HomeMy WebLinkAbout010490 Min Ag Packet sign code workshop _4100RT TOWNS ND.-WAGHI ON' 98368_
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' DortovmPlannm" g ,CommusiLon
* ! CITY OF PORT T13WNSEND
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` Sign Code 'Wor'k ho January 4 ..1990 ,
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. Roll Call
Mr. Tavernakis called the meeting to .order at 7:3 5 p,m., other
'members' present were Ron Kose ,, wren ric s n, rid Sally Mc ole.
+ Also present was Michael Hildt Director of Planning and Building.
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# . Communication r
Ther n� ss r r �e �. ec a e n �r Keith Harper: '+ concerning
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Wallin .v . City 'of Port,'Townsend and Deering appeal.
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3 . old Business Workshop n draft+ update to the sign code.
is Staff Review *" Mr, Hi ld began -review of the" draft sign code%
Some disoussi n followed over the definitionf main entry, the
calculation of allowable sign area,-, and -allowable parking lot +
signs.
of I' `
Joyce Webb stated her concerns over the ,proposed i sign code,. ..
Bob Sokol ,, stated, that signs in 'addition - to nument' signs should
e ' nc rage'd as well second story sign
Patti Sullivan stated that the .building owner should be .
responsible for' the allocation of sign area for each tenant. .
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Hill Sperry told the commission he had additional information on
sandwich!.board signs.
Ms. Erickson asked staff questions-. of clarification ''concerning
projecting signs. _ . .
Mary Gruver stated that too much re ulation may cause the Cit 'to
loose its charm.-
Joyce Webb} ug ested possible ways to ' deal with'+sandwich board
signs - F .
, Some question's followed over monument signs,,k ;
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The Meet I I'll -Ad 3 ourned .:3 ,0 -
Darlene Bloomfield
} !. la fining Commission Secretary
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ORT TOWNSZN0, WASH# l 98368
Port ops e n e s o x
CITY OF PORT TOWNSEND
ND
Workshop Meeting January 4, 1990
1. ROLL CALL ------------------------------------------- . Mo
2 . COMMUNICATIONS:
. current mall
• OLD BUSINESS.
a.' Workshop on draft update to the sign code
1 . Staff Review
Commission Discussion
NEW BUSINESS.
+ . ANNOUNCEMENTS:
Next Scheduled Meetings
January 11, 1990
Street Vacation Appl. 8911-04, Arne Willenhag
Committee: Ko a /Sh rwood
h. Conditional Use Appl. 8911- , Discovery View Associates
Committee: McDole/Carman
C, Conditional Use Appl, 8911-06 , James and Linda Dornan
Committee: Erickson/Grimm
d, ]raft ordinance relating to binding ' site pian review
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February 8 + 1990
a. Variance Appl . 8912- 1, Admiral. Marine works i
Committee: Kosec/I cDole
, Amended Conditional Use Appl . 8908-01, Sperry/Little
Committee, Carman/Sherwood
co Conditional Use Appl. 8912-03 Pamela Bird and Richard Lloyd
Committee: Sherwood/Carman
February 22, 1990
. Short Plat App i. 8912-04 , Glenn Wood
Committee: Erickson/Grimm ;
h. Street Vacation Appy., 8912-05, Robert and Jacqualine Richard
Committee. Kosec/ cDole
C. Rezone Appl. 8912-06 , City of Port Townsend -
Committee: Sherwood/Gran -
March 8, 1990
a. Rezone Appl, 8912-0 , Philip Hassrick
. ADJOURN
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Ke'24h C. Harper
Attorney at Law
1206 Yater,Suite 8
December 22 , 1989 P.O.Box 104 Fort Townsmd.WA 98.68
2061.185.6400
MEMORANDUM
TO : Mayor and City Council.
RE : Wallin vs . City of Port Townsend and Deering appeal
Attached for your information is a copy of the Court of Appeals'
decision in the above-refc case,
You will recall that the City awarded the Derin s a Conditional
Use Permit for their tourist hone and motel at their residence,
and the Wallins challenged that decision in Court . The trial
Court upheld the City' s action . The Wallins then appealed to
the Court of Appeals in Tacoma.. In the meantime, the City
amended its ordinance and the Deerings obtained a revised Condi-
tional Use Permit under the new ordinance.
The Court of Appeals has held that ,} because of the amendedor-
dinance and because the Ieerins obtained a revised permit under
it , the ease is now moot . However, the Court went on to discuss
the merits of the case to determine whether the appeal by the
Wallins was frivolous . In doing so, the Court upheld theCity ' s
actions . It did hold, however, that the Wallins' -pp al was not
frivolous and therefore the City and the Dee in s are not entitled
to recover their actual reasonable attorney ' s fees, but rather
only statutory Court casts and a niminal attorney fee set by the
statutes.
I should point out for your information that the Court ordered
that this case would not be published. That means that the case
cannot be used as Precedent in other litigation .
Let me knot if you have any questions or comm nts concerning
this/.i I am .hap with these results .
}
__-
ITH C . HARPER
City Attorney for the
City of Port Townsend
CH : hs
Attachment .
cc Michael Hildt with- attachment
annin Comm.ission with attachment
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40,
IN THE COURT of APPEALS of THE STATE OF WASHINGTON
CHARLES WALLIN and MADGE
WALLIN, husband and wife, No. 11975-7
Appellants, D1 ISION TWO
THE CITY of PORT TOWN END,
a municipal corporation, and
DAVID D ERINC and JOAN
DEERING, husband and wife,
Respondents. ) Filed December Z1 , 1989
UTTER, J. ..The parties in this suit appeal from two
decisions, Appellants seek review of a superior court ruling
that upheld the City of Port Townsend t s decision to grant a
conditional use permit. Respondents cross-appeal, seeking review
of a separate superior court decision holding that appellants had
standing to challenge the City's decision. As a result of a
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11975-7--2
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in defending a frivolous suit. Since this appeal presented an
arguable issue of law, we deny the motion for reasonable attorney
fees.
The facts are straightforward, David ,,and Joan Deering own a
large -bedroom Victorian house in Fort Townsend. Also on this
property, connected to the house, is a one-bedroom apartment unit
above a garage, Charles and Madge Wallin live in a residence
adjacent to the Ieerings. For 2 years the Deerings rented- out
three bedrooms of their house under a tourist home permit.
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1197 5v` -m
The Wallins now request that we review the superior court's
decision denying the writ of certiorari. Port Townsend and the-
eerings also request renew of the lower court's findi
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11975-7--4
request for attorney fees. See Everett r■ State, 99 Wry. d 264F
267, 6 61 P* 2d 588 (1983) (court found it necessary to analyze the
merits of a moot case in order to provide a -basis for answering a
declaratory 3udgment question pertaining to the law as it existed
before the legislative change that made the issue moot .
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Reviewing the City's decision on the writ of certiorari, the
trial 'court acted in an appellate capacity. This court
consequently reviews the trial court's conclusions de novo.
O"Day V. King Cys, 109 Wn, 2d 796, 801, 749 P..2d 1 (1988) 9
Respondents argue that the Wallins have .no standing to
dispute the zoning permit decision. Standing is a 2-part test.
First, the interest sought to be protected must be arguably
within the zone of interest regulated by the statute. Save a
Valuable Environment v. Bothell, 89 Wn* d 862`, 866, 576 P, 2d 401
(1978) . This prong of the test is not disputed. The second
prong, at issue here, is that the plaintiff must show that he or
she is directly and perceptibly harmed by the challenged
litigation, Coughlin y. Seattle School Dist 1 . 27 Wn. App, 888f
894 , 621 P, 2d 1 (1980) . This "injury In Fact" must be direct
and must- be demonstrated with some precision. eWeese v, Pant
Townsend, 39 Wn. App. 369 , 376, 693 P, 2d 726 (1984) o A bald
assertion that an appellant has standing is insufficient. See
rt•-.r rn► ■:gra rr.s +. 1"3.-o-# A A- 1 .._.�� � �+ ■-- �- �... ..
11975-7--5
property, and added emotional stress. They allege that the use
will change the character of the neighborhood, causing a $7 , 000
decline in their home's value. Clerk's Papers, vol. I at 39-40.
Also, we find it significant that appellants' residence
shares a common boundary with the Deeringsl property. Living
adjacent to the property, appellants are much more likely to be
affected by a use change. We have in the past observed that
proximity to the complained use is a factor in establishing
standing. See Coughlin, at 893-94 in denying standing, the
court pointed to evidence showing that plaintiff did not reside
in or adjacent to any of the affected areas) ; Save a Valuable
Environment, at 865 in finding standing, the court noted that
many members of plaintiff's organization resided in areas
immediately adjoining the fain requesting -use change) ,
Appellants' allegations of in3ury are not supported by
evidence apart from their affidavit. However, for purposes of
ruling on a motion to dismiss for want of standing, the trial
+ court must accept as true all the material allegations of the
complaint, and must construe in favor of the complaining panty.
arch v. Seldin, 422 U*S . 490, 501, 45 L. Ed. 343t 95 S. Ct, 2197
(1975) . The trial court properly found a direct, precise
economic injury, Thus, appellants satisfy the requirements of
standing.
The standard of judicial review of zoning actions is
11975-7--6
permit should have been denied* Alternatively, they assert that
the Deerings' apartment does not meet the code's "motel"'
definition.
The Deerin s' application for a permit to operate four rooms
s overnight transient accommodations used several terms: "guest
rooms, 'bed & breakfast, and .sumer guest house. " None of
these terms were defined by Port o nsend's code at -the time o
the applications See Port Townsend Mune Code § 1 ' . 08 . o to et seq.
Nonetheless, we cannot accept the contention that a conditional
use permit should fail for lack of an accurate label , If this
were the law, all applicants who submitted an application with
the wrong use label would be denied their permits. Moreover, if
a city or the courts placed too much reliance on the use
requested on the application, then applicants could choose any
label that guaranteed a permit, A board of - adjustment should be
given some latitude to properly categorize a requested use. The
City has recatecoried several. previous 'fbed & breakfasts'
applications under other sections of the code.
The Port Townsend code also contains no express restrictions
on "bed & breakfast inns, " Appellants would have this court
imply a restriction. In a similar case, the court stated that a
zoning ordinance restriction should not be extended by
inpl.ication to oases not clearly within the scope of the
ordinance's purpose and intent. Hauser v* Arness, 44 Wn, 2d 358 ,
ltl7 - --7
transient accommodations, a "bed & breakfast's establishment
cannot be said to be outside the scope of the code's purpose.
Thus, the City did not act arbitrarily when it accepted an
improperly labeled application.
Reviewing the full record, we agree with the trial court
that the City actually approved a three-bedroom tourist home and
a one-bedroom motel. While the City I s findings of fact and
conclusions do not say so, the minutes of the city council
meeting indicate that this was the actual conditional use
approved. Clerk's papers, vol . l at 46, The assistant planner
testified before the city council that the application was
intended to change the desi
11975-7--S
'11 accord considerable deference to that construction. feller
. Bellingham, 92 Wn. 2d 726, 731, Goo P. 2d 1276 1979} .
Appellants also contend there is no evidence that the garage
has its own private toilet. It is true that the City's findings
of fact do not explicitly state that there was a toilet facility
{
in the apartment. However, the planning commission had ample
opportunity to determine that fact: it visited the site, .heard
testimony that the garage unit was rented out as a single
apartment unit for 2 years, and was aware that the Wailins
themselves complained of sewer backups immediately after the
Deerings began renting the apartment. The commission's
recommendation to the City included an implication that all
technical requirements of the defined conditional use were met.
A zoning decision is arbitrary and capricious if it is
willful and unreasoning action in disregard of facts and
circumstancese English Bay-Enterprises,, Ltd. v. Island . , 9
n* 2 16, 21, 568 P* 2d 783 (1977) , That is not the case here.
The planning commission, before making a recommendation to the
City, held extensive hearings on whether the Deerings' permit
should be granted. We find, as did the trial court, that there
was sufficient testimony and evidence, or inferences which could
properly- be drawn therefrom by the City, that the Deerings'
requested use qual ifie-d as a tourist home and motel . See Andrew
v. K����.�, 21 Wn. App. 566, 575, 586 P. 2d 509 (1978) , We could
11975-7--9
deprived of notice and opportunity to be heard when the planning .
commission redefined the eerings' application from a bed and
breakfast inn to a combined tourist have and motel. . In
appellantsbrief, they cite RCW 3 6. 7 . 590 a'nd Gl.a y. & Sons
Inc. v. Conrad, 83 Wn. 2d 707, 521 P. 2d 1173 (1974) for the
proposition that the City must afford the public adequate notice
and opportunity to prepare comment on an amended permit
application. These authori
s
11975-7--10
There is an alternative basis for reasonable attorney fees.
+
RAF 18 .9 (a) authorizes the appellate court, on its own
+
initiative, to order sanctions against a party who uses court
rules
for the purpose of delay. sanctions may include an award
f reasonable attorney fees. Legal Foundationt at 697 . Our
Supreme Court has adopted the following considerations in
evaluating whether a suit is frivolous
(1) a civil appellant has a right to appeal under RAF
2 . 2 ; 2 all doubts as to whether the appeal is
frivolous should be resolved in favor of the appellant;
(3) the record should be considered as a whole; an
appeal that is affirmed simply because the arguments
are rejected is not frivolous; 5 an appeal i
frivolous if there aro no debatable issues upon which
reasonable minds might differ, and ' it is so totally
devoid of merit that there was no reasonable
possibility of reversal .
Booms v. Department of Retirement S 105 Wn. 2d 499, 507, 716
P, 26d 869 (1986) ( fitter, J. , dissenting) , quoting Millers Cas.
Ins. o, * Briggs, 100 Wn, 2d 9 , 15, 665 F. 2d 887 (1983) . The
last element in this list states the applicable test. Even
though this court rejects the Tallins' claim, them was a fairly
close argument whether the City, as the Board of Adjustment,
acted within its zoning code. Fort Townsend0s awn code mandates
that only those uses contained in the column of conditional uses
are to be considered by a board. Fart Townsend Mun. code
17 , 64 , 030. As previously mentioned, the City's findings of fact
and conclusions referred to a "bed & breakfast," which was not a
11975- �"ll
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Accordingly, we deny the counterclaim for attorney fees and
costs imposed for frivolous actions.
CONCUR:WE
Eli,
6. �'V xv
Pursuant to the ABLE procedural rules, it is ordered that
the foregoing opinion s4 ]./shall not be published.
ief Ju
iivision?rI Court of Appeals