MARSHALL, NICHOLAS & KATHLEENCITY CLERK
DECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
JUL 22 Fm 1:28
In the Matter of the Appeal of
NICHOLAS and KATHLEEN MARSHALL COD 0000272
from a Code Enforcement Decision of
the Director, Planning and Community
Development
Introduction
The Director cited Nicholas and Kathleen Marshall for construction of a floating dock in
violation of provisions of City's Shoreline Master Program (BIMC Chapter 16.12). The
Marshalls appeal that decision.
The Hearing Examiner held the appeal hearing on June 16, 2005. Parties represented at
the hearing were the Director, Planning and Community Development Department (PCD
or Department), by Rosemary Larson, Assistant City Attorney, and the Appellants,
Nicholas and Kathleen Marshall, by their attorney, Dennis Reynolds.
After due consideration of all the evidence in the record, the following shall constitute the
findings, conclusions, and decision of the Hearing Examiner on this appeal.
Findings of Fact
Violation Cited
1. The Director has cited a violation of the Shoreline Master Program at property
addressed as 4731 Eagle Harbor Drive (Tax Assessor's parcel numbers 352502-2-035-
2009 and 352502-2-089-2004) located on the south shore of Eagle Harbor within the
shoreline of the City of Bainbridge Island. -The property is owned by Nicholas and
Kathleen Marshall_ [Testimony of Marshall; Exhibits 1-3 and Exhibit 12, page 21
2. The violation alleged is the construction of a 253 ft. floating dock without proper
shoreline permits. No Shoreline Substantial Development Permit was obtained. The
Director also indicates that other required permits have not been obtained: building
permit from the City of Bainbridge Island; Hydraulic Project Approval from the
Washington Department of Fish and Game; permit from the Army Corps of Engineers;
and, a lease from the Washington Department of Natural Resources. [Staff Report, pages
COD 272
Page 1 of 10
1-2, Exhibit 18; Testimony of Machen] This appeal addresses only the alleged Shoreline
Code violation.
3. The Department received a citizen complaint regarding unauthorized dock
construction in September 2003 [Exhibit 6; Staff Report, page 5; Exhibit 18; Testimony
of Machen).
4. In January 2005, following an investigation that included checking property and
permit records and comparing aerial photos of the subject property, PCD staff advised the
Code Enforcement Officer of the alleged violation. [Exhibits 2-5; Exhibit 7; Exhibit 11;
Exhibits 14-16; Testimony of Machen]
5. By Letter of Violation dated February 4, 2005, the Code Enforcement Officer
advised Mr. and Mrs. Marshall that the City had determined that the "...docks and over
water floats..." at their property comprised a Code violation. This letter directed that
they file a plan for the removal of the floating dock within 30 days, that the dock must be
inspected and then removed, and that failure to comply would result in formal
enforcement action. The Letter of Violation also noted that, after the subject structure
was removed, the Marshalls could apply for appropriate permits to establish a dock.
[Exhibit 8; Exhibit 11]
6. The Letter of Violation [Exhibit 8] advised that an enforcement fee of $360.00
had been charged for two hours of staff time to investigate the alleged violation, and
cautioned that additional enforcement activity would be billed at $180.00 per hour.
7. By a letter to the Director dated February 14, 2005 [Exhibit 9], the Marshalls
asserted that the structure is not a "dock", but is a "float" and, as it cost the Marshalls
nothing and its fair market value is less than the $5,000 threshold for exempt activity, it is
exempt from the shoreline permit process. They further asserted that a 2001 Shoreline
Hearings Board decision established that the City could not require that they obtain an
exemption from the City. The Marshalls' requested a Director's review to consider their
comments. The Director denied this request by letter dated February 18, 2005 [Exhibit
10].
Dock Description
8. Photographs and witness testirnony [Exhibit 16; Exhibit 17; Exhibit 26;
Testimony of Machen; Testimony of Marshall) establish the following about the subject
structure:
a. It is 253 ft. in length [Testimony of Machen; Testimony of Marshall] and
appears to be as long (or longer) than other docks in the vicinity [Exhibit 7;
Exhibit 16; Testimony of Machen].
COD 272
Page 2 of 10
b. It is comprised of a number of "floats" each of which is a segment of
the dock. Each segment has a wood frame covered with wood decking
and/or plywood sheets. [Exhibits 26A & B and Exhibits 26H & I]
The segments are connected with chains and ropes [Exhibits 26B and
26H -K; Testimony of Marshall].
c. The individual segments are held afloat by large pieces of Styrofoam
underneath the decking. In photographs, these Styrofoam pieces
resemble giant "ice cream sandwiches" with a relatively thick layer of
white Styrofoam between a "top" and "bottom" of some unidentified,
dark -colored material [see pieces under platform in Exhibit 26H and
on the water in Exhibit 26K; both views in Exhibit 17C]. The edges of
the Styrofoam pieces are not covered or contained and these exposed
surfaces are stained and show wear from water action [Exhibits 17C &
D and Exhibit 26K (under the platform)].
d. The walking surface of the structure has numerous gaps the where
planks are missing or where the segments are not closely joined.
[Exhibits 26A, G, H, I, J, K, and M; Exhibits 17B and C].
e. Several boats are using, or have used the structure. Exhibit 16 shows
three boats moored along side and two small boats on the walking
surface; Exhibits 26A, B, I and J shows four boats in the water and the
two on the walking surface. No boats are using the east side of the
dock and there appears to be room for one additional boat on that side.
[Testimony of Marshall; Testimony of Machen]
The structure appears to have four sections, each consisting of a
number of segments of various widths and lengths (this can be most
clearly seen in Exhibit 16, the 2004 aerial). Judging from the
photographs, the first section extending from shore has segments that
are about 4 -ft. wide; the second section is wider, starting out
approximately 6 ft. wide, then progressing waterward, the floats are
doubled up, some appear to be the same width (to a total of about 12
ft.), but further waterward the doubling up is with segments that
appear to be on the order of 8 ft. wide (to a total of about 14 ft.); in the
last 20-30 ft. the dock is three "floats wide; and, the last section,
perpendicular to the sections extending out from shore, looks to be
about 6 ft. wide and 40 ft. long. [Exhibit 16; Exhibits 26A, B, G, H, I,
J, K]
g. The structure is comprised of used materials. While a couple of pieces
of new lumber are visible [Exhibit 26H], the wood shows considerable
age and weathering and varying degrees of disrepair. [Exhibit 26A, B,
I, J, K]
COD 272
Page 3 of 10
h. There are no "stops" to keep the segments from uroundina on the
bottom at low tides [portions of the floating dock can be seen
g ounurd i : Ex" bit -"I and B and Exhibit 261,31,.
9. The subject structure was constructed in 2003 or 2004. The structure was not
present in the aerial photograph taken in June 2002 [Exhibits 15], but is present in the
September 2004 aerial photo [Exhibit 161-
10. The Marshalls purchased the subject property in the 2001-2002 timeframe. At
that time, the remains of a pier and a small shed [see Exhibit 151 were present at the foot
of the bluff. Both structures were in extreme disrepair. [Testimony of Marshall]
Exhibits 26A, C, D, E, F, and G show the dilapidated condition of these structures.
11. Mr. Marshall owns three boats including the 53 ft. cannery tender and 36 ft.
trawler to be seen in Exhibit 16. Initially he anchored two of his boats (or moored them
at a buoy). As a temporary measure, Mr. Marshall put together the subject floating dock
so that he could have ready access to them rather than having to row to them in a dingy.
(The Marshall's have apparently replaced the wooden stairway down the bluff. Mr.
Marshall testified that it had initially been hard to get to the water with no stairs. The
new stairway seen in current photos [see Exhibits 26F, G and Ml, presumably has solved
that problem.) [Testimony of Marshall]
12. The water is quite shallow and only the boats at the end of the dock can avoid
being in the mud when the tide is out. Shallow water limits the capacity the dock. Docks
in this pari of Eagle Harbor must be long to reach water deep enough to accommodate
recreational vessels without their being grounded in low tides. The distance from the
bulkhead on the Marshalls' property to where the water is 8 ft. deep, measures
approximately 240 ft. (Exhibit 16; Exhibit 23, site plan; Testimony of Marshall)
13. Recently the Marshalls requested and attended a pre -application conference
regarding their proposal for a new pier and dock. This would involve a pier 100+ ft. long
and 8 ft. wide, with a ramp (of unspecified length) extending from the pier and onto a 60
ft. long float that would have a 150 ft. long "T -float" at right angles to it. The "T float"
would be located where the water is 8-9 ft. deep. The Director has advised that the
proposal, with space for more than 5 vessels, appears too large for single-family moorage
needs and that with docks of this size, grating on the deck surface would be required.
[Exhibits 23-25]
Appeal
14. The Hackers timely filed an appeal on February 28, 2005 [Exhibit 12]. Required
notice of the appeal hearing was completed as of April 6, 2005 [Exhibit 131. The hearing
was held on June 23, 2005 (originally scheduled for April 21, 2005, the hearing was
continued on agreement by the parties).
COD 272
Page 4 of 10
15. At hearing the Director asserted that the Marshalls have violated the Code by
constructing the floating dock without a Shoreline Substantial Development Permit
(SSDP) [Exhibit 29]. The Marshalls argued that the structure is exempt from the SSDP
Process because it cost less than the $2500 threshold for a permit and that the City cannot
require that they obtain an exemption [Exhibit 301.
16. The Director presented information that established that a floating dock is one of
several popular overwater structures associated with boat use. The Unbridge. Island
Nearshore Assessment reviews these structures and their effects on the nearshore
environment. The Nearshore Assessment characterizes floating docks as being
"generally composed of a frame mounted on floats of encapsulated Styrofoam or wood
anchored in place to pilings via sliding hardware" [Exhibit 19, page VI -13]. Given its
structural elements, configuration, purpose and appearance [see Exhibit 19, Figure VI -
11]; the subject structure here is properly identified as a "floating dock", even though the
Styrofoam float material is exposed to the water, not "encapsulated".
17. In addition to the primary ecological impact of light attenuation and shading,
overwater structures can alter, and adversely affect, a variety of physical processes in
nearshore marine habitats. For submerged plants, such as critically important eelgrass,
shading can reduce light necessary for survival and it can also alter fish migration.
Floating docks that allow no light to penetrate below the water's surface and that ground
at low tide are discouraged. Physical disturbance to marine vegetation and substrate is
another impact of overwater structures. Because they ground with low tides, floating
docks have direct contact with, and can destroy eelgrass and other marine vegetation and
alter the benthic invertebrate community. [Exhibit 19, pages IV -16-19; Exhibit 6; Staff
n] Floatind
Report, pages 4-5; Testimony of Macheg docks can use grating as surface
material to enhance light penetration and "stops" can prevent damaging direct contact.
[Exhibit 19, page IV -18].
18. The subject structure, consisting of a series of wood frames with Styrofoam
floatation [Exhibits 26B, 26x, 261], extending waterward from the shore [Exhibits 26A
and 26B], and used for mooring boats [Exhibits 26A, 26B, 26I1, is a floating dock [see
Finding 8 and Finding 161. This floating dock has no "stops" to prevent it from
grounding directly on the substrate in low tides.
19. "Recreational flouts" [see Finding 231 are for swimming and diving, not for
mooring boats. A recreational float can have a maximum size of eight feet by eight feet
[BIMC16.12.340.G.12]. The term "float" used here does not refer to a recreational float.
20- Mr. Marshall obtained "approximately 200 feet of old wood float" [Exhibit 28]
from Marty's Marine Service in Tacoma. In an atter-the-fact writing, Jackson
notes that he charged a fee of $500 for delivery, but there was no charge the float
itself as he was saving the cost of disposing of it. Mr. Marshall testified that this
salvaged "float" consisted of 10 segments, each of 20 ft. long. Assuming that the
COD 272
Page 5 of 10
salvaged "floats" were at least six feet wide, the cost for the 1200 sq. ft. of "float , was
approximately $.42 per square foot. There was no out-of-pocket expense for assembling
the segments; Mr. Marshall connected the segments himself with chain and bolts in "10-
15 minutes". Appellant sets total cost at less than $1000 (delivery of the float, plus
chains, bolts, and consideration of Mr. Marshall's time).
21. To estimate fair market value, the Director contacted two marine contractors with
experience building docks on Bainbridge Island. The contractors estimated that such a
structure would cost approximately $30-$35 per square foot. [Testimony of Machen;
Exhibit 18, page 6]
22. The Director's estimates of $30-$35 per square foot for the "fair market value" of
a floating dock seem high, but no other estimates were presented. Instead, Appellants
argued that what the structure actually cost (plus some dollars for Mr. Marshall's labor) is
the fair market value. Using this `actual cost as value' approach, "fair market value"
could not exceed $1.25 per square foot to be within the $2500 exemption threshold.
[Testimony of Marshall; Exhibit 18, page 61 As an estimate of"fair market value", this is
untenable: what something cost is not the same as "fair market value".
Shoreline Regulations
23. The Bainbridge Island Municipal Code (131MC) includes the following definitions
in Chapter 16.12.030 of the Shoreline Code:
52. "Development" means a use consisting of the construction or
exterior alteration of structures; dredging; drilling; dumping; filling; removal of
any sang gravel, or minerals; bulkheading; pile driving; placing ofobstructions;
or any project of a permanent or temporary nahow which interferes with the
normal public use of the surface of the waters of the state...
54. "Dock" means a floating platform which abuts the shoreline,
extending waterward from ordinary high water, or from the bottom of a ramp
extending from a pier, generally used as a landing or moorage place for
commercial and/or pleasure craft.
70. "Exemption" means certain developments are exempt from the
definition of substantial developments arta. therefore, are exempt from the
substantial development permit process of the Shoreline Management Act. An
activity that is exempt from the substantial development provisions of the
Shoreline Management Act must still be carried out in compliance with policies
and standards of the Act and the local master program. Conditional use andlor
variance permits may also still be required even though the activity does not
need a substantial development permit...
72. "Fair markd value" means the expected price at which the
development can be sold to a willing buyer. For developments which involve
nonstructural operations such as dredging, drilling dumping, or filling, the fair
COD 272
Page 6 of 10
market value is the expected cost ofhiring a contractor to perform the operation,
or where no such value can be calculated, the total of labor, equipment use,
transportation, and other costs incurred for the duration of the permitted
project...
138. "Recreational float" means anchored offshore platforms used
for water dependent activities such as swimming and diving.
176. "Structure" means a permanent of temporary edificae or
building, or any piece of work artificially built or composed of pans joined
together in some definite manner, whether installed on, above,or belthe
surface of the ground or water, except for vessels. ow,
178. "Substantial development' means any development of which the
total cost or fair market value exceeds $2,500 (or another amount established in
RCW 90.58.030(3)(e) or its successor), or any development which materially
interferes with the normal public use of the water or shorelines of the state,
except as specifically exempted pursuant to RCW 90.58.030(3){e) or its successor
and WAC 173-14-040 or its successor. See deftnitions for "Development' and
'Exemption. "
24. Within the shoreline a permit or an exemption is required pursuant to BIMC
16.12.360.A, which provides, in pertinent part that:
1. A development, use, or activity shall not be undertaken... unless
it is consistent with the policy andprocedures of the Shoreline Management Ac;
applicable state regulations and the shoreline master program.
1. A substantial development shall not be undertaken... unless an
appropriate shoreline permit has been obtained, the appeal period has been
completed, arty appeals have been resolved, and/or the applicant has been given
Permission by the proper authority to proceed
3. Any person wishing to undertake substantial development or
exempt development on shorelines shall apply to the director for an appropriate
shoreline permit or a statement of exemption
sss
25. BIMC 16.12.350.A.1 vests the Director with:
a Overall administrative responsibilityfor the master program;
permits, -
b. Authority to grant statements of exemption from shoreline
B. Authority to approve, approve with conditions, or deny shoreltne*
substantial development permits and permit revisions in accordance with the
policies and regulations of the master program...
26. Regarding fees for permits and statements of exemption, B1MC 16.12.360.0
provides that: 'A filing fee in an amount established by the City Council by resolution
shall be paid at the time of application. After the fact permit fees will be triple the
normal amount. "
COD 272
Page 7 of 10
27. BIMC Chapter 1_26 provides Code enforcement procedures. BIMC 1.26.020.A
provides that it is the duty of the Director 'ko enforce the applicable chapters and titles of
this code". BIMC 1.26.070 allows that an appeal of a director's decision regarding a
violation is "pursuant to the procedures set_farth in.8P69C i. IG.130. "
28. BIMC 2.16.130 applies to appeals of "administrative decisions, departmental
rulings and interpretations... " In considering such appeals, BIMC 2.16.130.F authorizes
the Hearing Examiner to: affirm the Director's decision, affirm with modifications,
reverse the decision, or remand it to the Director. That section of the Code also requires
that the Hearing Examiner give "substantial weight to the decision of the department
director. It
29. BIIbIC 1.28.030 mandates that a "Code enforcement ,fee" be charged as follows:
"Whenever the City is required to act to enforce any provision of the Code, in addition to
wry other fines, charges or penalties imposed on the person committing the violation, the
city shall charge the person on appropriate fee established by the city by resolutian. "
The City's current hourly rate is $180.00 [see BIMC 1.28.035.Ej and BIMC 1.28.035.1)
provides that a disputed charge may be appealed to the Hearing Examiner for final
decision.
Conclusions
1. The Hearing Examiner has jurisdiction to hear and decide appeals of the
Director's administrative decisions regarding alleged violations and, pursuant to the
mandate of BIMC 2.16.130 [see Finding 29], in making that decision, must give
substantial weight to the decision of the department director. To overcome the
substantial weight accorded the Director, an appellant has to show that the D'irector's
decision is clearly erroneous. Under this standard of review, the Director can be reversed
if the Hearing Examiner is left with the definite and firm conviction that a mistake has
been made.
2. BIMC 1.28.035.[) authorizes the Hearing Examiner to decide the appeals
regarding the amount charged for the enforcement fee.
3. The matters appealed are properly before the Hearing Examiner.
4. The Appellants constructed a floating dock structure within the jurisdiction of
Shoreline Master Program (BIMC Chapter the
Development Permit_ 16.12) without a Shoreline Substantial
l
5. The subject structure is properly categorized as a floating dock.
6. This floating dock has not been designed to minimize the adverse environmental
impacts to the marine vegetation and the substrate caused by shading and grounding.
COD 272
Page 8 of 10
Also, the Styrofoam floatation is not "encapsulated" (contained); as it wears downthe
worn off pieces can enters the water. ,
T The "fair market value" of a 253 ft. long floating dock that can accommodate
several vessels exceeds $2500. "Fair market value" assessment here applies to a floating
dock development of this size and function, not the price the "willing buyer" (the
Marshalls) paid for the patchwork, worse -for -wear, environmentally harmful structure
created. If dollars spent was to be the measure of whether or not something is
"substantial development" (i.e., exceeds the $2500 exemption threshold), then the Code
would read "cost", not "fair market value". Using a `what it cost' approach, rather than
`what it's worth' would encourage underreporting in order get under the threshold to
avoid shoreline permit review and, as here, it would encourage the use low quality
materials and poor design, resulting in substandard development (i.e., development that
could not get permitted) and environmental harm.
8. Appellants argue that the Director erred because the development is exempt so
there is no violation. (Appellants further assert that they are not required to obtain a
statement of exemption, but this decision need not address that argument.) However,
Appellants have not sustained thea argument: the Director has not been shown to be
mistaken in deciding that this is "substantia! development" and that a Shoreline
Substantial Development Permit is required.
Fee Dispute
9. The Code authorizes and directs that a "code enforcement fee" be charged `10
enforce Ivry provision of the code ". The enforcement fee charged was not a part of the
Director's administrative decision regarding the alleged violations but the amount
charged may be appealed to the Hearing Examiner under BIMC 1.28.035. Appellants
dispute the amount charged and raised that issue in their appeal.
10. The code enforcement fee charged here (i.e., $360 for two hours) is not
unreasonable in terms of staff time and the hourly rate is not excessive. There is no
factual basis in this record to show that the staff time was not spent or that the City's
hourly rate of $180 is excessive. The Code [at BIMC 1.28.035] specifies a methodology
for determining the standard hourly rate and there is 2 evidence to suggest that the
current rate is in excess of that necessary to recoup all the City's reasonable costs (i.e.,
the hourly rate has to cover all costs, not simply the hourly salary paid to the staff
involved).
11. Following this decision, if additional staff time is needed to accomplish the
enforcement action being affirmed here, additional "enforcement fee" charges would be
appropriate.
COD 272
Page 9 of 10
Decision
The Director's administrative decision citing violation of BIM Ch
ordering removal of the subject apter 16.12 and
structure (see Paragraph 3, Exhibit 8} is AFF7RMEp.
Entered this 22°d day of July 2005.
YePreedith A Getches
City of Bainbridge island
Hearing Examiner pro tem
CONCERMWG FURTHER RKV1XW
NOTE: It is the responsibility
decision of a person seeking mew of a Hearing Examiner
to consult applicable Code sections and other appropriate sourecs including
State law, to determine his/her rights and responsibilities relative to appeal.
Request for judicial review of this decision by a person with standing can be made by filing a
land use petition in Superior Court within 21 days in accordance with the Land Use Petition Act,
Revised Code of Washington (RCW), Chapter 36.70C,.
COD 272
Page 10 or 10
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ec,
OPS\ PGOJ��
AUG 11 105 pm 3.05
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF KITSAP
NICHOLAS and KATHLEEN MARSHALL, ) ( a)
Petitioners, ) No.
V. ) SUMMONS
CITY OF BAINBRIDGE ISLAND, )
Respondent. )
TO THE RESPONDENT: A lawsuit has been started against you in the above -entitled
Court by Nicholas and Kathleen Marshall. Petitioners' claim is stated in the written Petition for
Review -Land Use Petition Act, a copy of which is served upon you with this summons.
In order to defend against this lawsuit, you must respond to the complaint by stating your
defense in writing, and serve a copy upon the undersigned attorney for the Petitioners within
20 days after the service of this summons, excluding the day of service, or a default judgment may
be entered against you without notice. A default judgment is one where Petitioners are entitled to
what they ask for because you have not responded. If you serve a notice of appearance on the
undersigned attorney, you are entitled to notice before a default judgment may be entered.
You may demand that the Petitioners file this lawsuit with the Court. If you do so, the
demand must be in writing and must be served upon the Petitioners. Within 14 days after you
serve the demand, the Petitioners must file this lawsuit with the Court, or the service on you of this
summons and petition will be void.
SUMMONS - I
SEA 1679174v1 68079-1
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I �J +-
Davis WrightWEa LLP
Sonle
�✓
LAW OFFICES
1J
2606 CenWry Square - 1501Founh Avenue
Settle, Washington 98101-1688
(206)622-3150 Fax:(206)628-0699
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If you wish to seek the advice of an attorney in this matter, you should do so promptly so
that your written response, if any, may be served on time.
This summons is issued pursuant to Rule 4 of the Superior Court Civil Rules of the State
of Washington.
DATED this o day of August, 2005.
SUMMONS - 2
SEA 1679174v1 68079-1
Seaale
Davis Wright Tremaine LLP
Wnnis D. Reynolds
Charles E. Maduell
WSBA #04762
WSBA #15491
Davis Wright Tremain LLP
LAW OFFICES
26M Century Square 1501 Fourth Avenue
Senate, Washington 98101-1658
(206)622-3150 - F.v(206)6291699
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�N K
6G��v��NP� G�EP
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P,
\ P cOVN� ERK
of
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF KITSAP
NICHOLAS AND KATHLEEN MARSHALL,
Petitioners,
V.
CITY OF BAINBRIDGE ISLAND,
Respondent.
No.
U5ljq;;
PETITION FOR REVIEW —
LAND USE PETITION ACT
Nicholas and Kathleen Marshall, Petitioners herein, pursuant to the Land Use Petition
Act, Chapter 36.70C, RC W, hereby invoke the jurisdiction of the Court to review a land use
decision of the City of Bainbridge Island Hearing Examiner affirming a Notice of Violation and
order of the Director of Planning and Community Development citing Petitioners for
construction of a floating dock on Petitioners' property in violation of the City's Shoreline
Master Program and ordering its removal.
I. PARTIES
1.1 Name and mailing address of Petitioners: Nicholas and Kathleen Marshall,
4731 Eagle Harbor Drive Northeast, Bainbridge Island, Washington, 98110.
1.2 Name and mailing address of Petitioners' attorney: Dennis D. Reynolds, Charles
E. Maduell, Davis Wright Tremaine LLP, 2600 Century Square, 1501 Fourth Avenue, Seattle,
Washington, 98101-1688.
1.3 Name and mailing address of Local Jurisdiction: City of Bainbridge Island,
acting through its Office of Hearing Examiner and Department of Community Development
PETITON FOR REVIEW - 1 COPY
Davis Wright eLLP
SEA
SEA 1678847v] 68079-1
LAW o.
OFFICES
3800 Century Square 1501 Fourth Avenue
n 9
98101-1688
5eattle,)622-
150 - Fe
(206)622-)150 � Fax: (206)638-)699
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The address of the City of Bainbridge Island is 280 Madison Avenue North, Bainbridge Island,
Washington, 98110.
1.4 Identification of Final Decision -Makin Body: Bainbridge Island, acting
through its Hearing Examiner.
1.5 Decision for Which Review is Sough : On July 22, 2005, the City of Bainbridge
Island Hearing Examiner entered a Decision affirming the decision of the Director of Planning
and Community Development citing Petitioners for construction of a floating dock in violation
of the City's Shoreline Master Program and ordering its removal ("the Land Use Decision"). A
true and correct copy of the Land Use Decision is appended as Exhibit A to this Petition for
Review, by reference made a part of this Petition.
1.6 Exhaustion of Administrative Remedies: Petitioners have exhausted all
administrative remedies and are entitled to file this appeal in the Kitsap County Superior Court
pursuant to the Land Use Petition Act, Chapter 36.70C, RCW, and Bainbridge Island City
Code, § 2.16.130(F)(6).
II. STANDING AND VENUE
2.1 Petitioners are the owners of property against whom the City issued a Notice
and Order which is the subject of this appeal and have standing to file this petition for review
pursuant to RCW 36.70C.060.
2.2 Petitioners have standing as they are aggrieved or adversely affected by
Bainbridge Island's land use decision, and prejudiced by, or likely to be prejudiced by it,
because it erroneously and unlawfully requires them to remove a floating dock that is exempt
from permitting requirements under the Shoreline Management Act and the City's Shoreline
Master Program.
2.3 Petitioners' interests are among those that the Department of Community
Development and the Hearing Examiner were required to consider when the City made its land
use decision. A decision in favor of Petitioners upon review will eliminate the prejudice caused
or likely to be caused them by the City's unlawful enforcement order.
PETITON FOR REVIEW - 2
SEA 1678847v1 68079-1
Davis Wright Tremaine LLP
LAW OFFICES
2600 Century Square I5o1 Fourth Avenue
Seattle, Washington 98101-1698
(206) 622-3150 Fax (206) 628-7699
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2.4 Venue is proper in Kitsap County pursuant to Chapter 4.12, RCW.
III. STATEMENT OF FACTS RELIED ON TO SUPPORT STATEMENTS OF
ERROR AND REQUEST FOR RELIEF
3.1 Nicholas and Kathleen Marshall (the "Marshalls") own a waterfront lot with 200
feet of waterfront located on Eagle Harbor at 4731 Eagle Harbor Drive NE, Bainbridge Island.
The property tax parcel number is 35250 22 052009. The shoreline environmental designation
is Semi -Rural.
3.2 The Marshalls purchased the property in 2001. At the time of purchase, the
property contained an existing single family house and a 20 by 45 foot pier and boathouse.
When they purchased the property, the Marshalls intended to remodel the residence and to
repair the existing pier and boathouse and add a private dock to moor their boats.
3.3 The Marshalls own and use several recreational boats. After the Marshalls
purchased the property, they moored two of the boats on floats anchored in water adjoining
their property.
3.4 Mr. Marshall is acquainted with the Manager of the Foss Waterway Marina in
Tacoma, Marty Jackson of Marty's Marina Service. In 2003, he learned from Mr. Jackson that
he was disposing of approximately 200 feet of useable floats. Mr. Jackson asked if Mr.
Marshall was interested in the floats, and if so, agreed to tow the floats to Mr. Marshall's
property on Bainbridge Island for the $500 it would cost to do so. The salvage value of the
floats themselves was less than the cost to Mr. Jackson of having to cut up and dispose of the
floats, and so he offered them to Mr. Marshall at no cost.
3.5 Mr. Marshall agreed to take the floats and they were towed by Mr. Jackson from
Tacoma to Bainbridge Island in 2003. Mr. Marshall then connected the floats by chain to the
existing pier and floats. The entire structure, the existing pier, new floats, and existing floats, is
approximately 253 feet and extends out to a depth of 8 feet at -4 tide. The dock is well within
the Eagle Harbor construction limit line and pierhead line. The two docks on either side of the
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Marshall property, including the one to the west with a boathouse at the end of the dock, extend
farther out into Eagle Harbor than the Marshalls' facility.
3.6 The floats were salvaged and placed by the Marshalls to allow easier access
between the land and their boats which are anchored in the waters of Eagle Harbor adjacent to
their ownership. The Marshalls moor up to three boats to the floats for recreational purposes.
The floats allow Mr. Marshall to walk to, service and use the boats.
3.7 The Marshalls always intended that the salvaged floats would provide a
temporary, short-term solution for mooring, servicing and using their boats. Their long term
plans for the property include repairing the existing pier and boathouse and replacing the
salvaged floats with a new dock. To this end, they engaged Herbert Armstrong of ADA
Engineering, Inc. to prepare plans and apply for the necessary permits to construct a new dock.
3.8 Acting upon a "complaint" from an unnamed source "regarding an illegal dock"
at the Marshall ownership, by letter dated February 4, 2005, the City issued Mr. and Mrs.
Marshall a Notice of Violation. According to the City's Code Enforcement Officer, Mr. Will
Peddy, as set out in the Letter of Violation, he determined that a violation of Chapter 16.12 of
the Bainbridge Island Municipal Code existed. According to Mr. Peddy:
More specifically you have added sections of docks and
overwater floats within the shoreline jurisdiction without
authorization from the City, which is a violation of BIMC
16.12.360.
3.9 The City's violation letter of February 4, 2005 went on to direct removal of the
"illegal dock" at the Marshall parcel. The letter further advised Mr. and Mrs. Marshall that
they may choose to apply for a new dock approval and file applications for the appropriate
shoreline permits with the City and state and federal agencies.
3.10 By letter dated February 14, 2005, the Marshalls requested Director's review of
the City's Letter of Violation pursuant to BIMC § 1.26.070. On February 18, 2005, the
Director, Larry Frazier, denied the request, concluding that the City "has sufficient evidence the
work at the shoreline was performed without the required permits."
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3.11 On February 28, 2005, the Marshalls appealed the Letter of Violation to the
Hearing Examiner.
3.12 On April 19, 2005, the parties stipulated to a continuance of the hearing to June
23, 2005. Under the Stipulation, the Marshalls agreed to submit an application for a substantial
development permit for a new dock by May 18, 2005 and to remove the existing dock structure
by June 17, 2005, with the proviso that if the Marshalls "have made substantial progress on
their shoreline application, the City's Planning Director, in the Director's sole discretion, may
but is not required to extend the time within which the Appellants shall remove the dock
structure until a date no later than July 15, 2005."
3.13. The Stipulation also provided for additional extensions by the Director "if, in his
opinion, the Appellants have continued to make substantial progress on their application."
Under the stipulation, if the deadline for removal is extended by the Director, then the parties
agree to request a further continuance of the hearing. However, "[i]f the dock structure is not
removed by June 17, 2005 or if the deadline for removal is not extended by the Director,... then
the hearing in this matter shall be held on June 23, 2005, as soon thereafter as the Hearing
Examiner's schedule permits."
3.14 Consistent with the terms of the Stipulation, the Marshalls made arrangements
for its consultant, Mr. Armstrong, to complete the plans and a substantial development permit
application for a new dock to be filed before May 18, 2005. Before the permit application
could be filed, however, the City requested a pre -application conference. The requested pre -
application conference took place on May 10, 2005 and was attended by Mr. Armstrong on
behalf of the Marshalls and Joshua Machen and Ross Hathaway on behalf of the City. At the
pre -application meeting, the participants discussed various City requirements for the substantial
development permit. At the end of the meeting, Mr. Machen said that the City requirements
would be spelled out in a letter that the Marshalls would receive in about two weeks.
3.15 The City sent the promised pre -application letter on May 23, 2005. In the letter,
the City sets forth various requirements for submittal of the substantial development permit
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application, including the need to reduce the size of the proposed dock, to survey the tidelands,
to submit a geotechnical report along with structural engineering drawings for an existing
stairway, and to prepare an environmental checklist pursuant to the State Environmental Policy
Act.
3.16 After receipt of the pre -application letter, the Marshalls' consultant worked to
prepare the application materials as per the requirements stated therein. According to the
consultant, the application would be ready for submittal by the end of June, 2005, and the
Marshalls so advised City officials. However, the Director refused to agree to extend the
deadline in the stipulation for removal of the existing dock structure, citing failure by the
Marshalls to make "substantial progress" on the application. Apparently, according to City
staff, the dock proposal discussed at the pre -application meeting was not realistic and did not
comply with the City Code requirements. The City's letter of May 23, 2005 does not state that
a private dock could not be designed to meet applicable standards which allow private
recreational docks in Eagle harbor as a permitted use.
3.19 The Marshalls did not remove the existing dock structure on June 17, 2005.
Consequently, as per the terms of the Agreement, the hearing was not continued and took place
on June 23, 2005,
3.20 In the Staff Report for the hearing dated June 16, 2005, the Director
recommended that the Hearing Examiner "fa]ffirm the City's Letter of Violation dated
February 4, 2005 ... and require the property owner to remove the dock and to pay the code
enforcement fee in compliance with the Letter of Violation."
3.21 Following the hearing on June 16, 2005, the Hearing Examiner on July 22, 2005
issued a Decision affirming the Director's Letter of Violation "citing violation of BIMC 16.12
and ordering removal of the subject structure."
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IV.
Petitioners assign error to the following Findings -of -Fact, or portions thereof, or
Conclusions of Law properly denominated as Findings as not supported by substantial
evidence:
4.1 Finding of Fact No. 16:
The Director presented information that established that a floating
dock is one of several popular overwater structures associated with
boat use. The Bainbridge Island Nearshore Assessment reviews
these structures and their effects on the nearshore environment.
The Nearshore Assessment characterizes floating docks as being
"generally composed of a frame mounted on floats of encapsulated
Styrofoam or wood, anchored in place to pilings via sliding
hardware [Exhibit 19, page VI -13]. Given its structural elements,
configuration, purpose and appearance [see Exhibit 19,
Figure VI -11; the subject structure here is properly identified as a
"floating dock", even though the Styrofoam float material is
exposed to the water, not "encapsulated".
4.2 Finding of Fact No. 17:
In addition to the primary ecological impact of light attenuation
and shading, overwater structures can alter, and adversely affect, a
variety of physical processes in nearshore marine habitats. For
submerged plants, such as critically important eelgress, shading
can reduce light necessary for survival and it can also alter fish
migration. Floating docks that allow no light to penetrate below
the water's surface and that ground at low tide are discouraged.
Physical disturbance to marine vegetation and substrate is another
impact of overwater structures. Because they ground with low
tides, floating docks have direct contact with, and can destroy
eelgrass and other marine vegetation and alter the benthic
invertebrate community. [Exhibit 19, pages IV -16-19; Exhibit 6;
Staff Report, pages 4-5; Testimony of Machen] Floating docks
can use grating as surface material to enhance light penetration and
"stops" can prevent damaging direct contact. [Exhibit 19,
page IV -18].
4.3 Finding of Fact No. 21:
To estimate fair market value, the Director contacted two marine
contractors with experience building docks on Bainbridge Island.
The contractors estimated that such a structure would cost
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approximately $30-$35 per square foot. [Testimony of Machen;
Exhibit 18, page 6]
4.4 Finding of Fact No. 22:
The Director's estimates of $30-$35 per square foot for the "fair
market value" of a floating dock seem high, but no other estimates
were presented. Instead, Appellants argued that what the structure
actually dost (plus some dollars for Mr. Marshall's labor) is the fair
market value. Using this `actual cost as value' approach, "fair
market value" could not exceed $1.25 per square foot to be within
the $2500 exemption threshold. [Testimony of Marshall;
Exhibit 18, page 6] As an estimate of "fair market value", this is
untenable: what something cost is not the same as "fair market
value".
4.5 Conclusion of Law No. 6:
This floating dock has not been designed to minimize the adverse
environmental impacts to the marine vegetation and the substrate
caused by shading and grounding. Also, the Styrofoam floatation
is not "encapsulated" (contained); as it wears down, the worn off
pieces can enters the water.
4.6 Conclusion of Law No. 10:
The code enforcement fee charged here (i.e., $360 for two hours) is
not unreasonable in terms of staff time and the hourly rate is not
excessive. There is no factual basis in this record to show that the
staff time was not spent or that the City's hourly rate of $180 is
excessive. The Code [at BIMC 1.28.0351 specifies a methodology
for determining the standard hourly rate and there is no evidence to
suggest that the current rate is in excess of that necessary to recoup
all the City's reasonable costs (i.e., the hourly rate has to cover all
costs, not simply the hourly salary paid to the staff involved).
V. STATEMENT OF LEGAL AND PROCEDURAL ERRORS
5.1 The Hearing Examiner's Decision is an erroneous interpretation of the law
under RCW 36.70C.130(1)(b), is not supported by substantial evidence under
RCW 36.70C.I30(1)(c), and is a clearly erroneous application of the law to the facts under
RCW 36.70C.130(1)(d). Specifically, Findings of Fact No. 8(a) -(h), 10, 16-17, 20, 22, and
Conclusions No. 1, 6-8, and 10-11 are not supported by substantial evidence, are an erroneous
interpretation of the law, and/or are a clearly erroneous application of the law to the facts.
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5.2 The Shoreline Management Act exempts from substantial development permit
requirements the following developments:
Construction of a dock, including a community dock, designed
for pleasure craft only, for the private noncommercial use of the
owner, lessee, or contract purchaser of single and multiple family
residences. This exception applies if either: (A) In salt waters, the
fair market value of the dock does not exceed two thousand five
hundred dollars; or (B) in fresh waters, the fair market value of
the dock does not exceed ten thousand dollars, but if subsequent
construction having a fair market value exceeding two thousand
five hundred dollars occurs within five years of completion of the
prior construction, the subsequent construction shall be
considered a substantial development for the purpose of this
chapter;
RC W 90.58.030(3)(e)(vii). For purposes of this exemption, fair market value is defined as
follows:
'Fair market value' of a development is the open market bid price
for conducting the work, using the equipment and facilities, and
purchase of the goods, services and materials necessary to
accomplish the development. This would normally equate to the
cost of hiring a contractor to undertake the development from
start to finish, including the cost of labor, materials, equipment
and facility usage, transportation and contractor overhead and
profit. The fair market value of the development shall include the
fair market value of any donated, contributed or found labor,
equipment or materials;
WAC 173-27-030(8).
5.3 The evidence at the hearing established that the fair market value of the dock is
well under $2500. As Mr. Marshall testified, the salvaged floats themselves have no value or,
at most, salvage value. The fair market value or cost of constructing the dock consists of the
cost of towing the floats from Tacoma, which was $500, and the cost of connecting the floats to
the existing pier and floats on the Marshall property, which is less than an hour of labor and the
cost of two chains and anchoring bolts. Thus the fair market value of the dock is less than
$1000 and thus substantially less than the statutory permit threshold of $2500.
5.4 Notwithstanding this unrebutted evidence, the Hearing Examiner found and
concluded that the fair market value of the subject dock exceeds $2500 based on the cost per
square foot of constructing a new floating dock of the size of the Marshalls' dock from new
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materials. The Examiners' decision on this issue constitutes an erroneous interpretation of the
provisions of the SMA and the City's SMP and a clearly erroneous application of these
provisions to the facts of this case.
5.5 Under the SMA, the "fair market value" of a development is the "open market
bid price" for the development; i.e. the expected price that a willing buyer would pay for the
development in an open market transaction, regardless of whether the labor, materials or
equipment were found, contributed or donated. WAC 173-27-030(8). The City's definiton of
fair market value is similar: "Fair market value" means the expected price at which the
development can be sold to a willing buyer." BIMC 16.12.030(72). For both definitions, fair
market value refers to what a willing buyer would pay for the development at issue, in this
case, the floating dock installed by the Marshalls. The only evidence of the fair market value
of the Marshalls' dock is the cost of the materials (of salvage or no fair market value) and the
cost of installing the dock ($500 to tow the dock from Tacoma and the fair market value of less
than two hours of Mr. Marshall's labor), which combined total substantially less than the
statutory threshold of $2500.
5.6 The Hearing Examiner erred in disregarding this unrebutted testimony in favor
of City evidence of what it would cost to install a new floating dock from new materials. The
Marshalls did not install a new dock from new materials. If they had, the City's evidence
might be relevant. Because they did not, the Hearing Examiner erred in relying on evidence of
the cost of building a new dock from new materials and in disregarding unrebutted evidence of
the cost of the dock at issue. In this regard, the Hearing Examiner's findings and conclusions
are based upon an erroneous and unsupportable assumption, that a willing buyer would pay the
same for the Marshall's dock as he would for a new dock. No evidence in the record of
language in the SMA or SMP supports such an assumption.
5.7. Contrary to the Hearing Examiner's findings and conclusions on this issue, the
fair market value of the dock under the SMA and SMP is not the fair market value of any dock,
but the fair market value of the dock at issue, which in this case includes use of salvaged floats
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with a negligible fair market value. Thus, although construction of a new dock may exceed
$2500, and the Marshalls are in the process of obtaining a permit for a new dock, the dock at
issue does not and is therefore exempt from shoreline permitting requirements under RCW
90.58.030(3)(e)(vii).
5.8 Also contrary to the Hearing Examiner's findings and conclusions on this issue,
the actual cost of the dock at issue is a relevant consideration in determining its fair market
value, just as it would be in determining the actual cost of a new dock had the Marshalls'
installed such a dock. However, the Marshalls did not install a new dock, but instead installed
a dock made from salvaged floats. Under the statutory definition of fair market value, the fair
market value of the Marshalls' dock, which includes the fair market value of the floats and the
fair market value of towing and installing the floats, is substantially less than $2500 and
therefore exempt from shoreline permitting requirements under RCW 90.58.030(3)(e)(vii).
The Examiners' findings and conclusions to the contrary are an erroneous interpretation of the
law under RCW 36.70C.130(1)(b), are not supported by substantial evidence under
RCW 36.70C.1 30(1)(c), and are a clearly erroneous application of the law to the facts under
RCW 36.70C.I30(1)(d)
5.9 The Examiners' findings and conclusions that the floating dock has not been
designed to minimize the possible adverse environmental impacts in violation of the SMP also
involve an erroneous interpretation of the law under RCW 36.70C.130(1)(b), are not supported
by substantial evidence under RCW 36.70C.I30(1)(c), and are a clearly erroneous application
of the law to the facts under RCW 36.70C.130(1)(d). The Examiner's decision is based solely
on generalized statements from a City study reviewing in general the impacts of large pier
structures historically constructed in Puget Sound and not on a site specific study as to the
Marshall's facility. Further, the Examiner failed to consider Petitioners' willingness to alter the
structure, e.g. to add "stops" to prevent direct contact with the substrate. Further, the Examiner
failed to consider that any impacts to the aquatic environment at most are temporary, pending
approval and construction of a replacement dock facility for the temporary floating dock.
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5.10 Even if exempt, pursuant to WAC 173-27-040, "[tjo be authorized, all uses and
developments must be consistent with the policies and provisions of the applicable master
program and the Shoreline Management Act." In this case, the dock structure at issue is a
permitted use in the semi -rural environment. BIMC 16.20.340(C)(1). Further, it is consistent
with the policies and provisions of the City's Shoreline Master Program ("SMP") and the SMA
pertaining to docks. These policies and provisions include the following:
16.12.340 Piers, docks, recreational floats, and mooring
buoys
B. Policies.
1. Multiple use and expansion of existing conforming piers,
docks, and floats should be encouraged over the addition and/or
proliferation of new facilities. Joint use facilities are preferred
over new, single use piers, docks, and floats.
2. The use of mooring buoys should be encouraged in preference
to either piers or docks.
3. Piers, docks, and floats should be designed to cause minimum
interference with navigable waters, the public's use of the
shoreline, and views from adjoining properties.
4. Piers, floats, and docks should be sited and designed to
minimize possible adverse environmental impacts, including
potential impacts on littoral drift, sand movement, water
circulation and quality, and fish and wildlife habitat.
7. Use of natural, nonreflective materials in pier and dock
construction should be encouraged. When plastics and other
nonbiodegradable materials are used, precautions should be taken
to ensure their containment.
8. The proposed size of the structure and intensity of use or uses
of any dock, pier, and/or float should be compatible with the
surrounding environment and land and water uses.
D. Regulations — General Design and Construction Standards.
2. Piles, floats, or other members in direct contact with water
shall not be treated or coated with biocides such as paint or
pentachlorophenol. Use of arsenate compounds or creosote -
treated members is discouraged. In saltwater areas characterized
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by significant shellfish populations or in shallow embayments
with poor flushing characteristics, untreated wood, used pilings,
precast concrete, or other nontoxic alternatives shall be used.
In all cases where toxic -treated products are allowed, products,
methods of treatment, and installations shall be limited to those
that are demonstrated as likely to result in the least possible
damage to the environment based on current information. Used
creosote pilings are preferable to new ones.
3. No over -water field applications of paint, preservative
treatment, or other chemical compounds shall be permitted,
except in accordance with best management practices set forth in
the marina section of the master program.
5. All docks shall include stops which serve to keep the floats off
the bottom of tidelands at low tide.
7. When plastics or other nonbiodegradable materials are used in
float, pier, or dock construction, precautions shall be taken to
ensure their containment.
8. Overhead wiring or plumbing is not permitted on piers or
docks.
9. New boat houses and new covered moorage shall not be
permitted on piers or docks. Other structures on piers and docks
shall be strictly limited in size and height to avoid impacting
shoreline views.
10. A pier or dock shall not extend offshore farther than the most
shoreward of the following:
a. The average length of the piers on the two adjoining properties;
b. In Eagle Harbor, the construction limit line; or
c. Elsewhere, the distance necessary to obtain a depth of four feet
of water as measured at extreme low tide at the landward limit of
the moorage slip.
12. Lighting shall be the minimum necessary, or as required by
the Coast Guard, to locate the dock at night, and should minimize
glare.
G. Regulations — Residential.
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2. Docks shall be preferred over piers, where feasible.
3. Size.
a. Maximum length and width of a pier or dock shall be the
minimum necessary to accomplish moorage for the intended
boating use. (See Regulations — General Design and Construction
Standards, subsection D of this section, for additional
restrictions.)
b. The length shall not extend beyond the average length of the
two nearest adjacent docks or the distance necessary to obtain a
depth of four feet of water as measured at extreme low tide at the
landward limit of the moorage slip, or the line of navigation,
whichever is more shoreward.
4. Side Yard Setbacks. Docks, piers and floats shall be set back a
minimum of 10 feet from side property lines, except that
community piers, docks, and floats may be located adjacent to or
upon a side property line when mutually agreed to by covenant
with the owners of the adjacent property. A copy of the covenant
must be recorded with the county auditor and filed with the
application for permit.
6. Development of a dock or pier on single-family residential
property shall require a shoreline substantial development permit
or a statement of exemption issued by the city.
5.11 The evidence at the hearing demonstrated that the dock at issue is consistent
with these policies and provisions. The floats are structurally sound and made primarily of
natural, nonreflective materials; where biodegradable materials are used, they are fully
contained. The floats are only 3-4 feet wide, and the total length of the dock does not extend
farther than the neighboring properties on both sides. The dock is also compatible with the size
and design of neighboring docks.
5.12 Further, the length and width of the dock is the minimum necessary to
accomplish moorage of the Marshalls' boats, four of which are currently moored at the dock.
Finally, while the dock is anchored, its narrow width and natural movement minimizes any
adverse environmental impacts, including shading impacts.
5.13 The Hearing Examiner failed to consider or address this evidence in her
Decision. Instead, she concluded that the dock at issue "has not been designed to minimize the
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adverse environmental impacts to the marine and the substrate caused by shading and
grounding." No evidence supports this conclusion, let alone substantial evidence. Instead, it is
based upon information in the Bainbridge Island Nearshore Assessment" that generally
discusses the impacts of overwater structures such as floating docks. It is also based upon the
Examiner's statement that the styrofoam floatation on the floating docks is not "encapusulated"
or "contained" and as it wears down, worn off pieces can enter the water. While it may be true
generally that overwater structures have adverse impacts on the environment, no evidence was
presented at the hearing to suggest that the Marshalls' dock in particular is not designed to
minimize adverse impacts to the environment, or that any other SMP goals, policies or
requirements have been violated. Nor is there evidence in the record to support the conclusion
that the styrofoam in the floats is not contained, that it will result in adverse impacts to the
shoreline environment, or that it otherwise fails to comply with SMP goals, policies and
regulations.
5.14 The only instance of the Marshalls' failure to comply with SMP policies and
regulations in the installation of their dock is their failure to place stops on the floats.
However, at the hearing Mr. Marshall offered to do so. Even so, as Mr. Marshall also testified
at the hearing, he has been prevented from completing repairs and maintenance of the floating
dock because of the City's issuance the Letter of Violation.
5.15 The dock at issue is both exempt from permitting requirements and is consistent
with the policies and provisions of the City's SMP and the Shoreline Management Act. The
Hearing Examiner's decision to the contrary is an erroneous interpretation of the law under
RCW 36.70C.130(1)(b), is not supported by substantial evidence under
RCW 36.70C.I30(I)(c), and is a clearly erroneous application of the law to the facts under
RCW 36.70C.130(1)(d).
VI. REQUEST FOR RELIEF
6.1 Petitioners request that the Court grant their appeal, reverse the decision of the
Hearing Examiner, and vacate the Director's code enforcement decision.
PETITON FOR REVIEW - 15 Davis Wright Tremaine LLp
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6.2 Petitioners request a stay of the Hearing Examiner's decision pursuant to
RCW 36.70C.100 pending a decision on this appeal and/or completion of the local permitting
process for approval of the replacement permanent facility.
6.3 Petitioners request that the court grant such other and further relief as the Court
deems just and equitable.
6.3 Petitioners request that the Court award them its statutory attorney's fees and
costs.
DATED this 11th day of August, 2005.
PETITON FOR REVIEW - 16
SEA 1678847vt 68079-1
DavisWright Tremaine LLP
At s etiti ers
By
Denni . Reyn ds WSBA #04
Charles E. Maduell WSBA #15491
Davis Wright Tremaine LLP
LAW OFFICES
2600 Century Square - 1501 Fourth Avenue
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RECEIVED
JUL 2 5 2005
CHARLES MADUELLDECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of AIL 22 Pm 1:2.8
NICHOLAS and KATHLEEN MARSHALL COD 0000272
from a Code Enforcement Decision of
the Director, Planning and Community
Development
Introduction
The Director cited Nicholas and Kathleen Marshall for construction of a floating dock in
violation of provisions of City's Shoreline Master Program (BIMC Chapter 16.12). The
Marshalls appeal that decision.
The Hearing Examiner held the appeal hearing on June 16, 2005. Parties represented at
the hearing were the Director, Planning and Community Development Department (PCD
or Department), by Rosemary Larson, Assistant City Attorney, and the Appellants,
Nicholas and Kathleen Marshall, by their attorney, Dennis Reynolds.
After due consideration of all the evidence in the record, the following shall constitute the
findings, conclusions, and decision of the Hearing Examiner on this appeal.
Findings of Fact
Violation Cited
1. The Director has cited a violation of the Shoreline Master Program at property
addressed as 4731 Eagle Harbor Drive (Tax Assessor's parcel numbers 352502-2-035-
2009 and 352502-2-089-2004) located on the south shore of Eagle Harbor within the
shore]ine of the City of Bainbridge Island. The property is owned by Nicholas and
Kathleen Marshall. [Testimony of Marshall; Exhibits 1-3 and Exhibit 12, page 2)
2. The violation alleged is the construction of a 253 ft. floating dock without proper
shoreline permits. No Shoreline Substantial Development Permit was obtained. The
Director also indicates that other required permits have not been obtained: building
permit from the City of Bainbridge Island; Hydraulic Project Approval from the
Washington Department of Fish and Game; permit from the Army Corps of Engineers;
and, a lease from the Washington Department of Natural Resources. [Staff Report, pages
COD 272
Page I of 10
EXHIBIT A
1-2, Exhibit 18; Testimony of Machen] This appeal addresses only the alleged Shoreline
Code violation.
3. The Department received a citizen complaint regarding unauthorized dock
construction in September 2003 [Exhibit 6; Staff Report, page 5; Exhibit 18; Testimony
of Machen).
4. In January 2005, following an investigation that included checking property and
permit records and comparing aerial photos of the subject property, PCD staff advised the
Code Enforcement Officer of the alleged violation. [Exhibits 2-5; Exhibit 7; Exhibit 11;
Exhibits 14-16; Testimony of Machen]
5. By Letter of Violation dated February 4, 2005, the Code Enforcement Officer
advised Mr. and Mrs. Marshall that the City had determined that the "...docks and over
water floats..." at their property comprised a Code violation. This letter directed that
they file a plan for the removal of the floating dock within 30 days, that the dock must be
inspected and then removed, and that failure to comply would result in formal
enforcement action. The Letter of Violation also noted that, after the subject structure
was removed, the Marshalls could apply for appropriate permits to establish a dock.
[Exhibit 8; Exhibit 111
6. The Letter of Violation [Exhibit 8] advised that an enforcement fee of $360.00
had been charged for two hours of staff time to investigate the alleged violation, and
cautioned that additional enforcement activity would be billed at $180.00 per hour.
T By a letter to the Director dated February 14, 2005 [Exhibit 9], the Marshalls
asserted that the structure is not a "dock", but is a "float" and, as it cost the Marshalls
nothing and its fair market value is less than the $5,000 threshold for exempt activity, it is
exempt from the shoreline permit process. They further asserted that a 2001 Shoreline
Hearings Board decision established that the City could not require that they obtain an
exemption from the City. The Marshalls' requested a Director's review to consider their
comments. The Director denied this request by letter dated February 18, 2005 [Exhibit
101.
Dock Description
8. Photographs and witness testimony [Exhibit 16; Exhibit 17; Exhibit 26;
Testimony of Machen; Testimony of Marshall] establish the following about the subject
structure,
a. It is 253 ft. in length [Testimony of Machen; Testimony of Marshall] and
appears to be as long (or longer) than other docks in the vicinity [Exhibit 7;
Exhibit 16; Testimony of Machen].
COD 272
Page 2 of 10
b. It is comprised of a number of "floats" each of which is a segment of
the dock. Each segment has a wood frame covered with wood decking
and/or plywood sheets. [Exhibits 26A & B and Exhibits 26H & I]
The segments are connected with chains and ropes [Exhibits 26B and
26H -K; Testimony of Marshall].
C. The individual segments are held afloat by large pieces of Styrofoam
underneath the decking. In photographs, these Styrofoam pieces
resemble giant "ice cream sandwiches" with a relatively thick layer of
white Styrofoam between a "top" and "bottom" of some unidentified,
dark -colored material [see pieces under platform in Exhibit 26H and
on the water in Exhibit 26K; both views in Exhibit 17C]. The edges of
the Styrofoam pieces are not covered or contained and these exposed
surfaces are stained and show wear from water action [Exhibits 17C &
D and Exhibit 26K (under the platform)].
d. The walking surface of the structure has numerous gaps the where
planks are missing or where the segments are not closely joined.
[Exhibits 26A, G, H,1, J, K, and M; Exhibits 17B and C].
e. Several boats are using, or have used the structure. Exhibit 16 shows
three boats moored along side and two small boats on the walking
surface; Exhibits 26A, B, I and J shows four boats in the water and the
two on the walking surface. No boats are using the east side of the
dock and there appears to be room for one additional boat on that side.
[Testimony of Marshall; Testimony ofMachen]
f. The structure appears to have four sections, each consisting of a
number of segments of various widths and lengths (this can be most
clearly seen in Exhibit 16, the 2004 aerial). Judging from the
photographs, the first section extending from shore has segments that
are about 4 -fl. wide; the second section is wider, starting out
approximately 6 t. wide, then progressing waterward, the floats are
doubled up, some appear to be the same width (to a total of about 12
ft.), but further waterward the doubling up is with segments that
appear to be on the order of 8 ft. wide (to a total of about 14 it.); in the
last 20-30 ft. the dock is three "floats" wide; and, the last section,
perpendicular to the sections extending out from shore, looks to be
about 6 ft. wide and 40 ft. long. [Exhibit 16; Exhibits 26A, B, G, H, I,
J, K]
g. The structure is comprised of used materials. While a couple of pieces
of new lumber are visible [Exhibit 26H], the wood shows considerable
age and weathering and varying degrees of disrepair. [Exhibit 26A, B,
1, J, K]
COD 272
Page 3 of 10
li. I
'Dere are nu "stops" to keep the sep-ments nom ¢Toundinp on the
bottom at low tides [portions of the floating dock can be seen
2'.,^, and L and Exhibit 26G1J.
9. The subject structure was constructed in 2003 or 2004. The structure was not
present in the aerial photograph taken in June 2002 [Exhibits 15], but is present in the
September 2004 aerial photo [Exhibit 16].
10, The Marshalls purchased the subject property in the 2001-2002 timeframe. At
that time, the remains of a pier and a small shed [see Exhibit 151 were present at the foot
of the bluff. Both structures were in extreme disrepair. [Testimony of Marshall]
Exhibits 26A, C, D, E, F, and G show the dilapidated condition of these structures.
11. Mr. Marshall owns three boats including the 53 ft. cannery tender and 36 ft,
trawler to be seen in Exhibit 16. Initially he anchored two of his boats (or moored them
at a buoy). As a temporary measure, Mr. Marshall put together the subject floating dock
so that he could have ready access to them rather than having to row to them in a dingy.
(The Marshall's have apparently replaced the wooden stairway down the bluff. Mr.
Marshall testified that it had initially been hard to get to the water with no stairs. The
new stairway seen in current photos [see Exhibits 26F, G and M], presumably has solved
that problem.) [Testimony of Marshall]
12. The water is quite shallow and only the boats at the end of the dock can avoid
being in the mud when the tide is out. Shallow water limits the capacity the dock. Docks
in this part of Eagle Harbor must be long to reach water deep enough to accommodate
recreational vessels without their being grounded in low tides. The distance from the
bulkhead on the Marshalls' property to where the water is 8 ft. deep, measures
approximately 240 ft. [Exhibit 16; Exhibit 23, site plan; Testimony of Marshall]
13. Recently the Marshalls requested and attended a pre -application conference
regarding their proposal for a new pier and dock. This would involve a pier 100+ ft. long
and 8 ft. wide, with a ramp (of unspecified length) extending from the pier and onto a 60
ft. long float that would have a 150 ft. long "T -float" at right angles to it. The "T float"
would be located where the water is 8-9 ft. deep. The Director has advised that the
proposal, with space for more than 5 vessels, appears too large for single-family moorage
needs and that with docks of this size, grating on the deck surface would be required.
[Exhibits 23-25]
Appeal
14. The Hackers timely filed an appeal on February 28, 2005 [Exhibit 12]. Required
notice of the appeal hearing was completed as of April 6, 2005 [Exhibit 13]. The hearing
was held on June 23, 2005 (originally scheduled for April 21, 2005, the hearing was
continued on agreement by the parties).
COD 272
Page 4 of 10
15. At hearing the Director asserted that the Marshalls have violated the Code by
constructing the floating dock without a Shoreline Substantial Development Permit
(SSDP) [Exhibit 29]. The Marshalls argued that the structure is exempt from the SSDP
Process because it cost less than the $2500 threshold for a permit and that the City cannot
require that they obtain an exemption [Exhibit 301.
16. The Director presented information that established that a floating dock is one of
several popular overwater structures associated with boat use. The Bainbridge Island
Nearshore Assessment reviews these structures and their effects on the nearshore
environment. The Nearshore Assessment characterizes floating docks as being
"generally composed of a frame mounted on floats of encapsulated Styrofoam or wood,
anchored in place to pilings via sliding hardware" [Exhibit 19, page VI -13]_ Given its
structural elements, configuration, purpose and appearance [see Exhibit 19, Figure VI -
11 ]; the subject structure here is properly identified as a "floating dock", even though the
Styrofoam float material is exposed to the water, not "encapsulated".
17. In addition to the primary ecological impact of light attenuation and shading,
overwater structures can alter, and adversely affect, a variety of physical processes in
nearshore marine habitats. For submerged plants, such as critically important eelgrass,
shading can reduce light necessary for survival and it can also alter fish migration.
Floating docks that allow no light to penetrate below the water's surface and that ground
at low tide are discouraged. Physical disturbance to marine vegetation and substrate is
another impact of overwater structures. Because they ground with low tides, floating
docks have direct contact with, and can destroy eelgrass and other marine vegetation and
alter the benthic invertebrate community. [Exhibit 19, pages IVA6-19; Exhibit 6; Stall'
Report, pages 4-5; Testimony of Machen] Floating docks can use grating as surface
material to enhance light penetration and "stops" can prevent damaging direct contact.
[Exhibit 19, page IVA8].
18. The subject structure, consisting of a series of wood frames with Styrofoam
floatation [Exhibits 26B, 26K 261], extending waterward from the shore [Exhibits 26A
and 26B], and used for mooring boats [Exhibits 26A, 2613, 26I1, is a floating dock [see
Finding 8 and Finding 16]. This floating dock has no "stops" to prevent it from
grounding directly on the substrate in low tides.
l9. "Recreational floats" [see Finding 23] are for swimming and diving, not for
mooring boats. A recreational float can have a maximum size of eight feet by eight feet
[BIMC]6.12.340.G.12). The term "float" used here does not refer to a recreational float.
20. Mr. Marshall obtained "approximately 200 feet of old wood float" [Exhibit 281
from M"'s Marine Service in Tacoma. In an after -the -fact writing, Marty Jackson
notes that he charged a fee of $500 for delivery, but there was no charge for the float
itself as he was saving the cost of disposing of it. Mr. Marshall testified that this
salvaged "float" consisted of 10 segments, each of 20 ft. long. Assuming that the
COD 272
Page 5 of 10
salvaged "floats" were at least six feet wide, the cost for the 1200 sq. ft. of "float" was
approximately $.42 per square foot. There was no out-of-pocket expense for assembling
the segments; Mr. Marshall connected the segments himself with chain and bolts in "10-
15 minutes". Appellant sets total cost at less than $1000 (delivery of the float, plus
chains, bolts, and consideration of Mr. Marshall's time).
21. To estimate fair market value, the Director contacted two marine contractors with
experience building docks on Bainbridge Island. The contractors estimated that such a
structure would cost approximately $30435 per square foot. [Testimony of Machen;
Exhibit 18, page 6]
22. The Director's estimates of $30435 per square foot for the "fair market value" of
a floating dock seem high, but no other estimates were presented. Instead, Appellants
argued that what the structure actually cost (plus some dollars for Mr. Marshall's labor) is
the fair market value. Using this `actual cost as value' approach, "fair market value"
could not exceed $1.25 per square foot to be within the $2500 exemption threshold.
[Testimony of Marshall; Exhibit 18, page 6] As an estimate of"fair market value", this is
untenable: what something cost is not the same as "fair market value".
Shoreline Regulations
23. The Bainbridge Island Municipal Code (BIMC) includes the following definitions
in Chapter 16.12.030 of the Shoreline Code:
52. "Development" means a use consisting of the construction or
exterior alteration ofstructures; dredging; drilling; dumping; filling; removal of
any sand, gravel, or minerals; bulkheading; pile driving; placing ofobstructions;
or any project of a permanent or temporary nature which interferes with the
normal public use of the surface of the waters of the state...
54. `Dock" means a floating platform which abuts the shoreline,
extending waterward from ordinary high water, or from the bottom of a ramp
extending from a pier, generally used as a landing or moorage place for
commercial and/or pleasure craft.
70. "Exemption" means certain developments are exempt from the
definition of substantial developments Ong therefore, are exempt from the
substantial development permit process of the Shoreline Management Act. An
activity that is exempt from the substantial development provisions of the
Shoreline Management Act must still be carried out in compliance with policies
and standards of the Act and the local master program. Conditional use and/or
variance permits may also still be required even though the activity does not
need a substantial development permit...
72. "Fair market value" means the. expected price at which the
development can be sold to a willing buyer. For developments which involve
nonstructural operations such as dredging, drilling, dumping, or filling, the fair
COD 272
Page 6 of 10
market value is the expected cost of hiring a contractor to perform the operation,
or where no such value can be calculated, the total of labor, equipment use,
transportation, and other costs incurred for the duration of the permitted
project...
138. "Recreational float' means anchored offshore platforms used
for water dependent activities such as swimming and diving.
176. "Structure" means a permanent of temporary edifteae or
building, or any piece of work artificially built or composed of parts joined
together in some definite manner, whether installed on, above,or below the
surface of the ground or water, except for vessels.
J78. "Substantial development' means any development ofwhich the
total cost or fair market value exceeds $2,500 (or another amount established in
RCA' 90.58.030(3)(e) or its successor), or any development which materially
interferes with the normal public use of the water or shorelines of the state,
except as specifically exempted pursuant to RCA' 90.58.030(3)(e) or its successor
and WAC 173-14-040 or its successor. See definitions for "Development' and
"Exemption. "
24. Within the shoreline a permit or an exemption is required pursuant to BIMC
16.12.360. A, which provides, in pertinent part that:
1. A development, use, or activity shall not be undertaken... unless
it is consistent with the policy and procedures of the Shoreline Management Act,
applicable state regulations and the shoreline master program.
2. A substantial development shall not be undertaken... unless an
appropriate shoreline permit has been obtained, the appeal period has been
completed, any appeals have been resolved, and/or the applicant has been given
permission by the proper authority to proceed
3. Any person wishing to undertake substantial development or
exempt development on shorelines shall apply to the director for an appropriate
shoreline permit or a statement of exemption.
tax
25. BWC 16.12.350.A.I vests the Director with:
a Overall administrative responsibilityfor the master program;
permits; b. Authority to grant statements of exemption from shoreline
C. Authority to approve, approve with conditions, or deny shoreline
substantial development permits and permit revisions in accordance with the
Policies and regulations of the master program...
26. Regarding fees for permits and statements of exemption, BINIC 16.12.360.0
provides that: `A filing fee in an amount established by the City Council by resolution
shall be paid at the time of application. After the fact permit fees will be triple the
normal amount. "
COD 272
Page 7 of 10
27. BIMC Chapter 1.26 provides Code enforcement procedures. BIMC I.26.020.A
Provides that it is the duty of the Director 'Yo enforce the applicable chapters and titles of
this code". BIMC 1.26.070 allows that an appeal of a director's decision regarding a
violation is 'yursuwa to the procedures set forth in BPWC 2.16130. "
28. BIMC 2.16.130 applies to appeals of "administrative decisions, departmental
rulings and interpretations..." In considering such appeals, BIMC 2.16.130.F authorizes
the Hearing Examiner to: affirm the Director's decision, affirm with modifications,
reverse the decision, or remand it to the Director. That section of the Code also requires
that the Hearing Examiner give "substantial weight to the decision of the deparrinent
director."
29. BIMC 1.28.030 mandates that a "Code enforcement
,fee" be charged as follows:
"Whenever the City is required to act to enforce any provision of the Code, in addifron to
arty other fines, charges or penalties imposed on the person committing the violation, the
city shall charge the person an appropriate fee established by the city by resolution. "
The City's current hourly rate is $180.00 [see BIMC 1.28.035.E] and BIMC 1.28.035.D
provides that a disputed charge may be appealed to the Hearing Examiner for final
decision.
Conclusions
I. The Hearing Examiner has jurisdiction to hear and decide appeals of the
Director's administrative decisions regarding alleged violations and, pursuant to the
mandate of BIMC 2.16.130 [see Finding 29], in making that decision, must give
substantial weight to the decision of the department director. To overcome the
substantial weight accorded the Director, an appellant has to show that the Director's
,
decision is clearly erroneous. Under this standard ofreviewthe Director can be reversed
been made.
if the Hearing Examiner is left with the definite and firm conviction that a mistake has
2. BIMC 1.28.035.1) authorizes the Hearing Examiner to decide the appeals
regarding the amount charged for the enforcement fee.
3. The matters appealed are properly before the Hearing Examiner.
4. The Appellants constructed a floating dock structure within the jurisdiction of the
Shoreline Master Program (BIMC Chapter 16.12) without a Shoreline Substantial
Development Permit.
5. The subject structure is properly categorized as a floating dock.
6. This floating dock has not been designed to minimize the adverse environmental
impacts to the marine vegetation and the substrate caused by shading and grounding.
COD 272
Page 8 of 10
Also, the Styrofoam floatation is not "encapsulated" (contained); as it wears down, the
wom off pieces can enters the water -
7. The "fair market value" of a 253 & long floating dock that can accommodate
several vessels exceeds $2500. "Fair market value" assessment here applies to a floating
dock development of this size and function, not the price the "willing buyer" (the
Marshalls) paid for the patchwork, worse -for -wear, environmentally harmful structure
created. If dollars spent was to be the measure of whether or not something is
"substantial development" (i.e., exceeds the $2500 exemption threshold), then the Code
would read "cost', not "fair market value". Using a `what it cost' approach, rather than
`what it's worth' would encourage underreporting in order get under the threshold to
avoid shoreline permit review and, as here, it would encourage the use low quality
materials and poor design, resulting in substandard development (i.e., development that
could not get permitted) and environmental harm.
8- Appellants argue that the Director erred because the development is exempt so
there is no violation. (Appellants further assert that they are not required to obtain a
statement of exemption, but this decision need not address that argument.) However,
Appellants have not sustained their argument: the Director has not been shown to be
mistaken in deciding that this is "substantial development" and that a Shoreline
Substantial Development Permit is required.
Fee Dispute
9. The Code authorizes and directs that a "code enforcement fee" be charged `to
enforce airy provision of the code ". The enforcement fee charged was not a part of the
Director's administrative decision regarding the alleged violation, but the amount
charged may be appealed to the Hearing Examiner under BIMC 1.28.035. Appellants
dispute the amount charged and raised that issue in their appeal.
10. The code enforcement fee charged here (i.e., $360 for two hours) is not
unreasonable in terms of staff time and the hourly rate is not excessive. There is no
factual basis in this record to show that the staff time was not spent or that the City's
hourly rate of $180 is excessive. The Code [at BIMC 1.28.035) specifies a methodology
for determining the standard hourly rate and there is no evidence to suggest that the
current rate is in excess of that necessary to recoup all the City's reasonable costs (i.e.,
the hourly rate has to cover all costs, not simply the hourly salary paid to the staff
involved).
11. Following this decision, if additional staff time is needed to accomplish the
enforcement action being affirmed here, additional "enforcement fee" charges would be
appropriate.
COD 272
Page 9 of 10
Decision
The Director's administrative decision citing violation of BIMC Chapter 16.12 and
ordering removal of the subject structure (see paragraph 3, Exhibit 8) is AFFtuwren.
Entered this 221d day of July 2005.
tFeredith
A Getches
City of Bainbridge Island
Hearing Examiner pro tem
CONCERNING FU]rn] R REVIEW
NOTE: It is the responsibility of a person scelong review of a Hearing Examiner
decision to consult applicable Code sections and other appropriate sources, including
State law, to determine his/her rights and responsibilities relative to appeal.
Request for judicial review of this decision by a person with standing can be made by filing a
land use petition in Superior Court within 21
Revised Cade of Washington (RCW), Cdays in accordance with the Laud Use Petition Act
hapter 36.70C.
COD 272
Page 10 of 10
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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON tul� = a
IN AND FOR THE COUNTY OF KITSAP �z
NICHOLAS and KATHLEEN MARSHALL, )
Petitioners, )
V. )
CITY OF BAINBRIDGE ISLAND,
Respondent. )
DECLARATION OF SERVICE
The undersigned hereby declares under penalty of perjury under the laws of the State of
Washington that the following is a true and correct statement:
The undersigned declares she is over the age of 18 years and competent to make this
Declaration.
On August 11, 2005, the undersigned:
1. Caused to be delivered to ABC Legal Services the original and copies of this
Declaration and Summons and Petition for Review - Land Use Petition Act with instructions to
file and serve on August 11, 2005, as follows:
ORGINALS FOR FILING:
Kitsap County Superior Court Clerk
614 Division Street
Port Orchard, Washington 98366
0Pyy
DECLARATION OFSERVICE -1 CO SE
A 1679100v1 68079-]
Srmtle Davis Wright Tremaine LLP
LAW OFFICES
2600 Century Square - I60I Fourth Avenue
Seattle, W.,hi.,. 9810/1688
(206) 6223150 Fax: (206) 628-7699
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and (5).
COPY TO BE SERVED ON:
Sue Kasper, City Clerk or
Roz Lasoff, Deputy Clerk
City of Bainbridge Island
Dept. of Community Development
280 Madison Avenue North
Bainbridge Island, Washington 98110
The aforementioned service was accomplished as directed by RCW 36.70C.040(2)(d)
SIGNED at Seattle, Washington, this 11th day of Au ` st 2005.
Karen Hall
DECLARATION OF SERVICE - 2
SEA 1679100v1 68079-1
Seattle
Davis Wright Tremain LLP
LAW OFFICES
2600 Century Square . 1501 Fourth Avenue
seaWe,Waahinst6n 98101-1688
(206)622-1150 Fe.,(206)628-)699