091608_NELSON_HEX_DECISIONDECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of
Nelson Wood and Glass BLD14930/COD575
From a decision by the Code Enforcement Officer
On a Building Permit
Introduction
Nelson Wood & Glass, by William Nelson, appealed the Stop Work Order issued by the
Code Enforcement Officer for not operating consistent with the approved filling and grading
permit for property at the intersection of Lynwood Center and Bucklin Roads.
A public hearing was held September 5, 2008. Robert F. Cousins and Peter Buck, Buck
Law Group, PLLC, represented the appellant and Rodney Kaseguma, Inslee Best Doezie & Ryder,
represented the Department of Planning and Community Development.
All section numbers in the decision refer to the Bainbridge Island Municipal Code, unless
otherwise indicated.
After due consideration of all the evidence in the record consisting of the testimony at the
hearing and the documentary evidence admitted at the hearing, the following shall constitute the
findings, conclusions, and decision of the Hearing Examiner in this matter.
Findings
1. The subject site, the "Triangle" site, consists of two parcels that form a triangle surrounded
by Bucklin Hill Road on the north, Fletcher Bay Road on the west and Lynwood Center Road on
the easterly side. The site is being used as a "borrow" source for sand for development of a second,
nearby site, "Blossom Hill." The site is zoned 0.4 -R, a single family residential zone. The
"mining and quarrying" use is permitted in this zone as a conditional use. Section 18.36.030.
2. The testimony and photos showed that as early as 1963, a portion of the site, appearing to
be approximately a third, was being mined for its sand. Mr. Nelson remembered his father getting
loads of sand in the `60s. Appellant's geotechnical consultant used a 1965 photograph from
Department of Natural Resource's records and the survey of the site to calculate the area of
disturbed area at that time. These calculations showed that approximately 242,240 sq. ft., or 5.5
acres, of the area was disturbed by mining activity by that time. By 1977, more of the site was
being utilized.
BLD14930/COD575
Page 1 of 5
3. There were no zoning regulations in place in 1963 as Kitsap County adopted its first zoning
in 1969. The City of Bainbridge Island was incorporated in 1991 and adopted its zoning ordinance
in 1992.
4. An application for a building permit for the two parcels for filling and grading was made
on July 12, 2007. A Notice of Mitigated Determination of Nonsignificance for the sand borrow
site and reclamation was issued April 10, 2008, with a series of mitigation measures. The permit
was issued on May 9, 2008, subject to those mitigating conditions.
5. The approved activity and location of activity on the approved plan (Exhibit 26) was the
export of approximately 20,000 cubic yards of sand to the Blossom Hill site and approximately
30,000 cubic yards of fill returned from that site to the subject site for reclamation. The area of the
approved activity was a rectangular area of approximately 88,000 sq. ft. in the central part of the
site and a soil stockpile area of approximately 22,000 sq. ft. to the east of that, plus construction
roadway entrances and exits.
6. In response to complaints about operations on -site, a site inspection was conducted on June
27, 2008, by City and Department of Natural Resources (DNR) representatives. Representatives
of the appellant were also present. The inspection found that additional areas of the site had been
disturbed. A stockpile of topsoil was created north of the excavation area and clearing of
vegetation had occurred in the southern tip of the site. The DNR representative determined that the
site was a surface mine under the state's definition because the historically disturbed area
amounted to approximately 4.2 acres, according to his measurements, which exceeds the three
acre exemption from regulation and requires a Surface Mine Reclamation permit under the Surface
Mining Reclamation Act, RCW 78.44. DNR issued its inspection report and a notice of correction.
(Exhibit 24) The appellant was preparing to apply for the permit at the time of the hearing.
7. The City representatives determined that activity exceeded the limits of the area permitted
to be disturbed by the building permit, violating Condition 1 of the MDNS that all construction
activities be in accordance with the approved "SWPPP," grading plans, and the recommendations
of the geotechnical evaluations, and issued a Stop Work Order pursuant to Section 1.26.050. The
City was also concerned that the topsoil stockpile contained organic matter, because the site is in
an aquifer recharge area. Appellant submitted a revised site plan for approval for the topsoil
stockpile and the vegetation removal area. The Department determined that a conditional use
permit would now be required as the larger site constitutes a non - exempt "surface mine" as defined
by DNR's interpretation of RCW 78.44.030(17), to which the City deferred.
8. The Stop Work Order was issued because the topsoil storage was not included in the
original permit application and raised environmental concerns from the storage and future use of
organic materials due to potential harm to the aquifer and because of the precedent that could be
created if the expanded area of activity were not halted.
9. The contractor had scraped the area south of the excavation area between the two roads to
remove vegetation to improve visibility for security. The area had contained scrub brush such as
Scotch Broom. The operators had observed evidence of trespass on the site and because of the
equipment and activity, the police were patrolling the site from the public roads but could not see
all areas because of the vegetation in the southerly portion.
BLD 14930/COD575
Page 2 of 5
10. Except for the use of the area for topsoil stockpiling and the vegetation removal, the
activities are consistent with the permit. The appellant's geotechnical consultant, John Peterson, a
geotechnical engineer, did not find that the two areas of expansion raised any concerns about slope
stability or erosion.
11. The topsoil is being stockpiled for reclamation. The glacial till materials that will fill the
excavation site do not promote growth so the topsoil will be used to overcover the fill and sand and
be seeded as part of the reclamation. The topsoil does contain organic materials that should not be
buried as organics breaking down in the absence of oxygen produce products that can contaminate
ground water. The aerobic rotting of organics on the surface does not have the same effect.
12. "Nonconforming use" is defined as
...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.
Section 18.06.770.
13. Section 18.87.020 provides:
A nonconforming use of land may be continued; provided, that:
A. The use is not enlarged, increased, or extended to occupy a greater ara 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.
14. Section 18.108.01513 provides exemptions from the requirement of conditional use permit
for:
2. Any activity that does not expand the square footage of an existing use
by more than 25 percent.
3. Notwithstanding subsection B.2 of this section, a use that was lawfully
established prior to March 1, 1992, without a conditional or special use permit may
increase its square footage up to an accumulative 100 percent without securing a
conditional use permit.
Conclusions
1. The Hearing Examiner has jurisdiction to hear and decide this appeal pursuant to Sections
15.04.130 and 2.16.130.
BLD14930/COD575
Page 3 of 5
2. The Hearing Examiner is required to give substantial weight to the decision of the Director.
Section 2.16.130F2. The "substantial weight" requirement means that the decision must be
reviewed under a "clearly erroneous" standard. Norway Hill Pres. & Prot. Assn v. King County
Council, 87 Wn.2d 267, 275, 552 P.2d 674 (1976), superseded by statute on other grounds as
recognized in Moss v. City of Bellingham, 109 Wn. App. 6, 21, 31 P. 3d 703 (2001). A finding is
clearly erroneous when, although there is evidence to support it, the reviewer is left with the
definite and firm conviction that a mistake has been made. Wenatchee Sportsmen Assn v. Chelan
County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000).
3. The evidence shows, and the appellant concedes, that the activity on the site exceeded that
approved in the issued permit. Section 1.26.050 authorizes a stop work order if a continuing
violation would materially impair the director's ability to secure compliance or when it would
threaten the environment. The director found those circumstances present at the time of issuance.
Though the record shows that the activities were not in fact threatening the environment, the
potential damage from the precedent of allowing work to continue provided a legitimate basis for
the order and the Hearing Examiner must affirm.
4. Whether a conditional use permit (CUP) is required to continue the work on the site is the
chief issue of this case. A CUP is not required if the activity comes within the exemptions in
Section 18.108.015B, or is otherwise a nonconforming use of the property. The evidence shows
that the mining use was established prior to the adoption of Kitsap County's zoning code,
Bainbridge Island's zoning ordinance, and the Surface Mining Reclamation Act. Therefore, it was
legal when the use began.
5. The City's position is that it lost its legal nonconforming status through disuse or
abandonment, pursuant to Section 18.87.020. Abandonment requires both the failure to act and
intention. University Place v. McGuire, 144 Wn.2d 640, 652, 30 P.3 rd 453 (2001). Though the
department director's determinations are normally entitled to substantial weight, the burden shifts
to the City to establish abandonment. University Place, supra, at 647 citing Van Sant v. Everett, 69
Wn.App. 641, 652, 849 P.2d 1276 (1993) for the proposition that nonconforming uses may not be
abandoned easily and those asserting abandonment bear a high burden of proof of the existence of
the two elements. Here, the department argues that the lack of evidence about continuing activity is
evidence of discontinuance, but the burden to show the use has ceased is not met by the absence of
evidence regarding activity, especially where the nature is different from other activities in that it
is often based on need so sporadic. Further, no evidence of intent to abandon was adduced by the
department and both lack of activity and the intention to discontinue must be shown.
6. Even if the use is a legal nonconforming use that has not been shown to have been
discontinued prior to or after March 1, 1992, the City urges that remand is necessary to determine
if the area now to be mined exceeds that which is permitted by the exceptions in Section
18.108.015 that otherwise established by its legal nonconformity. The Court in University Place,
supra, adopted the "diminishing asset" doctrine for mining operations. In a factual setting much
like that considered here, the Court said that the use extends to the entire parcel, even though not
all used at the time of establishment. The Court recognized that due to the nature of the mining,
reserve areas are maintained. The Court did not address whether a municipality could explicitly
exclude application of the doctrine in its codes, but the City has not done that. Even without
application of the doctrine, the record shows use of approximately 5.5 acres in 1965 to the current
BLD 14930/COD575
Page 4 of 5
use of approximately 4.2 acres, so the site would qualify for either of the exceptions from the
requirement of a conditional use permit.
Decision
The decision to issue the Stop Work Order is AFFIRMED. The appeal is GRANTED as to
the requirement of a conditional use permit.
Entered this 16th day of September 2008.
/s/ Margaret Klockars
Margaret Klockars
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.
The decision of the hearing examiner shall be final in this matter unless, within 21 days
after issuance of a decision, a person with standing appeals the decision in accordance with
Chapter 36.70 RCW.
BLD14930/COD575
Page 5 of 5