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PAPA MURPHY'S BP7696Dx~ ight Sutton Mayoc CITY OF BAINBRIDGE ISLAND OFFICE OF THE HEARING EXAMINER AN APPEAL OF ADMINISTRATIVE ) DECISION DENYING AN ) APPLICATION FOR BUILDING ) PEP..M~T. ) APPELLANT: JAMES M. COOPER. ) ) RECEIVED MAY 1 EXECUTIVE BP 7696 FINDINGS OF FACT CONCLUSIONS OF LAW AND DECISION. SUMMARY James M. Cooper is the president of James M. Cooper, Inc. which owns and operates Papa Murphy's Take and Bake Pizza stores in Sequim and Port Angeles, Washington. Mr. Cooper applied to the City of Bainbridge Island for a permit to build tenant improvements in a leasehold premises at 321 High School Road NE., Suite D6. Mr. Cooper's application for a building permit was denied by the Director of Planning and Community Development (DPCD). ]'he Director based her denial on Bainbridge Island Municipal Code (BIMC) 18.40.020 which allows formula take-out food restaurants only in High School Road District I east of State Route (SR) 305. Mr. Cooper's application proposed to locate a Papa Murphy's outlet in the existing retail complex in High School Road District I west of SR 305. Mr. Cooper argued on appeal that his Papa Murphy's Take and Bake pizza store is speciality retail food store, not a formula take- out food restaurant, therefore is a permissible business in High School Road I District west of SR 305. Mr. Cooper's proposed business is a formula take-out restaurant as defined by BIMC 1806.370. The decision of the Director of Planning and Community Development is affirmed on appeal FINDINGS OF FACT 1. James M. Cooper, doing business as James M. Cooper, Inc., is the owner of two Papa Murphy's Take and Bake Pizza stores located in Sequim and Port Angeles, Washington. On January 5, 2000, Mr. Cooper filed an application for a building permit with the City of Bainbridge Island requesting a permit to make tenant improvements at 321 High School Road NE., Suite D6, Bainbridge Island, Washington. As a part of that application Mr. Cooper submitted drawings issued on December 30, 1999, for a proposed Papa Murphy's Take and Bake Pizza store. Those plans have been included in the record as EXHIBIT 3. 2. Prior to filing his application for a building permit, Mr. Cooper and his attorney, Mr. Steven R. Evans, discussed with DPCD staffmembers the type of business he wished to open in the Village Shopping Center on High School Road west of SR 305. BP 7696 Hearing Examiner James C. Cooper (Papa Murphy's Pizza) Page -l- City of Bainbridge Island 3 After a review of the pre-application file, and discussions with her staffabout the type of business proposed by Mr. Cooper, the Director of Planning and Community Development signed her decision letter of January 26, 2000, denying building permit application BP 7696 (EXItIBIT 9) 4 A timely Notice of Appeal was filed by Mr. Cooper on February 8, 2000 (EXI-IIBIT 10). 5 On March 31, and April 3, 2000, public hearings were held before the Hearing Examiner to consider the appeal. Prior to the hearings, notice was published in the Bainbridge Review on March 15, 2000. EXTYIBIT 14 also shows that Notice of the Public Hearing was mailed to owners of property within 300 feet of the proposed project, and notices were posted at the City Hall, the Chamber of Commerce and the Ferry Terminal on the 14~' of March, 2000. 6. By prior agreement o,f counsel for the applicant and for the City, only two witnesses gave testimony at the public hearing; Ms. Stephanie Warren, Director of Planning and Community Development, and Mr. Mike Cooper, the owner and applicant for building perm/t BP 7696. 7. Ms. Warren testified that She denied the application for the building permit filed by Mr. Cooper because the business proposed was not a permitted use in the High School Road District I Zone west of SR 305. The retail business proposed by M~'. Cooper is a formula take-out food restaurant as defined in BIMC 18.06.370. BIMC 18.06.370: Formula take-out food restauradt means a restaurant or establishment that: (1) is cDntractually required to offer standardized menus, ingredients and interior or exterior destgn; and (2) serves or delivers its food or beverages in disposable containers. 8. BIMC Chapter 18 does not include specific definitions for the following terms used in 18.06.370: restaurant, establishment, standardized menus, standardized ingredients, standardized interior or exterior design, serves, delivers, food or disposable containers. Webster's II New Riverside University Dictionary defines "restaurant" as: aplacefor serving meals to the public. 10. Webster's II New Riverside University Dictionary and EXI-IIBIT52 define "establishment" in part as: ...a place of business, including its possessions and employees...., or ... a place of business or residence with its furnishings and staff... l 1. Webster's II New Riverside University Dictionary defines "standardized" as: to cause to be in.agreement with a standard, "standard" is defined in part as: an accepted measure of comparison for quantitative or qualitative value: criterion. 12. Webster's II New Riverside University Dictionary defines "menu" as: a list of the food BP 7696 Hearing Examiner James C Cooper (Papa Murphy's Pizza) ?age -2- City of Bainbridge Island and drink available or to be served for a meal. 13 Webster's [I New Riverside University Dictionary defines "ingredient" as: a constituent element ora mixture or compound. 14. Webster's II New Riverside University Dictionary defines "interior" as: the interior part or area, and "exterior" is defined as: a surface or part that is outside; an outward or external appearance. "Design" is defined as: a sketch or drawing; a project or plan. 15. Webster's II New Riverside University Dictionary defines "serves" as: to prepare and offer; to set food before; to supply goods or services to customers. "Delivers" is defined as: to take to the intended recipient. 16. Webster's [I New Riverside University Dictionary defines "food" as: material, usually of plant or animal orig~n, cont'aining or consisting of essential body nutrients, as carbohydrates, fats, proteins, vitamins or minerals taken in and assimilated by an organism to maintain growth and life. 17 Webster's II New Riverside University Dictionary defines "disposable" as: designed to be disposed of after use. "Container" is defined as: a receptacle for holding or carrying material. 18. Mr. Cooper testified that he is required to sign a separate contract with Papa Murphy's international for each Papa Murphy's Take and Bake Pizza store h~ wants to operate as a business. After discussions with the city DPCD staffregarding his proposed location of the Papa Murphy's Take and Bake Pizza store in the Village Shopping Center on High School Road, Mr. Cooper contacted the corporate headquarters for Papa Murphy's International to sign a new franchise agreement for the operation of a take and bake pizza store in Bainbridge Island. 19 Mr. Cooper submitted architectural drawings, admitted as EXI-IIBIT 3, as a part of his building permit application. These architectural drawings indicate that they were provided by Papa Murphy's International in Vancouver, Washington. On the face of the drawings, Papa Murphy's International declares that the plans have been prepared to "depict a complete true to standards (as they exist on the date of the plans) 'Papa Murphy's Take and Bake Pizza Shop'". The plans are a part of Mr. Cooper's opening package provided under his franchise contract. The plans are used to construct of his new business premises in the City of Bainbhdge Island. According to those architectural plans, exterior signage for the store is to be provided by Mr. Cooper under a separate contract. Papa Murphy's International web site (£XJ-IIBIT54) states that once construction begins on a franchise project, a Papa Murphy's International representative will inspect the project to ensure that the franchise store is completed on time, on budget, and built to plan specifications. A copy of the building permit and the certificate of occupancy are required to be provided to Papa Murphy's International upon completion of the project. Mr. Cooper testified that he is contractually obligated to include the Papa Murphy's logo on his store BP 7696 Hearing Examiner James C Cooper (Papa Murphy's Pizza) Page -3- City of Bainbridge Island front. The exterior signage must contain the words Papa Murphy's and must be approved by Papa Murphy's International before the franchise opens for business. Variance for the design of the exterior sign is allowed, according to Mr. Cooper, to confbrm to city sign ordinances where each business is located. The colors of red, green and white are to be used for the Papa Murphy's logo. 20. EXttlB[T 49 shows the arrangement of Mr. Cooper's Papa Murphy's Take and Bake Pizza stores in Sequim and Port Angeles. Mr. Cooper testified that the arrangement for each store is determined by the configuration of the leased space available in the desired location. The types of equipment needed to open a Papa Murphy's Take and Bake Pizza store, however, are standardized to meet the requirements of producing the Papa Murphy's pizzas for retail sale, in conformance with the standards expected by Papa Murphy's International. In order to open a Papa Murphy's business a new owner must purchase a walk-in cooler, a mixer, a sheeter, and the ~"ood ingredients and packaging supplies needed to provide Papa Murphy's take and bake pizzas. Special buying arrangements are available to Papa Murphy's franchisees for the purchase of the equipment necessary to set up a store, as well as the food and other preparation and packaging supplies needed to prepare the product for sale. Papa Murphy's International provides corporate training for new owners, teaching them how to do the preparation work for the ingredients to be used on the pizzas, as well as how to prepare the pizza dough. Special approved purchasing agreements have been arranged by Papa Murphy's International with Sigma Foods and SYSCO Food Delivery systems. Sigma Foods provides over 100 different items to Papa Murphy's franchisees, however, the Papa Mu[phy's franchisees are not required to buy their supplies from Sigma Foods or SYSCO Food Delivery Systems. Ifa franchisee, such as Mr. Cooper, chooses not to use the designated supplier, Sigma Foods or SYSCO Food Delivery Systems, for dough, cheese or other ingredients or supplies to be used in making his Papa Murphy's pizzas, he must get the alternative supplies or ingredients approved by Papa Murphy's International before using those different supplies or ingredients in his Papa Murphy's stores. Special pricing is available to Papa Murphy's franchisees who choose to buy from the designated suppliers. Papa Murphy's International provides its franchisees with an operations manual to assist them in operating a Papa Murphy's Take and Bake Pizza store. 21. Mr. Cooper testified that he is required by his franchise contract with Papa Murphy's International to offer both the Papa Murphy's Combination Pizza and Papa Murphy's Hawaiian pizza for sale in all his Papa Murphy's Take and Bake Pizza stores. The ingredients used to make a Papa Murphy's Combination Pizza and the Hawaiian Pizza are the same combination of ingredients used to make the Papa Murphy's Combination and Hawaiian pizzas offered at all Papa Murphy's Take and Bake Pizza stores. 22. Although a particular style of menu board is not required to be used in Papa Murphy's stores, a recommended menu board comes with the opening franchise package from Papa Murphy's International. Mr. Cooper's Sequim store displays the menu board which comes with the opening franchise package from Papa Murphy's international. The menus used in the store BP 7696 Hearing Examiner James C Cooper (Papa Murphy's Pizza) Page -4- City of Bainbridge Island must be approved by the corporate office for Papa Murphy's International. A small menu is also included on the back of baking instructions included with the take- out pizza. These baking instructions are given with the pizza to the customer at the time of purchase. The Papa Murphy's logo is required to be included on the baking instructions and menu included with the pizza. These menus and baking instructions are substantially the same as the menus and baking instructions offered by Mr. Cooper at his Sequim and Port Angeles stores. Some items offered on the menu included as EXTYIBIT53 are not offered by Mr. Cooper at his stores in Port Angeles and Sequim. One example is that the Cowboy Pizza is not offered by either of Mr. Cooper's stores. The baking instructions and menus are the same size and similar tbrmat as the menu and baking instructions which Mr. Cooper orders from Sigma Foods which have been pre-approved by Papa Murphy's International for use in his Papa Murphy's stores. 23. A Papa Murphy's pi .zza is not cooked at the store but is assembled behind the counter by Papa Murphy's staff, placed on a disposable baking tray then shrink-wrapped before being sold to the customer over the counter in a retail sale. A customer has a choice of ordering one of the standardized pizza combinations listed on the store or menu, or may custom order other ~ngredients which are assembled by the store staff on a baking tray and shrink-wrapped to protect ~t while it is carried home by the customer. Baking instructions included with the pizza recommend that the customer not re-heat the pizza in an oven on the baking tray provided by Papa Murphy' s. 24. Mr Cooper's contract with'Papa Murphy's International requires him to sell unbaked pizzas and unbaked bread sticks in packaging under the Papa Murphy's logo. Under his franchise contract, Mr. Cooper is allowed to offer additional items in his take and bake store so long as the required Papa Murphy's pizzas and bread sticks are available. 25. A Papa Murphy's Take and Bake Pizza store is a place of business which employs staff to prepare pizza for custom order for retail sale to customers coming into the store. In addition to selling take and bake pizza, Mr. Cooper's stores sell pepper flakes, grated cheese, cookie dough and bread sticks each packaged with material embellished by a Papa Murphy's logo. In addition, Mr. Cooper's stores sell pizza cutters and bottled soda pop. 20. Baking instructions provided with the pizza sold to the customer are designed in a format recommended by Papa Murphy's International. The baking instructions included as EXt]IBIT53 are substantially the same as the baking instructions used by Mr. Cooper in his Port Angeles and Sequim stores. EXttlBIT53 was provided by a Papa Murphy's Take and Bake Pizza store in Bellevue, Washington, not owned by Mr. Cooper. 27. Prior to the hearing the City Attorney made request for copies of the operating manual and the franchise contract signed by Mr. Cooper with his franchiser, Papa Murphy's International. Mr. Cooper, through his attorney Mr. Eglick, refused to provide copies of those documents. Mr. BP 7696 Hearing Examiner James C Cooper (Papa Murphy's Pizza) Page -5- City of Bainbridge Island Eglick asserts that the documents are protected as a trade secret. CONCLUSIONS OF LAW 1 This matter is properly before the Hearing Examiner for review of an administrative denial of a building permit application, prepared and filed by Mr. James M. Cooper under building permit application BP 7696. A public hearing was held on March 31, and April 3, 2000, for which adequate legal notice was given. 2. The application filed by Mr. Cooper sought permission to make tenant improvements in a leasehold space located at 321 High School Road NE., Suite D6, in the City of Bainbridge Island. The tax parcel number for the leasehold is: TPN 262502-2-095-2007. The leasehold premi'}es where Mr. Cooper intends to conduct business as a Papa Murphy's Take and Bake Pizza store is located in the High School District I zoning district in the City of Bainbridge Island; in that portion of the High School District I zone which is located to the west of SR 305. The Bainbridge Island Municipal Code (BIMC) prohibits formula take-out food restaurants in this portion of High School Road District I. (See B1MC 18.40.020). 4. The Bainbridge Island zoning ordinances enumerated in BLMC Chapter 18 prohibit formula take-out food restaurants in High School Road District I west of SR 305. The definition of formula take-out food restauranis is included in the Zoning Code at 18.06.370. The terms used in the definition of formula take-ou)~ food restaurants are not further defined in Chapter 18. When construing an undefined term in a statute or ordinance, it is reasonable to give the term its ordinary, common and every day meaning. Stastny v. Board of Trustees of Central Washington Umversity, 32 Wn. App. 239; cert. denied 103 S. Ct. 1528 (1982)). Zoning ordinances are to be construed liberally to accomplish their purpose and their legislative intent. The record shows that it was the intent of the Bainbridge Island City Council to limit the locations of formula take-out food restaurants in the City of Bainbridge Island. The City Council during legislative hearings, expressed concerns about public health and safety issues such as traffic generated by take-out food businesses, and litter from disposable containers sold in a take-out food business. The city Council restricted the locations of formula take-out food restaurants in the city to protect the health and welfare of the city. 5. The Papa Murphy's Take and Bake Pizza store falls within the definition ora formula take-out food restaurant as defined in B[MC 18.06.370. The Papa Murphy's Take and Bake Pizza store proposed by Mr. Cooper is a business establishment that is contractually required to offer standardized menus, ingredients, and interior or exterior design, and serves its food or beverages in disposable containers. While not all aspects of the menus, ingredients, and interior or exXerior design used by a Papa Murphy's franchisee are exactly the same as those required of every other Papa Murphy's franchisee, Mr. Cooper's contract with Papa Murphy's International BP 7696 Hearing Examiner James C Cooper (Papa Murphy's Pizza) Page -6- City of Bainbridge Island requires him to use franchiser approved plans, menu format, ingredients, and signage in his take and bake store. Mr. Cooper testified that he is contractually obligated to sell specific types of pizza using a quality of ingredients pre-approved by Papa Murphy's International. The building plans provided by Mr. Cooper confirm that they have been prepared to depict a complete true-to- standards "Papa Murphy's Take and Bake Shop" EXHIBIT54, the web site for Papa Murphy's International, confirms that Papa Murphy's International provides to its franchisees a basic set of plans drawn to Papa Murphy's specifications and standards. Those plans are to be used by Mr. Cooper for his leasehold in the City of Bainbridge Island. Mr. Cooper testified that he is contractually obligated to include the Papa Murphy's logo on his products and on his storefront. Mr Cooper acknowledged that while the layout of his individual stores may differ, the type of equipment furnished to the stores is the same. His stores have a walk-in cooler, a dough mixer, a sheeter, a preparation counter and a wall menu. A franchisee, such as Mr. Cooper, purchases an opening package from Papa Murphy's International to set up the franchise. As a part of that contract with the franchiser special buying arrangements are made available to the franchisee for the purchase of equipment and supplies at special prices from wholesalers such as Sigma Foods and SYSCO Food Delivery Systems. Products purchased from Sigma Foods and SYSCO Food Delivery Systems have been pre-approved by Papa Murphy's International for use in Papa Murphy's Take and Bake Pizza stores. The staffat a Papa Murphy's Take and Bake Pizza store serve custom made pizzas, which is "food", to retail customers on its business premises. Although no cooking of the pizza is done at the Papa Murphy's store, the pizzas are assembled at the request of the retail customer then packaged in shrink-wrap and a heatable baking tray for final home preparation. Both the shrink- wrap which covers the pizza and the baking tray used to heat the pizza are not recommended for re-use and are intended to be disposed of after one use. The baking tray and shrink-wrap are containers for the food. Included in the baking instructions provided to the retail customer with the packaged pizza, is an instruction to the customer not to reheat the pizza in an oven on the baking tray Mi-. Cooper also sells soda pop in disposable containers at his stores. 7 The appellant has asserted that the City's ordinance prohibiting formula fast food restaurants in certain zones is an invalid ordinance. Ordinances enacted in the exercise of a municipality's legislative power are presumed valid. Seattle v. Wright, 72 W2d 556, 559 (1967). A Hearing Examiner does not have the authority to determine the constitutionality of the ordinance, that authority rests with the Superior Court. Prisk v. City of Poulsbo, 46 Wn. App. 793 (1987) 8 As a part of the pre-hearing discovery, the appellant requested disclosure of all city records pertaining to this building permit application. Certain records were requested under the Public Disclosure Act and the applicant has asserted that the City has failed to meet the requirements of the Public Disclosure Act in providing and identifying documents requested by the applicant but not provided by the City. The Hearing Examiner does not have jurisdiction over enforcement of the provisions of the Public Disclosure Act. The remedy for the applicant, as set BP 7696 Hearing Examiner James C Cooper (Papa Murphy's Pizza) Page -7- City of Bainbridge Island forth in RCW 42.17.340, is to file a motion in the Kitsap County Superior Court. 9 The Director of Planning and Community Development determined that Mr. Cooper's building permit should be denied because the proposed use of the business premises was not permitted at the location leased by Mr. Cooper. Substantial weight must be given to the decision of the Director. BIMC 2.16. I30(F)(2). DECISION The applicant's appeal is denied. The denial of building permit application 7696 is affirmed. Dated this [ \'tl~- day o~'May, 2000 Robin Thomas Baker Hearing Examiner Pro Tem The decision of the Hearing Examiner shall be final unless within 21 days after issuance of this decision, an appeal is filed in accordance with the requirements ofRCW Chapter 36.70. BP 7696 Hearing Examiner James C Cooper (Papa Murphy's Pizza) Page -8- City of Bainbridge Island