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VonRosenstielOFFICE OF THE HEARING EXAMINER FOR THE CITY OF BAINBRIDGE ISLAND In the matter of an Appeal of an Administrative Decision approving a Building Permit issued to Clark and Eleanor Gaulding.Appellant: Paul and Elaine VonRosenstiel ___________________________________ ))))) ) BP 7771 FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION FINDINGS OF FACT 1. Clark and Eleanor Gaulding are the legal owners of a residence located at 563 Stetson Place SW in the City of Bainbridge Island. 2. On March 6, 2000 Mr. Gaulding filed an application for a building permit with the City of Bainbridge Island, requesting permission to remove old roofing and install new roofing and trim at his residence. This re-roofing was to be performed by Carley Construction, Inc., of Bainbridge Island. [EXHIBIT 1.] 3. On April 14, 2000 a revision of the building permit application was filed by Peter Brachvogel, Architect, on behalf of the Gauldings. This revision sought permission to change the roof pitch and add an attic for storage above the garage. This revision was approved by the Building Department on April 25, 2000 [EXHIBIT 8]. A second revision was filed by Mr. Brachvogel raising the garage second story storeroom walls one foot more than indicated on the previously approved plans [EXHIBIT 9]. 4. After Building Department review the application was sent to the Department of Planning and Community Development (DPCD) for review. Kathy James, Senior Planner, approved the revisions. 5. An appeal of the decision to issue a building permit was filed by Paul and Elaine VonRosenstiel on May 2, 2000 [EXHIBIT 11]. 6. Shortly after the appeal was filed, construction began on the carport remodel at the Gaulding residence. The VonRosenstiels requested that the project be issued a Stop Work Order. Since the work was being performed under a building permit issued by the City and no violation had been found, work under the building permit was allowed to continue. 7. Mr. and Mrs. VonRosenstiel reside at 566 Stetson Place SW, across Stetson Place from the Gaulding residence. Stetson Place has been developed as a public dedicated right of way, twenty feet in width. An additional 20 foot roadway easement parallels Stetson Place along its south edge. This 20 foot undeveloped easement crosses the north 20 feet of the Gaulding property. The carport, now being remodeled, encroaches into this easement. 8. The Gaulding lot is zoned R 4.3. BIMC 18.21.060 describes the required front yard for a lot located in the R 4.3 zone. BIMC 18.21.060(A) requires that front yards facing streets shall not be less than 25 feet, measured by the distance from the nearest lot lines, planned rights of way, or road easement. The Gauldings’ carport and a portion of the Gaulding residence encroach upon the required front yard of their residential lot. The carport also encroaches upon the side yard along the eastern property line. The Gaulding residence and carport were built prior to the adoption and codification of BIMC 18.21. The Gaulding residence and carport are legal nonconforming structures. 9. The carport remodel, now completed at the Gaulding residence, has increased the size of the carport from a one story flat roofed structure open on two sides, to a closed two car garage with a second story storage area. This storage area measures 6 feet in height from the floor to the ridge of the roof line. The storage area addition remains within the building footprint of the original carport. The roof line of the carport is integrated into the structure of the house. The roof structure framing from the original carport extended back to the kitchen wall of the house. [Testimony of Peter Brachvogel.] 10. The height of the newly remodeled garage is less than 25 feet above “grade.” BIMC 18.21.070(A) sets a building height limitation in the R 4.3 zone at 25 feet above “grade.” 11. The VonRosenstiels contend that the Gaulding remodel violates BIMC 18.87.030, because the addition of the storage area alters and enlarges the carport in a manner that increases its nonconformity in the zone. 12. The DPCD disagrees with the appellant’s interpretation of BIMC 18.87.030. Before the hearing, Kathy James, Senior Planner, provided the VonRosenstiels’ with a copy of a 1993 Memorandum from the Interpretation File at the DPCD [EXHIBIT 19.] Relying on that Memorandum, Ms. James determined that the adding of a second story on top of the Gauldings’ carport does not increase the structure’s nonconformity and therefore does not violate 18.87.030. Ms. James testified that once a non-conforming structure has encroached into the yard area, the dimensions of the yard are changed to reflect the existing legal nonconforming structure’s placement on the lot. The nonconformity for the Gaulding residence and carport is that it violates the 25 foot setback requirement in this residential zone. Under the City’s interpretation the Gaulding’s addition of a storage area and increased height of the roof, therefore, does not increase the nonconformity of the structure since it stays completely within the building footprint of the original carport structure. The new garage conforms to the height limitation in the R 4.3 zone. 13. The VonRosenstiels contend that the Gaulding carport is nonconforming because it encroaches on the required front yard setback and side yard setback. BIMC 18.06.930 defines a yard as follows: Yard means an open space on a lot or parcel that is required by this Title to be unoccupied and unobstructed from the ground upwards except as otherwise provided in this Title. The VonRosenstiels conclude that the nonconformity of the original carport and the Gaulding residence would be increased by this addition since the encroachment on the yard would be increased vertically by the addition of 6 feet of storage space and roof. This increase in the height of the structure, the VonRosenstiels contend, violates BIMC 18.87.030 because the open space yard on the Gaulding lot is to remain unoccupied and unobstructed from the ground upwards. Under their interpretation, this yard measures from the edge of the easement, south 25 feet into the Gaulding lot, and from ground level up to the 25 foot building height limitation. 14. The appellants testified that in the course of Mr. VonRosenstiel’s work as an Architect, he has had projects which were substantially similar to the facts in the Gaulding application and these other projects have been disallowed. The City’s interpretation of BIMC 18.87.030 for those other projects was consistent with the interpretation explained by the appellant in this appeal. 15. Mr. Brachvogel, Architect for the Gaulding project, has also practiced on Bainbridge Island for many years. He testified that he has had many similar projects on legal nonconforming structures and he has been allowed the remodels based on an interpretation of BIMC 18.87.030 consistent with the City’s interpretation for the Gaulding permit. 16. Mr. Brachvogel, the Architect for the project, testified that if the carport structure remodel were considered as a separate structure from the house, this project has destroyed no more than 40% of the original structure in the remodel. This carport, however, is not a structure separate from the house. CONCLUSIONS OF LAW 1. The Gaulding residence is located in the City of Bainbridge Island in the R 4.3 zone and is subject to the provisions of BIMC 18.21. 2. The Gaulding residence and carport were constructed on the property prior to the adoption of BIMC 18.21 and exist on that property as legal nonconforming structures, which violate the required front yard and side yard setbacks for lots in R 4.3. 3. BIMC 18.87.030 regulates applications for changes to the Gaulding residence since it is a legal nonconforming structure. 4. Building Permit #7771 was properly issued by the City of Bainbridge Island Building Department for the re-roofing of the carport at the Gaulding residence. The building permit was revised in April, 2000 and the revisions were approved by the Building Department and the DPCD. 5. The appellant’s brief cites various City and County codes which have nonconforming structure provisions which differ from Bainbridge Island. These other ordinances are not relevant to an interpretation of the Bainbridge Island ordinances. 6. A municipality has considerable discretion over the manner in which non-conforming structures are allowed to be altered. The Bainbridge Island ordinance reads as follows: 18.87.030 Nonconforming structures. A nonconforming structure may remain and be used, provided that: A. The structure is not enlarged or altered so as to increase its nonconformity; B. If moved, the structure shall be made to conform to regulations of this code; and C. If the structure is harmed or destroyed by more than 50 percent of its replacement value, as determined by the building official, the structure must be reconstructed in compliance with the requirements for the zone in which it is located. (Ord. 92-08 § 2, 1992) Under the City’s interpretation, BIMC 18.87.030(A) allows enlargements and alterations of a nonconforming structure provided the enlargement does not increase the structure’s nonconformity. Under the appellant’s interpretation, no enlargement would be allowed because the structure could not be enlarged without increasing the structure’s nonconformity. The ordinance, however, must be construed so that no portion of the ordinance is meaningless. The City has determined that the Gauldings’ alteration and enlargement of their residence’s carport will not increase the nonconformity, since the nonconformity is encroachment into the required setback area and that encroachment will not increase toward the north property line or the east property line with this remodel. The City’s interpretation of the ordinance is a reasonable one. The Director of DPCD is the responsible official charged with the duty of interpreting the zoning ordinances passed by the City Council. BIMC 2.16.130(F)(4) requires the Hearing Examiner to give substantial weight to the decision of the Director when hearing an appeal of an administrative decision. 7. The language of BIMC 18.87.030, when considered together with the definition of yard and setbacks in BIMC 18.06.880, 18.06.930, 18.06.935 and 18.06.945, can be interpreted differently to give opposite results. When an ambiguity exists in an ordinance, considerable deference must be given to the City’s interpretation. Incorrect advice given at the DPCD counter cannot be relied upon by the appellant, since all facts relevant to the decision may not have been known by the person issuing the opinion. The interpretation of the ordinance by the City is made after review of the building permit application. This decision becomes the Administrative Decision of the Director. The Director’s decision is entitled to substantial weight on appeal [BIMC 2.16.130(F)(4)). 8. BIMC 18.87.030(C) does not apply to this remodel project since less than 50% of the original structure is being destroyed and replaced. 9. The remodel of the carport at the Gaulding residence, permitted by Building Permit #7771 and its approved revisions does not violate BIMC 18.87.030. DECISION The appeal of Building Permit #7771 is denied. Dated this 18th day of August, 2000. /S/ Robin Thomas Baker Hearing Examiner Pro Tem City of Bainbridge Island APPEAL The decision of the Hearing Examiner shall be final unless within twenty-one days after issuance of this decision a person with standing appeals this Decision in accordance with RCW 36.70.