HomeMy WebLinkAbout05-007 Regarding file No. 04-135 - Tapper home occupation
RESOLUTION NO. 05-007
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PORT TOWNSEND,
WASHINGTON, REGARDING FILE NO. 04-135 - TAPPER HOME OCCUPATION
WHEREAS, Development Services Department Interim Director, David Wright, issued
a Director's Decision on November 22, 2004 concerning the home occupation of Bruce and
Viva Tapper at 640 Adams Street, Port Townsend; and
WHEREAS, on December 6,2004, Appellants, James and Audrey Anderson, James and
Deborah Klose, and Barbara and Lowell Bogart appealed the Director's Decision; and
WHEREAS, on December 13, 2004, the City Council referred the appeal to the Hearing
Examiner for a fact-finding hearing and recommended decision; and
WHEREAS, the Hearing Examiner issued Findings of Fact, Conclusions of Law and
Recommendation on January 11, 2005; and
WHEREAS, the City Council considered this matter at its meeting on January 18, 2005,
and reviewed the records and files, and specifically, the Hearing Examiner's Findings of Fact,
Conclusions of Law and Recommendation, a notebook of materials entitled "City of Port
Townsend Development Services File 04-135 Appeal of Director's Interpretation Concerning
Tapper Property 640 Adams Street," and the following: January 13, 2005 letter from attorney
Stephen Gilliard; January 18,2005 letter from Bruce Tapper; and January 15,2005 letter from
appellants Bogart, Anderson, and Klose; and
WHEREAS, the City Council at its meeting on January 18, 2005, having reviewed the
records and files, voted to have staff prepare a Resolution for the City Council that accepts the
Hearing Examiner's Findings of Fact, Conclusions of Law and Recommendation, and adds
additional findings as follows: that Tapper's predecessor Masci's use did not comply with the
Home Occupation Code because he did not have a home occupation permit; and the evidence
shows that Tappers did not, after their purchase continuously occupy the property, and did not
occupy the property as a residence between August 2001 and August 2004, when the apartment
was rented; and
WHEREAS, the City Council further considered this matter at its meeting on February 7,
2005, and having further reviewed the records and files herein, a transcript of the Hearing held
before the Hearing Examiner, and the written submissions and exhibits presented to the Hearing
Examiner, the City Council modifies its January 18, 2005 decision,
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Port
Townsend, as follows:
Resolution 05-007
SECTION 1. FINDINGS AND CONCLUSIONS
The City Council hereby adopts as its decision the Findings of Fact and Conclusions of
Law attached as Exhibit A.
SECTION 2. IMPLEMENTATION
This matter is remanded to the Director of the Development Services Department for
implementation consistent with the adopted findings and conclusions.
ADOPTED by the City Council of the City of Port Townsend at a regular meeting
thereof: held this seventh day of February, 2005.
c ~':.:2 /;., ~'-
Catharine Robinson, Mayor
Attest:
Approved as to form:
2~~~~, ~#a/ð
City Clerk
~-;
John P. Watts
City Attorney
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EXHIBIT A - FINDINGS AND CONCLUSIONS
(Resolution 05-007)
1.
INTRODUCTION. The City Council considered the recommendation ofthe Hearing
Examiner in File No. 04-135 as set forth in the Hearing Examiner's Findings of Fact,
Conclusions of Law, and Recommendation (January 11,2005).*
a. Based on the record before the Hearing Examiner, Dr. Masci's off-site residency from
1982 to 1983 does not appear to be material. The uncontroverted evidence shows that Dr.
Masci reestablished residency in 1984 when the City did not require a permit or other
approval for a home occupancy.
b. Although we agree with much ofthe Hearing Examiner's Findings of Fact, the Council
determines to adopt the following.
2.
FINDINGS OF FACT. The City Council finds and adopts the following Findings of
Fact:
a. The Council finds that the preponderance of the evidence supports the fact that Tappers
did not occupy 640 Adams as their residence after August 2001. The Council bases its
finding on the following factors.
b. The Development Services Director's Interpretation of November 22,2004 states that the
City did not require conditional use permits for home occupations under the 1971, 1986,
or 1996 codes. We find that conditional use permits mayor may not have been required
for home occupations under the 1971 code, but our final holding can be upheld in either
case.
c. Dr. Geoffrey S. Masci owned 640 Adams Street, Port Townsend (the "Property") from
September 1975 until July 2000. (Masci Letter of October 1,2004, Hearing Examiner Ex.
F -44). Masci resided at 640 Adams for that entire period except for an indeterminate
period of time from 1982 to 1984 when he lived "downtown." (Testimony ofG. Masci,
Transcript of January 7, 2005 Hearing Examiner Hearing (hereinafter "Transcript") at
20.)
d. In 1979, Masci remodeled and expanded the downstairs office of the Property to 1100
square feet. (Ex. F-44.) At some point between 1979 and 1991, Masci further expanded
the downstairs office to its present day size of 1350 square feet. (Ex. F-44; Testimony of
G. Masci, Transcript at 19.)
* The Council has considered the entire record of the proceedings, including all exhibits and a complete transcript of
the proceedings (including testimony) before the Hearing Examiner.
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e. From 1975 unti12000, with the exception of the indeterminate period from 1982 to 1984,
Masci's residence "was in the upstairs apartment" [second floor] of the Property. (Ex. F-
44.)
f. From 1975 to 2000, Masci operated a chiropractic office on the first floor of the Property.
(Ex. F-44; TestimonyofG. Masci, Transcript at 18-19.)
g. From 1985 to 2000, Masci saw approximately 80 to 150 patients per week at the
Property. (Testimony of G. Masci, Transcript at 18; Ex. F-44; October 9, 2004 Peggy
Coulter Letter, Ex. F-45.)
h. At no time between 1975 and 2000 did Masci apply for or hold a home occupation
permit. (Testimony of G. Masci, Transcript at 18-19).
1. There is no indication in the record that there were any complaints or other issues
regarding Masci's chiropractic office between 1979 and 2000.
J. In the summer of2000, Masci sold the Property to Bruce and Viva Tapper ("Tappers").
(Ex. F-44; Testimony ofV. Tapper, Transcript at 28; Bruce Tapper Letter of July 7, 2002,
Ex. E-61.)
k. The Tappers began practicing psychology and psychiatry at the Property in December
2000. (Ex. E-61.)
1. Between August 2001 and August 2004, the Tappers rented the residence on the second
floor of the Property to a third party. (Appellant's Written Testimony presented to
Hearing Examiner, Ex. G-20 to G-23; Testimony ofV. Tapper, Transcript at 27.)
m. The Tappers' upstairs tenant was not an employee of the downstairs office. (Jeff Randall
e-mail to John Watts, September 10,2004, Ex. C-16.)
n. The Tappers allege that they lived in an "ADD" on the Property from 2001 to 2004. They
further allege that "the ADD is and always was a residential building." (Ex. G-22;
Testimony ofV. Tapper, Transcript at 27-28.)
o. The space the Tappers refer to as an "ADD" or accessory dwelling unit was previously a
garage. A permit was issued to the Tappers in August 2001 to "convert the garage into
heated space for office and storage uses, approximately 495 sq. ft." The accessory
building "was not permitted as an ADD; it was not permitted as a bedroom." (Testimony
of Jeff Randall, Transcript at 34.)
p. The Tappers' owned a house at 281 Lane de Chantal in unincorporated Jefferson County
prior to their purchase of 640 Adams Street. The Tappers have continued to own the
Lane de Chantal property during their entire ownership of640 Adams. (Ex. G-22, G-23;
Testimony ofV. Tapper, Transcript at 26-27; October 12,2004 Tapper Letter, Ex. F-43.)
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q. BCD Director Jeff Randall visited the Property on August 8, 2002. At that time, Dr.
Bruce Tapper said the remodeled garage area was used as a break room for himself and
other employees. Tapper also told Mr. Randall that he and his wife lived with his 93-year-
old father at the Lane de Chantal address and that they stayed at the office some time.
Mr. Randall's impression was that the Tappers' primary residence was Lane de Chantal.
Randall observed the entire first floor plus the remodeled garage was being used for
business purposes. (Jeff Randall Notes of August 8, 2002 Site Visit at 640 Adams, Ex. E-
39 to E-40; Testimony of Jeff Randall, Transcript at 10-12, 15,32,36.)
r. After the upstairs was rented out, the Tappers allegedly resided on the first floor of the
Property and in the remodeled (and unpermitted for dwelling purposes) garage. The
Tappers admit that their cooking facilities at the Property from late 2001 to 2004
consisted solely of one or more microwave ovens. The Tappers also admit that the
remodeled garage contained no shower. (Testimony ofB. Tapper and V. Tapper,
Transcript at 37-38, 41-43.)
s. In late 2002 or early 2003, Michelle Sandoval met with the Tappers for the purposes of
discussing marketing the Property. The discussion included a tour of the Property. The
Tappers indicated in their conversation with Sandoval that they were living at Lane de
Chantal in Jefferson County. The Tappers gave the phone number for their Lane de
Chantal residence as their home phone number. Sandoval saw no evidence that Tappers
were using any portion of the property as their residence. The remodeled garage (the
alleged "ADD") was being used as an office on the date Sandoval viewed it. (Testimony
of Michelle Sandoval, Transcript at 6-7.)
t. On November 16, 2000, the Tappers applied for a home occupation permit under the then
current Port Townsend Home Occupation Code. The Tappers signed an application
agreeing, among other requirements, to limit their home occupation to 800 square feet, to
have a maximum of five customer or business visits per day, and that at least one person
residing on the premises will be engage in the operation of the business. The Tappers
also agreed in their application that "the home occupation shall not be subdivided from
the residence for the purpose of sale, lease or rent." The permit was approved on
November 30,2000. (Ex. E- 76 to E-82; Port Townsend Municipal Code Chapter 17.56,
Ex. D-2 to D-4.)
u. The Tappers saw an average of sixteen to twenty-five patients per day at the Property
from 2001 to 2004. (Ex. F-43, Ex. G-21, Testimony ofV. Tapper and B. Tapper,
Transcript at 27-29.)
v. There is no indication in the record of any discussion or correspondence regarding
"grandfathering" or legal nonconforming uses between the Tappers and City personnel
prior to August 24, 2004. (Development Services Director's Interpretation of November
22,2004.)
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w. Port Townsend Ordinance No. 1625 (1971) provided in pertinent part:
Section 2.45 Home Occupation. Any use customarily conducted entirely within
a dwelling and carried on by the inhabitants thereof, which use is clearly
incidental and secondary to the dwelling for dwelling purposes and does not
change the character thereof. The conducting of a hospital, barber shop, beauty
shop, tea room, tourist home, animal hospital, retail sales of any type or similar
use, shall not be deemed to be a home occupation.
(Ex. D-29.)
x. The remainder of Port Townsend Ordinance No. 1625 is ambiguous as to whether a
conditional use permit was required for home occupations, indicating in one instance that
a CUP was required and in another that one was not.
y. Port Townsend Municipal Code ("PTMC") Chapter 17.88 (Ordinance 2700 §31, 1999
and Ordinance 2571 §2, 1997) provides in pertinent part:
17.88.040 Nonconforming uses.
A nonconforming use is one that lawfully existed prior to the
effective date of the ordinance codified in this title, but which is no
longer permitted in the zoning district in which it is located. The
continuance of a nonconforming use is subject to the following
provIsIOns:
A. Change of ownership, tenancy, or management of a
nonconforming use shall not
affect its nonconforming status; provided, that the use does not
change or intensify.
B. If a nonconforming use is discontinued for a period of 365 or
more consecutive calendar days, it shall lose its nonconforming
status, and the continued use of the property shall be required to
conform with the provisions of this title.
C. Additional development of any property on which a
nonconforming use exists shall require that all new uses conform
to the provisions of this title.
D. If a nonconforming use is converted to a conforming use, no
nonconforming use may be resumed.
E. No nonconforming use may be replaced by another
nonconforming use, nor may any
nonconforming use be expanded, intensified, or changed in any
way. (Ord. 2571 § 2, 1997).
z. The City of Port Townsend adopted laws governing home occupations in 1971, 1986, and
1996 and laws governing nonconforming uses in 1997. (Ex. D-2 to D-32.)
aa. The Development Services Director's Interpretation of November 22,2004 does not
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discuss or include evidence regarding the Tappers' residence at 640 Adams beyond a
conclusory statement regarding when the Tappers allege they moved out based on the
Tappers' October 12, 2004 letter.
bb. In his November 22, 2004 Interpretation, the Development Services Director concluded
that a medically oriented home occupation was established by Masci and had not been
discontinued, either by Masci or the Tappers.
3.
Conclusions of Law. The City Council rejects the Conclusions of Law recommended by
the Hearing Examiner in the Hearing Examiner's Findings of Fact, Conclusions of Law
and Recommendation dated January 11, 2005. The City Council adopts the following
Conclusions of Law.
a. Based on the following analysis, Masci's home occupation chiropractic office at the
Property was a legal nonconforming use at the time he sold his house to the Tappers in
2000. The applicable law at the time Masci moved back into his home in 1983-84 (and
continued his chiropractic practice) was the 1971 Home Occupation Ordinance. That
ordinance provides, in pertinent part, that a home occupation is
"[a]ny use customarily conducted entirely within a dwelling and
carried on by the inhabitants thereof, which use is clearly incidental
and secondary to the dwelling for dwelling purposes and does not
change the character thereof.
As of 1984, Masci was an inhabitant of 640 Adams and conducted his chiropractic
business entirely within his dwelling. Masci and his family resided upstairs in the main
house of 640 Adams, while he practiced as a chiropractor downstairs. The record reflects
that 640 Adams was viewed by both neighbors and Masci as a home first and chiropractic
office second. Masci's use of the first floor of the house he inhabited as a chiropractic
office was incidental and secondary to his dwelling and did not change the character of
that dwelling. Masci did not have a conditional use permit for his home occupation, but
may not have needed one. Therefore, Masci established his chiropractic office as a legal
home occupation in 1983 or 1984.
b. Although Masci was non-resident at the Property during 1982 to 1984, that has no
bearing on this analysis. The law governing home occupations did not change while
Masci was living elsewhere. While Masci's continued operation of the chiropractic office
while he was not living at the Property may have been a violation of the 1971 Home
Occupation Ordinance, that violation was removed when Masci reestablished residence at
the Property in 1983 or 1984.
c. The record demonstrates that Masci continued to operate his home occupation in a
manner consistent with the 1971 Code from 1984 until he sold his house to the Tappers in
2000. Although an exact level of patient visits is difficult to calculate, we believe it is
sufficient to state that when customer/business visits for home occupations were limited
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to five per day by the 1996 code, Dr. Masci was seeing well in excess of that number (at
least 80 per week). PTMC 17.56.050.
d. Masci, by his own admission, never applied for or received any permit or other approval
for his home occupation. If a conditional use permit was required for home occupations
under the 1971 Code, then Masci's home occupation was unpermitted and illegal.
Therefore, and in the alternative, the Tappers, after their purchase of the Property, would
have no right to continue an illegal use.
e.
Although there is some question in the record as to when Masci expanded the office size
from 1100 to 1350 square feet, we resolve the doubt in favor of the respondents, the
Tappers. As such, we will continue our analysis under the assumption that Masci
completed his expansion while the 1971 Code was still in effect, i.e. before the 1986
Code was adopted, and therefore having the same legal status as any other aspect of the
home occupation.
f. Because Masci continued to operate his home occupation in the manner described in
Conclusions of Law paragraph "a" and consistent with the 1971 Code, his home
occupation was legal when both the 1986 and 1996 codes were adopted. There is no
indication that Masci discontinued the home occupation after 1984. Neither the 1986 or
1996 codes provided for amortization of nonconforming uses. The effect of the adoption
of a new Home Occupation Code in 1986 was to transform Masci's legal conforming use
into a legal nonconforming use. The later adoption ofthe 1996 Code made more
elements of Masci's home occupation nonconforming (i.e. level of use because the five
customer visits per day limit was adopted in 1996, not 1986). Therefore, if Masci's use
was legal in the past, Masci's home occupation remained a legal nonconforming use up
until the time he sold the Property to the Tappers in 2000.
g. When the Tappers bought the Property from Masci, if Masci's use was legal in the past,
they were legally entitled to continue the home occupation as a nonconforming use.
Under PTMC 17.88.040, change of ownership does not affect the nonconforming status
as long as the use does not change or intensify. Therefore, the Tappers were entitled to
continue Masci's home occupation, so long as their home occupation was consistent with
the one established by Masci.
h. The Tappers practice of psychology and psychiatry was similar enough to Masci's
chiropractic practice to be considered the same home occupation. Masci's historic level
of patient visits may have been lower than that of the Tappers, but we find that both
Masci and the Tappers had patient levels well in excess ofthe five per day permitted by
the current Code. Because we find the nonconforming home occupation was
discontinued on other grounds, as discussed below, we do not need to calculate the
precise number of client visits allowed to the Tappers.
1. The record does not support the Tappers' allegation that they used the Property as their
residence. Moreover, the characteristics of their alleged home occupation differed
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4.
significantly from that of Masci and from what was acceptable under the 1971 Code.
When Masci lived upstairs, his use of the main floor for business offices was accessory
and incidental to his residential use as required by the 1971 Code. The Tappers rented
out the upstairs, used the entire main floor as an office, and may have occasionally
illegally used the remodeled garage (permitted as office and storage space) as a place to
sleep. Any use the Tappers made of the main floor as their alleged dwelling was
secondary to their business use of that space. The Tappers' use of the main floor as office
was not incidental or secondary to a residential use. Rather, the limited residential and
dwelling use the Tappers made ofthe main floor was incidental and secondary to the
primary office use. In short, the Tappers were not inhabitants at the Property.
J.
By their clear failure to maintain their office as incidental and secondary to a dwelling at
the Property, the Tappers discontinued the legal nonconforming use (home occupation). If
a nonconforming use is discontinued for a period of 365 or more consecutive calendar
days, it shall lose its nonconforming status, and the continued use of the property shall be
required to conform with the provisions of this title. PTMC 17.88.040. The Tappers
moved out of the upstairs residence and rented it out in 2001, which began their
discontinuance of the legal nonconforming use. Although their occupation may have
continued to conform (an issue we need not decide), their residency or dwelling, which is
an integral part of a home occupation, did not.
k. By the Tappers own admission, they did not reside in the upstairs apartment for a period
of nearly three years. Moreover, the record demonstrates that their occasional sleepovers
in the main office and the remodeled garage/accessory office and storage space did not
meet the requirements of the 1971 Code requiring that the occupation be incidental and
secondary to the dwelling, not vice versa. Therefore, the Tappers discontinued the
nonconforming use/home occupation for 365 consecutive days as early as August 2002,
but certainly by 2004. Because the nonconforming use was discontinued for 365
consecutive days, the home occupation is no longer a legal nonconforming use and use of
the Property must comply with all provisions of PTMC Chapter 17.
1.
The Tappers, by filing and signing an application for a home occupation permit in
November 2000, arguably waived their nonconforming use status and agreed to follow
the provisions of the 1996 Code. By their own admission, the Tappers have violated the
conditions they agreed to in signing the permit application. Namely, the office has
continued to occupy well in excess of 800 square feet (although the Tappers had agreed to
limit office space to under 500 feet to meet other standards) and the Tappers and their
partners continued to see sixteen to twenty-four patients per day.
Decision.
a. The Council rejects the basis for the recommendation by the Hearing
Examiner in the Hearing Examiner's Findings of Fact, Conclusions of Law and Recommendation
dated January 11,2005.
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b. The Council finds that the appeal should be GRANTED and the Code
Interpretation of the Director of the Development Services Department should be REMANDED
to the Director for an interpretation consistent with these Findings of Fact and Conclusions of
Law. In particular, the Council finds that the Tappers lost any legal nonconforming use status by
their discontinuance of the use of the Property as their residence for a period of 365 days or more
after August 2001.
c. As an alternative and independent basis for granting the appeal, the
Council finds that the Tappers voluntarily waived their legal nonconforming use status; agreed to
follow the provisions of the current Home Occupations Code; and have, by their own admission,
violated the issued permit.
d. As an alternative and independent basis for granting the appeal, the
Council finds that if a conditional use permit was required of home occupations under the 1971
Code, than Dr. Masci's home occupation was an illegal use at all times during the operation of
his chiropractic office and their was no legal nonconforming use status to transfer to the Tappers
and the Tappers were and are subject to all provisions ofPTMC Chapter 17, including those on
home occupations.
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