City appeals cannery ruling
June 9, 2008 · Updated 3:10 PM
"After a rebuff from Superior Court, the city will appeal to prevent Earl Miller from rebuilding the old strawberry cannery over Eagle Harbor.The 20,000-square-foot structure at the foot of Weaver Road was destroyed by fire in 1997.The city denied Miller's application to rebuild, saying that the proposed use was prohibited by city zoning, and that Miller had lost his grandfathered rights because the use of the property had changed over time.You can't build structures out over the water anymore, city attorney Rod Kaseguma said. But if you are making a valid non-conforming use of the structure, you can replace it.Before the fire, the 70-year-old building was used by a potpourri of small commercial and professional enterprises. It was originally built as a strawberry packaging plant, with water access to facilitate shipping the island's principal commercial crop.When Miller applied to rebuild in 1999, Planning Director Stephanie Warren determined that the property's uses had changed so much that Miller no longer could claim any grandfathered rights. Therefore, he couldn't rebuild. Hearing Examiner Robin Baker affirmed Warren's decision.But Superior Court Judge William J. Kamps disagreed, declaring that Miller had not lost his grandfathered rights. He ordered the city to process Miller's permit application. And while he did not order that a building permit be granted, the decision appears to leave the city little choice.The gist of the dispute involves the somewhat arcane concept of a nonconforming use, which generally arises when land is rezoned to exclude a use then being made of the property. The prior user is generally permitted to keep on doing what he has been doing, including the right to replace an accidentally destroyed structure. But if his use changes, his rights are lost, including his right to rebuild.The area in question was rezoned residential in 1969, at which point, the building was being used for a concrete-supply business. But that stopped in 1973. The building was then used for a variety of small businesses, offices and residences.Our position is that the concrete-supply business was the legal nonconforming use, and that once that use changed, it was no longer legal, city administrator Lynn Nordby said. We think the judge disregarded the case law that supports our position.A critical element in Kamps' decision was a 1983 letter from the city to the then-owner of the property. In the course of processing a request to build a new roof, the city said:The use of the existing warehouse is a legal non-conforming use which may continue so long as it is not enlarged or altered so as to increase its non-conformity.The letter, written long after the concrete-supply business moved out, directly conflicts with the city's current interpretation of the law. But Baker did not admit the letter into evidence, for which she was sharply rebuked by Judge Kamps.The evidence at issue gives an indication of the interpretation of the city officials enforcing the code provisions at that time, Kamps wrote. This Court fails to see how the proffered evidence could possibly not be regarded as possessing value by reasonably prudent persons. "