HomeMy WebLinkAbout2006-01-10_BLD05-00471 SSNW Appeal
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BEFORE THE HEARING EXAMINER FOR JEFFERSON COUNTY
Irv Berteig, Hearing Examiner
RE: SECURITY SERVICES NORTHWEST,
INC., Appellant,
v.
JEFFERSON COUNTY, Respondent
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File No. BLD05-00471 & COM05-00076
FINDINGS, CONCLUSIONS,
AND DECISION
BACKGROUND INFORMATION
Jefferson County issued a Building Code Stop Work Order on
July 8, 2005, followed by a stop work order and a notice and order,
both issued under the Unified Development Code on August 11, 2005,
against Security Services Northwest, Inc., [SSNW]. On July 15, 2005
SSNW filed a Notice of Appeal of the July 8, 2005 Stop Work Order.
The Board of County Commissioners approved the appointment of the
Hearing Examiner as the Hearing Body for a Board of Appeals.
PROCEDURAL INFORMATION
The appeal hearing was opened at 10:00 a.m. in the Theater at the Fort
Worden State Park in Port Townsend, Washington on November 16, 2005
and continued on November 17 & 18, 2005. After the procedures were
explained, testimony was accepted. All testimony was taken under
oath. A verbatim recording of the public hearing was made. The tape
is maintained in the Jefferson Permit Center file. The appeal hearing
was closed November 18, 2005 at 4:30 p.m., with the understanding that
the magnitude of the record would require more than 10-working days.
The Appellant was represented by Glenn J. Amster, John S Devlin III,
and John B. Schochet of Lane Powell PC.
Jefferson County was represented by Mark R. Johnsen of Karr Tuttle
Campbell.
Security Services Northwest Appeal Page 1 Findings, Conclusions
BLD05-00471 & COM05-00076 and Decision
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Participants Giving Testimony (in order of initial appearance):
Al Scalf, Director of Community Development
Joseph D’Amico, Appellant, Security Services Northwest [SSNW]
Bob Grewell
Doug Tangen, 1200 E Mary Lane, Meridian, ID 83642
Jeff Hall, 556-B Hotchkiss Rd., Colville, WA 99114
Reed Gunstone
Anthony Hermandez, Jefferson County Sheriff Department
Bruce Carver
Fred Slota, Jefferson County Building and Fire Official
Joe Wheeler, 81 Kala Lagoon Ct,
Carol Hasse, 6644 Cape George Rd, Port Townsend, WA 98368
Annette Hvenkey, PO Box, Port Townsend, WA
Tomas A Carry, 2451 Old Gardiner Rd, Gardiner, WA
George Yakush, 319 J St, Port ?
Don White, 90 Bayview Lane, Port Townsend, WA 98368
Fred Herzog, 41 Olympic Blvd, Port Townsend, WA 98368
Ruth Short, 629 Fillmore, Port Townsend, WA 98368
Peter Joseph, Port Ludlow
David Jenkins, Port Townsend
Rick Nelson, Cape George, Port Townsend
Harry Dudley, 4836 Cape George Rd, Port Townsend, WA 98368
Dr. Bruce Tappon, 281 Lane Do Chantal, Port Townsend, WA 98368
Bruce Fitzgerald, 343 Gardiner Beach Rd, Sequim, WA 98382
Joanna Moock, 3710 S. Discovery Rd, Port Townsend, WA 98368
Gabe Ornelas, 7174 Cape George Rd., Port Townsend, WA 98368
No other parties were present to testify.
Molly Pearson, Jefferson County Code Enforcement Officer, was present
but did not testify
Security Services Northwest Appeal Page 2 Findings, Conclusions
BLD05-00471 & COM05-00076 and Decision
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TABLES OF EXHIBITS
Table 1: Stop Work Order & Appeal Documents
Log # Item Date Pages
1 Copy of Stop Work Order and IBC Section 3103 (temporary structures) 7/8/2005 2
2 International Building Code Chapter 1 and Section 112 7/8/2005 11
3 Joe D'Amico letter to Al Scalf - Stop work order 7/11/2005 2
4 Glenn Amster letter to Hearing Examiner of Jefferson County 7/14/2005 3
5 Al Scalf letter to Glenn Amster - Building Stop Work on SSNW 7/15/2005 2
6 Security Services Appeal, Glenn Amster letter to Al Scalf - Re: SSNW
Stop wo 7/19/2005 5
7 Glenn Amster letter to Al Scalf Re: SSNW Stop Work Order, Cry of
appeal 7/21/2005 3
8 Mike McNickle letter to Joe D'Amico - Notice and Order to Stop Work 8/5/2005 2
9 Soils Application inspection, Zenovic inspection, Twiss water analysis 7/11,8/9, 8/12/2005 4
10 Appeal fee check and receipt, Glenn Amster letter to Al Scalf 8/15/2005 4
11 BSE fee, PH, NB check and receipt, Glenn Amster letter to Al Scalf 8/15/2005 4
12 Sam Parker letter to John Fischbach, Parker note to Al Scalf 8/19/2005 4
13 Declaration of Al Scalf 8/23/2005 5
14 Molly Pearson letter to Mrs. Charles Gunstone 8/30/2005 2
15 Consent Agenda Request from Al Scalf, Fred Slota to Board of Comm. 8/3/2005 4
16 Department notes on complaint 7/5/2005 2
17 Supplemental Declaration of Al Scalf 9/22/2005 4
18 Order granting preliminary injunction 10/17/2005 7
19 Septic Permit SEP93-0216 5/20/1993 8
20 Development/Building Permit Foundation 350106R 5/24/1993 12
Table 2: Security Services Northwest Log Sheet
Log # Item Date Pages
1 Al Scalf email to Molly Pearson; David W Johnson - RE: Shooting in
or near Discovery Bay
6/8/2005 2
2 Al Scalfs telephone log 3
3 Petition, "...a business such as NWSS is not appropriate for our
area..."
6/11/2005 2
4 Board's Official Business, "...complaints made about military
exercises..."
6/14/2005 1
5 Peninsula Daily News, Gunfire ruining Discovery bay caliber of life 6/15/2005 2
6 Al Scalf parcel map and notes on Security Services 3
7 Molly Pearson email to Al Scalf, Cc: Mike McNickle - RE: Security
Services
6/16/2005 1
8 Joe D'Amico email to Al Scalf - (no subject), meeting time 6/16/2005 1
9 Joe D'Amico email to Al Scalf - meeting 6/17/2005 1
10 Peninsula Daily News, Gunfire complaints ring out 6/19/2005 2
11 Security Services letter to Jefferson County Sheriffs Office,
information on courses
6/20/2005 1
12 Joe D'Amico email to Tim Perry, Cc: Al Scalf, Harry and Zoe Ann
Dudley - Ft. Discovery
6/20/2005 1
13 Mike McNickle email to Al Scalf - Meeting with Security Services 6/20/2005 1
14 Molly Pearson email to Al Scalf; Roseann Carroll - Just a reminder 6/20/2005 1
15 Stacie Hoskins email to Al Scalf - Security Services and DRD minutes
of January 15, 2004
6/20/2005 3
16 Mike Brasfield email to AI Scalf - RE: Ft. Discovery 6/21/2005 1
Security Services Northwest Appeal Page 3 Findings, Conclusions
BLD05-00471 & COM05-00076 and Decision
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Log # Item Date Pages
17 Wayne King email to Al Scalf, Cc: Pat Rodgers, Phil Johnson - FORT
DISCOVERY
6/21/2005 1
18 Al Scalfs notes from meeting with Joe D'Amico, Henry Durean,
Molly Pearson, Fred Slota
6/21/2005 1
19 Gabe Ornelas letter to Board of County Commissioners - SSNW is not
a god neighbor
6/22/2005 1
20 Joe D'Amico email to Al Scalf, Cc; Tim Perry - Complaints 6/22/2005 1
21 Wayne King email to Al Scalf - Fw: FORT DISCOVERY 6/22/2005 2
22 Joe D'Amico email to Tim Perry, Cc: Al Scalf - Ft. Discovery Ops 6/27/2005 2
23 Wayne King email to Al Scalf, Cc: Phil Wiatrak and Commissioners -
Fort Discovery
6/29/2005 1
24 Joe D'Amico email to Tim Perry, Cc: Al Scalf - Complaints 6/30/2005 1
25 Joe D'Amico email to Al Scalf - Meeting with Sullivan 6/30/2005 1
26 Thatcher Bailey of Chevy Chase Beach Cabins letter to County
Commissioners - complaint
6/30/2005 1
27 Rick D. Zajicek letter to Commissioner Sullivan, Cc: Phil Johnson,
Pat Rodgers
7/3/2005 1
28 Security Services Northwest Headquarters Website 7/4/2005 9
29 Petition objecting to the expansion of Security Services Northwest 7/5/2005 7
30 David Alvarez to John Fischbach, Al Scalf, Molly Pearson - Research
Request-Joe D'Amico
7/5/2005 1
31 DCD complaint case regarding SSNW - Information Packet (status,
options, map, etc.)
7/5/2005 5
32 William Simms, President of Ocean grove Association letter to Jeffco
BOCC
7/5/2005 1
33 Shoreline color photographs of Fort Discovery and surrounding area 7/5/2005 8
34 Board's Official Business, "...commissioners asked to put a stop to
activities..."
7/6/2005 1
35 Vem Welsh, Disco Bay Heights Community Association, letter to
Jeffco commissioners
7/7/2005 1
36 Security Services Northwest Headquarters Website 7/8/2005 12
37 Samuel Parker email to Molly Pearson - Fw: "Fort Discovery" 7/8/2005 1
38 E. Joe Dieu letter to commissioner David Sullivan 7/11/2005 1
39 Lynne Bennett, Mark Clark letter to Jeffco DCD and BOCC - "Fort
Discovery" 7/10/2005 1
40 Photographs of Fort Discovery from site visit 7/11/2005 10
41 Leslie Locke email to Molly Pearson FW: Complaint regarding "Fort
Discovery" 7/11/2005 2
42 Leslie Locke email to Molly Pearson FW: Lead at shooting ranges 7/12/2005 1
43 Al Scalf email to Molly Pearson FW: "Fort Discovery" 7/12/2005 1
44 Al Scalf email to Molly Pearson FW: FORT DISCOVERY 7/12/2005 1
45 Rangelnfo.ORG website, Resources page 7/12/2005 2
46 The National Rifle Association Headquarters website, shooting range
services page
7/12/2005 1
47 Parcel Maps and Information on surrounding parcels in Gardiner 7/14/2005 13
48 Leader article, Shooting OK for now; county wants permits 7/13/2005 2
49 Richard Vaughn email to Molly Pearson - training facility disco. Bay 7/14/2005 1
50 John Kuller letter to Molly Pearson - Security Services Northwest Inc. 7/14/2005 1
51 Frederick Herzog email to Molly Pearson - Noise of Gunfire 7/14/2005 1
52 Randal and Penny Kelley email to Molly Pearson - battle zone noise
complaint
7/14/2005 1
53 Jefferson County 911 Center fax to Molly Pearson - Fort Discovery
Information
7/15/2005 2
Security Services Northwest Appeal Page 4 Findings, Conclusions
BLD05-00471 & COM05-00076 and Decision
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Log # Item Date Pages
54 Peninsula Daily News - Sides dig in on training range dispute 7/15/2005 2
55 Ken Urquhart email to Molly Pearson - "Fort Discovery" Explosions 7/15/2005 1
56 Frederick Herzog email to Molly Pearson - Thanks for the link to the
news re explosions
7/15/2005 1
57 Frederick Herzog email to Molly Pearson - Re: First Gunfire ...Now
Explosions 7/15/2005 1
58 Frederick Herzog email to Molly Pearson - First Gunfire ...Now
Explosions
7/15/2005 1
59 Frederick Herzog email to Peninsula Daily News, Cc: Molly Pearson -
"Fort Discovery" 7/15/2005 2
60 Declaration of Support for Security Services Northwest 7/18/2005 96
61 Dee and Lynne Spath email to Molly Pearson - Security Services
Northwest 7/17/2005 1
62 Robert Thorns (Cantwell) email to Lorna Delaney - ... issues w/
Discovery Bay
7/18/2005 1
63 Peninsula Daily News - Petition backs anti-terrorism training activity 7/19/2005 2
64 Nick and Sue Jones email to Molly Pearson - Fort Discovery input 7/19/2005 1
65 Karl Jacobsen email to Molly Pearson - Security Services Northwest 7/19/2005 1
66 Tom A Carey email to Lorna Delaney - Security Services input 7/19/2005 2
67 Sandra Jacobsen email to Molly Pearson - Security Services
Northwest
7/19/2005 1
68 Board's Official Business - 45 citizens present for comments about
Security Services
7/19/2005 1
69 Al Scalf email to Molly Pearson - BUILDING STOP WORK 7/19/2005 1
70 Frederick Herzog email to Molly Pearson - Plug Our Ears Lest We Be
Considered Unpatriotic 7/20/2005 2
71 Mike McNickle email to Phil Johnson, Cc: Al Scalf, Jean Baldwin -
Fort Discovery
7/20/2005 1
72 Ann Mullin email to Molly Pearson - D'Amico's Business 7/22/2005 1
73 Ken Urquhart email to Molly Pearson - "Fort Discovery" Gunfire 7/24/2005 1
74 Al Scalf Notes on Security Services 3
75 MRSC research on related cases (grandfathering, nonconforming,
abandonment)
7/25/2005 62
76 Leslie Locke email to Molly Pearson - FW: Comment from the web 7/25/2005 1
77 Al Scalf email to Fischbach, Hoskins, Pearson - FW: NOTICE OF
TRAINING OPS...
7/25/2005 2
78 Brad Bringgold email to Molly Pearson - Noise Pollution on
Discovery Bay
7/25/2005 1
79 Gabe Ornelas letter to Board of County Commissioners - Request for
public records
7/25/2005 2
80 Glenn Amster letter to Public Records Officer - Request for public
records
7/25/2005 1
81 Al Scalf email to Molly Pearson - FW: "Ft. Discovery" 7/26/2005 1
82 Board's Official Business - "... the county and Security Services need
to work together.."
7/26/2005 1
83 Aerial Photos, Ownership History records, Al Scalf notes on
3303/3501/3503 Old Gardiner Rd.
7/26/2005 6
84 The Leader letters to the editor concerning Security Services 7/27/2005 2
85 Samuel Parker email to Al Scalf, Cc: Commissioners and Molly
Pearson - "Ft. Discovery"
7/27/2005 1
86 Information on 3505 Old Gardiner Rd 7/28/2005 4
87 Information on 3503 Old Gardiner Rd 7/28/2005 6
88 Information on 3303 Old Gardiner Rd 7/28/2005 6
Security Services Northwest Appeal Page 5 Findings, Conclusions
BLD05-00471 & COM05-00076 and Decision
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Log # Item Date Pages
89 Tidemark information summary on BLD94-00260 7/29/2005 1
90 Tidemark information summary on OTH94-00130 7/29/2005 1
91 Information on 3509 Old Gardiner Rd 7/28/2005 6
92 Mr. and Mrs. Trevor R Hanson letter to Molly Pearson 7/28/2005 3
93 David Alvarez email - Public Records Request from Glenn Amster on
behalf of SSNW
7/28/2005 2
94 Leslie Locke email to Molly Pearson - FW: "Ft. Discovery" 7/28/2005 1
95 Marilyn O'Meara email to Phil Johnson - No Security Services
Northwest
7/29/2005 2
96 Samuel Parker email to Al Scalf - "Ft. Discovery" 7/29/2005 2
97 Photos of original Fort Discovery from 1970s 5
98 Security Service's "Description of Activities" 7/29/2005 99
99 Samuel Parker email to Molly Pearson - SSNW 8/1/2005 1
100 Joe D'Amico email to Al Scalf, Cc: Tim Perry - Training 8/2/2005 1
101 Board's Official Business, "The Discovery Bay Alliance opposes the
activities of SSNW."
8/2/2005 1
102 Address Database Comparison, Old Gardiner Rd. 8/2/2005 4
103 Situs Address Inquiry - Old Gardiner Rd 8/2/2005 4
104 Peninsula Daily News - Group opposes security training site at
Discovery Bay
8/2/2005 2
105 Aerial Photos of Security Service's Fort Discovery - includes CD 7/22/05-
8/3/2005
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106 Bonnie Blackstock letter to Phil Johnson -... please make them stop
shooting...
8/1/2005 1
107 The Leader - Alliance forms to protest SSNW firing range 8/3/2005 1
108 Jeffco Website information on parcel # 002363008 and real estate tax
affidavit
8/3/2005 2
109 Jeffco Website information on parcel # 002363001 (parcel map) 8/3/2005 4
110 Al Scalf sketch of BLD93-00333 8/5/2005 1
111 Gabriel Omelas letter to Al Scalf - public records request 8/3/2005 1
112 Notes on Gunstone properties. 8/4/2005 2
113 Al Scaif notes on SSNW 8/4/2005 3
114 Notes on case laws, grandfathering... 8/4/2005 1
115 Samuel Parker email to Molly Pearson - "Ft. Discovery" 8/5/2005 1
116 Tracy Gudgel letter to Mr. D'Amico - Security Services N.W.
Headquarters, Fort Discovery
8/5/2005 1
117 Carolyn Hunt email to Molly Pearson - target practice 8/5/2005 1
118 Al Scalf email to Dan Nasman - RE: Security Services Northwest
"grandfather" request
8/5/2005 2
119 Photographs of Security Services 8/5/2005 5
120 Robert Spinks letter to Al Scaif and Spinks' bio sheet 8/5/2005 4
121 Declaration of Doug Tangen 8/5/2005 2
122 Joseph D'Amico letter to Al Scalf - more docs to be added to
"Description of Activities"
8/5/2005 11
123 Copies from Molly Pearson's Voice Mail Log Sheet 8/5/2005 7
124 Copies from Al ScaIfs Voice Mail Log Sheet 8/5/2005 15
125 Mike McNickle letter to Joe D'Amico - Notice and Stop Work Order 8/5/2005 2
126 Samuel Parker email to Molly Pearson - SSNW 8/8/2005 1
127 Joe D'Amico email to Al Scaif - Additional Information and
Correction
8/8/2005 1
128 Security Services Northwest Headquarters Website 8/9/2005 10
129 Bruce Tapper and Viva Tapper letter to Molly Pearson - complaints
about gunfire
8/7/2005 3
Security Services Northwest Appeal Page 6 Findings, Conclusions
BLD05-00471 & COM05-00076 and Decision
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Log # Item Date Pages
130 Board's Official Business - DBA opposes SSNW 8/9/2005 1
131 Leslie Locke email to Molly Pearson - FW: SSNW "Ft. Discovery" 8/11/2005 2
132 Al Scalf to Joseph D'Amico - Notice and Order 8/11/2005 3
133 Al Scalf to Joseph D'Amico - Stop Work Order 8/11/2005 4
134 Al Scalf notes - called Joe about orders 8/11/2005 1
135 Parcel Map of Gunstone property and notes 8/11/2005 2
136 The Leader - County shuts down SSNW firing center 8/12/2005 1
137 Peninsula Daily News - Jefferson County orders training gunfire
stopped
8/12/2005 2
138 Gabe Ornelas email to David Sullivan - Sincere thanks 8/12/2005 1
139 David Alvarez email to John Fischbach - SSNW and the SWO and the
Notice and Order
8/12/2005 1
140 Frederick Herzog email to Al Scalf - Stop Order re Fort Discovery 8/12/2005 1
141 Glenn Amster email to Al Scalf, David Alvarez, John Fischbach - RE:
SSNW and the SOW....
8/12/2005 2
142 David Alvarez email to Al Scalf, John Fischbach, Lorna Delaney -
RE: SSNW and the SWO...
8/12/2005 2
143 Marilynne Urquhart email to Phil Johnson, David Sullivan, John
Fischebach, Al Scalf - Fort D.
8/12/2005 1
144 Neal Liden email to Phil Johnson, David Sullivan, John Fischebach,
Al Scalf - County Action
8/12/2005 1
145 Ken Urquhart email to David Sullivan, Phil Johnson, John
Fischbach. Shut Down of SSNW
8/13/2005 1
146 Frederick Herzog email to Al Scalf - "Stop" Order at Fort Discovery 8/13/2005 1
147 David Sullivan email to John Fischbach, Al Scalf, David Alvarez -
FW: "Stop" order.
8/14/2005 1
148 David Sullivan email to John Fischbach, Al Scalf, David Alvarez -
FW: Shooting
8/14/2005 1
149 Don White email to Phil Johnson - Firing at Fort D. Sunday 8/14/2005 1
150 Rick and Debbie Zajicak email to Al Scalf ... - Premature
Celebration
8/14/2005 1
151 John Fischbach email to Al Scalf - RE: Request for Attorney 8/15/2005 1
152 Leslie Locke email to Molly Pearson - FW: County Action re SSNW 8/15/2005 1
153 Board's Official Business representative from Discovery Bay
Alliance thanked the County...
8/16/2005 1
154 Al Scalfs notes on conversation with Joe D'Amico 8/16/2005 1
155 Al Scalfs notes from meeting with Mark J., Glen A., Joe D., Harry
D., John F....
8/15/2005 1
156 Jeffco Website information on parcel # 002363001 (parcel map) 8/15/2005 3
157 Parcel Map from Jeffco website 8/15/2005 1
158 Parcel Map from Jeffco website 8/15/2005 1
159 Road Map, Parcel Map and information on parcel # 002363008 8/15-16/2005 3
160 Peninsula Daily News - Jefferson County: next move in training
center controversy
8/18/2005 1
161 Mike McNickle email to Jean Baldwin... - FW: SSNW documents
turned in on 8-15-05
8/16/2005 6
162 Leslie Locke email to Molly Pearson - FW: SSNW 8/16/2005 2
163 Leslie Locke email to Al Scalf, Molly Pearson - FW: black ops tells
Jeffco ...
8/16/2005 1
164 Peninsula Daily News - Training site order defied? 8/16/2005 2
165 Ken Urquhart email to Molly Pearson, Cc: Gabe Ornelas -
Gunfire/8-16
8/16/2005 1
Security Services Northwest Appeal Page 7 Findings, Conclusions
BLD05-00471 & COM05-00076 and Decision
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Log # Item Date Pages
166 Peninsula Daily News - Shooting noise still reported from training
center on Discovery Bay
8/16/2005 1
167 Leslie Locke email to Al Scalf, Molly Pearson - FW: For Joey and
Co.
8/17/2005 2
168 Molly Pearson's telephone log sheet 8/14-18/2005 2
169 The Leader - County: Cease fire SSNW 8/17/2005 2
170 Allen Sartin email to Al Scalf - Update on SSNW 8/18/2005 1
171 Al Scalf email to Glenn Amster, Joe D'Amico - RE: SSNW and Ft.
Discovery Stop Work
8/18/2005 1
172 Peninsula Daily News - County locks and loads 8/18/2005 2
173 Joe D'Amico email to Al Scalf - Shooting 8/3/2005 1
174 Joe D'Amico email to Al Scalf, Cc: Tim Perry - Training 8/2/2005 1
175 Molly Pearson email to Al Scalf, Leslie Locke FW: SSNW 8/2/2005 1
176 Jeffco Citizen Complaint Form - automatic weapon fire 7/29/2005 2
177 Peninsula Daily News - Jefferson : Training center supporters call
gunfire 'sound of safety'
7/19/2005 1
178 Jeffco Citizen Complaint Form - war zone 7/14/2005 2
179 The Leader - Shooting OK for now; county wants permits 7/13/2005 2
180 Jeffco Citizen Complaint Form - too loud, too often 7/13/2005 2
181 Jeffco Citizen Complaint Form - automatic weapon fire, very
disturbing
7/6/2005 2
182 Jeffco citizen Complaint Form - loud consistent gunfire 7/5/2005 2
183 Jeffco Citizen Complaint Form - Various types of gunfire 7/5/2005 2
184 Jeffco Citizen Complaint Form - gunfire start in afternoon and went
on until 11:15 the 6/29/05
6/30/2005 2
185 Jeffco Citizen Complaint Form - have increased shooting - shooting at
inappropriate hrs.
6/30/2005 2
186 Jeffco Citizen Complaint Form, William Simms letter to BOCC,
Parcel info
6/24/05-7/5/05 5
187 The Leader - County checks security company's gun range 6/22/2005 1
188 Board's Official Business - Complaints About Weapons Training Site 6/4/2005 1
189 Peninsula Daily News - Court appears next in spat.over firing range
noise
8/23/2005 1
190 Peninsula Daily News - Jefferson delivers its salvo 8/25/2005 1
191 Mary Robson letter to Al Scalf - Thank you 8/12/2005 1
192 Anita and Bob Lockhart letter to Jefferson Co. Commissioners 8/24/2005 1
193 Mike Roth of Creative Systems Inc., email to Joseph D'Amico 8/26/2005 1
194 The Leader - County lawsuit brings SSNW battle to court 8/31/2005 2
195 Gabriel Ornelas cover letter and attached compendium to John
Fischbach & Jeff. Co. Admin.
8/10/2005 147
196 Curtis Knudtson email to SSNW - frivolous suit 9/26/2005 2
197 David Alvarez email re: TRO 10/3/2005 1
198 David Alvarez to Rose Ann Carroll, TRO 10/3/2005 5
199 email from citizen re: incident on Highway 101 10/3/2005 2
200 David Alvarez email re: Pre Hearing Order (schedule) 9/29/2005 2
201 Lois Lopez complaint & request for notification on outcome 9/2/2005 1
202 Mark Johnson Itr & two photographs 10/17/2005 3
203 Fax from Jeff co Sheriff’s Ofc. Qual Handgun Course & cert for dep
Brian Anderson
10/17/2005 3
204 eamil response from Al Scalf to Tim Perry re: Fort Discovery 10/25/2005 1
205 Ltr & Order Granting Preliminary Injunction 10/20/2005 7
206 Ltr to Mr. Fischbach/Summary & copies of pub rec re: SSNW, PT,
Seattle and Sequim PD's
10/19/2005 29
Security Services Northwest Appeal Page 8 Findings, Conclusions
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Log # Item Date Pages
207 Ltr Sam Parker request for Pub Rec. re: SSNW from Seattle PD &
response
9/1/2005 6
208 G. Ornelas request for pub rec PT Police & response 9/16/2005 33
209 Declaration of Joseph N. D’Amico in opposition to JC motion for
temp. restraining order
9/6/2005 27
210 Copy of ad submitted to Leader by Joe D'Amico "Letter to Citizens of
Jefferson County
10/26/2005 3
211 Superior Court of Wash for Jefferson County, Declaration of Mark
Johnson
9/8/2005 5
212 Superior Court of Wash for Jefferson County, Declaration of Reed
Gunstone
9/7/2005 4
213 Puget Sound Business Journal article re: SSNW 10/31/2005 1
214 Copy of Leader article re: SSNW expansion 12/17/2005 2
215 Dept. Homeland Security request & records provided 8/31/2005 3
216 Leader article re: SSNW Maritime security 12/17/2005 1
217 SSNW’s preliminary sitneww & exhibit list 11/17/2005
218 email from citizen re: appeal hearing 11/9/2005 1
219 letter from citizen to hearing examiner 11/15/2005 1
220 blowup of aerial pic of SSNW site showing ranges 11/17/2005 1
221 blowup of aerial pic of SSNW site 11/17/2005 1
222 Building Official’s Stop Work Order 11/17/2005 4
223 Director’s Notice and Order 11/17/2005 6
224 Director’s Stop Work Order, Ft Discovery 11/17/2005 6
225 Blowup of citizen’s aerial pic of SSNW vicinity 11/17/2005 1
226 Blowup of citizen’s aerial pic of SSNW shooting ranges 11/17/2005 1
227 Employer’s quarterly report of payroll 11/18/2005 48
228 SSNW’s transaction detail by account/employee earnings summary 11/18/2005 31
229 Sales by customer summary: SSNW 11/18/2005 157
230 Al Scalf’s notes for appeal hearing 11/18/2005 2
Table 3: SSNW Exhibit List:
EXH. NO. DATE DESCRIPTION
1. N/A Timeline of SSNW Events
2. 11/01/87 Invoices for Security Services work for Discovery Bay Land
Company
3. 06/22/88 Letter to Naval Undersea Weapons Engineering Station in Keyport
regarding security on naval vessel
4. 11/15/88 Rental Agreement between the Gunstones and Security Services
5. 01/01/90 Port Townsend Leader article about K-9 program
6. 04/03/90 Letter from Admiral Marine Works re Security Services program
7 04/16/90 Letter from Port of Port Townsend re Security Services work
8. 08/18/90 Letter commending Security Services for work performed for
American Overseas Marine Corporation
9. 03/13/91 News article discussing Security Services assistance in
apprehending burglary suspect
10. 06/27/91 Form letter to potential clients
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DESCRIPTION EXH. NO. DATE
11. 08/15/91 Contract between Security Services and Jefferson General
Hospital
12. 10/23/91 Port Townsend Leader article regarding assistance rendered by
Security Services in tracking car thief
13. 12/05/91 Bid letter to Clallam County Sheriff's Office for K-9 work
14. 01/01/92 1991 Form 1099 for Phil Johnson
15. 01/01/92 1991 Form 1099 for Jefferson County PUD
16. 02/19/92 Contract between Security Services and Jefferson General
Hospital
17. 04/22/92 Bid letter to UPS for work in Eastern Washington
18. 06/01/92 K-9 Response Program manual
19. 08/18/92 Bid letter to UPS for work in Idaho
20. 09/02/92 Sequim Gazetteer article about K-9 dog, Midnight
21. 12/15/92 Bid for security services at Naval Weapons Station at Port
Hadlock
22. 12/16/92 Bid letter from Alaska Trawl Fisheries re K-9 program
23. 02/01/93 Policy and Procedures Manual for Security Services employees
24. 09/20/93 Reference letter to Costco manager re Security Services work at
Costco warehouse in Sequim WA
25. 01/19/94 News article discussing Security Services assistance in K-9
search for armored truck sniper
26. 03/30/94 Memo re armored truck responsibilities
27. 05/27/94 Forms showing camp funds pickups for state parks
(5/27/94-5/3094)
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FINDINGS OF FACT
The following Findings of Fact are organized by general issues:
The Appeal:
1. A timely Notice of Appeal received July 15, 2005 was filed to the
Stop Work Order dated July 8, 2005. The Notice of Appeal states the
following reasons supporting the appeal:
a. Issuance of the Order is inconsistent with the
procedural requirements of UDC Section 10 including, among
others, Section 10.5.
b. Issuance of the Order is vague and unenforceable in
violation of Appellant’s civil rights. Notwithstanding any
other objection, the Order directs Appellant to “Stop
Work”, but there is no work currently taking place on the
property. The Order provides no notice of the violations
alleged, what aspect of the Appellant’s property the Order
pertains to or otherwise provide notice sufficient to
comply with due process requirements.
c. To the extent the Order is based upon a violation of the
UDC, the County is estopped from enforcing any provision of
the Unified Development Code not in effect at the time
Appellant commenced its operations on the property.
d. To the extent the Order is based up[on] a violation of
the International Building Code, the Order is in error.
e. Appellant reserves the right to allege additional
reasons when it learns of the County’s specific allegations
of violation.
2. The Appellant modified its administrative appeal of Jefferson
County's issuance of three orders: a Building Code stop work order
issued on July 8, 2005, and a stop work order and notice and order,
both issued under the Unified Development Code on August 11, 2005.
Appellant’s Business Activities Prior to January 6, 1992:
3. Appellant Joe D’Amico testified that he worked for the Gunstone
family with the objective of stopping the unlawful removal of trees
from the Gunstone’s 3,700 acre holding, and preventing theft from
their shellfish beds along Discovery Bay. He described how he applied
his security techniques to the two problem areas.
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4. Appellant testified that he purchased the security services
business located in Port Townsend in 1986. The business was founded
in 1977 by a former Port Townsend police officer. The business was
later sold to Joseph Short in 1979, who operated the business until
his sudden and unexpected death in August 1986. Joe D’Amico purchased
the security services business from the family estate, and continued
to provide services in Jefferson County, including a contract with the
Gunstone’s for security services for their properties. Joe D’Amico
later relocated his business to the Gunstone property.1 On November
15, 1988, Joe D’Amico entered into a rental agreement with Charles and
Irene Gunstone to lease a residence at 3501 Old Gardiner Road.2 Reed
Gunstone stated that the lease consisted of approximately 22 acres.3
5. Tangible evidence is necessary to justify a nonconforming use,
typically in the form of customer acknowledgement of actual work,
contracts, and receipts. Less tangible evidence, such as solicitations
and bids, may indicate intent to do business—but not actual activity.
The Appellant provided the following exhibits in their “SSNW Exhibit
Notebook”. Those exhibits that apply to the timeframe 1987 – 1992 are
excerpted and summarized here from Table 3, SSNW Exhibit List:
Table 4: Excerpted Documents with Annotations
EXH. NO. DATE DESCRIPTION [with Examiner’s annotated description]
2 11/1/87 Invoices for Security Services work for Discovery Bay Land Company
Document is a hand written tabulation of revenue from Discovery Bay Land
Co. covering 42 months from Nov ’87 through Dec ‘91
3 6/22/88 Letter to Naval Undersea Weapons Engineering Station in Keyport regarding security on
naval vessel [SSNW Memo to Indian Island Detachment identifying five
SSNW employees requesting access]
4 11/15/88 Rental Agreement between Charles Gunstone & Joe D’Amico for 3501 Old Gardner Rd
6 4/3/90 Letter from Admiral Marine Works re Security Services program
[Letter of recommendation for Security Services over past three years]
1 Log Item 98 at 3
2 Log Item 98 at 18-19
3 Log Item 212 at 3, Declaration of Reed Gunstone dated September 6, 2005
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6 1991 IRS Form 1099 by Payer Admiral Marine Works - $1760.00 Misc Income for 1991
6 1991 IRS Form 1099 by Tollshark Construction - $1131.05 Misc Income for 1991
7 4/16/90 Letter from Port of Port Townsend re Security Services work [Letter of
recommendation for Security Services over several years]
8 8/18/90 Letter commending Security Services for work performed for American Overseas Marine
Corporation [Letter of recommendation for Security Services]
11 8/15/91 Contract between Security Services and Jefferson General Hospital [1 year contract]
14 1/1/92 1991 Form 1099 for Phil Johnson - $1,170.00 Misc Income for 1991
14 1/1/92 1991 Form 1099 for Jefferson County PUD - $9,750.00 Misc Income for 1991
6. The Appellant submitted three sets of documents at the close of
the Open Record Appeal hearing:
Log Item 227: Quarterly Reports of Payroll 1987-2005 (48 pages)
Log Item 228: Transaction Detail by Account 1996-2005 (31 pages)
Log Item 229: Sales by Customer Summary 1995-2005 (157 pages)
Data for the 1987 to January 6, 1992 period is summarized from
the Department of Labor & Industries “Employer’s Quarterly Report of
Payroll” documents:
Table 5: 1987 to January 6, 1992 Employer’s Payroll Report Data
QUARTER
ENDING CLASS NATURE OF WORK PAYROLL HOURS HE Calculated
FTE**
Mar
1987
6601 Security Guard Agency 4872 833 1.7
Jun
1987
6601 Security Guard Agency 4670 813 1.7
Sep
1987
6601 Security Guard Agencies 3886 654 1.4
Dec
1987
6601 Security Guard Agencies 2291 382 0.8
Mar
1988
6601 Security Guard Agencies 1098 220 0.5
Mar
1991
6601 Security Guard Agencies n/a 1,357 2.8
Jun
1991
6601 Security Guard Agencies n/a 1,110.5 2.3
Sep
1991
6601 Security Guard Agencies n/a 1,221 2.5
**Assumes 480 hours/quarter/full-time equivalent [FTE] at 20 8-hour work days/month/quarter
7. Based on Finding 4 above, the 1987 Payroll entries would have
predated the move to the Gunstone property.
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8. Testimony by Bruce Carver, a firearms trainer, indicated that the
first firearm training of SSNW employees occurred in 1992, after
January 6, 1992. Bruce Carver also testified that off-duty police
officers were not trained or certified on the Gunstone property.4
9. Four employees of the Gunstone family signed Declarations that
they recalled hearing shooting and observing “stick” training after
Joe D’Amico moved to the property.5
10. According to Joe D’Amico’s September 6, 2005 Declaration,6 the
facilities at the Gunstone property at the time of signing the lease
included:
¶5. At the time of signing the lease, Fort discovery was
developed with a large house in other outbuildings, including an
old bunkhouse, garage, storage buildings, and several “covered
pole" buildings. ... From the time SSNW leased the property in
1988, my family and I resided in the house, and the attic served
as the SSNW offices. ...
11. According Joe D’Amico’s January 23, 2001 Deposition, his response
to the question at that point in time: “Tell me a little about the
business. What do you do?” 7
A. We do site security, we do armored car service, we do patrol
services, alarm installation and monitoring, video installation.
And occasionally, if someone has got a problem, we'll do
surveillance, but it's not very often. We're not in the
surveillance business.
Joe D’Amico was asked in that same Deposition: “How many employees
does the business have?”
A. We have approximately 82 employees, somewhere in that
neighborhood.
4 See also, Declaration of Bruce Carver, Log Item 98 at 85
5 Declarations of Gary Buhillo, Robert O’Dell, Phil Rogers, and Craig Cross
contained in Log Item 98 at 87-94
6 Log Item 209 at 2-8
7 Log Item 211 at 5
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Appellant’s Business Activities Post-Interim Zoning Ordinance:
12. Jefferson County adopted the Interim Zoning Ordinance effective
January 6, 1992.8 Its scope is both prospective and retroactive:
Sec. 2 – Scope:
No use or development activity subject to this ordinance shall be
initiated except in compliance with this ordinance and then only
after securing a permit granting interim zoning approval from the
County.
Any building, structure, or use, lawfully existing at the time of
enactment of this ordinance, though not in compliance with the
provisions herein, shall not be prohibited by this ordinance.
13. The Interim Zoning Ordinance created three zones that would be
mapped: § 5 General Commercial Zone; § 6 Light Industrial Zone; and
§ 7 Light Industrial/Commercial Zone. A fourth zone that would be
unmapped (all other land) was § 8 General Use Zone. The General Use
Zone also permitted Conditional Uses as defined in § 9 Conditional
Uses for general commercial uses and home businesses.
14. The Gunstone property is outside any of the three mapped
commercial and industrial zones; and therefore was classified as in
the General Use Zone.
15. The Interim Zoning Ordinance did not define “nonconforming use”
but did address the subject in § 12 Expansion, Alteration, or Change
in Use:
§ 12. The expansion, alteration, or change in use of any existing
conforming or non-conforming use is subject to the provisions of
this ordinance.
In addition to the provisions of § 9 Conditional Uses, the
Administrative Rules established under the Ordinance clarifies § 12 by
addressing non-conforming uses in one of two ways, including review by
the Hearing Examiner as a conditional use.9
8 Ordinance #1-0106-92 as amended by #2-0127-92
9 Administrative Rules Establishing Development Standards Supplementing the
Jefferson County Emergency Zoning Ordinance, No. 1-21-6-92 at Section IX
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16. While Table 5 reflects Employer’s Payroll Report Data for 1987 to
January 6, 1992, Chart 1 following illustrates the Payroll Report Data
from 1987 through September 2005 end of quarter.10
Chart 1: 1987 to September 2005 Payroll Hours per Quarter Data
HOURS PER QUARTER OVER TIME
0
5000
10000
15000
20000
25000
30000
35000
40000Mar-87Mar-88Mar-89Mar-90Mar-91Mar-92Mar-93Mar-94Mar-95Mar-96Mar-97Mar-98Mar-99Mar-00Mar-01Mar-02Mar-03Mar-04Mar-05Quarter EndingHours Hours
HOURS PER QUARTER OVER TIME
0
5000
10000
15000
20000
25000
30000
35000
40000Mar-87Mar-88Mar-89Mar-90Mar-91Mar-92Mar-93Mar-94Mar-95Mar-96Mar-97Mar-98Mar-99Mar-00Mar-01Mar-02Mar-03Mar-04Mar-05Quarter EndingHours Hours
Off-Site Impacts:
17. Numerous and frequent complaints were received from 2001 to
present. The complainants were located where sound carried, with many
living along the shore across Discovery Bay.11 Other persons testified
at the open record appeal hearing and are listed among the
Participants Giving Testimony.
1994 Jefferson County Zoning Ordinance:
18. The Jefferson County Zoning Ordinance was adopted by Ordinance
No. 09-801-94 and codified in Jefferson County Code Title 18, Zoning.
Chapter 18.20 JCC established zoning districts, “no land, building, or
structure shall be used...” except in conformance with JCC 18.30.020,
10 Log Item 227: Quarterly Reports of Payroll 1987-2005 (48 pages)
11 See Log Items 26, 27, 29, 35, 81, 92, 117, 118, 145, 146, 150, 165, 176,
178, 182, 183, 184, 185, 186p3, 191, 199 & 201
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Table of Permitted Uses. The Table lists uses and categorizes the
uses as permitted outright, permitted conditionally or not permitted.
The Table does not list a use that would include a shooting range.
19. Chapter 18.50 JCC addresses nonconforming uses. Regarding
continuance of a nonconforming use of a building and/or property,
continuance is permitted but the nonconforming use cannot be changed
to a less restrictive use.12 A nonconforming use can be changed to
another nonconforming use provided that “all applicable development
standards for the proposed use are met.”13 Alterations and expansions
of structures are limited to that required to meet federal or state
laws.14 If a nonconforming building is damaged or destroyed by
natural, accidental, or malicious causes, it may be restored within
three years with limitations, such as same use, same size, and not
increase the preexisting degree of nonconformity of the property.15
Training of Outside Organizations:
20. The record and testimony indicates that SSNW began placing
significant effort into soliciting other organizations, including the
Department of Defense, to provide training at the SSNW site.
21. The main impact of their success in soliciting other
organizations stimulated the complaints from 2001 to the present.
12 JCC 18.50.030
13 JCC 18.50.040
14 JCC 18.50.070
15 JCC 18.50.080
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REVIEW CRITERIA
The Hearing Examiner applies a clearly erroneous standard of
review to issues of law, and a substantial evidence standard to
questions of fact. 16 A decision is clearly erroneous when, "although
there is evidence to support it, the reviewing court on the record is
left with the definite and firm conviction that a mistake has been
committed."17
The Examiner evaluates letters and testimony by applying the
criteria contained in the Hearing Examiner’s Rule for “aggrieved
person” versus “interested citizen”.18 This Rule is consistent with
case law that distinguishes between general expressions of opposition
or support and asserted interests expressing substantial evidence.19
16 UDC 18.05.080(6) Standards of Review
17 Boehm v. City of Vancouver, 111 Wn. App. 711, 716, 47 P.3d 137 (2002)
citing Anderson v. Pierce County, 86 Wn. App. 290, 302, 936 P.2d 432 (1997)
(citing Norway Hill Preserv. & Prot. Ass'n v. King County Council, 87 Wn.2d
267, 274, 552 P.2d 674 (1976)).
18 18.05.085 Hearing examiner rules of procedure.
(2) Definitions. (a) Aggrieved person: A person or entity is deemed to be an
“aggrieved person” only when all of the following conditions are present:
(i) The decision being challenged has prejudiced or is likely to
prejudice that person or entity; (ii) The person or entity’s asserted
interests are among those that the county was required to consider when it
made the decision; and (iii) A judgment or decision in favor of that person
or entity would substantially eliminate or redress the prejudice to that
person or entity caused or likely to be caused by the challenged decision.
(g) Interested citizen: Any person or entity that has: (i) Asked for a
copy of a written hearing examiner decision by either requesting (in writing)
such documents from the Jefferson County department of community development
or has signed a register provided for such purpose at an open record
predecision hearing or appeal hearing; or (ii) Made comments (written, oral
or otherwise) during an open record predecision hearing.
(i) Asked for a copy of a written hearing examiner decision by
either requesting (in writing) such documents from the Jefferson County
department of community development or has signed a register provided for
such purpose at an open record predecision hearing or appeal hearing; or
(ii) Made comments (written, oral or otherwise) during an open
cord predecision hearing. re
19 DOC v. City of Kennewick, 86 Wn. App. 521, 533-534; 937 P.2d 1119; 1997
Wash. App. LEXIS 792, review denied 1998 Wash. LEXIS 91 and citing Maranatha
Mining, 59 Wn. App. 795, 804; 801 P.2d 985
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CONCLUSIONS OF LAW
The following Conclusions of Law, which may contain additional
Findings of Fact, are organized by general issues:
AUTHORITY:
1. The Hearing Examiner is duly appointed by the Jefferson County
Board of Commissioners pursuant to RCW 35.63.130 and RCW 36.70.970.
For the appeal at hand, the Board of Commissioners appointed the
Hearing Examiner to serve as a hearing body for a Board of Appeals as
stipulated by Section 112.1 of the International Building Code.
MATTER BEFORE THE EXAMINER:
2. The matter before the Examiner is the Notice of Appeal to the
Stop Work Order dated July 8, 2005 as noted in Findings 1 and 2.
3. The Appellant raises the following issues for review in its
appeal:
1. Whether SSNW's security business at the Property is a legal
nonconforming use, given that SSNW has been operating its
security business at the Property since 1988, at least four years
before Jefferson County enacted a zoning code.
2. Alternatively, if SSNW's security business as a whole is
not deemed a legal nonconforming use, which specific aspects of
SSNW's security business are not legal nonconforming uses.
3. Whether the three structures that SSNW has constructed at
the Property since zoning was enacted qualify as legal
nonconforming structures, because they replace previous
structures as business areas and therefore may be subject only to
review under the County's Building and Health Regulations.
4. Whether SSNW violates Jefferson County's Shoreline Master
Program.
DISCUSSION: LEGAL DOCTRINE OF NONCONFORMING USE:
4. The central issue in the Security Services North West [SSNW]
appeal is the application of the legal doctrine of nonconforming use.
There are several issues regarding the establishment and continuance
of nonconforming uses. A valid nonconforming use exists if (1) the
use was actually established before the applicable zoning ordinance
was enacted, (2) the use must have been lawful prior to the new zoning
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ordinance, (3) the use was never abandoned after the zoning ordinance
went into effect, and (4) the use has been more than intermittent or
occasional.20
Nonconforming uses are disfavored in Washington State.
5. The general premise on nonconforming uses not favored is based on
the zoning code as an exercise of the police power to protect the
health, safety, and general welfare. 21 A use that does not conform to
the zoning regulation would not be in the public interest.22 Cannot
balance public safety and health with another objective.23
BUSINESS ACTIVITIES PRIOR TO JANUARY 6, 1992:
6. If any nonconforming use was ever established, it had to have
been prior to January 6, 1992 when the Interim Zoning Ordinance was
adopted because the Zoning regulations that followed did not permit
the use outright. The type, level (magnitude), and location of the
activity just before the Interim Zoning Ordinance adoption would
constitute the extent of the nonconformity, if any.
7. Finding 4 describes Joe D’Amico’s purchase of a security service
business located in Port Townsend after the previous owner’s death in
August 1986. The operation of the purchased securities business in
Port Townsend clearly defined the business—but did not contribute to
establishing a lawful nonconforming use prior to the move to the
Gunstone property. It is clear, however, that Joe D’Amico relocated a
business to the residential facilities at the Gunstone property.24
20 North/South Airpark v. Haagen, 87 Wn. App. 765, 772, 942 P.2d 1068 (1997)
21 Rhod-A-Zalea v. Snohomish County, 136 Wn.2d 1, 959 P.2d 1024 (1998)
22 Open Door Baptist Church v. Clark County, 140 Wn.2d 143, 150, 995 P.2d 33
(2000)
23 Open Door Baptist Church v. Clark County, 91 Wn. App. 1037, 1988 Wn. App.
LEXIS 978
24 Finding 10
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8. Findings 5, 6 and 7 together with Tables 4 and 5 illustrate an
order of magnitude of the business activity prior to January 6, 1992.
The Examiner used a conservative assumption of 480 hours per quarter
(based on 20 work days per month and a 8-hour work day). This
accounts for less than 3 FTE’s plus D’Amico for the three quarters
reported in 1991. The use of off-duty police officers would result in
fewer full-time employees. Testimony by Bob Grewell indicated that
D’Amico and Glenn Bishop were the two full-time guards based in the
Jefferson County area in January 1992.
9. The scope of the business activity during the pre-January 6, 1992
period is important because nonconformity must relate to the land and
buildings—not off-site activities. The record is clear that—with the
exception of the direct security services for the Gunstone’s and their
3,700 acre holdings—all services occurred at off-site establishments.
The security services for the Gunstone’s holdings does not constitute
or establish a nonconforming use any more than providing security
guard services for a hospital, school or commercial center. Moreover,
the record does not identify any revenue from other than the security
services contracts. Security guards performed their duties at their
clients’ sites. The management of the business took place within the
residence (attic office).
10. Employee training and re-certifications (as accessory activities
to the principal business) initially took place on the grounds and
outbuildings in the vicinity of the residence. Testimony and/or
Declarations by Reed Gunstone and four Gunstone employees indicate
shooting took place in the vicinity of the old farm house after
D’Amico’s arrival.25 Testimony by Bruce Carver, however, indicated
25 Finding 9
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that the first firearm training of SSNW employees occurred in 1992,
after January 6, 1992.26 (Bruce Carver also testified that off-duty
police officers were not trained or certified on the Gunstone
property.) The apparent conflict in the testimonies can be explained
by distinguishing between formal firearms training for certification,
and recollection of hearing shooting.
11. The Employer’s Payroll Reports indicate that there were less
than three FTEs at the end of 1991.27 According to Joe D’Amico’s
Deposition in January 2001, the business had 82 employees by 2001. 28
Therefore, the scope of the business activity by January 6, 1992 was
considerably less than that described in the Deposition for 2001.
Nonconforming uses must have been lawful at the time
the zoning regulations were adopted.
12. The primary objective of statutory construction is to carry out
the intent of the legislation by examining the language of the
ordinance.29 Words are given their plain meaning unless a contrary
intent appears.30 All provisions of an act must be considered in
relation to each other, and, if possible, harmonized to ensure proper
construction for each provision.31 Strained, unlikely, or unrealistic
consequences are to be avoided.32 Distinguishing between “lawful” and
“illegal” uses must be addressed to determine the applicability of
other codes than zoning. The definition of “Nonconforming” cited
26 Finding 8
27 Table 5: 1987 to January 6, 1992 Employer’s Payroll Report Data
28 Finding 11
29 Stone v. Chelan County Sheriffs Dep't, 110 Wn.2d 806, 809, 756 P.2d 736
(1988).
30 In re Estate of Little, 106 Wn.2d 269, 283, 721 P.2d 950 (1986).
31 Tommy P. v. Board of County Comm'rs, 97 Wn.2d 385, 391, 645 P.2d 697
(1982).
32 State v. Fjermestad, 114 Wn.2d 828, 835, 791 P.2d 897 (1990).
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below refers to “applicable codes in effect”. Similarly, the
definition of “Illegal use” refers to “previous codes in effect”.
Neither definition specifies land use codes or zoning—thus, a broader
reference must be assumed. The Uniform Building Codes, a purpose of
which is to protect the health and welfare, are “applicable codes”.
The applicable definitions are excerpted here for convenience:
JCC 18.10.140 “Nonconforming” means a use, structure, site,
or lot which conformed to the applicable codes in effect on
the date of its creation but which no longer complies
because of changes in code requirements. Nonconformity is
different than and not to be confused with illegality (see
“illegal use”). Legal nonconforming lots, structures, and
uses are commonly referred to as “grandfathered.” [emphasis
added]
JCC 18.10.090 “Illegal use” means any use of land or a
structure which is inconsistent with current codes or was
inconsistent with previous codes in effect when the use or
structure was established. An illegal use is different than
a “nonconforming use.” (See also “nonconforming.”) [emphasis
added]
13. Jefferson County adopted the Uniform Building Code [UBC] in 1974.
The legislature passed the State Building Code Act in 1985.33 The Act
mandated the UBC for all jurisdictions and that the State Building
Code Advisory Council review and approve or deny Local Amendments.
Not only were the codes mandated, but uniform in all jurisdictions.
14. The applicable Uniform Building Codes in effect during the period
that the Appellant claims to have established a nonconforming use are
consistent in their language:34
Section 205. It shall be unlawful for any person, firm, or
corporation to erect, construct, enlarge, alter, repair,
move, improve, remove, convert or demolish, equip, use,
occupy or maintain any building or structure in the city,
or cause or permit the same to be done, contrary to or in
violation of any of the provisions of this Code.
33 Chapter 360 Laws of 1985
34 UBC 1976 and 1988 Editions, both at Section 205
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15. Various building permits and licenses were required during the
period prior to January 6, 1992, the date that Jefferson County passed
its Interim Zoning Code.35 To the extent that the Appellant ignored or
violated those permits or licenses, such activities would not be
lawful and therefore, not establish a nonconforming use.
16. The doctrine of nonconforming use does not allow an unauthorized
illegal activity to continue, simply because it predated current
zoning codes.36
17. ommentators have addressed the lawful nonconforming issue:C
37
A use cannot be established as lawful when it was permitted
under an illegally issued permit, and courts are reluctant
to apply estoppel against the municipality in such cases.
While a homeowner might be able to vest a right to a
nonconforming use by construction pursuant to a permit, if
he proceeds to construction without the permit he has not
established a nonconforming use.
...
A use might be lawful under a zoning ordinance but not be
lawful for some other reason, in which case it may not be a
preexisting lawful use for purposes of the nonconforming
use provisions. For example, a building may not be a
lawful one if it violates a Building code...The building
code...is a public law and is closely related to zoning.
18. Although the residential building that Joe D’Amico leased had
previously been used in small part for bookkeeping for the Gunstone’s
logging business in the 1970’s, the Gunstone bookkeeping use stopped
many years before its lease to D’Amico in 1988. Therefore, Gunstone’s
35 Ordinance No. 1-10106-92
36 North/South Airpark v. Haagen, 87 Wn. App. 765, 772, 942 P.2d 1068 (1997)
37 The Late Donald G. Hagman and Julian Conrad Juergensmeyer, Urban Planning
and Land Development Law, § 4.28 (2nd ed. 1986) See also, Daniel R. Mandelker,
Managing Our Urban Environment, Ch. 6, The Nonconforming Use Problem at 632
(Bobbs-Merrill Co Inc., 1966) and Daniel R. Mandelker, The Zoning Dilemma,
Ch. 2 at 31 (Bobbs-Merrill, 1971)
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prior business use of the house has no effect on a determination of
nonconforming use.38
The Appellant has the burden to prove the proper
establishment of the nonconforming use.
19. Joe D’Amico had ample time prior to January 6, 1992 to resolve
building code and permit issues; and thereby establish a lawful
nonconforming use. Subsequent and consistent actions to circumvent or
ignore required codes for new building, alterations and expansions
support a conclusion that a similar attitude prevailed during the pre-
1992 period. Thus, a lawful nonconforming use was not established.
BUSINESS ACTIVITIES FOLLOWING JANUARY 6, 1992:
(Post Interim Zoning Ordinance #1-0106-92):
20. The “General Use Zone” in the Interim Zoning Ordinance did not
allow commercial and industrial uses without first obtaining a
Conditional Use Permit as described in Findings 12 through 15.39 Since
the Appellant did not avail himself of the opportunity during the
period that the Interim Zoning Ordinance applied, those provisions are
no longer available.40
21. Chart 1 graphs payroll hours over the whole period 1987 - 2005.
Both vertical and horizontal axis are scaled and the data points
illustrated by diamond points. When the connecting dashed line spans
more than one quarter, the intervening data is missing. When
contemporaneous documents are not produced, a reasonable presumption
is that such documents would be unfavorable to SSNW. 41
38 Log Item 97 at 1-3
39 Ordinance No. 1-10106-92 at Sections 8 and 9
40 North/South Airpark v. Haagen, 87 Wn. App. 765, 772, 942 P.2d 1068 (1997)
41 Lynott v. National Union Fire Ins. Co., 123 Wn.2d 678, 689, 871 P.2d 146
(1994), citing Pier 67, Inc. v. King County, 89 Wn.2d 379, 385-86, 573 P.2d 2
(1977)
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22. Attention is directed to the period between Dec-92 and Mar-96
where 3 1/2 years of data is missing. Compare this to the dramatic
growth between 1996 and 2001—from 14 to 74 FTE’s—and Joe D’Amico’s
description of services in 2001.42 Since the data is payroll, the
chart between 2001 and 2005 does not reflect the site impact of
training non-SSNW employees. Trainees are not counted as payroll or
FTE’s. Consequently, SSNW created significant additional activity of
a totally different character.
Nonconforming uses are limited in their ability to
expand and/or change.
23. If a lawful nonconforming use had been established, expansion
would be limited.43 As noted in Conclusions 21 and 22, the gap between
1992 and 1996 is not explained with substantial evidence.44 On the
other hand, the expansion that took place in the 1996–2001 time-frames
was dramatic, and was exacerbated after 2001 by the new activity to
train outside groups. The intensive training of outside groups—rather
than only periodic employee certifications—was a change that conflicts
with the provisions of JCC 18.50.070.
24. A principle of the nonconforming use doctrine is that the
immediate termination of the nonconforming use is precluded.45 In
Rhod-A-Zalea, the court went on to recognize that in Washington, local
governments are free to set the limits applied to lawful nonconforming
uses.46 Jefferson County first set the rules in the 1994 Zoning Code
with the provisions for nonconforming uses outlined in Finding 19.
42 Finding 11
43 Finding 19
44 Lynott v. National Union Fire Ins. Co., 123 Wn.2d at 689
45 Rhod-A-Zalea, 136 Wn.2d at 6 and 15
46 Id. at 7
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25. Nonconforming use ordinances do not grant the right to
significantly change, extend or enlarge the existing land use, or
create a vested right in perpetuity.47 Neither the Jefferson County
Code nor case law supports increases in volume or intensity of use of
a significant magnitude.48
Expansion to Training of Outside Organizations:
26. As noted in Findings 20 and 21, training of outside organizations
(beyond an accessory to a business for their employees) is not a
permitted use, but rather is a change of use that also constituted a
significant increase in magnitude. The intensified use is clearly a
“different kind” from the original use and is not permitted under past
and current zoning.49
APPELLANT ARGUMENTS ON APPEAL: 50
The following arguments contained in the Notice of Appeal and in
Examiner Finding 1 above are addressed as follows:
a. Issuance of the Order is inconsistent with the procedural
requirements of UDC Section 10 including, among others, Section 10.5.
27. This issue was settled by the Order Granting Preliminary
Injunction entered by Judge Verser on October 17, 2005.
b. Issuance of the Order is vague and unenforceable in violation of
Appellant’s civil rights. Notwithstanding any other objection, the
Order directs Appellant to “Stop Work”, but there is no work currently
taking place on the property. The Order provides no notice of the
violations alleged, what aspect of the Appellant’s property the Order
pertains to or otherwise provide notice sufficient to comply with due
process requirements.
47 State ex rel Miller v. Cain, 40 Wn.2d 216, 219-222, 242 P.2d 505 (1952);
1952 Wash. LEXIS 313
48 Meridian Minerals v. King County, 61 Wn. App. 195, 210, 810 P.2d 31 (1991);
199l Wash .App. LEXIS 150; Review denied reported at 1991 Wash. LEXIS 380
49 Meridian Minerals, 61 Wn. App. at 209
50 Excerpted from Finding 1
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28. The Order Granting Preliminary Injunction, at Finding 5 states:
“The Jefferson County Hearing Examiner will decide whether SSNW’s
activities at Fort Discovery are legal non-conforming uses.”
This Hearing Examiner decision will settle Appellant’s argument
contained in the Notice of Appeal ¶ b.
c. To the extent the Order is based upon a violation of the UDC, the
County is estopped from enforcing any provision of the Unified
Development Code not in effect at the time Appellant commenced its
operations on the property.
29. The application of estoppel against the government is
disfavored.51 To establish estoppel against the government, every
element must be proven by “clear, cogent and convincing” evidence.52
To satisfy this standard, “the facts relied upon to establish an
equitable estoppel must be clear, positive and unequivocal in their
implication. . . .”53 In addition to the traditional elements of
estoppel, the plaintiff must show that the application of estoppel is
necessary to prevent a “manifest injustice.”54 Equitable estoppel
requires proof that the plaintiff “justifiably relied” on an
unambiguous statement of existing fact.55
30. Zoning ordinances are enacted for the public interest, and the
requirements of such ordinances cannot be avoided for the benefit of
an individual applicant. Estoppel cannot be invoked as a means of
51 DOE v. Theodoratus, 135 Wn.2d 582, 599, 957 P.2d 1241 (1998); Kramarevsky
v. DSHS, 122 Wn.2d 738, 743, 863 P.2d 535 (1993).
52 Chemical Bank v. WPPSS, 102 Wn.2d 874, 905, 691 P.2d 524 (1994).
53 28 Am. Jur.2d Estoppel and Waiver, § 148 at 831 (1966)
54 State v. Foulker, 63 Wn. App. 643, 649, 821 P.2d 77 (1991)
55 Land Owners v. King County, 64 Wn. App. 768, 778, 827 P.2d 1047 (1992),
Chemical Bank v. WPPSS, supra, 102 Wn.2d at 905.
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avoiding the requirements of legislation enacted for the public
interest.56 In view of SSNW’s failure to seek compliance with building
and land use codes, it cannot be viewed as an innocent party, and
therefore may not rely on estoppel as a basis for relief.
d. To the extent the Order is based up[on] a violation of the
International Building Code, the Order is in error.
31. Nonconforming issues are addressed retroactively, using the
applicable Uniform Building Code edition.
SUMMARY CONCLUSIONS:
It is not unusual in contested cases to find conflicts between
oral testimony and individual documents. Many conflicts are merely
due to statements that are not complete in their explanation—leading
to misleading conclusions/understanding. An example in the instant
case is the reference to security services for the Gunstone’s 3,700
acres compared to the actual business operation in the leased
residence and outbuildings. Any implication that the actual business
extended throughout the 3,700 acres before 1992 is not logical given
the employment payroll data (less than 3 FTE’s). Certainly security
patrols could have traversed all parts of the property—but that would
not constitute establishing a nonconforming use.
A major responsibility of an examiner is to evaluate the
credibility of those offering testimony—once again, most important in
contested cases where there will be conflicting information. In this
appeal, Joe D’Amico has proven himself as an astute businessman. He
has grown his business from a small sole proprietor to a substantial
56 Buechel v. Dept. of Ecology, 125 Wn.2d 196, 211, 884 P.2d 910 (1994);
Pacific Shrimp v. U.S. DOT, 375 F. Supp. 1036, 1042 (W.D. Wash. 1974).
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corporation. His enthusiasm and drive is obvious. His ability as a
salesman is equally obvious. However, he has been consistent in
avoiding compliance with building, health and zoning regulations. As
an examiner, I was left with the conclusion that much of his testimony
is not creditable. His oral testimony admitting his mistakes does not
change the facts. The rule of law must prevail.
The main legal issue at hand is whether a lawful nonconforming
use was established.
The first opportunity to establish a lawful nonconforming use was
during the period before Jefferson County adopted the Interim Zoning
Ordinance on January 6, 1992.
It is clear that Joe D’Amico purchased and relocated a security
services business to 3501 Old Gardiner Road, a single-family residence
leased from Charles Gunstone. It is also clear that the business was
located in the attic of the residence. The building codes that had
been in effect since 1974 required a Change of Occupancy permit, which
was neither applied for nor granted.
Therefore, the above Findings of Fact and Conclusions of Law do
not support establishment of a lawful nonconforming use for the period
before January 6, 1992. Nor do the Findings of Fact and Conclusions
of Law support a lawful nonconforming use after 1992.
Joe D’Amico could have applied for prescriptive permits anytime
during the period before adoption of the Interim Zoning Ordinance.
Even after the adoption of the Interim Zoning Ordinance, Joe D’Amico
could have applied for a conditional use permit for his business as
either a commercial use or home business. Since Joe D’Amico did not
avail himself of either opportunity before and after the adoption of
the Interim Zoning Ordinance, those provisions are no longer
available.
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Jefferson County has a responsibility to enforce its building
regulations in the interest of public safety and health. Therefore,
the issuance of the Stop Work Order was proper, and the SSNW
activities on the property are clearly illegal.
DECISION
Based upon the testimony presented at the Open Record Appeal Hearing,
the documents and exhibits admitted into the record, and the Findings
of Fact, Review Criteria, and Conclusions of Law, it is hereby the
decision of the Hearing Examiner that the appeal by Security Systems
Northwest Notice of Appeal is DENIED and all training activities and
use of firearms and weapons on the property be prohibited. Further,
the Building Official’s Stop Work Order dated July 8, 2005, the
Director’s Stop Work Order dated August 11, 2005, and the Director’s
Notice and Order dated August 11, 2005 are each AFFIRMED.
DATED this 10th day of January 2006.
Irv Berteig
Jefferson County Hearing Examiner
ib
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