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Miller can't rebuild 'Strawberry Plant,' court says

Reversing a trial court decision, the state Court of Appeals has sided with the city and ruled that Earl Miller may not rebuild an over-water commercial structure at the foot of Weaver Road.

Although the area is now zoned residential, Miller claimed he was entitled to replace the commercial use of the property existing in 1997, when the pier and buildings were destroyed in a spectacular fire.

“Miller has not demonstrated that his use at the time of the fire was a lawful nonconforming use,” said appellate court Judge Christine Quinn-Brintnall, writing a unanimous opinion for the three-judge panel.

The appeals court reinstated the ruling of city hearing examiner Robin Baker.

The 20,000-square-foot structure, built partially on a pier extending over Eagle Harbor, was once used to process strawberries and ship them by water. After World War II, it housed a concrete business.

In 1969, the property was zoned for single-family residential use. The concrete business – legal prior to the rezoning – became what is known as a legal non-conforming use. Such uses may continue, but may not be resumed if discontinued.

The concrete business closed in 1973. After that point, the building was used by a variety of businesses, including offices, storage, workplaces and shops.

When the buildings burned in 1997, the city denied Miller permission to rebuild. Officials said that while the concrete business was a legal non-conforming use, the subsequent commercial uses were not.

The city argued that because no legal non-conforming use existed when the building was destroyed, Miller had no right to rebuild. Hearing Examiner Robin Baker affirmed that position.

In successfully appealing the city’s ruling to Kitsap County Superior Court, Miller argued that although the post-1973 uses might not be identical to the concrete business, they were similarly commercial, and posed no greater degree of non-conformity than the concrete business. He noted that the city licensed the post-1973 businesses.

A key document was a 1983 letter from the city to the building’s former owner, which 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.”

Superior Court Judge William Kamps viewed that letter as an important indication of the city’s position, and criticized Baker’s refusal to admit it into evidence.

The appellate decision vindicated the city’s position. The appeals court noted that changes in a non-conforming use require high-level approval – at that time, from the city council – which was never sought as uses changed. The low-level licensing of various businesses did not constitute the required high-level approval, the court said.

Similarly, the appellate court declined to interpret the 1983 letter to the former owner as a definitive expression of city policy.

“At best, this letter established that in 1983 a city employee viewed the legal non-conforming use to be a warehouse,” the court decision said.

“Miller’s claimed office and commercial use at the time of the fire (was not) the equivalent of the warehouse use noted in the 1983 letter or the cement plant in 1969.”

Miller could not be reached for comment. He could appeal to the Washington Supreme Court.

Miller has said in the past that the 3.7-acre waterfront site might be suitable as a family compound.

It could also be developed for single-family residences. Under the present zoning, the site could accommodate 12 homes.

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