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Earl_L._MillerTHE CITY OF BAINBRIDGE ISLAND DEPARTMENT OF THE HEARING EXAMINER In the Matter of an Appeal of an } Administrative Decision on the } Building Permit Application of } BP# 4892 A Earl L. Miller, Appellant } FINDINGS OF FACT, CONCLUSIONS Eagle Harbor Alliance, Appellant} OF LAW AND DECISION VS. City of Bainbridge Island } Respondent } _______________________________ } SUMMARY OF DECISION The Administrative denial of Appellant Miller’s application to build a pier and commercial building for office use on his property located at 240 Weaver Road in the City of Bainbridge Island is hereby affirmed. The appeal filed by Earl L. Miller dated February 11, 1999, is hereby denied. The appeal filed by Eagle Harbor Alliance, an Association, on February 19, 1999, is denied. SUMMARY OF DECISIONS ON GROUNDS FOR APPEAL Summary of grounds of appeal filed by Earl Miller on February 11, 1999 The conclusion in the Decision that there were no legal non-conforming uses of the Strawberry Plant Building at the time of the fire is arbitrary and capricious, contrary to law, and unsupported by any facts. DENIED. CONCLUSIONS OF LAW 4, 5, & 6. The refusal to process the application as one to construct the pier structure only at this time, without a building, is arbitrary and capricious and contrary to law. There is no basis for the statement that the City cannot accept and process an application for two different structures and/or two different uses. Moreover, the pier structure is common to any future use of the property, and could stand alone as its own use. WITHDRAWN FROM CONSIDERATION BY WILLIAM LYNN, COUNSEL FOR APPELLANT MILLER, AT THE PUBLIC HEARING ON APRIL 1, 1999. CONCLUSION OF LAW 7 The conclusion in the Decision that the building permit application fails to indicate the use or occupancy of the proposed building is erroneous. The applicant has submitted a complete building permit application, and has also agreed to limit the use to those which are allowed by law. WITHDRAWN FROM CONSIDERATION BY WILLIAM LYNN COUNSEL FOR APPELLANT MILLER AT THE PUBLIC HEARING ON APRIL 1, 1999. CONCLUSION OF LAW 7. The Decision is internally inconsistent because the February 16, 1998 Memorandum concludes that the building may be constructed in the configuration existing at the time of the fire and the applicant is only seeking permission to do that. DENIED. CONLCUSION OF LAW 17 The portion of the Decision that concludes that lawful non-conforming uses were discontinued and/or abandoned is arbitrary and capricious, contrary to law, and unsupported by facts. DENIED CONCLUSION OF LAW 11. The Decision concluding that the City is not estopped to determine the uses are not lawful nonconforming uses is erroneous and contrary to law. Even if not estopped, the City, by its prior actions has interpreted its codes in a way that is contrary to the Decision, and that earlier interpretation is binding on the City. DENIED. CONCLUSION OF LAW 19. Contrary to the Decision, the appellant, through prior submissions to the City, did prove that there has been a continuous history of commercial and industrial use of the Strawberry Plant Building, including offices. FINDING OF FACT 6. The City’s conclusion that the 1969 code does not authorize changes in use to less intensive ones is arbitrary and capricious and contrary to law. In addition, this interpretation is contrary to the City’s interpretation as established by prior action. AFFIRMED IN PART – DENIED IN PART. CONCLUSION OF LAW 6. The City’s conclusion that similar uses cannot be substituted for non-conforming uses is arbitrary and capricious and erroneous. DENIED. CONCLUSIONS OF LAW 5 & 6. The Decision is contrary to the Hearing Examiner’s findings in 1982, which findings are binding upon the City. DENIED. CONCLUSION OF LAW 14. The Decision is contrary to prior interpretations made by the City of Winslow concerning their own codes. DENIED. FINDING OF FACT 13. CONCLUSION OF LAW 19. The Decision as a whole is arbitrary, capricious and contrary to law. DENIED CONCLUSION OF LAW 12. SUMMARY OF DECISIONS ON APPEAL BY EAGLE HARBOR ALLIANCE Is the burden of establishing the existence of a non-conforming use on the landowner, and if so, has Mr. Miller met that burden? IT IS THE LANDOWNER’S BURDEN TO ESTABLISH THE EXISTENCE OF A LEGAL NON-CONFORMING USE FOR THE STRAWBERRY PLANT BUILDING AT THE TIME OF ITS DESTRUCTION BY FIRE. CONCLUSION OF LAW 10. MR. MILLER DID NOT ESTABLISH BY EVIDENCE ANY LEGAL NON-CONFORMING USE FOR THE STRAWBERRY PLANT BUILDING AT THE TIME OF ITS DESTRUCTION BY FIRE. CONCLUSIONS OF LAW 10 & 16. This ground for appeal by Eagle Harbor Alliance addresses a ground for appeal by Earl Miller which was withdrawn from consideration at the hearing on April 1, 1999. This issue is no longer before the Hearing Examiner. CONCLUSION OF LAW 7. Eagle Harbor Alliance asserts that it is the landowners burden to demonstrate whether the Strawberry Plant Building was a legal non-conforming structure at the time of its destruction in January 1997. By agreement of all counsel at the hearing on March 19, 1999 this issue was not before the Hearing Examiner. It was not specified by the Planning Director as a basis for her denial of the Miller Building Permit Application. CONCLUSION OF LAW 13. Eagle Harbor Alliance appealed as erroneous a presumption made by the City’s Attorney, in a February 1998 Memorandum, that Mr. Miller could reconstruct a building at this site, as it existed over water, for residential purposes. That presumption was clearly corrected in a letter dated June 8, 1998 from City Attorney, Rod Kaseguma, to Mr. William Lynn, Counsel for Appellant Miller. CONCLUSION OF LAW 17. Eagle Harbor Alliance asserts that the City’s denial of Mr. Miller’s application is inadequate since it fails to list all possible grounds for denial of the application. APPEAL IS DENIED. CONCLUSIONS OF LAW 12 & 15. Eagle Harbor Alliance contends that the decision is erroneous because it ignores the application of the City’s zoning code 18.87.030. DENIED. The Shoreline Master Program controls development at this site where the building is proposed to be built over the shoreline and tidelands. CONCLUSION OF LAW 18. FINDINGS OF FACT Earl L. Miller and Linda Miller his wife are the owners of certain real property located at 240 Weaver Road in the City of Bainbridge Island identified by tax parcel number 272502-4-006-2000. The subject property is legally described in attached Exhibit A. Mr. and Mrs. Miller purchased this property from James and Arloah Phillips in 1996. At the time of Mr. Miller’s purchase of this property, a portion of the site was occupied by a large commercial warehouse. That building was totally destroyed by fire in January, 1997. On May 4, 1998, Mr. Miller filed an application for a building permit with the City of Bainbridge Island under Permit number 4892A. He requested a building permit to rebuild the pier and building which had been destroyed by the January, 1997 fire. Mr. Miller also filed an application for exemption from a Shoreline Substantial Development Permit, this application was dated April 28, 1998. The building permit application filed by Mr. Miller on May 4, 1998, left blank, Section 7, which required the applicant to inform the City of the proposed use for the building. Mr. Miller’s May 4, 1998 application did not specify the use of the proposed building. Mr. Miller was notified by the City Attorney’s letter, dated June 8, 1998 that his building permit application was incomplete and could not be processed. Subsequent to receipt of that letter, Mr. Miller provided additional information to the City. Then by letter from his architect, Mr. Isley, he amended his building permit application to include a proposed use for the building. After a review of the amended application Planning Director, Stephanie Warren, issued an Administrative Decision denying Mr. Miller’s Application for Building Permit. The Administrative Denial of the building permit was then appealed to the Hearing Examiner. EXHIBIT 3, 4 & 19. During the course of the City’s review of Mr. Miller’s application through discussions with Mr. Miller and his representatives, the City received documentation of the history of uses for the building which had existed on the property for more than sixty years. Mr. Phillips’ Declaration chronicles the use of the property during his long term of ownership. Mr. Palmer’s Declaration summarizes other history. The Miller property had a long history of commercial and light industrial use. EXHIBIT 38 & 29. During the application review process, Mr. Miller contended that his use of his property for commercial office uses was allowed under the Bainbridge Island Municipal Code since it had been “grandfathered” as a continuing legal non-conforming use since the adoption of the residential zoning designation in 1969. The Miller property was annexed to the City of Winslow on January 21, 1963, under Ordinance 142. In April 1963, the City of Winslow passed Ordinance 124, which established the zoning for the City of Winslow. The 1963 zoning map, however, does not show a zoning designation for the Miller property. The City has been unable to locate any other documents which show the zoning designation of the Miller property at the time of adoption of the 1963 zoning code. The zoning of surrounding parcels, however, was residential. On September 15, 1969, the City of Winslow passed Ordinance 69-16 which established a new zoning code for the City of Winslow. The Miller property was included on the 1969 zoning map and was classified as RS7500 (also known as single-family residence, minimum lot size 7500 square feet.) Under the RS7500 designation, permitted uses were single family dwellings, home occupations, accessory buildings such as garages, duplexes, planned residential unit development in a development, mobile homes on individual lots, swimming and wading pools and certain signs. Since the adoption of the 1969 zoning code, the Miller property has retained a residential zoning designation under the jurisdiction of the City of Winslow and later the City of Bainbridge Island. On September 19, 1996, the City adopted its current Shoreline Master Program. Under the zoning provision, the upland portion of the Miller property is designated as semi-urban residential (2.9 – 3.5 units per acre), only residential uses are allowed. The tidelands portion of the Miller property, where the Miller building was located, is designated “aquatic” and “semi-rural” by the Shoreline Master Program. Under the “semi rural” and “aquatic” designations only water dependent uses are allowed over water. Residential uses are not allowed in the “aquatic” environment. The Miller property still retains this zoning and Shoreline Master Program designation. When the 1969 zoning code was passed, the Miller property was owned by Angela Weaver, a widow, who had entered into a Real Estate Contract in May of that year to sell the property to J.A. Park and Francis M. Park, his wife. On November 6, 1969 Mr. and Mrs. Park received a Statutory Warranty Deed from Mrs. Weaver. The Parks immediately sold the property to A. W. Brindle and Genevieve M. Brindle, his wife. SEE DECLARATION OF WILLIAM M. PALMER, EXHIBIT 29 Mr. J.A. Park operated a pre-stressed concrete casting business on the subject property from 1964 until 1973.The Brindles sold the property to Mr. and Mrs. Dale Morehouse in 1973. Mr. Park’s business was discontinued when the property was sold to Morehouse and was never operated again at the site. SEE DECLARATION OF WILLIAM M. PALMER, EXHIBIT 29. Once Mr. Morehouse purchased the property, several other companies rented space on the property including K.C. Hendricks fishing tackle company, Max Howard’s laminated cedar arches business and a rat trap making business. In July of 1975, Mr. Morehouse sold the property to Whitney Fidalgo Seafoods, Inc. Mr. and Mrs. Jim Phillips rented space on the property from Mr. Morehouse beginning in September of 1975. From 1973 to 1976 Mr. Morehouse had several businesses on this property. These businesses included his own, Alaska Salmon Enterprises; a ceramic shop; a woodworking shop; a boat building business and a mail order business. In March 1976, Mr. and Mrs. Phillips purchased the property from Mr. and Mrs. Morehouse to operate the Phillips’ business known as Washington Acoustical Company, Inc. Their use of the building included using it for a business office, a sales office, design and engineering offices and accounting offices as well as using other space in the building for warehouse storage. After Mr. and Mrs. Phillips purchased the property they continued to rent out space to Mr. Morehouse, Whitney Fidalgo Seafoods, a cabinet woodworking business and a catalog mail order business. In 1984 Mr. Phillips replaced the roof of the Strawberry Plant building. This roofing job was approved by the City of Bainbridge Island on November 15, 1984. Mr. and Mrs. Phillips maintained their acoustical tile business on the premises. Mr. and Mrs. Phillips’ owned the property from 1976 until 1996 when they sold it to Mr. and Mrs. Miller. During the Phillips’ ownership, they also rented space in the building to various tenants, a number of whom are listed in Mr. Phillips’ Declaration.. SEE EXHIBIT 35 & 38 & 11. Mr. and Mrs. Miller purchased the property in 1996 and they continued to lease space in the building to numerous tenants. Mr. Phillips continued on as a tenant of Mr. Miller until the time of the fire. SEE EXHIBIT 11. At no time prior to the destruction of the building by fire in 1997, did any owner of this property apply to the City of Winslow or the City of Bainbridge Island for permission to change a non-conforming use of the building to another non-conforming use. The changes in use for the building over the years were done solely at the discretion of the individual owners or tenants on the property. Structural alterations were made without City permits by both Mr. Phillips’ and his tenants. During Mr. Miller’s ownership of the building extensive changes were made to the inside of the building. Seventy percent of the building interior was gutted. New partition walls were added to create individual office rental spaces. The exterior of the building was covered with new wood-shingle siding. All the spaces were rewired for new electrical service. No fire blocking was placed in the walls or ceiling and the attic was not sectioned with firewalls. Mr. Miller also made extensive changes to the surrounding property, these alterations were made without building permits. SEE LETTER OF WILLIAM P. NELSON EXHIBIT 2 HEARING BRIEF APPELLANT EAGLE HARBOR ALLIANCE AS (EXHIBIT 28); FIRE DEPARTMENT REPORT, EXHIBIT 7 TO HEARING BRIEF APPELLANT EAGLE HARBOR ALLIANCE (EXHIBIT 28); TESTIMONY OF JAMES PHILLIPS AND EARL MILLER AND JEFF ECKLEY. Winslow Ordinance 69-16, (passed September 15, 1969) at pages 61 & 62 sets forth the policies and procedures governing non-conforming conditions and uses of land and structures under the 1969 Code. EXHIBIT 47. The 1969 Code defines a non-conforming use as those uses which where lawful prior to the adoption of this Code, or applicable amendments thereto, but which do not conform to present regulations of the Code in respect to the size of lots, height, area or yard; dimensions of structures; and permitted uses. Further under the Declaration of Purpose Section for non-conforming uses of land and structures, the 1969 Code states that such non-conformities are incompatible with those lots, structures, and uses which are permitted in the districts involved and their continued existence is tolerated, although not encouraged; provided they are not enlarged or extended in anyway. Specifications for continuance of non-conforming use of a structure are outlined: A non-conforming use of a structure may be continued, provided that: a) the structure is not enlarged, extended, reconstructed, moved, or structurally altered. b) It may be changed to another non-conforming use by the Board of Adjustment if the proposed use is not less appropriate. c) If it is superseded by a conforming use, the non-conforming use may not thereafter be resumed. d) If it is discontinued for a period of six consecutive months or for 18 months in any three year period; it may not thereafter be resumed. EXHIBIT 47 Mr. Park’s pre-stressed concrete casting business was an on going commercial business on the subject property at the time of the adoption of 1969 Code. Mr. Park’s business was a legal non-conforming use of the land and building at this site under the 1969 Zoning Code. This non-conforming use was discontinued in 1973 and has not been resumed. EXHIBIT 29 The businesses conducted on the property during the time of Mr. Morehouse’s ownership (1973 to 1975) or during the Whitney Fidalgo Seafoods, Inc. ownership (1975 – 1976) did not exist on the property in 1969 and no application was made to the City of Winslow for approval for a change of non-conforming use from Mr. Park’s pre-stressed concrete casting business to the businesses engaged in during later ownerships of the property by Mr. Morehouse or others. In 1979 the City of Winslow again revised their zoning ordinance by passage of Ordinance 79-15. It was under this zoning ordinance that the Hearing Examiner for the City of Winslow conducted a review of a non-conforming use that was being made of the Phillips property. Mr. and Mrs. Phillips had leased a portion of their property to Island Marine Construction Company and the City sought to stop Island Marine from doing business on the site. As a part of that enforcement action the Hearing Examiner made a review of the then current uses of the Phillips property and entered Finding #5 as follows: the only uses shown to occupy the property in June 1979 were as follows: 1) An acoustical company which utilized the warehouse for storage of acoustical ceiling tiles; 2) A small woodworking shop which existed in the warehouse; 3) A large hull or scow referred to variously as the “derelict hull” and “relief salvage” scow, which was moored on the west side of the warehouse and which was used as a dwelling; 4) Building or refinishing of two or three pleasure craft primarily on the west side of the property and ostensibly for private use; and 5) moorage of an unspecified number of private pleasure boats. The Hearing Examiner then made Conclusions of Law. His Conclusion of Law 5 states Appellants use cannot derive non-conforming status from these uses for any one of the following three reasons: 1) there has been no showing that any commercial or any industrial use of the property existing in June 1979 was itself a valid non-conforming use under the prior zoning Ordinance 69-16 which also zoned the property for residential use and hence no use has been proven capable of transferring non-conforming status… The Hearing Examiner further concluded in Conclusion #4, the evidence given at this hearing of prior uses of the subject property including a Strawberry Plant, a cement plant and fishing operations which uses did not exist on the property in June of 1979 is not relevant to the appellants ability to claim non-conforming use status. EXHIBIT 42. Notices were posted and mailed giving notice of the public hearing on this appeal in accordance with BIMC 2.16. SEE AFFIDAVIT OF MAILING AND POSTING EXHIBIT 41. CONCLUSIONS OF LAW This matter is properly before the Hearing Examiner on an appeal of an Administrative Decision by the Planning Director. BIMC 2.16 Under the Bainbridge Island Municipal Code zoning provisions, this property is presently zoned “semi-urban” residential. The shoreline and tidelands are governed by the Bainbridge Island Shoreline Master Program which designate them as “semi rural” and “aquatic.” The Shoreline Master Program does not allow residential uses or non-water dependent uses in this environment. Commercial office uses are not allowed. BIMC 16 & 18. Earl and Linda Miller are the legal owners of the subject property which is legally described in attached Exhibit A. The property address is 240 Weaver Road, Bainbridge Island, Washington 98110. At the time of the adoption of the 1969 City of Winslow zoning code, the subject property was designated with RS7500 zoning. At the time of the adoption of the 1969 code Mr. and Mrs. Parks were operating a legal commercial business on the property which did not conform to the new zoning. Mr. and Mrs. Park’s continued operating their pre-stressed concrete casting business under a legal non-conforming use exception to the 1969 Zoning Code until 1973. That legal non-conforming use was discontinued on this property some time in 1973 and has not been resumed at the site. The vested rights of the owners of the property to continue with the legal non-conforming use were lost after the Park’s business had been discontinued for a period of six consecutive months or for eighteen months in any three-year period. A discontinued use may not thereafter be resumed. Therefore all legal non-conforming uses of the property which existed in 1969 at the time of its residential zoning designation are discontinued and any vested right to continue a non-conforming use of this property has been extinguished. Summit – Waller Ass’n v. Pierce County 77 Wn. App 384 (1995) State ex rel Lige & William B. Dickson Co v. Pierce County 65 Wn, App. 614; 120 W2d 1008 (1992) rev. denied The appellant Miller contends that there is a continuing line of legal non-conforming uses which carry forward the vested property right to Mr. Miller the present owner. The appellant contends that the businesses being conducted on the subject property during the ownership by Mr. Morehouse, Whitney Fidalgo Seafoods, Inc. and James and Arloah Phillips provide continuity in transfer of a legal non-conforming use right for this property. In order for a one use to transfer to a continuing non-conforming use exemption to another use there must have been sufficient similarity between the two uses to transfer that property right and approval by the City of Winslow or its successor, the City of Bainbridge Island. There was no such similarity in the uses made of the property under Mr. Morehouse’s ownership and the legal non-conforming use Mr. Park was allowed on the property. Mere commonality as commercial enterprises with ancillary office spaces is not enough. The business enterprise must be similar in kind. The nature and the character of the use must be substantially the same as the non-conforming use in existence when the 1969 zoning ordinance was adopted. The unlimited expansion, intensification and enlargement of a non-conforming use is not a vested property right of the property owner. Keller v. City of Bellingham 92 Wn.2d 726 (1979); Meridian Minerals v. King County 61 Wn. App. 195 (1991) The City of Winslow 1969 zoning code provided a mechanism for the continuance of a non-conforming use right. In order for a use to be changed to another non-conforming use under the zoning code it would be necessary for the property owner to apply to the Board of Adjustment (Hearing Examiner) for approval. (Ordinance 69-16 @ Page 62 EXHIBIT 47) There was no evidence introduced at the hearing that any such approval had ever been applied for or given by the City of Winslow or the City of Bainbridge Island, its successor, for any change of non-conforming use from the concrete business of Mr. Park to any other business using the property. At the Hearing on April 1, 1999 Counsel for appellant Miller, William Lynn, withdrew grounds of appeal which he had included in his notice of appeal dated February 11, 1999. Mr. Lynn withdrew Grounds for Appeal B & C from his appeal, therefore, those two issues were not decided by the Hearing Examiner as part of this decision. Mr. Miller’s original application for building permit was incomplete, however, after discussions with the City regarding his application, Mr. Miller amended his application by letter. That amendment was described by Mr. William Isley, Architect for Mr. Miller, in a letter from Mr. Isley to Planning Director Stephanie Warren, dated January 25, 1999. The January 25, 1999 letter amended the original application for building permit by adding a proposed use for the building to be built on the Miller property. The amended application proposes to build a commercial office building on a pier over the tidelands on this property and to make substantial changes to the uplands to accommodate those commercial tenants. The Miller property is presently zoned semi-urban residential and the shoreline and tidelands are designated as a “semi rural” “aquatic” environment. The uses proposed on the amended application are not allowed under the zoning and Shoreline Master Program designations for this particular property. EXHIBIT 1 & 19 Adequate legal notice was give to all interested parties for the Public Hearing on March 19, 1999 and April 1, 1999. EXHIBIT 41 The Planning Director denied Mr. Miller’s building permit application because the use of the building proposed for the site was in violation of the present zoning on the property. After a review of the history of the uses of the property, since the property had been zoned residential in 1969, the Planning Director concluded correctly that the legal non-conforming use of the property at the time of passage of the 1969 code had been discontinued and at the time of this application are were no legal non-conforming uses which could be made of the property. The information on the history of the site used by the Planning Director in making her decision was provided by the appellant and his representatives and by information contained in files of the City of Winslow and the City of Bainbridge Island. The applicant met his burden of establishing a legal non-conforming use for the property recognized under zoning provisions of the 1969 Winslow Code, but failed to show a legal continuing non-conforming use still in existence in 1997 or 1999. The applicant must prove all elements of the existence of a non-conforming use. EXHIBIT 3; Andrew v. King County 21 Wn. App. 566 (1978); State v. County of Pierce 65 Wn. App. 614 (1997) The City of Bainbridge Island has met its burden of proof in showing that the legal non-conforming use of the property which existed at the time of the adoption of the 1969 zoning code has been discontinued for more than twenty-five years and therefore cannot now be resumed. Abandonment of a use for a specified period of time extinguishes the non-conforming uses. Summit – Waller Ass’n v. Pierce County 77 Wn. App. 384 (1995); State ex rel Lige & William B. Dickson Co v. Pierce County 65 Wn. App. 614; 120 W2d. 1008 (1992) rev denied. EXHIBIT 46. Appellant, Eagle Harbor Alliance, asserts on appeal that the decision of the Planning Director should be amended to add other grounds for denial of the application. The Administrative denial is supported adequately by the record and substantial weight must be given to the decision of the Planning Director. The denial of the building permit application, BPA 4892A, by letter dated February 9, 1999, is legally adequate and must be affirmed. The issue of whether the warehouse structure on the Miller property, which burned in January 1997, was legal non-conforming structure was not an issue in this appeal. All counsel agreed at the March 19, 1999 hearing that the issues before the Hearing Examiner on this appeal were limited by the grounds for denial given in the Director’s decision letter of February 9, 1999. EXHIBIT 3. The appellant, Eagle Harbor Alliance, contends in its hearing brief that the 1982 decision of the City of Winslow Hearing Examiner was a final determination on the issue of a continuing legal non-conforming use for this property and under the doctrine of res judicata is determinative of the issue of the existence of a continuing legal non-conforming use in this appeal. At the hearing on April 1, 1999, the Hearing Examiner ruled that the doctrine of res judicata does not apply to this appeal for reason that the 1982 decision was an enforcement action against only one lessee on the property and the property use rights of the owner or other users on the property were not determined at that hearing. Hilltop Terrace Assn V. Island County 126 Wn. 2d 22 (1995) EXHIBIT 42. Eagle Harbor Alliance has appealed the Planning Director’s decision because it fails to state that the application is incomplete without an application for SEPA review. While this application, as agreed by the City, would probably require SEPA review and would not be entitled to an automatic exemption from SEPA, it was not necessary for the City to cite all possible grounds for denial of the application so long as the basis for denial was legally adequate to deny the application. As concluded in Number 12 above, the grounds for denial of the application stated by Planning Director Stephanie Warren in her February 9, 1999 decision letter are legally adequate and the Planning Director is not required to cite all possible additional reasons for denial. Appellant Eagle Harbor Alliance alleged as grounds for appeal that the City of Bainbridge Island did not require the landowner to carry the burden of establishing the existence of a non-conforming use on this property. The evidence at the hearing and throughout the substantial documentary evidence in the file, clearly shows that the City of Bainbridge Island required the landowner to provide the documentation for determination of whether or not a legal non-conforming use was continuing on this property. As a part of that decision making process the appellant Miller provided Declarations and Title Company records to show the chain of title for the property as well as a narrative on the historical uses made of the property under its prior owners. The evidence provided by the landowner was relied upon by the City in making its determination as to whether or not a legal continuing non-conforming use had been established for the property. The City determined that a legal non-conforming use which was being made of the property in 1969 had subsequently been discontinued and could not now be resumed. Eagle Harbor Alliance’s assertion that the landowner failed to provide the information and bear the burden of proof to establish the existence of a non-conforming use is incorrect. Therefore that ground for appeal is denied. EXHIBIT 46. Eagle Harbor Alliance asserts that the Planning Director’s decision is erroneous to the extent that it relies on a presumption in the City Attorney’s Memorandum of February 1998 that the landowner could construct a building as it existed in 1969 over the water. This conclusion in the February 1998 memorandum was subsequently corrected by the City Attorney in his letter to the appellant, Miller’s attorney, William Lynn, by letter dated June 8, 1998. Therefore this issue on appeal is moot. The Eagle Harbor Alliance asserts in its ground for appeal that the decision of the Planning Director is erroneous because it ignores Bainbridge Island zoning code Section 18.87.030. The proposed structure on the Miller property is to be built on a pier over the water and tidelands and is therefore under the jurisdiction of the Shoreline Master Management Program. The Shoreline Master Management Program criteria for replacement of non-conforming structures would apply to this building permit application and not the general zoning code cited by Eagle Harbor Alliance. This ground for appeal by Eagle Harbor Alliance is therefore denied since BIMC 18.87.030 is superseded on this portion of the property. Appellant Miller has appealed alleging that the City of Bainbridge Island is estopped from determining that the uses property at the time of the fire were not legal non-conforming uses since the City had failed to enforce code violations on the property and had been aware of commercial activities on the property during the entire history of the use of the property. The issue of equitable estoppal is not properly before the Hearing Examiner and is not a grounds for appeal and therefore is denied. Choi v. Fife 60 Wn. App. 459 (1991); Mercer Island v. Steinmann 9 Wn. App. 479; Chaussee v. Snohomish County Council 38 Wn. App. 630 (1984). It is the public policy of the State of Washington, as well as the zoning provisions of the City of Winslow and Bainbridge Island from 1969 to the present date, to restrict rather than increase non-conforming uses in order that they ultimately will be phased out. Keller v. Bellingham 20 Wn. App. 1 and 92 W 2d 726; Andrew v. King County 21 Wn. App. 566. EXHIBIT 47 AND BIMC 18.87.040. NOW THEREFORE, based on the Findings of Fact and Conclusions of Law entered herein, the Hearing Examiner enters the following decision: The Administrative denial of Appellant Miller’s application to build a pier and commercial building for office use on his property located at 240 Weaver Road in the City of Bainbridge Island is hereby affirmed. The appeal filed by Earl L. Miller dated February 11, 1999, is hereby denied. The appeal filed by Eagle Harbor Alliance, an Association, on February 19, 1999, is denied. Dated this _________ day of May, 1999. ________________________ Robin Thomas Baker Hearing Examiner Pro Tem THIS DECISION WILL BE FINAL, UNLESS WITHIN 21 DAYS AFTER ISSUANCE OF THE DECISION, AN APPEAL IS FILED IN ACCORDANCE WITH RCW 36.70C.