VON ROSENSTIEL BP 7771 OFFICE OF THE HEARING EXAMINER
FOR THE CITY OF BAINBRIDGE ISLAND
CITY ADMINISTRATOR
LYNN NORDBY
In the matter of an Appeal of an
Administrative Decision approving a
Building Permit issued to Clark and Eleanor
Gaulding.
Appellant: Paul and Elaine ~ C "' ~:
VonRosenstiel
BP 7771
FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
DECISION
FINDINGS OF FACT
1. Clark and Eleanor Gaulding are the legal owners of a residence located at 563 Stetson
Place SW in the City of Balnbridge Island.
2. On March 6, 2000 Mr. Gaulding filed an application for a building permit with the City of
Bainbridge Island, requesting permission to remove old roofing and install new roofing and trim at
his residence. This re-roofing was to be performed by Carley Construction, Inc., of Bainbridge
Island. [EXHIBIT 1.]
3. On April 14, 2000 a revision of the building permit application was filed by Peter
Brachvogel, Architect, on behalf of the Gaulclings. This revision sought permission to change the
roof pitch and add an attic for storage above the garage. This revision was approved by the
Building Department on April 25, 2000 [EXHIBIT8]. A second revision was filed by Mr.
Brachvogel raising the garage second story storeroom walls one foot more than indicated on the
previously approved plans [EXHIBIT 9].
4. After Building Department review the application was sent to the Department of planning
and Community Development (DPCD) for review. Kathy James, Senior Planner, approved the
revisions.
5 An appeal of the decision to issue a building permit was filed by Paul and Elaine
VonRosenstiel on May 2, 2000 [EXHIBIT 11].
6. Shortly after the appeal was filed, construction began on the carport remodel at the
FIndings of Fact, Conclusions of I,aw and Decision:
VonRosenstiel/Gaulding
7771
Page
Gaulding residence. The VonRosenstiels requested that the project be issued a Stop Work Order.
Since the work was being performed under a building permit issued by the City and no violation
had been found, work under the building permit was allowed to continue.
7 Mr. and Mrs. VonRosenstiel reside at 566 Stetson Place SW, across Stetson Place from
the Gaulding residence. Stetson Place has been developed as a public dedicated right of way,
twenty feet in width. An additional 20 foot roadway easement parallels Stetson Place along its
south edge. This 20 foot undeveloped easement crosses the noah 20 feet of the Gaulding
property. The carport, now being remodeled, encroaches into this easement.
8. The Gaulding lot is zoned R 4.3. BIMC 18.21.060 describes the required front yard for a
lot located in the R 4.3 zone. BIMC 18.21.060(A) requires that front yards facing streets shall
not be less than 25 feet, measured by the distance from the nearest lot lines, planned rights of way,
or road easement. The Gauldings' carport and a portion of the Gaulding residence encroach upon
the required front yard of their residential lot. The carport also encroaches upon the side yard
along the eastern property line. The Gaulding residence and carport were built prior to the
adoption and codification of BIMC 18.21. The Gaulding residence and carport are legal
nonconforming structures.
9. The carport remodel, now completed at the Gaulding residence, has increased the size of
the carport from a one story flat roofed structure open on two sides, to a closed two car garage
with a second story storage area. This storage area measures 6 feet in height from the floor to the
ridge of the roof line. The storage area addition remains within the building footprint of the
original carport. The roof line of the carport is integrated into the structure of the house. The
roof structure framing from the original carport extended back to the kitchen wall of the house.
/ Testimony of Peter Brachvogel.]
10. The height of the newly remodeled garage is less than 25 feet above "grade." BIMC
18.21.070(A) sets abuilding height limitation in the R 4.3 zone at 25 feet above "grade."
11. The VonRosenstiels contend that the Gaulding remodel violates BIMC 18.87.030,
because the addition of the storage area alters and enlarges the carport in a manner that increases
its nonconformity in the zone.
12. The DPCD disagrees with the appellant's interpretation of BIMC 18.87.030. Before the
hearing, Kathy James, Senior Planner, provided the VonRosenstiels' with a copy of a 1993
Memorandum from the Interpretation File at the DPCD [EXHIBIT 19.] Relying on that
Memorandum, Ms. James determined that the adding of a second story on top of the Gauldings'
carport does not increase the structure's nonconformity and therefore does not violate 18.87.030.
Ms. James testified that once a non-conforming structure has encroached into the yard area, the
1' indings of Fact, Conclusions of Law and Decision:
Vm~Rosenstiel/Gaulding
BP 7771
Page -2-
dimensions of the yard are changed to reflect the existing legal nonconforming structure's
placement on the lot. The nonconformity for the Gaulding residence and carport is that it violates
the 25 foot setback requirement in this residential zone. Under the City's interpretation the
Gaulding's addition of a storage area and increased height of the roof, therefore, does not
increase the nonconformity of the structure since it stays completely within the building footprint
of the original carport structure. The new garage conforms to the height limitation in the R 4.3
zone
13 The VonRosenstiels contend that the Gaulding carport is nonconforming because it
encroaches on the required front yard setback and side yard setback. BIMC 18.06.930 defines a
yard as follows: ~?trd means an open ~space on a lot or parcel that is required by this Title to be
unoccupied and unobstructed from the ground upwards except as otherwise provided in this'
l~tle. The VonRosenstiels conclude that the nonconformity of the original carport and the
Gaulding residence would be increased by this addition since the encroachment on the yard would
be increased vertically by the addition of 6 feet of storage space and rooC This increase in the
height of the structure, the VonRosenstiels contend, violates B1MC 18.87.030 because the open
space yard on the Gaulcling lot is to remain unoccupied and unobstructed from the ground
upwards. Under their interpretation, this yard measures from the edge of the easement, south 25
feet into the Gaulding lot, and from ground level up to the 25 foot building height limitation.
14. The appellants testified that in the course of Mr. VonRosenstiel's work as an Architect, he
has had projects which were substantially similar to the facts in the Gaulding application and these
other projects have been disallowed. The City's interpretation of B1MC 18.87.030 for those
other projects was consistent with the interpretation explained by the appellant in this appeal.
15 Mr. Brachvogel, Architect for the Gaulding project, has also practiced on Bainbridge
Island for many years. He testified that he has had many similar projects on legal nonconforming
structures and he has been allowed the remodels based on an interpretation of BIMC 18.87.030
consistent with the City' s interpretation for the Gaulding permit.
16. Mr. Brachvogel, the Architect for the project, testified that if the carport structure
remodel were considered as a separate structure from the house, this project has destroyed no
~nore than 40% of the original structure in the remodel. This carport, however, is not a structure
separate from the house.
CONCLUSIONS OF LAW
The Gaulding residence is located in the City of Bainbridge Island in the R 4.3 zone and is
subject to the provisions of BIMC 18.21.
~ndings of Fact, Conclusions of Law and Decision:
Vo~I~osenstiel/Gaulding
7771
Page -3 -
2. The Gaulding residence and carport were constructed on the property prior to the
adoption of BIMC 18.21 and exist on that property as legal nonconforming structures, which
violate the required front yard and side yard setbacks for 10ts in R 4.3.
3 B1MC 18.87.030 regulates applications for changes to the Gaulding residence since it is a
legal nonconforming structure.
4 Building Permit ~7771 was properly issued by the City of Bainbridge Island Building
Department for the re-roofing of the carport at the Gaulding residence. The building permit was
revised in April, 2000 and the revisions were approved by the Building Department and the
DPCD
5 The appellant's brief cites various City and County codes which have nonconforming
structure provisions which dif[br from Bainbfidge Island. These other ordinances are not relevant
to an interpretation of the Bainbridge Island ordinances.
6. A municipality has considerable discretion over the manner in which non-conforming
structures are allowed to be altered. The Bainbridge Island ordinance reads as follows:
18.87.030 Nonconforming structures.
A nonconforming structure may remain and be used, provided that:
A. The structure is not enlarged or altered so as to increase its nonconformity;
B. If moved, the structure shall be made to conform to regulations of this code; and
C. lfthe structure is harmed or destroyed by more than 50 percent of its
replacement value, as determined by the building official, the structure must be
reconstructed in compliance with the requirements for the zone in which it is
located. (Ord. 92-08 § 2, 1992)
Under the City's interpretation, B1MC 18.87.030(A) allows enlargements and alterations
of a nonconforming structure provided the enlargement does not increase the structure' s
nonconformity. Under the appellant's interpretation, no enlargement would be allowed because
the structure could not be enlarged without increasing the structure's nonconformity. The
ordinance, however, must be construed so that no portion of the ordinance is meaningless. The
City has determined that the Gauldings' alteration and enlargement of their residence's carport
will not increase the nonconformity, since the nonconformity is encroachment into the required
setback area and that encroachment will not increase toward the north property line or the east
property line with this remodel. The City's interpretation of the ordinance is a reasonable one.
The Director of DPCD is the responsible official charged with the duty of interpreting the zoning
ordinances passed by the City Council. BIMC 2.16.130(F)(4) requires the Heating Examiner to
give substantial weight to the decision of the Director when hearing an appeal of an administrative
I'indings i~f Fact, Conclusions of Law and 1 )ecision:
VonRosenstiel/Gaulding
7771
Page -4-
decision.
7 The language of BIMC 18.87.030, when considered together with the definition of yard
and setbacks in BIMC 18.06.880, 18.06.930, 18.06.935 and 18.06.945, can be interpreted
differently to give opposite results. When an ambiguity exists in an ordinance, considerable
deference must he given to the City's interpretation. Incorrect advice given at the DPCD counter
cannot be relied upon by the appellant, since all facts relevant to the decision may not have been
known by the person issuing the opinion. The interpretation of the ordinance by the City is made
after review of the building permit application. This decision becomes the Administrative
Decision of the Director. The Director's decision is entitled to substantial weight on appeal
[BIMC 2.16.130(F)(4)).
8 BIMC 1887.030(C) does not apply to this remodel project since less than 50% of the
original structure is being destroyed and replaced.
9 The remodel of the carport at the Gaulding residence, permitted by Building Permit//7771
and its approved revisions does not violate BIMC 18.87.030.
DECISION
The appeal of Building Permit #7771 is denied.
Dated this I g ~ day of August, 2000.
Robin Thomas Baker
Hearing Examiner Pro Tem
City of Bainbridge Island
APPEAL
The decision of the Hearing Examiner shall be final unless within twenty-one days after
issuance of this decision a person with standing appeals this Decision in accordance with RCW
3670.
FIndings of Fact, Conclusions of I ,aw and Decision:
VonRosenstiel/Gaulding
7771
Page -5-
Exhibit #
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
EXHIBIT LIST
BP 7696
APPEAL OF ADMINISTRATIVE DECISION DENYING AN APPLICATION
FOR BUILDING PERMIT
Description Date #Pages
Receipt form 1-5-00 1
Application 1-5-00 1
Plans 12-30-99 8
Corres to Warren from Evans 11-10-99 1
Memorandum to Warren from Morrison 12-6-99 1
Receipt of check from Cooper $50.00 1-5-00 1
Page 1 commercial building permit package 1-5-00 1
Memorandum from Marti Lawrence Grant - confirm 1-12-00 1
understanding of meeting
Corres. from Warren to Cooper denying permit 1-26-00 2
Corres. from Cooper to Warren appealing decision/attach's 2-8-00 3
Fax to Eglick & Frimodt attach public heating notice 3-3-00 3
Notice of Public Hearing Received by Bainbridge Review to 3-10-00 4
be published 3-15-00
Faxed Corres. to HEX from Frimodt (Inslee Best) - Request 3-8-00 3
for Briefing Schedule
Affidavit of delivery and mailing 3-7-00 4
Faxed corres to Warren from Eglick (Helsell Fetterman) 3-9-00 3
requesting documents
Faxed correspondence to Frimodt and HEX from Eglick in 3-15-00 6
re public disclosure requests
E-mail to Eglick from Sawyer - response re same 3-16-00 1
Corres. to James from Ferrell (Helsell Fetterman) requesting 3-15-00 1
review of Arco mirli-mart files
BP 7696
l~:cviscd li~ibit List 4~4~00 Page - 1-
19 3-15-00 1
2O
21
22
23
24
25
26
27
28
'28A
'28B
'28C
'28D
'28E
'28F
'28G
'28H
'28I
'28J
'28K
'28L
Corres. to Kasper from Ferrell requesting review of files on
Ordinances 98-03 and 92-08
Corres. to Frimod from Eglick requesting in re public
disclosure
Corres. to Warren from Eglick re disclosure request
Corres. to HEX from Eglick to HEX requesting prehearing
conference
Corres. to Warren from Eglick in re disclosure of
"Starbucks" application
Returned Notices
Fax correspondence to Warren from Frimodt with attach's
in re disclosure
Corres to Baker and Frimodt from Eglick in re matters of
disclosure
Corres. to Baker and Frimodt from Eglick
Corres to Eglick from Frimodt with *E-Mail attach's's
E-Mail from Morrison to mikec
" Morrison to mikec
" Morrison to MikeC
" Morrison to Planning
" Morrison to Cook
" Morrison to Stave
" Warren to James
" Warren to Morrison
" James to Morrison
" Sutton to Morrison
.... Warren to Sutton & Nordby
" Warren to James & Morrison
3-15-00
2-14-00
3-9-00
3 -9-00
3-20-00
3-27-00
3-28-00
3-22-00
12-14-99
12-14-99
12-13-00
11-5-99
11-5-99
11-5-99
12-1-99
12-10-99
1-I0-00
1-10-00
1-11-00
3-3-00
3
14
1
1
1
1
1
1
1
1
1
1
1
1
I}P 7696
Revised Exhibit l,ist 4-4 00 Page -2-
29
30
31
32
33
'33A
'33B
'33C
'33D
34
35
36
37
38
39
40
41
42
43
44
45
46
Corres to Baker & Eglick from Frimodt 3-27-00 5
Faxed Resolution 97-42 - Rules of Procedure to Eglick & 3-29-00 4
Frimodt from Sawyer
Corres from Eglick to HEX in re follow up to telecon., 3-29-00 8
including copy of E-Mail of same
Corres. to HEX from Frimodt requesting remand to 3-29-00 6
Planning Dept.
Memorandum to Frimodt from Rice re *E-Mails w/Attach's 3-28-00 6
E-Mail from James to Warren 1-13-00 1
" James to Morrison 12-1-99 1
James to Morrison 11-5-99 1
James to Warren 3-1-00 1
Faxed Resolution 97-42, City Council Minutes excerpt 3-30-00 7
(dated 1-5-98) and Exhibit List
Corres. to HEX from Eglick w/out attach's 3-30-00 3
Fax copy of above with attach's 3-30-00 16
Redacted Telephone Log (Kris Morrison &Stephanie 6
Warren)
Corres. to Eglick from Frimodt reftelephone logs 3-30-00 2
Ordinance No. 98-03 9-14-98 2
Minutes of Land Use Committee 7-7-98 1
Minutes of Land Use Committee 8-11-98 2
Minutes of City Council meeting 9-3-98 2
Minutes of Land Use Committee 6-9-98 2
Photograph of Papa Murphy store 1
Photograph of Papa Murphy store 1
Industrial Insurance RATE NOTICE 1 ~ 1-99 1
7696
Revised lixhibit List 4-4-00 Page -3-
47
48
49
50
il
52
53
54
54A
55
56
58
~9
o0
62
Corres. to Cooper from North, Kitsap County Health 2-10-00 1
District (EXHIBIT MARKED BUT REFUSED)
United States Dept. of Agriculture - Food Stamp Program - May 95 6
Regulations Pertinent to Authorized Firms and Financial
Institutions
Photographic Display Board - Papa Murphy stores in Port
Angeles and Sequim
Franchise Brochure (GNC Franchising Inc.) 1999 1
Copy of Envelope from Planning Dept. to Cooper 2-3-99 1
Dictionary Definition "Establishment" 1
Papa Murphy's Menu and Baking Instructions 7-2-98 2
Print out of Web site wwxv. papmuB~hys.com 3-29-00 10
Additions to Print out of Web site (See Exhibit 59)
Websters Dictionary definition "container" 1
Stephanie Warren's Notes in re Director's Meeting 6
3 -20-00
12-13-99
1-18-00
7-2-98
3 -29-00
Minutes of City Council meeting 2
Corres. to Eglick from Frimodt with Attachs. (as Exhibits 6
33A-D)
Corres. to HEX and Eglick from Frimodt with Web site 4-5-00 9
Attachs. (for inclusion with Exhibit 54)
Corres. to HEX and Eglick from Frimodt 4-6-00 5
Corres. to Eglick from Frimodt 4-6-00 2
Corres. to HEX from Eglick 4-11-00 5
7696
I,~cvised F, xhibit List 4-4-00 Page -4-