ADAMS, RAY 2006-11-17
DECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of
RAY'S AUTOMOTIVE
COD 20000-00005
Appeal from Director, Planning and Community
Development Department Decision dated
July 24, 2006
PARTIES PRESENT:
Paul McMurray, City Attorney
George C. Nickum, (for Appellant)
Megan McKnight
Joshua Machen, Senior Planner
SUMMARY OF REQUEST:
The appellant appeals a determination of a Director of the City of Bainbridge Island
Department of Planning and Community Development dated July 24, 2006 which requires the
appellant to remove a storage container placed upon appellant's parking lot in the year 2004.
SUMMARY OF DECISION:
Appeal denied.
PUBLIC HEARING:
After reviewing the staff report and examining available information on file with the
application, the Examiner conducted a public hearing on the request as follows:
The hearing was opened on September 28, 2006, at 1 :30 p.m.
MINUTES
Parties wishing to testify were sworn in by the Examiner.
Appearing was JOSHUA MACHEN, Senior Planner who presented the staff report which,
with its attachments 1-62 where admitted into evidence. Mr. Machen is a senior planner
who has been with the department for approximately 11 % years and has been a senior
planner for about one year. As senior planner, his job definition includes a shoreline
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stewardship, which involves providing technical assistance to Code Enforcement Officers.
He prepared the staff report, Exhibit 60. Appellant is the owner of Ray's Automotive.
Within the last couple of years, perhaps 2004, the appellant placed a storage structure on
his parking lot which is zoned residential. Appellant has four individual tax parcel lots; one
as the appellant described is used for storage, a second is used for his home, the third is
used for Ray's Automotive, and the fourth is used as a parking lot which is an accessory lot
to Ray's Automotive. The lot is zoned R2 residential. The storage container is within 10-
15 feet of the ordinary high water mark. This area has consistently been used as a parking
area for the automotive repair shop. The storage unit is located within the native
vegetation zone of the shoreline. It is in violation of the provisions governing the native
vegetative zone and it is also an expansion of a non-conforming use which is in violation of
the City Code. The storage container is a structure as defined by Bainbridge Island
Municipal Code 16.12. 030( 176). The parking lot which was developed as a parking area
with a free standing sign now includes this large container which is the subject of the
appeal. The site's development, excluding the prohibited container, is assumed non-
conforming development. The City's Shoreline Master Program designates the site as
Rural Environment with Aquatic Conservancy Area waterward of OHW. The City
Comprehensive Plan designates the site as open space residential two units per acre
(OSR-2). On August 30, 2004 he received a complaint that the appellant appeared to
have expanded a non-conforming shoreline use (Non-Conforming Zoning Use) see Exhibit
48. On October 13, 2005, Mark Hinkley sent the appellant a Notice of Violation letter
(Exhibit 52). The letter required that the container be removed within 30 days and if it was
not removed within 30 days, then action would be taken. Thereafter, the appellant and his
attorney met with Larry Frazier. There is a dispute as to whether or not this was a formal
meeting or if it amounted to a review hearing. In any event, regardless of what was held,
the appellant has waived any right he might have to a review hearing if it has not occurred.
On July 24, 2006, Larry Frazier sent a letter indicating that his review of Notice of
Violation dated October 13, 2005, requires that structure be removed. See Exhibit 58. On
September 7, 2006, the appellant filed an appeal of the director's decision, Exhibit 62. The
existing parking lot is prohibited use on the property and is in violation of the native
vegetation provisions of the BIMC. Placement of this storage container within the
jurisdiction of the Shoreline Master Program and within the native vegetation zone is
inconsistent with the policies and procedures of the shoreline master program. A storage
container is not allowed in the area and is considered an expansion of a nonconforming
use.
The parking lot is an existing nonconforming use that appears to have been in use prior to
the effective date of the City's Shoreline Master Program November of 1996. Placing the
storage structure on the property changes the intensity of the use and is a new commercial
development, which is prohibited by the Shoreline Master Program and it is an addition to
a non-conforming use. The site is located in a scenic vista and the storage container
blocks views.
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Appearing was RAY ADAMS owner of Ray's Automotive. He placed the storage container
on the parking lot as a replacement for a fence which had fallen down. His adjacent
neighbor was complaining about the view of his business from her home as well as the
noise. He thought that the container could be used to help minimize the noise. The side
facing the neighbor has a scene painted on it of Mount Rainier. The storage unit is filled
with personal items, some shop equipment, but 80-90% is personal property belonging to
he and his wife. It is not on the storage lot because of its use as a fence and noise barrier.
He did not obtain any permits to locate the storage container on the lot. The site consists
of four parcels; one parcel is the authorized storage lot, the second parcel has his family
home, the third has Ray's Automotive, and the fourth is a parking lot. The parking lot is
adjacent to the Puget Sound and actually borders a creek running into the Sound. After
discussions with his neighbors, they were happy to see the change.
No one spoke further in this matter and the Examiner took the matter under advisement.
The record will remain open until October 12, 2006 for each of the parties to file briefs and
then for October 19, 2006 for responsive briefs to be filed.
FINDINGS. CONCLUSIONS AND DECISION:
FINDINGS:
1. The Hearing Examiner has admitted Exhibits 1-62 into evidence into the record,
reviewed the same, heard testimony, viewed the site, researched the issues, and
taken this matter under advisement.
2. Notice of this appeal was filed in accordance with the provisions of Bainbridge
Island Municipal Code, see Exhibit 61.
3. The appellant is the owner of a black top parking lot, located on the east side of
Eagle Harbor Drive, between Eagle Harbor Drive and Puget Sound. The entire lot
is within 200 feet of the shoreline. It is a flat, low bank, bulkheaded parcel of
property. The parking lot site is bounded on the north side by a creek and on the
south side by Ray's Automotive. The appellant owns four contiguous lots located
between Eagle Harbor Drive and Puget Sound. The family residence is located on
a lot south of Ray's Automotive building and south of the single-family residence is
a fenced storage area the appellant uses to store vehicles and other equipment for
use in his shop. The four parcels yield a long, narrow strip of land between Eagle
Harbor Drive and Puget Sound.
4. All parties referred to the paved parking lot as an existing, nonconforming
development. However, there was no evidence submitted to the Hearing Examiner
indicating that the parking lot is an established, legal, nonconforming development
and this decision should not be interpreted in anyway or sited for the proposition
3D
that the parking lot meets the requirements of Bainbridge Island Municipal Code
(BIMC) 1806770 that: (1) the parking lot existed on the date specified in the zoning
code; (2) that it was a lawful use on that date; and (3) that it has continued in use as
a parking lot ever since. See State v. County Pier 65 Wn. App. 614 (1992) and
BIMC 18.06.0770. Neither party discussed the issue of whether or not this parking
lot was a legally established use on the date the zoning code was enacted, nor is
there anything in the zoning file with reference to this lot which indicates that the
site was legally established as a parking lot.
5. The site is zoned Residential two units per acre (R2). The purpose of the R2 zone
is to provide for residential neighborhoods of increased density in a rural
environment (BIMC 18.30.010). Parking lots are not permitted in a R2 zone.
6. The City's Shoreline Master Program (SMP) designates the upland portion of this
site as rural environment with the water portion being aquatic conservancy. The
SMP is intended to implement the Shoreline Management Act by planning for and
guiding the ordered development of the shoreline, protecting shoreline resources,
and helping to share public access to the shoreline. The SMP helps both property
owners and the City and staff in the permitting process. It also educates the
community in the use and protection of its shorelines. BIMC 16.12.150 indicates
that parking lots are prohibited in the rural upland environment of the shoreline.
The SMP also prohibits parking lots in areas with aquatic conservancy over water
environments. The SMP provides for a 200 foot natural vegetative buffer.
7. Bainbridge Island Comprehensive Plan use map designates this site as open
space, residential two units per acre (OSR-2). Non-water oriented commercial uses
are prohibited in the Rural Shoreline Environment.
8. As the above indicates Mr. Adam's parking lot and the adjacent Ray's Automotive is
located in the rural shoreline environment. The business and the parking lot
therefore are nonconforming uses. They were in existence before the current
zoning laws were in effect.
9. According to Mr. Adams, sometime in 2004 he placed a large cargo-type container
(8x8x20) on the parking lot adjacent to his business. He placed the cargo container
on the lot to replace an existing fence. The cargo container had a painting on one
side which is the side facing the adjacent residential use. The neighbors had been
complaining about the fact that a fence which had protected them from their view of
Ray's Automotive, had been torn down. Mr. Adams placed the container with the
painting on the site, adjacent to the creek in order to protect the neighbor's view of
his automotive business as well as perhaps absorb some of the sound from his
business. He did not obtain any permits to do so. He did not request any
exemptions from the shoreline regulations. He just placed the container on his site.
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His attorney indicated in his briefs that the container was temporary, however it
now appears that it has been on his premises in excess of two years. According to
Mr. Adams, he is using the container to store personal items and some business
items. Approximately 80% to 90% of the container is used to store personal items,
some of which was inherited from a deceased relative. Based upon his testimony,
it would appear that the container is placed upon the parking lot not for a
commercial use but a personal use.
10. On August 30, 2004, the City of Bainbridge Island received a complaint about Mr.
Adam's placement of the cargo container on his parking lot. The cargo container is
a type of container which is used to transport materials on trains or ships. It is eight
foot by eight foot by 20 foot and metal composure. At the time of the complaint, a
review of the zoning files on Mr. Adam's parcels of property indicated that Mr.
Adams had problems in the past with trying to expand his use and structure without
permits. The history of his attempted expansions include an addition to his
automotive business building without obtaining any permits and the placement of a
used mobile home on site without any permits. Both of these incidents were
thoroughly investigated and enforcement was time consuming and costly for the
City. In each case the record is clear that the appellant is currently aware that his
site is within 200 feet of the shoreline and that his uses are not water related, water
oriented, or for water enjoyment. He has been previously informed that all
development and construction activity on these sites must comply with the
guidelines and regulations stated in the City's SMP and with state law. All new
uses and activity must have appropriate permits or letters of exemption.
11. On October 13, 2005, the City, after investigating the complaint concerning the
storage container, sent a Notice of Violation letter (Exhibit 52) to Mr. Adams. In that
letter, the City indicated that the parking lot is a non water oriented use in the rural
shoreline designation which is not allowed under the existing SMP and therefore is
an assumed, existing nonconforming use. Expansion is not permitted. The City
also indicated that Mr. Adams was in violation of BIMC 16.12.380 which requires
either a shoreline permit, or a letter of exemption before undertaking any
development or activity within 200 feet of the shoreline. BIMC 18.123.010 prohibits
use of the property, in any manner, without first obtaining permits or authorization
from the City. The letter requested that he remove this structure within 30 days.
The letter also advised him of his right to request director's review of the letter. The
request should have been submitted within seven days after service of notice.
12. On October 8, 2005, George C. Nickum, on behalf of Mr. Adams, filed a response.
He had previously indicated to the City that he represented Mr. Adams on this issue
and he disagreed with the City's interpretation of the law. He advised Mr. Adams
that "he cannot be stopped from using that area for business purposes, simply
because there are new laws on the books that would apply if they were starting a
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new business or making some new use."
13. It was not until July of 2006 that the director, Larry K. Frazier, reviewed the Notice
of Violation issued on October 13, 2005. In the interim, there was correspondence
in the file from Mr. Nickum.
14. On July 24, 2006, Mr. Frazier notified Mr. Adams that he sustained the Notice of
Violation dated October 13, 2005 with a modification of deadline for removal of the
storage container to 4 p.m. Friday, September 1, 2006. He indicated that
thereafter, the matter would be referred to the prosecuting attorney for enforcement
action... The sum and substance of Mr. Frazier's decision was that
"in accordance with the Bainbridge Island Municipal Code (BIMC)
16.12.390(A)(1 )(a) and (c), nonconforming uses shall not be altered
or expanded in any way that increases the nonconformity; and a
nonconforming use cannot be changed to another nonconforming
use. The storage container, while temporary in its relation to the
requirement for a dwelling permit, meets the definition of a structure
in BIMC Chapter 16.12 (Shoreline Master Program) and is regulated
as such. Placement of new structure (the storage container) is an
expansion and an increase of the nonconforming business. The
existing nonconforming use of the paved area cannot be changed to a
storage container."
15. On August 7, at 3: 11 p.m. Mr. Adams filed his Notice of Appeal. He indicates that
"The primary issue on this appeal as well as the placement of the storage container
in a paved area that has always been used for business purposes, is such
'alteration or expansion which increases the nonconformity'." The appellant denies
that this storage container "increases the nonconformity" of his business. See
Exhibit 62.
16. According to the testimony of Mr. Adams, the storage container was placed on the
parking lot sometime in the year 2004. There is no evidence before this Examiner
that the storage container was on this site when the SMP was enacted in 1996.
The only evidence before the Examiner is that the parking lot was in existence.
There is no evidence that in 1996 this parking lot contained a storage container.
17. Mr. Nickum, attorney for appellant, argues that the appellant cannot be stopped
from using the parking lot for a business purpose. His own client contradicted him
with reference to this issue by stating that 80%-90% of the container is being used
for personal purposes. A storage container where cars usually park is conversion
of a parking lot to a storage lot. It is a different type of use. The purpose and intent
of nonconforming use ordinances is not to allow the enlargement of a
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nonconforming use but to restrict and ultimately phase out the use entirely.
18. BIMC 16.12.390 governs nonconforming uses and structures within the area of
Bainbridge Island regulated by the City's SMP. Subsection 1 specifically regulates
nonconforming uses and states:
(1) Nonconforming uses.
(a) Nonconforming uses shall not be altered or expanded in
anyway that increases the nonconformity... (c) a non
conforming use cannot be changed to another nonconforming
use.
The placement of the storage container on a parking lot, traditionally used as a
parking lot for Ray's Automotive customers, is a change in use from parking lot to
storage lot. Cars cannot park where they could previously park. It is a change
which adds a structure to a lot thereby increasing the nonconformity. This is a
totally different use. He moved the storage container to the parking lot to provide
privacy from his neighbor and to lessen the noise generated from his business to
his neighbors. Not only was this a change in use, but it is an expansion of a use
from a parking lot to a lot for storage containers.
19. The placement of this storage container on the parking lot is also a violation of
BIMC 16.12.360(A)(3) which requires any person wishing to undertake substantial
development or exempt development on shoreline to apply to the director for
appropriate shoreline permit or statement of exemption. Mr. Adams did not apply
for a Shoreline Substantial Development Permit or a Shoreline Exemption
Statement for placement of the storage container at this site. This is not the first
time that Mr. Adams has attempted to modify or change his use without obtaining
appropriate permits or letter of exemption. He should be well aware of the
regulations governing waterfront lots.
20. The placement of this storage container on a parking lot is also a violation of BIMC
16.12.390(2)( a) and (b) in that placement of this additional structure on this parking
lot is an expansion of a nonconforming use without an application for shoreline
variance. It is a violation of BIMC 16.12.390(B) in that the container will and does
obstruct existing views of the water from a public right-of-way.
21. In Miller v. Citv of Bainbridae Island. 111 Wn. App. 1352 (2002), the court clearly
indicated that a nonconforming use is defined in terms of the property's lawful use
established and maintained at the time the zoning was imposed. (Miller at 164).
The parties indicate that at the time the zoning was passed herein, this lot was used
as a parking lot. It is assumed that that was the lawful use at that time, but as
previously stated, there is no evidence indicating that a storage container was on a
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legally established parking lot at the time the zoning ordinance was passed. Miller
went on to say that a nonconforming use in existence when a zoning ordinance was
enacted cannot be changed into some other kind of nonconforming use. You
cannot put a storage container on a parking lot because it changes the parking lot
from being used as a parking lot to being used as a storage lot. This is an
expansion of use. It is a change of use. Miller indicated that for instance you
cannot change a nonconforming rooming house into a fraternity house. That would
be a change of use. The facts are not comparable. The record herein reflects that
there has not been a change from a parking lot where vehicles are parked to a
storage container lot. This is a change of use and under Miller, it is unauthorized.
22. Appellant seemingly argues that in Keller v. City of Bellinaham, 92 Wn. 2d 726
(1979) which is a five to four decision and was strictly limited to an interpretation of
a Bellingham ordinance which failed to prohibit intensification of a use as legally
justifying a use as long as it is for business purposes. The Bellingham ordinance
differs from the Bainbridge Island ordinance. The case is distinguishable from the
current fact pattern on many different grounds and is a limited holding with
reference to an intensification of a use which had been previously been planned for
before the change in ordinance and in which a structure had been built for before
the change in ordinance. In this particular case, we have a parking lot that now
holds a storage container. The facts are not comparable. Keller was limited to an
intensification of an existing use. It does not stand for the proposition that any use
as long as it is a business use is permissible. The court very specifically limited the
holding to the language of the Bellingham City Code and the fact pattern where a
building had been constructed before the new zoning ordinance came into effect
which had the capacity to provide for an increase in production. It did not include
the placement of an new structure on a site.
23. As previously stated, the parking lot is a nonconforming use as it is a commercial
use and commercial uses are prohibited in the rural shoreline environment. The
SMP establishes an effective 200 foot native vegetative zone for waterfront
property. The storage container constitutes a new commercial development, a
storage container which is not a water oriented use, and therefore is inconsistent
with the shoreline policy, as previously stated.
24. BIMC 16.12.090 requires the maintenance of a vegetation buffer landward from the
ordinary high water mark. The Code requires that this area remain undisturbed and
in its natural condition to act as a water quality filter and to provide wildlife habitat.
The existing parking lot is a prohibited use on this property. This commercial
storage container within the jurisdiction of the SMP within the native vegetation
zone of the shore is inconsistent with the policies and procedures of the SMP. The
evidence is abundantly clear. Prior to 2004, the subject site was used as a parking
lot. In the year 2004, the applicant placed a storage container on the lot. He
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previously had not placed storage containers on this lot and had placed them on
lots south of the parking lot. This is a change of use an.
CONCLUSIONS:
1. The Hearing Examiner has jurisdiction to consider and decide appeals of the
director's administrative decisions regarding alleged violations pursuant to BIMC
2.16.130. In making that decision, the Examiner must give substantial weight to the
Department Director. See BIMC 2.16.130(F)(2). To overcome substantial weight
accorded a director, an appellant has to show the director's decision is clearly
erroneous. Under this standard of review, the director can be reversed if the
Hearing Examiner is left with a definite and confirmed conviction that a mistake has
been made.
2. The appellant has failed to overcome that burden. He has placed a new structure
i.e. the cargo container (a piece of work artificially built or composed of parts joined
together in some definite manner installed above the surface of the parking lot)
changing the use of the parking lot to a storage container lot and a parking lot. The
record is abundantly clear that the letter of Larry K. Frazier dated July 24, 2006
correctly states the law and the appellant's appeal is hereby denied.
DECISION: The appellant's appeal from Director's Decision of July 24, 2006 is denied
and the storage container shall be removed forthwith.
ORDERED this
day of November, 2006.
_Signed in Original
TERRENCEF.McCARTHY
Hearing Examiner
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lot In the year 2004, the applicant placed a storage container on the lot. He
previously had not placed storage containers on this lot and had placed them on
lots south of the parking lot. This is a Change of use an.
CONCLUSIQtjI:
1.. The Hearing Examiner has jurisdiction to consider and decide appeals of the
director's administrative decisions' regarding alleged violations pursuant to BIMC
2.16.130. In maJdng that decision, the Examiner must give substantial weight to the
Department Director. See BIMC 2. 16. 130(F)(2). To overcome substantial weight
accorded a director, an appellant has to show the director's decision Is clearly
erroneous. Under this standard of review, the director can be reversed if the
Hearing Examiner is left with a definite and confirmed conviction that a mistake has
been made.
2. The appellant has failed to overcome that burden. He has plaOed a new structure
i.e. the cargo container (a piece of work artificially built or. composed of parts joined
together in some definite manner installed above the surface of the parking lot)
changing the use of the parking lot to a storage container lot and a parking lot. The
record is abundantfy clear that the letter of Larry K. Frazier dated July 24,2006
correctly states the law and the appellanfs appeal is hereby denied.
DECISION: The appellant's appeal from Director's Decision of July 24, 2006 is denied
and the storage container shall be removed forthwith.
~.
ORDERED this 1771 day of November, 2006.
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