050905 Harbor Pub (2)DECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of
HARBOR PUBLIC HOUSE SSDP /SPR 12755
[Parfitt Way Management Corporation]
of the PCD Director's Decision to
Deny Requested Permits
Introduction
The Director denied the requested permits and the property owner appealed that decision.
A prehearing conference was held on February 24, 2005 [see Findings 30 and 31]. The
hearing began on March 10, 2005 and continued on March 24, 2005 and April 8, 2005.
Parties represented at the hearing were: the Director, Planning and Community
Development Department (PCD or Department), by Rod Kasaguma, City Attorney; the
Appellant, Parfitt Way Management Corporation (Parfitt), by Dennis D. Reynolds,
attorney at law; and, the Intervenor, Harbourside Condominium Homeowners
Association ( Harbourside), by Anne DeVoe Lawler, attorney at law.
After due consideration of all the evidence in the record, the following constitutes the
findings, conclusions, and decision of the Hearing Examiner on this appeal.
Findings of Fact
Site and Vicinity
1. The subject property, addressed as 231 Parfitt Way SW, is on the northern shore
of Eagle Harbor, in the western portion of Winslow just west and south of "Downtown ".
Development includes the "Harbour Public House" restaurant and the Harbour Marina,
both owned and operated by the appellant, Parfitt Way Management Corporation
(Parfitt). Shaped something like an inverted "L ", the Parfitt property includes shoreline
frontage on the west, but does not have street frontage. [Exhibit 1, Survey; Exhibit 28;
Attachment G, Exhibit 63; Exhibit 73, Staff Report, pages 1 -3; Testimony of Waite]
Credible testimony at hearing indicates that another commercial use, kayak rental,
operates at the subject property, and may include some customer use of the Parfitt Way
parking lot [Testimony of Waite; Testimony of Daniel].
2. The Harbour Public House (Pub) is a popular tavern with the capacity to serve
approximately 90 (52 interior and 38 exterior). Parfitt indicates that the maximum
number of seats (in summer) is 81. Initially established as the "Jolly Roger Pub" in 1987
[see Finding 15], the Pub has been operated by Parfitt since 1991 as the Harbour Public
House. The Jolly Roger served beer, ale, wines and light food. The Pub has continued to
do that, but with a increased emphasis on food service. [Exhibit 73, Attachment G,
Attachment H, pages 2 -4; Testimony of Waite ]
3. Vehicular and pedestrian access from Parfitt Way approximately 250 ft. to the
north, is through the adjacent parking lot. This paved and landscaped parking lot has 34
parking spaces and a designated (striped) truck turn- around. A concrete sidewalk extends
along the western edge of the lot from Parfitt Way to the subject property. Pedestrian
access can also be had from the Wood Avenue parking lot to the west. As noted below,
Parfitt has access and parking easements for use of both parking lots. [Exhibit 9; Exhibit
28].
4. The Pub, the Harbourside Condominiums, and the Harbour Marina share the
Parfitt Way parking lot. Parfitt owns the southernmost part (approximate 40 ft.) of this
parking lot and has an easement for vehicular and pedestrian access to and from Parfitt
Way and an easement for parking in the rest of the lot. [Exhibit 9; Exhibit 28] By the
terms of the PUD approved in 1991 and associated covenants [see Finding 16], five
parking spaces are for Condo use and 20 spaces are for the Harbour Marina [Attachments
E, F, G, H, Exhibit 73]. The Appellant asserts that 19 spaces are for Pub use [Testimony
of Waite and Exhibit 28 indicate 29 stalls for "joint Marina/Pub use "]. The Intervenor
disputes this and claims that 23 spaces are required and 14 "at most" are actually for the
Pub [Exhibit 154]. The Director indicates that 19 spaces were required for the pub with
the PUD (based on Code required ratio at the time of one space for each four seats). In
1997 that requirement was revised to 23 spaces [Attachment G, Exhibit 73]. The parking
lot accessed from Wood Avenue has 17 spaces, with 10 spaces reserved for the Harbour
Marina and 7 for the Harbour Marina Condominiums; no spaces are allocated for the Pub
[Exhibit 28].
5. In September and October 2004 [Exhibits 29 and 39], the Director reported that
surface spaces had been counted and that there are a total of 59 spaces shared between the
yacht services /office, the Marina, the Pub, and the condominiums. Other references in
the record consistently refer to 17 spaces in the Wood Avenue lot and 34 in Parfitt Way
lot (for a total of 51).
6. A Fire Lane to the subject property is designated through the Wood Avenue
parking lot. There is a fire hydrant nearby the western edge of the Parfitt Way parking lot
(about 175 ft. south of Parfitt Way). Emergency vehicles have used the Parfitt Way
parking lot for access (it may be the more obvious route to access the subject property).
[Exhibit 9; Exhibit 41; Exhibit 42; Exhibit 47, page 3]
7. The current use of the subject site is commercial and the zoning and
Comprehensive Plan designation of the property is Mixed Use Town Center - Core
(MUTC). The Shoreline Master Program designation is Urban. The Urban environment
accommodates high intensity commercial, industrial or recreational use, or multifamily
residential development). [Exhibit 73, Staff Report, pages 1 -3]
8. In the immediate vicinity the Pub, the zoning, Comprehensive Plan, and shoreline
designations are similar to that of the subject site. Uses to the east include commercial
and office development. Multifamily development is adjacent to the north (Harbourside
Condominium) and to the west (Marina Condominium). Further west, across Wood
Avenue, zoning and use is single - residential, and residential uses and zoning predominate
north of Parfitt Way. [Exhibit 1, Survey; Exhibit 73, Staff Report, pages 1 -3]
Proposal
9. Parfitt proposes to make alterations in the existing building and to expand the
restaurant to the north, into the area between the existing building and the parking lot.
Along with these structural changes there would be an operational change in focus "from
looking and functioning as a tavern to looking and functioning as a neighborhood
restaurant." [Exhibit 24; Exhibit 2]
10. The size of the restaurant and deck areas would be increased, as would the kitchen
and storage areas. The proposed additions would approximately double the current size.
The existing restaurant /pub is approximately 1878 sq. ft. (including 630 sq. ft. on the
deck) and has a seating capacity of approximately 90 [Attachment G, Exhibit 73]. The
restaurant space would be increased by 1,784 sq, ft., and 237 sq. ft. of deck space would
be added. The restaurant /pub (i.e., the area where customers could be seated) after
expansion, including deck space, would be 3,899 sq. ft., with an added seating capacity
for 50 -60 persons. [Exhibit 73, pages 4 and 5 (capacity), Attachment A (square footage);
Exhibit 6 (seating proposed)].
Space
Pub /restaurant
Deck
Subtotals Service areas
Kitchen storage, office, etc
Existing
New
Totals
1248 sq. ft.
1784 sq. ft.
3032 sq. ft.
630 sq. ft.
237 sq. ft.
867 sq. ft.
1878 sq. ft.
2021 sq. ft.
3899 sq. ft.
1985 sq. ft.
1807 sq. ft.
3792 sq. ft.
Totals all spaces: 3863 sq. ft. 3828 sq. ft. 7691 sq. ft.
11. The figures used in Finding 10 are based upon the applicant's square footage
estimates presented in the SSDP and SPR applications [see Attachment A, Exhibit 73 and
Exhibit 11]. However, these figures are not consistent with other information in the
record. Both the applicant and the Director [Exhibit 26 and Exhibit 29] refer to a "6,846
square -foot pub "; perhaps this agreement signals that this total is more accurate than that
calculated in Finding 10. At least one square footage reference [Staff Analysis, issued
December 1, 2004, Exhibit 77] omits the deck seating area (perhaps this is because decks
are outside the exterior walls and therefore not "floor area" - see Finding 37). Other
figures include: in the SEPA Checklist [page 2, Attachment C, Exhibit 73] the applicant
indicates additions of "1784 sf first floor & 1806 sf daylight basement "; and, the Design
Review Board describes the proposal as totaling 6,720 square feet, with a proposed
addition of 3,628 square feet [Attachment D, Exhibit 73]. As it is not critical to this
decision, no attempt has been made to reconcile the different figures.
12. Six new parking spaces were originally proposed in the Shoreline Substantial
Development Permit application [Attachment A, Exhibit 73; Exhibit 2]. In November
2004, believing that the proposed spaces would exceed the maximum allowed and require
approval by the Planning Commission, the applicant revised the site plan to eliminate
those spaces from the proposal [Exhibit 9; Testimony of Waite].
13. In August 2004, Parfitt proposed to provide additional parking for the proposed
expansion by reallocating the spaces in the Parfitt Way and Wood Avenue parking lots.
The 10 liveaboard slips in Parfitt's Harbour Marina would be reassigned as moorage slips
to free up 10 spaces and the Parfitt Way parking lot spaces allocated as follows: 2 spaces
for the Marina, 27 for the Pub, and 5 for the Harbourside Condominium. The Wood
Avenue lot would continue to have 10 spaces for the Marina. A total of 44 spaces would
be available for Pub and Marina use. [Exhibit 26] It is not clear that Parfitt has the
ability to make these types of changes without the agreement of affected property owners
and/or revision of the PUD [Exhibit 31].
Background [see also Exhibit 73, Staff Report, "History ", pages 3 -5]
14. In 1980, a Shoreline Management Substantial Development Permit was issued for
development of a commercial moorage facility (50 boat slips approved and 30 parking
spaces required) at the subject site. [Exhibit 73, Attachment E, page 6]
15. In 1987, the City Council issued a Shoreline Substantial Development Permit and
a Conditional Use Permit for conversion of an existing building at the site into an
"English style" pub, called the Jolly Sailor Pub. This project included 13 parking spaces
for the pub.
16. In 1991, the marina [see Finding 14] and the Jolly Roger Pub [see Finding 15]
were included in the Harbourside Planned Unit Development (PUD) along with the
property adjacent to the west and north [Exhibit 73, Staff Report, pages 1 -3; Exhibit 163].
This PUD involved development of 30 condominiums (10 -unit "Harbour Marina
Condominiums" and 20 -unit " Harbourside Condominiums ", see Exhibit 3), replacement
of the marina, and construction of an owner residence and space for yacht brokerage.
Parking requirements were calculated to include shared spaces for the pub (now the
Harbour Public House), the marina (now the Harbour Marina), and the condominiums.
The Parfitt Way parking lot was "to contain 29 parking spaces for the joint use of the
Marina and pub parking" [Exhibit 163 notes 19 spaces required for the pub based upon
one space for each four seats.] The marina's 30 -space parking requirement included 10
spaces in the Wood Avenue lot [pages 6 -8, Attachment D, Exhibit 73].
17. In 1997, the City building official determined that the capacity of the Pub is 90
persons. Based upon that revised capacity, and the ratio of one space for each four seats,
23 parking spaces are required. [Exhibit 73, Attachment G]
Director's Decision
18. On July 1, 2004, Parfitt Way Management, Inc. applied for a Shoreline
Substantial Development Permit (SSDP) and Site Plan Review (SPR) to expand and
make alterations to the Pub as described above. [Exhibit 11 ]
19. On August 11, 2004, the Department requested submittal of a new site plan to
revise the location of the proposed parking spaces that were shown off -site. The
applicant submitted a revised site plan, eliminating the proposed parking spaces and
proposing that the existing Harbour Marina parking spaces be reallocated to
accommodate the proposed restaurant expansion was also submitted on this date.
20. The Planning Commission considered the proposal at a public meeting on
December 9, 2004. Following presentations by staff and the applicant, the Commission
permitted public comment on the project. The Commission subsequently asked the
applicant for further information and delayed making a recommendation until the next
Commission meeting. The Planning Commission continued the meeting on January 13,
2005, did not hear further public comment, and voted unanimously to recommend denial
of the project.
21. On December 27, 2004, the Department [Exhibit 27] requested that that Parfitt
provide parking information pursuant to BIMC 18.81.030(0). Parfitt's architect
responded by letter [Exhibit 71], objecting to the Pub being considered a "special case"
and declining to provide the requested information asserting that it "is superfluous"
because BIMC 18,81.030(0) "does not apply to this application." The Staff Report
includes these letters in a list of events in the "history" of the review of the subject
applications [see Items 5 through 15].
22. The Hearing Examiner takes official notice that the types of parking information
requested by the Director is often used in assessing the parking impacts of new
development. Parking studies (e.g., surveying actual use, determining peak demand
time(s) for various uses, etc.) to document current demand and existing surplus or
deficient parking supply, are common analyses used in land use planning and impact
analysis (and frequently presented in land use appeals). It is also common for planners
and/or engineers to reference the average or typical parking ratios found in technical
studies or reference documents (e.g., for many years the Institute of Transportation
Engineers has published a Parking Generation manual to assist with making estimates
likely parking demand by type of land use).
23. Comment letters [Exhibits 80 -83, 86 -95, 98, 101 -117, 119, 121 -123, 125 -127,
129 - 134,136] written by neighboring residents indicate that the Parfitt Way parking lot is
often full and overflowing (i.e., parking along the entrance drive, in places marked for no
parking, in undeveloped "spaces" in the street right -of -way). The residents believe that
Pub patrons are the source of the demand for parking that exceeds the available space in
the Parfitt parking lot. Photos [Exhibit 98] taken by a Harbourside resident were offered
to show that the demand for parking in Parfitt parking lot already exceeds the supply. An
incident where emergency vehicles had to double park [Testimony of Putnam] is also
indicative that parking is problematic.
24. Expanding the Pub as an all -ages restaurant is intended to bring in more
customers. The record does not include, and the Director did not have, an estimate of
what parking demand would likely result from the change in focus. A good parking
demand analysis would define the timing and extent of the likely future demand.
Without that information, the Director has no rational way to estimate the number of
spaces needed to meet the future demand or to determine what the appropriate parking
requirement should be.
25. In trying to be specific, but lacking existing and future parking demand
information, the Director indicated different numbers (e.g., 4 spaces, 14 spaces, 17
spaces) at different times [Testimony of Chester]. The last indication of a parking
requirement, based on review of what other jurisdictions require for restaurants, was a
ratio of one parking space for every four patrons [Staff Report, pagel0, Exhibit 73]. (A
ratio requirement can be met by increasing the supply of parking or decreasing size of the
square footage, or a combination of the two.)
26. On January 24, 2005, the Director issued a Notice of Administrative Decision
denying SSDP /SPR12755. The Notice references the Staff Report as "containing the
statement of facts upon which the decision is based ". [Exhibit 73; Testimony of Preston]
27. As noted in the excerpt from the "Conclusions" section of the Staff Report
[Exhibit 73, page 13] that follows (with emphasis added), the basis for the Director's
denial was "insufficient information regarding parking ":
Site Characteristics ... The site is not suitable for the proposed project
because the applicant has failed to provide sufficient information
regarding parking.
History ... The proposal was forwarded to the Planning Commission for
review and recommendation. The Planning Commission recommended
denial of the project on January 13, 2005...
Land Use Code Analysis ... The application contains insufficient
information to determine that the project is in conformance with BIMC
18.81.
28. Regarding site plan review [Exhibit 73, Staff Report, page 11], the Director
concluded that:
The site plan is not in conformance with the applicable sections of BIMC
18.81. The applicant has not shown any additional parking spaces on the
site plan; therefore, the Director does not have enough information to
make the determination that the application is consistent with the parking
requirements of BIMC 18.81.
Appeal
29. Parfitt and Harbourside timely filed appeals of the Director's decision. Parfitt
appealed the Director's denial of its requested SPR and SSDP and both parties appealed
SEPA conditioning.
30. A prehearing conference, attended by all parties, was held on February 24, 2005.
The Hearing Examiner ruled that there would not be consideration of issues raised by
Harbourside related to the legality of Parfitt's application absent Harbourside's consent,
need for PUD amendment, need for amendment of concomitant agreement, and, violation
of covenants, as these matters are not within the jurisdiction of the Hearing Examiner to
decide.
31. The Prehearing Order, issued February 24, 2005 included rulings on issues raised
and discussed at the prehearing conference:
(1) SEPA Appeals: The appeals filed by the Applicant and the
Intervenor regarding of approval are moot unless the application is
approved. As the permits sought were denied, appeals of the adequacy
and appropriateness of the conditions is not germane or timely. These
appea s are to be held in abeyance, to be heard in a later proceeding if the
subject application is approved and SEPA conditions become a proper
subject for appeal.
(2) Public View Protection Issue: The Intervenor requested an
opportunity to present evidence on the issue of public view protection.
However, whether public views have been correctly considered by the
Director could be in dispute only if the application had been approved, but
given the nature of the appeal and the potential relief, it is not a proper
issue in this proceeding.
(3) Party Status of Harbourside: As Harbourside Condominium
Homeowners Association is not aggrieved by the Director's decision (i.e.,
Harbourside does not oppose the Director's denial), Harbourside is not
properly an appellant, but can participate as an Intervenor.
(4) Motion to Dismiss Parfitt's Appeal: The Intervenor's motion to
dismiss Parfitt's appeal is denied as the bases cited for dismissal are not
within the jurisdiction of the Hearing Examiner to decide.
32. At hearing the Appellant presented a plan for how the parking space requirement
could be met. The options cited included: northerly expansion of the Parfitt Way parking
lot, reallocation/reassignment of existing spaces in the Wood Avenue and Parfitt Way
lots, joint use credit, shared use of off -site parking facility, in lieu contribution for
development of off -site parking facility. [Testimony of Waite; Testimony of Chester;
Exhibit 159; Exhibit 160]
33. The Director presented evidence at hearing regarding the legislative history of the
zoning regulations in the MUTC zone [Exhibit 171; Testimony of Cook]. This
information, while worthy of note and credible for an argument that a different parking
requirement (i.e., a higher number) was intended to be applied to restaurants, is not
necessary to deciding the fundamental issue of this appeal. Also, if the Code presently
does not accurately express the parking requirements intended by the City Council, the
Council, not the Hearing Examiner, can amend the Code.
Bainbridge Island Municipal Code (BIMC)
Appeal of Director's Administrative Decision
34. The administrative decision procedures of BIMC 2.16.095 instructs that the
Director is to consider "applicable decision criteria... all other applicable law, and any
necessary documents and approvals" including Planning Commission recommendations
[BIMC 2.16.095(D)]. In making an administrative decision, the Director may approve,
approve with modifications, or deny an application [BIMC 2.16.095(E)]. Appeals of the
Director's decisions are to the Hearing Examiner "in accordance with the procedures of
BIMC 2.16.130" [BIMC 2.16.095(H)].
35. In considering appeals of "administrative decisions, departmental rulings and
interpretations... ", BIMC 2.16.130(F) provides:
1. Hearing. In considering appeals, the hearing examiner shall do
one of the following:
a. Affirm the decision;
b. Reverse the decision;
c. Affirm the decision with modifications; or
d. Remand the decision to the department director for further
consideration. The hearing examiner shall include in the order the issues
to be reviewed on remand.
36. Site plan review is required pursuant to BIMC 18.105.020(A) for the "new
construction of a building or other structure... " and the "expansion, remodel, or exterior
alteration of any building or other structure by more than five percent of its existing floor
area ". Site plan review decision criteria of BIMC 18.105.060 mandate that to be
approved, the site plan is to be "in conformance with applicable code provisions and
development standards of the applicable zoning district ". The applicant or other
aggrieved party may appeal the Director's decision "to the hearing examiner in accord
with BIMC 2.16.130" [BIMC 18.105.120].
Parking Regulations
37. BIMC 18.06.390 defines `floor area" to mean "the total area of all the floors
within the exterior vertical walls of a building. "
38. BIMC 18.81.030, in pertinent part, provides the basic development standards as to
the required number of parking spaces as follows:
B. Parking lots exceeding the number of spaces required by this
section are not allowed unless approved by the planning commission.
F. For retail, commercial and personal services in a building with
1, 000 square feet of floor area or more, four spaces per 1, 000 square feet
shall be provided, except as modified by BIMC18.40.030.
H. For places of public accommodation serving food and
beverage, one space for each four occupants as determined by the department
shall be provided.
M. For other educational, governmental, health care and
recreational facilities not covered in subsections K and L of this section, the
number of spaces must be adequate to accommodate the peak shift as
determined by the director.
O. For other uses or special cases, parking requirements shall be
established by the director. For determination by the director, the applicant
shall supply:
1. Documentation regarding actual parking demand for
the proposed use; or
2. Technical studies relating the parking need for the
proposed use; or
3. Required parking for the proposed use as determined
by other comparable jurisdictions.
P. Subject to approval as part of site plan review, the parking
requirement in the central core overlay district of the Mixed Use Town Center
zoning district may be met by contributing into a public or cooperative
commercial effort to create new structured or surface parking in that zone.
The amount of the contribution shall be equivalent to that necessary to
provide the required number of parking spaces.
39. BIMC 18.40.030 provides the development standards for the Central Core of the
Mixed Use Town Center (MUTC) zone. The development standards table specifies four
spaces `per 1,000 sq. ft. " as the minimum number of parking spaces required, and five
spaces " p er 1, 000 sq. ft. " is the maximum. These requirements have footnotes: #7 is
referenced by the minimum requirement, and #8 and #9 are referenced by maximum
requirement. These footnotes provide:
#7: On street parking legally created in conjunction with and adjacent to a
project may be included in the parking space calculation.
#8: Up to a maximum of four spaces per 1,000 square feet for restaurant
use, using procedures set out in BIMC 18.81.030.M.
#9: Exceptions to the maximum commercial parking may be granted in
accordance with BIMC 18.81.030. C.
Conclusions
1. The Hearing Examiner has jurisdiction to hear and decide this matter and, in
making that decision, must give substantial weight to the decision of the department
director.
2. The fundamental question here is whether the Director erred in denying the
requested permits when the information requested regarding the parking, as authorized by
BIMC 18.81.030(0), was not forthcoming from the applicant. The pivotal issue is
whether the Director was incorrect in treating the Pub as a "special case ". If the Director
cannot or should not treat this as a "special case", then the decision to deny on the basis
cited by the Director could not be sustained. If the Director's treatment of the Pub as a
"special case" is appropriate, then Parfitt's failure to submit a satisfactory response to
the Director's request for information is an acceptable basis for denial.
3. The Code does not define "special cases ". A dictionary definition of "special" as
meaning "of a kind different from others; distinctive, peculiar or unique" [Webster's New
World Dictionary, Third College Edition], suggests a useful plain meaning. This is not a
typical situation: parking is via an easement for access and use; that parking is in a lot
required to be shared by three uses (pub, marina, condo); a fourth, unauthorized, use may
also be using the lot; the terms of use for the parking lot are included in a private
agreement and a PUD; the amount of "required" parking in the lot was established in a
PUD; and, the allocation/assignment of spaces in the lot was established by a PUD and
may be proscribed by covenants running with the land. BIMC 18.81.030(0) anticipates
and provides for unusual situations ( "special cases ") where, rather than apply the general
standard for a use, Director is to establish a parking requirement appropriate to the
situation. Characterized as it is by complicated interrelated legal and physical factors and
thorny use questions, it is not difficult to appreciate why the Director treated this as a
"special case ".
4. The Director interpreted "special cases" to include the subject proposal. That
was not a mistake or an illogical, unreasoned choice in these circumstances.
5. For "special cases" the applicant is required to supply information regarding
parking demand, parking need, and/or parking requirements in comparable jurisdictions.
Objective, empirical data documenting the existing "demand" from the various uses, and
an accurate, competently prepared estimate of future "need", are both needed for the
Director to make an informed decision as to what the parking requirement should be for
this "special case". Harbourside residents gave anecdotal evidence that existing demand
for parking exceeds the available supply, but without an objective survey of the sources
and extent of current demand, there is not sufficient basis for establishing a parking
requirement. The parking requirements of other jurisdictions suggest a range of
possibilities, but without existing and future demand data, the Director had insufficient
information to establish the appropriate parking requirement.
6. Without empirical information about existing demand and a technically
competent and realistic estimate of likely future demand, the Director could not establish
the parking requirement and the decision to deny on the basis cited is neither erroneous
nor arbitrary.
7. Notwithstanding the several days of hearing, the numerous motions with
extensive supporting documentation, the considerable size of the record, and the time
involved in considering all relevant evidence, this appeal presents only one issue [see
Conclusion 2], and that is all that is appropriately decided here. As articulated in the
Prehearing Order, there are legal issues associated with this matter that are not properly
decided in the context of this appeal as they are outside the Hearing Examiner's
jurisdiction. Also, Land Use Code and practical questions (e.g., appropriateness of joint
use /complimentary use credit, the potential for "fee in lieu ", legitimacy of reallocation of
spaces, physical and legal limitations of expanding in the Parfitt Way lot, realistic
potential for developing on- street spaces, existence /feasibility of community off -site
parking facilities, etc.) have been raised regarding how and where additional parking
spaces could be provided. It is not necessary to answer these questions to make this
decision and consequently those questions are not addressed. (These questions would be
appropriately addressed in the context of a parking plan responsive to the Director's
specification of an applicable parking ratio.)
8. The language of the Code is mandatory: "the applicant shall supply... " (emphasis
added) If the applicant desires to pursue the proposal, the information requested by the
Director must be provided. This could be done in the context of a new application, but
that would be an unnecessary burden (and cost) for the applicant. Instead, the applicant
should have an opportunity to provide parking information (to the satisfaction of the
Director) as authorized by BIMC 18.81.030(0)(1) and (2). (As the Department has
surveyed other jurisdictions, information responsive to BIMC 18.81.030(0)(3) is already
available.) With the appropriate information the Director can establish the parking
requirement and the applicant can revise the application with a parking plan that
demonstrates how that requirement would be met.
Decision and Order
The decision is REMANDED for the Director to consider: (1) parking information [see
Conclusions 5, 6, and 8] provided by the applicant to the satisfaction of the Director, in
order that the Director establish the parking requirement for the proposal; and, (2) the
applicant's parking plan demonstrating how the parking requirement would be met [see
Conclusion 8].
The Director shall issue a decision on the applications after consideration of (1) and (2);
that decision will be subject to appeal as provided by the Bainbridge Island Municipal
Code (consistent with treatment of these parties as noted in the Prehearing Order issued
this matter).
Entered this 9th day of May 2005.
/S/ 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.