent with other information in the
record. Both the applicant and the Director [Exhibit 26 and Exhibit 29] refer to a "6,846
square -foot pub"; perhaps this agreement signals that this total is more accurate than that
calculated in Finding 10. At least one square footage reference [Staff Analysis, issued
December 1, 2004, Exhibit 77] omits the deck seating area (perhaps this is because decks
are outside the exterior walls and therefore not "floor area" - see Finding 37). Other
figures include: in the SEPA Checklist [page 2, Attachment C, Exhibit 731 the applicant
SPR 12755
Page 3 of 12
indicates additions of"1784 sf first floor & 1806 sf daylight basement"; and, the Design
Review Board describes the proposal as totaling 6,720 square feet, with a proposed
addition of 3,628 square feet [Attachment D, Exhibit 73]. As it is not critical to this
decision, no attempt has been made to reconcile the different figures.
12. Six new parking spaces were originally proposed in the Shoreline Substantial
Development Permit application [Attachment A, Exhibit 73; Exhibit 21. In November
2004, believing that the proposed spaces would exceed the maximum allowed and require
approval by the Planning Commission, the applicant revised the site plan to eliminate
those spaces from the proposal [Exhibit 9; Testimony of Waite].
13. In August 2004, Parfitt proposed to provide additional parking for the proposed
expansion by reallocating the spaces in the Parfitt Way and Wood Avenue parking lots.
The 10 liveaboard slips in Parfitt's Harbour Marina would be reassigned as moorage slips
to free up 10 spaces and the Parfitt Way parking lot spaces allocated as follows: 2 spaces
for the Marina, 27 for the Pub, and 5 for the Harbourside Condominium. The Wood
Avenue lot would continue to have 10 spaces for the Marina. A total of 44 spaces would
be available for Pub and Marina use. [Exhibit 261 It is not clear that Parfitt has the
ability to make these types of changes without the agreement of affected property owners
and/or revision of the PUD [Exhibit 31 ].
Background [see also Exhibit 73, Staff Report, "History", pages 3-5]
14. In 1980, a Shoreline Management Substantial Development Permit was issued for
development of a commercial moorage facility (50 boat slips approved and 30 parking
spaces required) at the subject site. [Exhibit 73, Attachment E, page 6]
15. In 1987, the City Council issued a Shoreline Substantial Development Permit and
a Conditional Use Permit for conversion of an existing building at the site into an
"English style" pub, called the Jolly Sailor Pub. This project included 13 parking spaces
for the pub.
16. In 1991, the marina [see Finding 141 and the Jolly Roger Pub [see Finding 15]
were included in the Harbourside Planned Unit Development (PUD) along with the
property adjacent to the west and north [Exhibit 73, Staff Report, pages 1-3; Exhibit 1631.
This PUD involved development of 30 condominiums (10 -unit "Harbour Marina
Condominiums" and 20 -unit "Harbourside Condominiums", see Exhibit 3), replacement
of the marina, and construction of an owner residence and space for yacht brokerage.
Parking requirements were calculated to include shared spaces for the pub (now the
Harbour Public House), the marina (now the Harbour Marina), and the condominiums.
The Parfitt Way parking lot was "to contain 29 parking spaces for the joint use of the
Marina and pub parking" [Exhibit 163 notes 19 spaces required for the pub based upon
one space for each four seats.] The marina's 30 -space parking requirement included 10
spaces in the Wood Avenue lot [pages 6-8, Attachment D, Exhibit 731.
SPR 12755
Page 4 of 12
17. In 1997, the City building official determined that the capacity of the Pub is 90
persons. Based upon that revised capacity, and the ratio of one space for each four seats,
23 parking spaces are required. [Exhibit 73, Attachment G]
Director's Decision
18. On July 1, 2004, Parfitt Way Management, Inc. applied for a Shoreline
Substantial Development Permit (SSDP) and Site Plan Review (SPR) to expand and
make alterations to the Pub as described above. [Exhibit 11 ]
19. On August 11, 2004, the Department requested submittal of a new site plan to
revise the location of the proposed parking spaces that were shown off-site. The
applicant submitted a revised site plan, eliminating the proposed parking spaces and
proposing that the existing Harbour Marina parking spaces be reallocated to
accommodate the proposed restaurant expansion was also submitted on this date.
20. The Planning Commission considered the proposal at a public meeting on
December 9, 2004. Following presentations by staff and the applicant, the Commission
permitted public comment on the project. The Commission subsequently asked the
applicant for further information and delayed making a recommendation until the next
Commission meeting. The Planning Commission continued the meeting on January 13,
2005, did not hear fiurther public comment, and voted unanimously to recommend denial
of the project.
21. On December 27, 2004, the Department [Exhibit 27] requested that that Parfitt
provide parking information pursuant to BINK 18.81.030(0). Parfitt's architect
responded by letter [Exhibit 71], objecting to the Pub being considered a "special case"
and declining to provide the requested information asserting that it "is superfluous"
because BIMC 18,81.030(0) "does not apply to this application." The Staff Report
includes these letters in a list of events in the "history" of the review of the subject
applications [see Items 5 through 15].
22. The Hearing Examiner takes official notice that the types of parking information
requested by the Director is often used in assessing the parking impacts of new
development. Parking studies (e.g., surveying actual use, determining peak demand
time(s) for various uses, etc.) to document current demand and existing surplus or
deficient parking supply, are common analyses used in land use planning and impact
analysis (and frequently presented in land use appeals). It is also common for planners
and/or engineers to reference the average or typical parking ratios found in technical
studies or reference documents (e.g., for many years the Institute of Transportation
Engineers has published a Parking Generation manual to assist with making estimates
likely parking demand by type of land use).
23. Comment letters [Exhibits 80-83, 86-95, 98, 101-117, 119, 121-123, 125-127,
129-134,136] written by neighboring residents indicate that the Parfitt Way parking lot is
SPR 12755
Page 5 of 12
often full and overflowing (i.e., parking along the entrance drive, in places marked for no
parking, in undeveloped "spaces" in the street right-of-way). The residents believe that
Pub patrons are the source of the demand for parking that exceeds the available space in
the Parfitt parking lot. Photos [Exhibit 981 taken by a Harbourside resident were offered
to show that the demand for parking in Parfitt parking lot already exceeds the supply. An
incident where emergency vehicles had to double park [Testimony of Putnam] is also
indicative that parking is problematic.
24. Expanding the Pub as an all -ages restaurant is intended to bring in more
customers. The record does not include, and the Director did not have, an estimate of
what parking demand would likely result from the change in focus. A good parking
demand analysis would define the timing and extent of the likely future demand.
Without that information, the Director has no rational way to estimate the number of
spaces needed to meet the future demand or to determine what the appropriate parking
requirement should be.
25. In trying to be specific, but lacking existing and future parking demand
information, the Director indicated different numbers (e.g., 4 spaces, 14 spaces, 17
spaces) at different times [Testimony of Chester]. The last indication of a parking
requirement, based on review of what other jurisdictions require for restaurants, was a
ratio of one parking space for every four patrons [Staff Report, pagel0, Exhibit 73]. (A
ratio requirement can be met by increasing the supply of parking or decreasing size of the
square footage, or a combination of the two.)
26. On January 24, 2005, the Director issued a Notice of Administrative Decision
denying SSDP/SPR12755. The Notice references the Staff Report as "containing the
statement of facts upon which the decision is based". [Exhibit 73; Testimony of Preston]
27. As noted in the excerpt from the "Conclusions" section of the Staff Report
[Exhibit 73, page 13] that follows (with emphasis added), the basis for the Director's
denial was "insufficient information regarding parking":
Site Characteristics ... The site is not suitable for the proposed project
because the applicant has failed to provide sufficient information
regarding parking.
History ... The proposal was forwarded to the Planning Commission for
review and recommendation. The Planning Commission recommended
denial of the project on January 13, 2005...
Land Use Code Analysis ... The application contains insufficient.
information to determine that the project is in conformance with BLMC
18.81.
SPR 12755
Page 6 of 12
28. Regarding site plan review [Exhibit 73, Staff Report, page i 1], the Director
concluded that:
The site plan is not in conformance with the applicable sections of BIMC
18.81. The applicant has not shown any additional parking spaces on the
site plan; therefore, the Director does not have enough information to
make the determination that the application is consistent with the parking
requirements of BIMC 18.81.
Appeal
29. Parfitt and Harbourside timely filed appeals of the Director's decision. Parfitt
appealed the Director's denial of its requested SPR and SSDP and both parties appealed
SEPA conditioning.
30. A prehearing conference, attended by all parties, was held on February 24, 2005.
The Hearing Examiner ruled that there would not be consideration of issues raised by
Harbourside related to the legality of Parfitt's application absent Harbourside's consent,
need for PUD amendment, need for amendment of concomitant agreement, and, violation
of covenants, as these matters are not within the jurisdiction of the Hearing Examiner to
decide.
31. The Prehearing Order, issued February 24, 2005 included rulings on issues raised
and discussed at the prehearing conference:
(1) SEPA Appeals: The appeals filed by the Applicant and the
Intervenor regarding of approval are moot unless the application is
approved. As the permits sought were denied, appeals of the adequacy
and appropriateness of the conditions is not germane or timely. These
appeals are to be held in abeyance, to be heard in a later proceeding if the
subject application is approved and SEPA conditions become a proper
subject for appeal.
(2) Public View Protection Issue: The Intervenor requested an
opportunity to present evidence on the issue of public view protection.
However, whether public views have been correctly considered by the
Director could be in dispute only if the application had been approved, but
given the nature of the appeal and the potential relief, it is not a proper
issue in this proceeding.
(3) Party Status of Harbourside: As Harbourside Condominium
Homeowners Association is not aggrieved by the Director's decision (i.e.,
Harbourside does not oppose the Director's denial), Harbourside is not
properly an appellant, but can participate as an Intervenor.
SPR 12'755
Page 7 of 12
(4) Motion to Dismiss Parritt's Appeal: The Intervenor's motion to
dismiss Parfitt's appeal is denied as the bases cited for dismissal are not
within the jurisdiction of the Hearing Examiner to decide.
32. At hearing the Appellant presented a plan for how the parking space requirement
could be met. The options cited included: northerly expansion of the Parfitt Way parking
lot, reallocation/reassignment of existing spaces in the Wood Avenue and Parfitt Way
lots, joint use credit, shared use of off-site parking facility, in lieu contribution for
development of off-site parking facility. [Testimony of Waite; Testimony of Chester;
Exhibit 159; Exhibit 1601
33. The Director presented evidence at hearing regarding the legislative history of the
zoning regulations in the MUTC zone [Exhibit 171; Testimony of Cook]. This
information, while worthy of note and credible for an argument that a different parking
requirement (i.e., a higher number) was intended to be applied to restaurants, is not
necessary to deciding the fundamental issue of this appeal. Also, if the Code presently
does not accurately express the parking requirements intended by the City Council, the
Council, not the Hearing Examiner, can amend the Code.
Bainbridge Island Municipal Code (BIMC)
Appeal of Director's Administrative Decision
34. The administrative decision procedures of B1MC 2.16.095 instructs that the
Director is to consider "applicable decision criteria... all other applicable law, and any
necessary documents and approvals" including Planning Commission recommendations
[BIMC 2.16.095(D)]. In making an administrative decision, the Director may approve,
approve with modifications, or deny an application [BIMC 2.16.095(E)]. Appeals of the
Director's decisions are to the Hearing Examiner "in accordance with the procedures of
BIMC 2.16.130" [BIMC 2.16.095(H)].
35. In considering appeals of "administrative decisions, departmental rulings and
interpretations...", BIMC 2.16.130(F) provides:
1. Hearing. In considering appeals, the hearing examiner shall do
one of the following:
a. Affirm the decision;
b. Reverse the decision;
c. Affirm the decision with mod cations; or
d. Remand the decision to the department director for further
consideration. The hearing examiner shall include in the order the issues
to be reviewed on remand
36. Site plan review is required pursuant to BIMC 18.105.020(A) for the "new
construction of a building or other structure— " and the "expansion, remodel, or exterior
alteration of any building or other structure by more than five percent of its existing floor
SPR 12755
Page 8 of 12
area ". Site plan review decision criteria of BIMC 18.105.060 mandate that to be
approved, the site plan is to be "in conformance with applicable code provisions and
development standards of the applicable zoning district ". The applicant or other
aggrieved party may appeal the Director's decision "to the hearing examiner in accord
with BIMC 2.16.130" [BIMC 18.105.1201.
Parking Regulations
37. BIMC 18.06.390 defines `;floor area" to mean "the total area of all the floors
within the exterior vertical walls of a building. "
38. BIMC 18.81.030, in pertinent part, provides the basic development standards as to
the required number of parking spaces as follows:
B. parking lots exceeding the number of spaces required by this
section are not allowed unless approved by the planning commission.
F. For retail, commercial and personal services in a building with
1, 000 square feet offloor loor area or more, four spaces per 1, 000 square feet
shall be provided except as modified by BIMC18.40.030.
H. For places of public accommodation serving food and beverage,
one space for each four occupants as determined by the department shall be
provided
M. For other educational, governmental, health care and recreational
facilities not covered in subsections K and L of this section, the number of
spaces must be adequate to accommodate the peak shift as determined by the
director.
a For other uses or special cases, parking requirements shall be
established by the director. For determination by the director, the applicant
shall supply:
1. Documentation regarding actual parking demand for the
proposed use; or
2. Technical studies relating the parking need for the
proposed use; or
3. Required parking for the proposed use as determined by
other comparable jurisdictions.
P. Subject to approval as part of site plan review, the parking
requirement in the central core overlay district of the Mixed Use Town Center
zoning district may be met by contributing into a public or cooperative
commercial effort to create new structured or surface parking in that zone.
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T
The amount of the contribution shall be equivalent to that necessary to
provide the required number of parking spaces.
39. BIMC 18.40.030 provides the development standards for the Central Core of the
Mixed Use Town Center (MUTC) zone. The development standards table specifies four
spaces `per 1,000 sq. ft." as the minimum number of parking spaces required, and five
spaces "per 1, 000 sq. ft. " is the maximum. These requirements have footnotes: #7 is
referenced by the minimum requirement, and 48 and #9 are referenced by maximum
requirement. These footnotes provide:
#7: On street parking legally created in conjunction with and adjacent to a
project may be included in the parking space calculation.
#8: Up to a maximum of four spaces per 1,000 square feet for restaurant
use, using procedures set out in B1MC 18.81.030.M.
#9: Exceptions to the maximum commercial parking may be granted in
accordance with BIMC 18.81.030. C.
Conclusions
1. The Hearing Examiner has jurisdiction to hear and decide this matter and, in
making that decision, must give substantial weight to the decision of the department
director.
2. The fundamental question here is whether the Director erred in denying the
requested permits when the information requested regarding the parking, as authorized by
BIMC 18.81.030(0), was not forthcoming from the applicant. The pivotal issue is
whether the Director was incorrect in treating the Pub as a "special case ". If the Director
cannot or should not treat this as a "special case ", then the decision to deny on the basis
cited by the Director could not be sustained. If the Director's treatment of the Pub as a
"special arse" is appropriate, then Parfitt's failure to submit a satisfactory response to
the Director's request for information is an acceptable basis for denial.
3. The Code does not define "special cases". A dictionary definition of "special" as
meaning "of a kind different from others; distinctive, peculiar or unique" [Webster's New
World Dictionary, Third College Edition], suggests a useful plain meaning. This is not a
typical situation: parking is via an easement for access and use; that parking is in a lot
required to be shared by three uses (pub, marina, condo); a fourth, unauthorized, use may
also be using the lot; the terms of use for the parking lot are included in a private
agreement and a PUD; the amount of "required" parking in the lot was established in a
PUD; and, the allocation/assignment of spaces in the lot was established by a PUD and
may be proscribed by covenants running with the land. BIMC 18.81.030(0) anticipates
and provides for unusual situations ("special cases') where, rather than apply the general
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standard for a use, Director is to establish a parking requirement appropriate to the
situation. Characterized as it is by complicated interrelated legal and physical factors and
thorny use questions, it is not difficult to appreciate why the Director treated this as a
"special case ".
4. The Director interpreted "special cases" to include the subject proposal. That
was not a mistake or an illogical, unreasoned choice in these circumstances.
5. For "special cases" the applicant is required to supply information regarding
parking demand, parking need, and/or parking requirements in comparable jurisdictions.
Objective, empirical data documenting the existing "demand" from the various uses, and
an accurate, competently prepared estimate of future "need", are both needed for the
Director to make an informed decision as to what the parking requirement should be for
this "special case ". Harbourside residents gave anecdotal evidence that existing demand
for parking exceeds the available supply, but without an objective survey of the sources
and extent of current demand, there is not sufficient basis for establishing a parking
requirement. The parking requirements of other jurisdictions suggest a range of
possibilities, but without existing and future demand data, the Director had insufficient
information to establish the appropriate parking requirement.
6. Without empirical information about existing demand and a technically
competent and realistic estimate of likely future demand, the Director could not establish
the parking requirement and the decision to deny on the basis cited is neither erroneous
nor arbitrary.
7. Notwithstanding the several days of hearing, the numerous motions with
extensive supporting documentation, the considerable size of the record, and the time
involved in considering all relevant evidence, this appeal presents only one issue [see
Conclusion 21, and that is all that is appropriately decided here. As articulated in the
Prehearing Order, there are legal issues associated with this matter that are not properly
decided in the context of this appeal as they are outside the Hearing Examiner's
jurisdiction. Also, Land Use Code and practical questions (e.g., appropriateness of joint
use/complimentary use credit, the potential for "fee in lieu", legitimacy of reallocation of
spaces, physical and legal limitations of expanding in the Parfitt Way lot, realistic
potential for developing on -street spaces, existence/feasibility of community off-site
parking facilities, etc.) have been raised regarding how and where additional parking
spaces could be provided. It is not necessary to answer these questions to make this
decision and consequently those questions are not addressed. (These questions would be
appropriately addressed in the context of a parking plan responsive to the Director's
specification of an applicable parking ratio.)
8. The language of the Code is mandatory: "the applicant shall supply... " (emphasis
added) If the applicant desires to pursue the proposal, the information requested by the
Director must be provided. This could be done in the context of a new application, but
that would be an unnecessary burden (and cost) for the applicant. Instead, the applicant
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should have an opportunity to provide parking information (to the satisfaction of the
Director) as authorized by BIMC 18.81.030(0)(1) and (2). (As the Department has
surveyed other jurisdictions, information responsive to BIMC 18.81 .030(0)(3) is already
available.) With the appropriate information the Director can establish the parking
requirement and the applicant can revise the application with a parking plan that
demonstrates how that requirement would be met.
Decision and Order
The decision is REMANDED for the Director to consider: (1) parking information [see
Conclusions 5, 6, and 8] provided by the applicant to the satisfaction of the Director, in
order that the Director establish the parking requirement for the proposal; and, (2) the
applicant's parking plan demonstrating how the parking requirement would be met [see
Conclusion 81.
The Director shall issue a decision on the applications atter consideration of (1) and (2);
that decision will be subject to appeal as provided by the Bainbridge Island Municipal
Code (consistent with treatment of these parties as noted in the Prehearing Order issued
this matter).
Entered this 9th day of May 2005. A"' �71 04`
4eredith "AGetches
City of Bainbridge Island
Hearing Examiner pro tem
CONCERNING FURTHER REVIEW
NOTE: It is the responsibility of a person seeking review of a Hearing Examiner
decision to consult applicable Code sections and other appropriate sources,
including State law, to determine his/her rights and responsibilities relative to
appeal.
Request for judicial review of this decision by a person with standing can be made by filing a
land use petition in superior court within 21 days in accordance with the Land Use Petition Act,
Revised Code of Washington (RCS, Chapter 36.70C.
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