TAWRESEY, JOHN & ALICE (PARKING LOT) 2005-08-11
FINDINGS AND DECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of
JOHN AND ALICE TAWRESEY
ADM13437
from a Notice and Order Issued by
the Director, Planning and Community
Development Department
Introduction
The Director has determined that the parking lot on Cave Avenue owned by John and Alice
Tawresey is illegal and has ordered the use to be discontinued. The property owners have
appealed that administrative decision.
The Hearing Examiner held the appeal hearing on July 14, 2005. Parties represented at the
hearing were the Director, Planning and Community Development Department, by Rod
Kaseguma, City Attorney, and the Appellants, John and Alice Tawresey, pro se.
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
Subject Property
1. The subject property is a 0.75 acre parcel of undeveloped land located on the west
side of Cave Avenue NE, approximately 300 ft. north of the Cave AvenueIWinslow Way
intersection, just north of the Washington State Ferry Terminal. As it is undeveloped, the
property is referred to as Tax Parcel No. 4109-000-003-0009. [Exhibit 14, Staff Report,
page 1]
2. The northern two-thirds of the site are densely vegetated with Scotch Broom,
blackberry, and other shrubs. The remainder of the site is graded and used as a parking lot.
There is a graveled central aisle/driveway with unmarked parking stalls on either side;
capacity is approximately 16 vehicles. [Staff Report, pages 1-3, Exhibit 14; Testimony of
Katai]
Page 1 of 8
3. The subject property is designated with the "Ferry Terminal District" overlay within
the Mixed Use Town Center zone. (The subject property was rezoned to this designation in
1999.) The Comprehensive Plan designation is also Ferry Terminal District. Ferry terminal
parking is allowed in the Ferry Terminal District as limited by Footnote 8 ofBIMC 18.40.020
(see Finding 23). (Staff Report, pages 1-4, Exhibit 14; Testimony ofKatai]
4. Appellants purchased the subj ect property in 2003. The previous owners (Weld et al. )
had used the property for ferry terminal parking; allowing friends and family to park there for
a fee. See Finding 20. [Testimony of A. Tawresey; Exhibit 14, Staff Report, Attachment C;
Exhibit 16]
Director's Investigation and Decision
5. On December 13, 2004, the Department received a complaint that the subject property
was an illegal parking lot. With the initial investigation the Director determined that the
parking use, having "been used for ferry parking for over 25 years", was a pre-existing non-
conforming use and not in violation of the Bainbridge Island Municipal Code. [Exhibit 2;
Testimony ofKatai]
6. The complaint was renewed and the Director did further investigation. After
additional research, the Director concluded that the parking use had never received a permit
nor had the use been established at a time when it could have been permitted. [Exhibits 3 -
5; Exhibit 14, Staff Report, 2-3; Testimony ofKatai]
7. Based upon the later investigation which found no permits for the parking use, the
Director requested that the Tawreseys provide whatever documentation they might have that
would sustain their assertion that the use should be considered legally permitted [Exhibit 6].
The Tawresey's response [Exhibit 8] noted that they had personally observed parking on this
property since they first started coming to Bainbridge Island in 1970 and urged that this use
of the property, now in their ownership, be allowed to continue as a nonconforming use and
a use that is now permitted by the current zoning designation. They also asserted that there
are many other parking lots currently operating that have not been required to go through Site
Plan Review.
8. By letter dated April 6, 2005 [Exhibit 9], the Director informed the Tawreseys that
the Department's research did not support the contention that the parking on their lot is a
legal, non-conforming use. The Director had determined that the use was not legal and
ordered that it be discontinued by May 1, 2005
9. The Tawreseys wrote on April 11, 2005 [Exhibit 10], responding to the Director's
letter of April 611\ reiterating their contention that "this parking lot is a legal non-conforming
use" and expressing a desire to appeal the Director's adverse decision.
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10. In his reply to the Tawreseys' April 11 th letter, the Director reaffirmed his decision and
advised that it could be appealed to the Hearing Examiner within 14 day in accordance with
the procedures in BIMC 2.16.130. [Exhibit 11]
Appeal Hearing
11. On August 30, 2004, the owners of the subject property, John and Alice Tawresey,
timely filed an appeal [Exhibit 12]. Required notice of the appeal hearing was completed as
ofJune 29, 2005 [Exhibit 13] and hearing was held on July 14,2005.
12. There is no record of a permit to allow parking use or an application for parking use
having been made and denied. It is not clear what permit the previous property owner,
William Weld, is referring to in his written statement that says: "At one point we applied for
a permit with Sam Clarke to park 90 cars. It was denied, but we continued to allow our
friends and family to park." Another owner, Robert Campbell, states [Exhibit 16] that" . . . we
never applied for anything", but also mentions that: "Sam Clarke wsa [sic] required by the
city (we understood) to have a few additional parking spote [sic] to accommodate additional
tenants [sic], which we later permitted."
13. In 1969, the property was under the jurisdiction of the City of Winslow. Prior to
September 1969 the applicable land use regulation was Ordinance 124. The zoning
designation at that time was R-S, Residential-Service Business District. Parking lots were not
a permitted use in that zone. (The B-P - Auto Parking District allowed for "off-street parking
facilities" and required that, unless otherwise specified, off-street parking be located within
600 ft. "from the building they are required to serve.") [Exhibit 14, Staff Report, page 2-4;
Exhibit 15, pages 220-221 ; Testimony of Katai]
14. Between September 1969 and 1979, the applicable regulation was the Winslow Zoning
Code and the zoning of the subject property was RML-2000, Multiple Residential-Low
Density Classification. Parking lots were not among the uses allowed in that zone, but
"Commercial lots and structures" could be permitted as an "extraordinary use". There is no
record of an extraordinary use permit being issued for the parking use at the subject property.
[Exhibit 14, Staff Report, page 2-4; Exhibit 15, pages 15-17 and 26-27; Testimony ofKatai]
15. The zoning ordinance adopted in 1979 and the 1987 Zoning Ordinance that replaced
it, allowed only parking facilities accessory to permitted residential uses in the zone. The
subject property was zoned Medium Density Multifamily Residential during the times these
ordinances were in effect. [Exhibit 14, Staff Report, page 2-4; Exhibit 15, pages 240-1,241,
and 243; Testimony ofKatai]
16. Regarding the "Continuance of existing nonconforming uses", Section XIV of
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Ordinance 87-30 [Exhibit 17], the 1987 Zoning Ordinance, provided (emphasis added) that:
Any... use in existence at the date of adoption of the ordinance
codified in this title shall be a legal nonconforming use and may continue
without time limit.
17. Section 2 of Ordinance 87-30 (18.12.550) defined "Nonconforming use" to mean
(emphasis added):
"a use that lawfully occupies a building or structure or lot at the time
of the ordinance codified in this title, or amendments thereto, became
effective and that does not conform to the provisions of this title.
18. In 1992, the Winslow Zoning Code was replaced by Title 18 ofthe City of Bainbridge
Island Municipal Code. Under Title 18 the subject property was designated R-8, a
multifamily residential zone allowing eight units per acre. Principal use parking lots were not
allowed; only parking facilities accessory to residential development were permitted. [Exhibit
14, Staff Report, page 2-4; Exhibit 15, page 9 and map excerpt; Testimony ofKatai]
19. The photographic evidence in the record does corroborate the assertion that the subject
property was being used for parking prior to 1989. As of June 2, 1965, the property was in
agricultural use, as is apparent in the aerial photo taken at that time [Exhibit 14, Attachment
D-l]. As of September 3, 1989, the southern third of the property had been cleared and,
although no cars are present in the aerial photograph, it is credible that it was being used for
parking [Exhibit 14, Attachment D-3]. Parking use is not identifiable in the 1982 aerial
photo, although tracks that might have been made by cars can be detected between the
clumps of Scotch Broom. That cars could have parked "among" the Scotch Broom is
credible, that cars would have been hidden from the view of aerial photographs is not.
[Exhibit 14, Attachment D-2]
20. The Appellants presented signed statements from persons maintaining that they had
personal knowledge that the subject property was used as a parking lot as long ago as 1970.
Alice Tawresey: "There was a dirt track that snaked through the brush. Cars
would park among the scotch broom all day long. Later some clearing was
done.. . I remember the property being used for ferry parking from around
1976 on."
William Weld: "I purchased the property... in August 1970... I started
allowing friends and family to park for a small fee... shortly after I purchased
the land. I had 4 partners who also allowed friends and family to park... We
allowed parking throughout the 1970s when our friends parked amongst the
scotch broom."
Page 4 of 8
Christopher Duffy: "Bill [Weld] told me about the partnership.. .he said that
1 could park on the land in his place. The cost would be $30 a month, and
was designed to cover the taxes on the land... There were others parking
there. . . 1 understood they were either partners or friends of partners."
Robert Campbell: "I bought into the partnership... There were 4
partners. . . Between us, we talked about making it available for parking to rent
but we never applied for anything... the basic underlying use was for owners
and families along with a few special friends to use it for parking..." charging
"a token fee well below market rate, to help us with the taxes.. . We were
sensitive to the zoning matter and did not perceive ourselves as providing
commercial parking space."
Fred Harris: "I remember that there was ferry parking on the lot owned by Bill
Weld on Cave Avenue during the 1970s."
21. Ferry terminal parking is currently a use allowed in the zone. The Appellants have
applied for permit(s) for parking on the subject property. [Exhibit 16; Testimony 1.
Tawresey]
Bainbridge Island Municipal Code (BIMC)
22. BIMC 18.06.810 defines "Parking lot" to mean "an area intended to accommodate
parked vehicles for a fee and having access to a public street."
23. The Mixed Use Town Center Zone, BIMC Chapter 18.40, includes five overlay districts
including the Ferry Terminal Overlay District. The Uses Table ofBIMC 18.40.020 indicates
that ferry commuter parking is a permitted use in the Ferry Terminal Overlay District, as
restricted by Footnote 8. Footnote 8 provides a limit to parking facilities in the zone as
follows:
Limited to the 1, 121 commuter parking spaces in the ferry terminal
and core districts, and the 173 commuter parking spaces in the gateway
district, as shown on Figure 18 of Exhi bit B of Ordinance 98-11, the Winslow
Master Plan. The rights to these spaces may be bought, sold, traded, leased
or otherwise exchanged between the properties.
24. The Bainbridge Island Municipal Code includes the following definitions in Chapter
18.06 of the Zoning Code:
"Nonconforming use" means 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. "
[BIMC 18.06.770]
Page 5 of 8
"Use" means the purpose land, buildings, or structures now serve or for
which such is occupied, arranged, designed, or intended /I [BIMe
18.06.920]
25. BIMC Chapter 1.26 provides Code enforcement procedures. BIMC 1.26.070 allows
that an appeal of a director's decision regarding a violation is "pursuant to the procedures set
forth in BIMe 2.16.130. "
26. BIMC 2.16.130 applies to appeals of "administrative decisions, departmental rulings
and interpretations..." In considering such appeals, BIMC 2.16.130(F) authorizes the
Hearing Examiner to: affirm the Director's decision, affirm with modifications, reverse the
decision, or remand it to the Director. That section of the Code also requires that the Hearing
Examiner give "substantial weight to the decision of the department director. "
Conclusions
1. This matter is properly before the Hearing Examiner. The Hearing Examiner has
jurisdiction to hear and decide appeals of such administrative decisions. In deciding appeals
of these decisions, the Code directs that the Director's decision be given substantial weight.
2. To overcome the substantial weight accorded the Director, an appellant has to show
that the Director's decision is clearly erroneous. Under this standard of review, the Director
can be reversed only if the Hearing Examiner is left with the definite and firm conviction that
a mistake has been made.
3. Appellants argue that the parking use is nonconforming because it began thirty years
ago in the 1970s. Under all definitions of "nonconforming" a use must have begun at a time
when such use was allowed (or at least not prohibited). Here, to fit that definition, use of the
subject property for parking had to have been established before September 1969 when
zoning precluded it as a permitted use. The record is clear that parking did not begin until
sometime after August 1970 (i.e., when Mr. Weld purchased the property).
4. Appellants argue that Section XVI of Ordinance 87-30 made the parking use on the
subject property a legal nonconforming use. The Director correctly points out that this
section of Ordinance 87-30 conflicts with the definition of nonconforming use given in
another section of Ordinance 87-30; it is not a nonconforming use by this definition. (Section
XVI also conflicts with the general proposition that nonconforming uses are disfavored and
are to be phased out.) In the absence of legislative history and/or other means of determining
legislative intent, it cannot be determined whether Ordinance 87-30 was intended to sanction
Page 6 of 8
all uses in existence at that moment, or just all the nonconforming uses (as defined in
Ordinance 87-30), or whether less than precise drafting created an apparent conflict and the
two sections might some how be reconciled.
5. The Appellants have the burden of showing that the Director's decision is a clear
error. This record does not show that the Director was clearly erroneous to have decided that
this is not a legal use. As noted in Conclusion 4, whether the use is legally nonconforming
has been shown to be debatable; the Appellants have not shown that the Director's view is
incorrect.
6. As it is allowed by current zoning, the use of the subject property for ferry terminal
parking is not "illegal" in the sense that it is a prohibited use in the zone; it is "illegal" in that
it lacks the proper permit(s). Given that permit(s) have been applied for, the use need not be
discontinued while that application is pending. Continued use should be allowed while the
Tawreseys pursue the necessary and proper permits to establish ferry terminal parking on the
subject property. If the Tawreseys fail to obtain those permits (by stopping or suspending
their application efforts or if the permits are denied), the Director could commence another
enforcement action to have the use discontinued.
Decision
The decision of the Director is hereby AFFIRMED, provided that the Appellants may continue
the current use of the subject property while seeking to obtain proper permit(s) consistent
with Conclusion 6 above.
Entered this 11th day of August 2005.
~~~ A Q_r.l.~
Meredith A. Getches ~. ~L~
City of Bainbridge Island <\ .
Hearing Examiner pro tern
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.
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For land use decisions, 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.
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