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111804 Moore FINDINGS AND DECISION OF THE HEARING EXAMINER CITY OF BAINBRIDGE ISLAND In the Matter of the Appeal of WILLIAM B. MOORE ADM11593 from a Notice and Order Issued by the Director, Planning and Community Development Department Introduction The Director issued an Order requiring that, within 30-days, the structure resting on temporary cribbing at 240 Ferncliff Avenue NE be moved from that location or demolished. The property owner appealed that ruling. The Hearing Examiner held the hearing on this matter on October 14, 2004. Parties represented at the hearing were the Director, Planning and Community Development Department, by Rosemary Larson, Assistant City Attorney, and the Appellant, William B. Moore, by his attorney, Charles E. Maduell. The record was closed on October 29, 2004, with receipt of the parties' post-hearing briefs After due consideration of all the evidence in the record, the following shall constitute the findings, conclusions, and decision of the Hearing Examiner on this appeal. Findings of Fact Subject Property 1. The subject property, addressed as 240 Ferncliff Avenue NE, is located in Winslow, south of Wing Point Way and north of the Washington State Ferry Terminal. The property is zoned R-4.43, single-family residential allowing 4.3 units to the acre. The Comprehensive Plan designation is UR (Urban Residential, 4.3 to 6 units per acre). [Staff Report, pages 1-3, Exhibit 10; Testimony of Katai] 2. In 1986, Mr. Moore purchased the subject property (Lot 51) and the adjacent lot (Lot 53), addressed as 260 and 218 Ferncliff respectively. At that time, Lot 51 was developed with a structure referred to as a "boarding house" (having a footprint of approximately 1600 sq. ft.) and a "house" (with a footprint of approximately 700 sq. ft.) [Testimony of Moore; Site Plans, Attachment D, Exhibit 10] Background 3. The "boarding house" on Lot 51 was built in approximately 1905 and housed workers for the nearby turn-of-the-century shipyard. The capacity of the boarding house was not established, but currently there are five dwelling units (presumably all have separate kitchen and bathroom facilities so as to function as apartments). [Testimony of Moore; Testimony of Katai; Site Plans, Attachment D, Exhibit 10] 4. It was not established when the small house sharing Lot 51 with the boarding house was built. Mr. Moore testified to his understanding and belief that it was built about the same time as the boarding house and originally functioned as part of the boarding house operation. In modern times the house apparently had its own separate address (240 Ferncliff Avenue) and the owner asserts that it also had separate utility metering (no independent evidence in support of separate addressing and metering was presented at hearing). Similarly no evidence was presented to establish that the structure had the kitchen and bathroom facilities expected in a single-family, "stand alone" dwelling. [Testimony of Moore; Site Plans, Attachment D, Exhibit 10] 5. The small building was in poor condition and Mr. Moore intended to tear it down. In December 2001, Mr. Moore proposed tearing it down and, in conjunction with a short plat involving adjacent Lot 53, move the "Cave House" to the site [see Finding #6]. Mr. Moore rented out the structure for residential use and does not recall it being vacant more than 1-3 months at any time since he purchased the property. (There was no presentation of rent records, utility bills, etc., to establish that it had been used as a dwelling continuously during his ownership. At one point Mr. Moore referred the structure as a "shed".) The structure was in very poor condition, apparently for quite some time, and in February 2002, Mr. Moore had it demolished. The demolition was done without permit. (The Department's Staff Report [page 2, Exhibit 10] states that: "Sometime prior to August 2002, the structure was burnt down and was removed." Mr. Moore indicates that there was a fire in 1999, but that the building was repaired and he continued to rent it out. There were no records - photos, insurance or fire department reports, etc. - presented regarding the fire and/or its effects.) 6. In December 2001, Mr. Moore submitted a "Title 17 Pre-Application Request" [Attachment C, Exhibit 10] and met with City staff to discuss his plan to short plat the property (from two lots to three), demolish the small house and put the Cave House in its approximate location on the proposed third lot. The completed pre-application request form and the site plans [Attachment D, Exhibit 10] indicate Mr. Moore's desired changes. The Department's response to Mr. Moore about this proposal was unfavorable. In a January 17, 2002 letter [Attachment E, Exhibit 10] Tom Bonsell, the Planner involved in the pre-application meeting, told Mr. Moore that: 1) his proposed plat "would not be supported by the Bainbridge Island Municipal Code"; 2) the subject structure was nonconforming and could not be enlarged or moved; 3) the two lots could not be subdivided further; and, 4) that the limited options available to accomplish his goal of saving the "cave house" included finding another lot for it, attempting to find a "political solution", or converting the multi-family building into a single-family residence. 7. The Department's response to the short plat plan also noted that the building permits required would include "but not be limited to foundation permit and demolition permit" and that "Other permits/reviews may be required by other agencies, and would mostly have to do with the actual moving of the house." [Page 2, Attachment E, Exhibit 10] Subject Structure and Permit 8. The "Cave House" (named for the family who originally occupied it) was built in the early 1900's. The building has a footprint in the range of 1344 sq. ft. [Page 4, Staff Report, Exhibit 10] to 1544 sq. ft. [Testimony of Katai] (with the difference apparently being whether the porch is included or not). Senior Planner Bob Katai estimated the footprint by measuring it on the Site Plan drawing [Attachment D, Exhibit 10]. The appellant suggests that Mr. Katai's estimate may be incorrect as the house may not have been drawn to scale on the Site Plan. However, appellant offered no evidence to establish a different or more reliable estimate to contradict Katai's (e.g., appellant could have measured the building or determined from his architect whether the drawing was to scale). Mr. Katai's estimate is reasonably based and is accepted as the approximate size of the Cave House footprint. 9. In August 2002, a large, mixed use development ("Harbor Square") was proposed for the property where the Cave House was located, and in response to public comments and City encouragement the developer made the structure available for relocation. The house is not on the State or Federal historic registers, but it appears to have been considered worthy of preservation via relocation. [Staff Report - page 2, Exhibit 10] Mr. Moore refers to the house as "historic" and he mentioned a "letter from the B. I. Historical Soc." in his completed pre-application form [Page 5, Attachment C, Exhibit 10], but he did not provide that document or other evidence to establish that the structure meets accepted definitions of "historic". 10. On August 21, 2002, Mr. Moore, had the Cave House moved to 240 Ferncliff Avenue NE (the move was described by Mr. Moore as: 'across the street and one lot to the north'). The structure was moved by professional house-movers. [Testimony of Moore; Testimony of Katai; Page 2, Staff Report, Exhibit 10] 11. On the day the house was moved Mr. Katai contacted Mr. Moore and told him that moving the house required a City building permit. Mr. Moore went to City Hall and completed and submitted a Building Permit Application [Attachment F, Exhibit 10]. No permit fee was collected, but the application's "Valuation" section has the notation "50.00" in the Permit Fee box. The "Building Review" sign-off by Larry Skinner is dated August 21, 2002 and it is noted that conditions are attached. [Testimony of Moore; Testimony of Katai; Page 2, Staff Report, Exhibit 10] (Mr. Moore dated the application August 22, 2002; given that the date stamped "received" and Mr. Skinner's sign-off both indicate August 21, 2002, Mr. Moore's date must be a mistake.) 12. The following conditions were included in the permit approval [Attachment K, Exhibit 10]: 1. This permit is for temporary placement only while other approvals are being processed. Approval is granted for a temporary placement of 90 days. A one time extension of 90 days may be granted for unanticipated circumstances. 2. The structure must be secured against unlawful entry. 3. The structure must be structurally secure on cribbing or with other blocking methods. 4. The structure will be inspected by a building inspector after placement and all security measures are in place. 5. If the building falls into disrepair or otherwise becomes a public nuisance, the city may declare the structure a Dangerous Building in accordance with the Uniform Code for the Abatement of Dangerous Building Code and order repair or demolition. 6. The applicant shall read and sign for these conditions prior to issuance. 13. The house was moved and placed on cribbing on August 21, 2002, the day that the permit was applied for [Testimony of Moore; Testimony of Katai; Page 2, Staff Report, Exhibit 10]. The permit was not issued until it was picked up and paid for in 2004 [see Finding #17]. Mr. Moore testified that no one from the City ever told him that he couldn't move the house until the permit was issued. He did not later inquire as to the fate of the application. 14. In a May 16, 2003 letter [Attachment G, Exhibit 10], Larry Skinner, the Building Official at that time, advised Mr. Moore that the permit (#11593) and the associated fee and conditions had yet to be addressed. The letter notes that the permit "was never picked up or issued", that there were conditions that applied to the permit and that because the time limits placed on the permit had expired, "a new location" would have to be found and a new "time frame for permanent placement" determined. Mr. Moore testified that this letter from Mr. Skinner was the first he'd heard that there were conditions attached to the permit. Mr. Moore did not respond to this letter. 15. In a letter dated September 15, 2003 [Attachment I, Exhibit 10], Will Peddy, the City's Code enforcement officer, advised Mr. Moore that as the owner of the property Mr. Moore needed "obtain the building permit, pay the associated fees and follow the conditions of that permit". Peddy stated that unless those steps were taken within 48 hours, he would initiate formal enforcement action. 16. In late November 2003, Mr. Moore, through communications between his attorney and Mr. Peddy [Attachment J, Exhibit 10], responded to Peddy's letter indicating that he had "decided to come in, pay for building permit no. 11593." Mr. Moore also asserted his position that the Cave House could be located on Lot 51 on a permanent basis and that it constitutes a legal nonconforming use. 17. Building Permit #11593 was picked up, and the $50.00 fee paid, by Mr. Moore's wife, Marilyn Moore, on February 6, 2004. The description of the project being permitted was stated on the permit as: "Permit for temporary placement of a moved home." The date of application is shown as September 10, 2002, the date issued is February 6, 2004; and, the expiration date is August 6, 2004. The conditions noted in Finding #12 above were attached to the permit, including Condition #1 approving "temporary placement" at the subject property for 90-days, with a possible 90-day extension. The "clock" for the prescribed term of "temporary placement" began running when the permit was issued on February 6, 2004, allowing until August 6, 2004, at the outside, for the house to remain at 240 Ferncliff Avenue NE. Director's Order 18. On September 16, 2004, more than a month beyond the end of the maximum term allowed for "temporary placement" by Permit 11593, the City's Building Official, Mark Hinkley issued a Notice and Order requiring that the Cave House be removed from the subject property. The Order allowed sixty days for Mr. Moore to secure permits and to remove the building - either find a permanent alternative location or demolish it. [Attachment L, Exhibit 10; Testimony of Hinkley] 19. The Order cited violation of the conditions of approval for permit 11593 that allowed only temporary placement and noted that it had been "over 180 days since the permit was issued". The Order also cited a violation of BIMC 15.04. That is, the building was declared to be "unsafe, potentially hazardous and a public nuisance" and required, in accordance with Section 401 of the 1997 Uniform Code for Abatement of Dangerous Buildings, to be abated by moving it to a permanent foundation or demolishing it. [Attachment L, Exhibit 10; Testimony of Hinkley] Appeal 20. On August 30, 2004, Mr. Moore timely filed an appeal [Exhibit 1] [Attachment L, Exhibit 10, see Finding #]. Required notice of the appeal hearing was completed as of September 22, 2004 [Exhibit 8] and hearing was held on October 14, 2004. 21. At hearing [Testimony of Moore; Exhibit 12] and in post-hearing submittals [Exhibit 14], the appellant argues that he intended the Cave House to be a "replacement" for the house that was torn down; that he is maintaining the nonconformity by replacing one single-family use with another. No citations were provided in support of this "replacement" theory. 22. The City's Building Official gave his expert opinion that the Cave House was adequately secured and is not an immediate threat. He also noted that placement on cribbing is only intended to be a temporary measure and, although he could not say with certainty how long it would be safe, having a building up on cribbing for two years "is too long". Bainbridge Island Municipal Code 23. The Bainbridge Island Municipal Code (BIMC) includes the following definitions in Chapter 18.06 of the Zoning Code (emphasis added): Dwelling or dwelling unit "means a building or portion of a building that provides independent living facilities with provisions for sleeping, eating and sanitation…" [BIMC 18.06.310] Multifamily dwelling "means a building or portion of a building containing two or more dwelling units or more than one dwelling unit on one lot, not including accessory dwelling units". [BIMC 18.06.320] Single-family dwelling "means a detached structure containing one dwelling unit and having a permanent foundation." [BIMC 18.06.330] Nonconforming structure "means a structure that was lawfully constructed prior to adoption of the ordinance codified in this title, or applicable amendments thereto and that does not conform to present regulations of the code." [BIMC 18.06.760] Nonconforming use "means a use of land that was lawfully established and has been lawfully continued, but does not conform to the regulations of the zone in which it is located as established by this title or amendments thereto." [BIMC 18.06.770] Use "means the purpose land, buildings, or structures now serve or for which such is occupied, arranged, designed, or intended." [BIMC 18.06.920] 24. BIMC 18.87.020 provides that a nonconforming use of land may be continued under the following circumstances (emphasis added): A. The use is not enlarged, increased, or extended to occupy a greater area of land or structure than was occupied on the date of adoption of this code; B. The use is not moved in whole or in part to any other portion of the lot or parcel; and C. If the use ceases for a period of more than 180 days, the subsequent use of the land shall be conforming. 25. BIMC 18.87.030 provides that nonconforming structure may "remain and be used" under the following circumstances: 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. 26. BIMC 18.87.030 provides that the nonconforming use of a structure can be continued as follows: A. The structure is not enlarged or moved; B. It may be changed to another nonconforming use by the hearing examiner; C. If it is superseded by a conforming use, the nonconforming use may not thereafter be resumed; and D. If it is discontinued for a period of six consecutive months or for a total of 18 months in any three-year period, it may not thereafter be resumed. 27. Regarding violations of the Building Code, BIMC 15.04.030, includes the following [emphasis added]: A. It shall be unlawful for any person, firm or corporation to erect, construct, enlarge, alter, repair, move, improve, remove, convert or demolish, equip, use, occupy, or maintain any building or structure in the city, or cause or permit the same to be done, contrary to or in violation of any of the provisions of this code. * * D. Enforcement of this code and the imposition of penalties for violations of this code shall be as provided for in Chapter 1.26 BIMC. 28. Regarding building permits, the Building Code, at BIMC 15.04.040, includes the following [emphasis added]: A. Permit Required. 1. Issuance Procedure. The application, plans and specifications and other data filed by an applicant for a permit shall be checked by the building official or his/her designee for a determination of completeness. The building permit application shall be considered complete only after: a. The determination that the official application form is complete. b. The plans submitted are adequate to evaluate the proposed project. c. The plan check fees have been paid by the applicant. The complete application and building plans shall be reviewed by the building official for compliance with codes adopted by this chapter and other pertinent laws and ordinances in effect in the city of Bainbridge Island. When the building official is satisfied that the work as described in the application satisfies the requirements of this code and conforms to other pertinent laws and ordinances, the applicant will be required to pay the calculated building permit fee. A building permit shall then be issued to the applicant for the work described. 2. Compliance with Approved Plans and Permits. When the building official issues a permit, he/she shall endorse the permit in writing or stamp the plans “APPROVED.” Such approved plans and permit shall not be changed, modified or altered without authorization from the building official, and all work shall be done in accordance with the approved plans and permit except as the building official may require during field inspection to correct errors or omissions. * * * 29. BIMC Chapter 1.26 provides Code enforcement procedures. BIMC 1.26.070 allows that an appeal of a director's decision regarding a violation is "pursuant to the procedures set forth in BIMC 2.16.130." 30. BIMC 2.16.130 applies to appeals of "administrative decisions, departmental rulings and interpretations..." In considering such appeals, BIMC 2.16.130(F) authorizes the Hearing Examiner to: affirm the Director's decision, affirm with modifications, reverse the decision, or remand it to the Director. That section of the Code also requires that the Hearing Examiner give "substantial weight to the decision of the department director." 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. To overcome the substantial weight accorded the Director, an appellant has to show that the Director's decision is clearly erroneous. Under this standard of review, the Director can be reversed if the Hearing Examiner is left with the definite and firm conviction that a mistake has been made. 3. Despite the lengthy history of matter and the extensive recitation of facts it has necessitated here, there are two fundamental questions on appeal: 1) Is the Director in error in requiring that the Cave House be removed because the conditions of the Building Permit expressly allowed only temporary (90-day) placement on the subject property and that time has run out? 2) Is the Director in error in concluding that the circumstances of the Cave House being on cribbing must be abated within 60 days? 4. The Bainbridge Island Municipal Code requires a building permit (not just an application for a permit) to move a structure and place it at a new location. The appellant moved the house before he had permit; an action unlawful under BIMC 15.04.040 and 15.04.030. 5. The conditions of approval are part of a permit. This permit was approved with conditions and not adhering to those conditions is a violation of BIMC 15.04.040(A)(2) mandate that "all work shall be done in accordance with the approved plans and permit…" Condition #1 of the permit states that: "Approval is granted for temporary placement of 90 days." Not removing the building by the end of the time allowed was unlawful under BIMC 15.04.040 and 15.04.030. 6. Delaying the issuance of the permit by not picking it up did not void the conditions of the permit nor does it allow adherence to the conditions to be avoided or ignored. 7. The Director has been generous here. Ninety days, plus the potential for an extension for an additional ninety days, were allowed for the temporary placement of this building while an alternate location for permanent placement was to be sought. Counting from the date the moving was accomplished pursuant to the permit applied for, this limit for temporary placement had been exceeded by approximately six months at the time Mr. Skinner wrote to the appellant. Another four months passed by the time the code enforcement officer warned of possible enforcement action. And that enforcement action, the August 16th Notice and Order, issued nearly a year after the warning, provided an additional 60 days in which to remove the house. 8. If the "clock" on the 90-day temporary placement did not start running until the permit was issued on February 6, 2004, that period had been exceeded by six months when the Director's Notice and Order was issued. Even counting a discretionary 90-day extension (which was not requested but appears to have been presumed in the expiration date given on the permit; see Attachment K, Exhibit 10), the time allowed for temporary placement had been exceeded by over a month at the time of the Director's Notice and Order. 9. The only expert testimony on the unsafe and potentially hazardous condition of the building was provided by the City's Building Official (the testimony of the citizen who has had experience putting heavy equipment on cribbing did not qualify as that of an expert). The record here does not support the conclusion that at this time the building is unsafe and/or is a public nuisance. However, the Building Official's concern that time is running out on the temporary cribbing is well taken. In this regard, the Director's determination that the building is potentially hazardous and abatement must occur within 60 days, is not an error. 10. The appellant was informed in January 2002 that the Code would not "support" his scheme to tear down the small house and create a third lot to make a place for the Cave House. Mr. Moore disagreed and went ahead with the demolition of the small house and the moving of the Cave House anyway. He characterizes this as maintaining the legal nonconforming status of the property by replacing one single-family use with another single-family use. 11. Multifamily use is the nonconformity here (i.e., existing multifamily use in a single-family zone). The Bainbridge Island Municipal Code uses unambiguous language to define what is "multifamily" (and thus non-conforming on the subject property). The Code includes in the definition of "multifamily use" not just a building with more than one dwelling unit, but also a lot that has more than one dwelling unit on it. That is, "multifamily use" includes a single-family house (here, the Cave House or the house that was there before it) being on a lot that also occupied by one or more dwelling units (here, the "boarding house" structure with five dwelling units). Moving the Cave House to the approximate location of the previous building was not "replacing" one single family use with another. 12. The Code would allow the small house to have remained on the subject property and continue as a non-conforming use, but it could not have been "enlarged, increased, or extended to occupy a greater area of land or structure…" [see BIMC 18.87.020, Finding #24]. Addressing the appellant's "replacement" theory is not necessary to deciding this appeal, however, even if there is such a thing, BIMC 18.87.020 would still apply. The "area of land" occupied by the Cave House (i.e., its footprint) is considerably larger than that of the previous structure (approximately twice the size). Just as the previous house could not have been "enlarged, increased, or extended" to the size of the Cave House, neither could it be "replaced" by the Cave House because the Cave House represents the use being "enlarged, increased, or extended". 13. Since at least early in 2001, City staff have been advising Mr. Moore, in one way or another, that the Code does not support or allow locating the Cave House permanently on the subject property - not through short plat, not through building permit, and not through the workings of a unsubstantiated theory of "replacement". 14. The permit for moving and temporary placement of the Cave House approved that placement for 90 days. The appellant is in violation of the Code for having not adhered to terms of the permit and the time allowed for temporary placement has long-since been exhausted. The Director's Order has not been shown to be erroneous in this regard. 15. The Director's determination that there this is a potentially hazardous situation and abatement (through moving or demolition) is necessary, has not been shown to be erroneous. Decision The Order of the Director that the house on temporary cribbing located at 240 Ferncliff Avenue NE must either be moved or demolished within 60 days, is hereby affirmed. (The first day of this 60 day period - allowed for obtaining applicable permits and completing the removal - begins on the day after the date of this decision.) Entered this 18th day of November 2004. Meredith 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 (RCW), Chapter 36.70C.