MOORE, WILLIAM B.CITY CLERK
FINDINGS AND DECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of
WILLIAM B. MOORE
from a Notice and Order Issued by
the Dir~tor, Planning and Community
Development Department
ADMII593
Introduction
The Director issued an Order requiting 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 heating 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. Madueil. 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, thc following shall constitute the
findings, conclusions, and decision of the Hearing Examiner on t_his appeal.
Findings of Fact
Subj~-t Property
1. The subject property, addressed as 240 Femcliff Avenue NE, is located in Winslow,
south of Wing Point Way and north of the Washington State Ferry Terminal. The
property is zoned R4.43, 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 ~ 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. i~.)
[Testimony of Moore; Site Plans, Attachment D, Exhibit 10]
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Background
3. The "boarding house" on Lot 51 was built in approximately 1905 and housed
workers for the nearby mm-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 I0]
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
operatio~ In modem times the house apparently had its own separate addreas (240
Ferneliff 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, Hstand 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: HSometime 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 200l, Mr. Moore submitted a 'Title 17 Pre-Application Request"
[Attachment C, Exhibit 10] and met with City staffto discuss his plan to short pla~ 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 lector [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 l-wo lots could not be
subdivided further, and, 4) that the limited options available to accomplish his goal of
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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 I)epmhiienfs 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. t~. [Page 4, Staff
Report, Exhibit 10] to 1544 sq. fl. [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 estimale 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
o£the Cave House footprint.
9. In August 2002, a large, mixed use developmem ("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 Slate 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 descafbed 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 [Attachmem 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-offby 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.)
Al>M11593
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12. The following conditions were included in the permit approval [Attachment
Exhibit 10]:
1. This permit is for temporary placemem 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 strumne a Dangerous Building in
accord~ce 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~ 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 enforcemem 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.
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17. Building Permit #11593 was picked up, and the $50.00 fe~ 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-clay
extension. The "clock" for the prescribed term of "temporary placement" began running
when the perrrdt 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 Hinldey]
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 Abatemerrt of
Dangerous Buildings, to be abated by moving it to a permanent foundation or
demolishing it. [Attachment L, Exhibit 10; Testimony of I-Iinkley]
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 $] and hearing was heId on October 14, 2004.
21. At heating [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".
ADM 11593
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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):
I)we]lin~ or dwdling nait "means a building or portion of a braiding that
provides independent living facilities with provisions for sleeping, eating
and sanitation... " [BIMC 18.06.310]
Multifamily dwelling "means a building or port~on of a lmilding
contmning 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 f~on.' [BIMC 18.06.330]
Nonconforming structure "means a structure that was lawfully
constructed prior to adoption of the ordinance codified m this title, or
applicable amemtments 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]
U~e "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 enlargea[ increasea[ or extended to occup_¥ 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 parcek 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 provide~ that nonconfo,'ming structure may "remain and be
used" under the following circumstances:
A. The structure is not enlarged or altered so as to increase its
nonconformity;
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B. If moved the structure shall be made to conform to
reg~t__lctn_'ons of this code; and
(2 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 locatext
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 clanged 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 discontirmed for a period of six consecutive months
or for a total of 18 months in any three-year perioa[ it may not thereafter
be resumed.
27. Regarding violations of the Building Code, BIMC 15.04.030, includes the
following [emphasis added]:
,4. It shah 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
c~ty, or cause or permit the same to be done, contraz?/_ to or m violation of
any_ of the provisions Of this code.
D. Enforcement of this code arm the imposition of penalties for
violations of this code shall be as provided for m Chapter 1.26 BPvlC.
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 oj~ciaI 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 .rabmitted 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
lmilding official for compliance with codes _od__opted by this chapter and
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other pertinent laws and ordinances m effect in the city of Bainbridge
Island. When the building o~cial 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.
Compliance with ~4pproved Plans and Permits. When the
building official issues a permit, he/she shall endorse the permit m writing
or stamp the plans "APPROFF, D. " Such approved plans and permit shall
not be change~ modified or altered without authorization from the
building o~cial, and ail 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 omissionx
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 B~tC 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."
Condmions
I. The Hearing Examiner has jurisdiction to hear and decide ~his 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 Heating Examine~ 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 mn 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?
ADM11593
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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 m accordance with the approved pians and
permit..." Condition #1 of the permit stat~s 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 16a 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 Attac~ 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 ba~rdous 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 Januai3r 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
ADM! 1593
Page 9 of 11
house and the moving of the Cave House anyway. He characterizes this as maintaining
the legal nonconforming stares of the property by replacing one single-family use with
another single-family use.
1 I. Multifamily use is the nonconformity here (i.e., existing muitifamily 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 "repla~ing" one single family use
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 strtwture..." [see BIMC 18.87.020,
Finding #24]. Addressing the appellant's 'replacement" theory is not necessary m
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 prodous structure (approximately twice the size). Just as the
previous house could not have been "enlarged, increased, or ~ to the size of the
Cave House, neither could it be "replaced" by the Cave House because the Cave House
represents the uso 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 ora 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 Femcliff
Avenue NE must either be moved or demolished within 60 days, is hereby AFF~O.
ADM11593
Page 10 of tl
(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 tern
CONCI~RNINGI~0RTHgRR~VI~W
NOTE: It is the responsibility of a person seeking review ora Hearing Examiner
decision to consult applicable Code sections and other appropriate sources,
including Stal~ law, m d~n¢ his/h~ rights and re~rksibili~ies relative to
Request for judicial r~vios of this decision by a person with standing can be mad~ by filing a
land use petition in SUlC~'ior court within 21 days in accordance with thc Land Usc P~iiiioo Act,
Revised Code of Washington (RC3/0, Chapter 36.70C.
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