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HC: 092104BIHC Minutes 9/21/04/04 Approved Bainbridge Island Harbor Commission Minutes 09/21/04 Approved Bainbridge Island Commons Meeting came to order at 5:30 pm Harbor Commission member present: Frank Vibrans Kathy Ivy Rob Jacques Bob Selzler Mike Rose Rachel Smith, Presenter Peter Best COBI Public: Tristan Baurick, Bainbridge Island Review Mike Suraci Thom Hamilton Dave Ullin Alexina Boudreaux-Allen Bob Smith I. Public comment: none II. Approve minutes of the June, July and August Meetings. III. Accept Harbormaster Report: 6-1 Safety and Navigation Maintenance scheduled on regulatory markers—Started July 2004. Maintenance on Mooring buoys and LMS--New zincs to float, clean, added air to spars. Need to repeat in November. Replaced chain and links for MBW. (Thanks Bruce MacLay and Dave Ullin!) LED lights on the Linear Moorage are in. Waterski markers in Eagle Harbor have been pulled (Thanks Mike!) They will be washed and stowed on 9/22. 6-2 Environment Ongoing, intermittent problems with garbage in the park. Photos sent on 9/21 to Council. Topic for discussion at next PWTC meeting of the Council. Councilmember has asked Harbormaster to attend and explain if the garbage is coming from Liveaboards. Frequent calls re: Vessel ―Tirena‖ or ―Sirena‖ frequently pumping something overboard near Rodal property. No vessel WN’s, no explanations. 6-3 Anchoring and Mooring Ongoing boat check, dinghy check, boat reservations. Report moorage paid. Year to Date total $6,218.25. Current delinquent accounts for moorage not paid: Martin $160.00; Grayson $277.00, Gunderson $120.00; Anderson $520.20. AM draft plan is ready for posting to the City’s website: www.ci.bainbridge-isl.wa.us Calls regarding new buoy placements in Manzanita, Port Madison. Refer to Planning for permit process for private buoys. BIHC Minutes 9/21/04/04 Approved 6-4 Public Access 2004 grant applications for restroom/showers in progress. Final Presentation to IAC committee September 29th in Olympia. Request to IAC to for Bainbridge Rowing Club to become a public concession similar to the kayak not approved. City has located the Miller property at Weaver Rd (Old strawberry plant). Working with BIPD, BI Chamber of Commerce, and COBI Sign shop to clarify parking signs for boat- trailer parking. Reserved holidays and weekend days boat trailer combos only. Authorized permits exempt from time limits weekdays only. No parking at all Midnight Saturday to 5:30 Sunday. 6—6 Admin 2005 Current Budget request to the City of Bainbridge Island: $10,000 for Harbor Management (Anchoring and Mooring Permit). $10,000 for Derelict Vessel Removal. Harbormaster elected to the Board of Directors for the Pacific Coast Congress of Harbormasters. Next conference will be held in La Conner, WA October 27th and 28th. Commissioners are encouraged to attend. www.pcc-harbormasters.org 7-1 Derelict Vessel Vessels in the DVRP are listed on the DNR website. ***note. The WSF has submitted a request to DNR to lease the area that currently houses the impounded boats. WN 6245 –owner Linda Griffen, cc courtesy copy to Boyd Graffmire. Boat has completed the DVRP process. Two gas engines to deal with. Will start getting bids on removal. WN2439JE. Owner Scott Geater. Still no bidder. Oblio: Owner Todd Abbey. 5/31/04 vessel awash. 6/2/04 vessel on the beach at Taylor Rd. Issue went to Code Enforcement work group (Will Peddy, Tami Allen, Peter Best, Beth Houston, Ben Sias) to sort out land use code, vessel code, DVRP.etc. 8/30 began DVRP notices. Owner Todd Abbey had promised the property owner he would be off the beach by 7/10, then promised the City he would be off the beach by 9/11. WN4745R Owner: Brian Boland (moorage and DVRP):. Currently tied in Waterfront Park. Owner Jeffrey Anderson. ―Island Bird‖ had been on City Mooring. Bob and Tami towed vessel to barge in park. Owner re-anchored on Watauga, towed vessel a second time, tied to barge. It needs to vacate Waterfront Park. Still owes for towing, moorage in 2003. WN 7398F. Owner Byron Holcombe Need to follow up: beached boat at Manitou Beach Rd. Owner responsible for clean up. Marnie— owner Mark Sutton will remove on 9/25/04. Currently tied in the Park— WN0066LB—vessel sunk in middle eagle harbor—still there. Person responsible-Bruce MacLay. WN2556JE—Owner Brian Boland. Gulliver has been getting pumped out by the city. Tami asked around if there was a person assigned by Brian to care for the vessel. No response. There was discussion about the vessel ―OBLIO‖. Tami explained that the vessel was currently in the DVRP process and that the City would own the vessel on September 30th. The weight of this project would be over 50 tons. Tami asked for any comments from the Commission as she explores demolition on site, or to have it towed as part of the beach restoration in October. Ryan Landworth asked why the City didn’t use the money that it would need for demolition and donate money with volunteer labor to fix it for the owner. Bob Selzler confirmed that the boat was rotten throughout. Others in the room who had seen the boat on the beach agreed that the deck and the top sides are rotted. Someone asked Tami about ACOE coming to pick it up. Tami explained that she has often talked to the ACOE and they are really overburdened---they would respond to a hazard. Someone offered that Tami should call the naval shipyard to have them dispose of it as a vendor. Tami suggested that the demo could be combined with the beach restoration on October 9th. Cindy Stahl will have a barge, excavator, and tugboat on site. She may be able to combine the job to her return trip. Peter BIHC Minutes 9/21/04/04 Approved explained that Tami would need to secure an emergency permit to have Cindy pick it up off the beach. The contact for that permit is Randi Thurston—WDFW. Mike Suraci asked about the BI Rowing club. Tami explained that she was continuing to work on the IAC restroom and shower grant. Randy Witt is currently working with the Rowing Club to secure a site at the end of Weaver Rd. Rob Jacques asked if Randy Witt, Director of Public works and the rowing club would attend the October meeting. IV. Anchoring and Mooring Plan: Tami reported that the Eagle Harbor Anchoring and Mooring Plan (DRAFT) was available at the following locations. To read and download from the web: http://www.ci.bainbridge-isl.wa.us To Copy: “SOUND REPROGRAPHICS” at the Pavilion on Madison. Copies To Review: Reading Copies (Please do not remove) are located at the WSF passenger ferry terminal bulletins boards, Bainbridge Library, City Hall Front Desk at Planning Department, Pegasus Coffee House, City Dock at Waterfront Park, Laundry business on Madison Ave., Chandlery at Winslow Wharf Marina. To request accommodation: Alternative formats for people with disabilities are available upon request to Tami Allen, 206.780.3733. To Discuss: After reading the document, check out Pegasus’ “Conversation Café” for a possible community discussion. kmgjovik@aol.com. Harbor Commissioners and Harbor Stewards are listed on the City’s website: http://www.ci.bainbridge-isl.wa.us. There are volunteer Harbor Stewards and Volunteer Harbor Commissioners around the island. To learn more: All Agendas and Minutes of the Harbor Commission are available on-line at http://www.ci.bainbridge- isl.wa.us. . There is a hard copy of the minutes at City Hall, Harbormaster’s desk. To comment on-line: After reading the document, click on the “Comment HERE” button on the front page of the City’s website. It will send an email to the Harbormaster. Tami Allen will include it with the written comments to the Harbor Commission and it will be retained as public record. http://www.ci.bainbridge-isl.wa.us. To Comment in writing: After reading the document, comment on the Plan to the Bainbridge Island Harbor Commission. The Bainbridge Island Harbor Commission is currently requesting public comment on this Eagle Harbor Anchoring and Mooring Plan (DRAFT). Email tallen@ci.bainbridge-isl.wa.us, Fax 206.780.8600 Hand Carry or Mail to Harbor Commission, City of Bainbridge Island, 280 Madison Ave. N. Bainbridge Island, WA 98110. To Comment in Person (with written submittal attached): After reading the document, present to the Bainbridge Island Harbor Commission. The next meeting is October 5th 5:30-7:30 at City Hall Council Chamber. The Harbor Commission will also meet on November 9th to complete the public comment sessions and forward the document with recommendation to the Bainbridge Island City Council for 2005. Please prepare written comments as part of the verbal presentation to the Harbor Commission—Email is fine. To Ask Questions: After reading the posted document, feel free to send questions to the City’s Harbormaster. Note: She brought a drawing called “Exhibit 8 of the final EIS, September 1973” and on that drawing is “Area A”. V. BOATYARD: Written text of Rachel Smith’s Presentation the Harbor Commission. Compared to its heyday, in the early 1970's the Winslow Ship yard site was a relatively unused area owned by by a group of local investors. Russell Trask was their tenant and used the site for his bulkhead business. Subtenants to Trask were a piledriving outfit, fishboat owners, and the Stafford Marina. Alexander Myers Company bought the property from the investment group for the purpose of building an BIHC Minutes 9/21/04/04 Approved apartment complex. To preserve his business, Russell Trask made a counter offer, but was rejected because the investors were interested not just in the proceeds of the raw property, but from the proposed development. Alexander Myers,hereafter AMCO, sought a change in the zoning from commercial to multiple housing. There were numerous citizen objections, but many people and the City considered that the new apartments would improve a blighted area. A contract rezone was granted. People were oblivious to future growth and needs of water dependent uses. Opposition was led by people with maritime background or who had witnessed suburban growth and pressure on maritime sites in other places they had lived, boat people who wanted to keep Bainbridge Island salty. Russell Trask sued the City. Opposition cohered to form an organization called Bainbridge Island Concerned Citizens. AMCO prepared the Environmental Impact Statement which the City then adopted. Washington State Ferries did not oppose the rezone per se, but did comment in the EIS that they would continue to be there and that the incompatibility of uses was beong ignored. This was disappointing as even we old women could foresee they would need more space. At that point, they might have had a beneficial influence. At the time the EIS was adopted, Winslow had not yet begun preparation of its Shoreline master Program though it was due in three months. BICC considered that, if criteria of the SMA were applied, the project would not be allowed. We asked for a hearing before the Shoreline Hearing Board and sought intervention of the Department of Ecology. After a hearing, where opponents and Trask's tenants testified, the Department of Ecology entered the case as Intervenors on our side. They agreed with our view that the site was a rarely suitable for water dependent uses. The legal firm representing Trask took our case as well. Some money for the lawyers was raised by donations and dues, but most came from refinishing old furniture which we sold at auctions, raising about $2500 above overhead each auction. We saved money by doing the legwork and getting witnesses ourselves. We had port managers, marina and dry storage operators, boating organization leaders, biologists, all professional maritime experts and nobody turned us down. The DOE represented by Robert Jensen provided their own experts. Following a three-day hearing, the Shoreline Hearing Board rendered an unusual Memorandum Preliminary to Proposed Order. The memorandum is important in understanding the Board's intent in the ultimate decision. Because AMCO had said that they were interested in providing a marina to the condos, the SHB considered a compromise possible. The SHB offered the parties the choice of an up or down decision or a compromise, to take the form of a covenant. This was that, to be allowed to build the condominiums, AMCO would dedicate an area , binding on all owners and running with the land for ever, holding and restricting a shoreline and upland area for the exclusive use of a marina and/or commercial boat facility with space for installation of the usual haulout facilities and repair space attendant to a modern marina, as well as parking and circulation space. Further they must provide parking space and two to one moorages to the public in their moorage. The parties had the option of compromising or holding out for an up or down decision. BICC had not meant to defend only the needs of pleasure craft, but to preserve space for all water dependent uses. In our naivety, the tenor of the Memorandum wherein the SHB seemed inclined to guarantee water dependent space was encouraging. Therefore we declined to take part in determining the space to be set aside, with the intent of an appeal if we lost in an up or down decision. The Department of Ecology, our Intervenors did take part, though they also entered exceptions. The dedicated area they agreed on with AMCO is Area A on the displayed map west of the ferry repair shop. In addition there is a 30 foot easement east of the Ferry Repair shop to provide eventual public access to the beach and to Area B. Area B is the tidelands of Eagle Harbor Condominiums. Area B is not required to BIHC Minutes 9/21/04/04 Approved developed. But if it is developed, it may only be as a marina and/or commercial boat facility to which the public shall have two berths to one for condominium residents. The Hearing Board accepted the compromise between AMCO and the DOE and in September 1974 produced their Findings and Conclusion. This required elimination of one of the four condominium to provide space for the continued operation of a please-craft marina and/or a commercial boat facility and related activities. They required a 30 foot easement to Area B to be reserved should Area B ever be developed. In this document they added a pedestrian and bicycle walkway for the public along the north and and northeast property lines down to the beach to be provided in the first stage of construction. The beach was to be open to the public for uses such as "walking or picnicking and for access to a marina if ever constructed in that area." A dedication pursuant to the order had to be filed with Kitsap County Auditor before AMCO' substantial development permit would became valid. In the dedication the protected uses are more specifically described, as follows. This where a boatyard and dry storage were added. "The use of Area A will be restricted to a pleasure craft marina or marinas and/or a commercial boat facility with all related activities. Along with other related activites in Area A space may be include areas for automobile parking, for vehicle loading/unloading and turn-around, for installation and use of a haul-out facility, for dry storage of boats, and for repair of boats. Additionally Area A may be used for access to and from all other portions of the AMCO property and adjoining tidelands." Further, " The covenants, conditions and restrictions of the Declaration shall run with the land and bind the land forever, and be binding upon and inure to the benefit of parties having any right title or interest inthe property or any part therof, their heirs, successors and assigns, except as provided herein. This Declarationshall be filed with the Kitsap County Auditor." The proviso referred to was that the SHB shall have power to amend this declaration if it is demonstrated that the covenants, condiitons and restrictions would restrict the land so that there is no reasonable economic use for the Declarant, after a period of ten years. All parties to the case to be notified of any such request. This sounds beautiful and reasonable till you look at the map of the actual land provided. Area A is only one acre. BICC felt this was inadequate and appealed up to appellate court where we were accorded an evidentiary hearing but achieved no improvement beyond the compromise dedication worked out between the DOE and AMCO. Meanwhile Russ Trask's suit was going through the regular Courts. At Appellate level his suit got bumped up to the State Supreme Court, making his chances look better. Two years had passed and the developer AMCO was suffering from the delays and legal costs. At this point AMCO threw in the sponge and agreed to sell Trask the west half of the site. The Dedication had just been filed dedicating an area of the west side and Russ Trask was not happy about it. Trask's lawyers, also ours, asked AMCO"s lawyers to file a new revised declaration favoring general rather than specific waterdependent uses. AMCO filed thesecond dedication. BICC proceeded to the Court of Appeals, but our case was not to be heard on its merits. At about this point in another SHB case which reached the State Supreme Court, the Supreme Court ruled that the SHB is the paramount authority in its field and cannot be overruled by any other court except on procedural flaws. BIHC Minutes 9/21/04/04 Approved Accordingly Judge Pearson limited his decision to stipulating an evidentiary hearing before the SHB solely on the subject of whether Area A was adequate in size to serve the described uses. The evidentiary hearing was duly held. Again we had marina operators and managers as witnesses. But we did not prevail and on October 27, 1976 the SHB issued its Order on Remand which reaffirmed the original order of September 1974. Further they addressed whether the second dedication filed at Russ Trask's request satisfied their intentions. Rather emphatically it did not. This is a good thing, because if it had, the intended operations of WSF would meet its requirements. It is a good thing this question was addressed because it reaffirms the Board's intent that local marine services must have space. By the terms of the order the City of Winslow was given the right to enforce the Declaration by proceedings at law or in equity. If appealed to, now that more than ten years has passed, the owner of Area A can seek relief from the SHB if they can prove resulting economic hardship. The City did not require Trask to literally observe the dedication on the precise spot. However he did give other space to Mark Julian's yard. BICC didn't clamor for literal observance because no permanent structure was being proposed to impact the true site. As you will all remember, Mark Julian's yard got knocked for a loop by WSF condemning the site at about the same time as the EPA found it to be a Superfund site. Mark did not find the WSF a fair or reasonable landlord and was forced out by the high rent above market rates. The City had the task of getting WSF to acknowledge the SHB-ordered dedication and give space for the boatyard. Then came the EPA. As a solution to their Superfund cleanup duty, WSF wanted to fill over the marine railway which was west of the specifically dedicated area rather than dredge and remove the contaminated seabed. Without acknowledging that they were obliged to lease the dedicated site for a boatyard anyhow, WSF argument was that if allowed to fill over the contaminated tideland, they might have enough ground to let us have a boatyard. They had to obtain a permit from the City. The City used their need for a permit to extract an agreement to provide space for a boatyard by doing something usually no longer allowed on the shoreline, filling to create land. Further this dubious solution had the effect of burying the still sound nationally unique marine railway. The right to lease a boatyard is for a minimum of twenty years. Eleven remain, and the there's the question of a renewal. There's also the question of whether the dedicated site, formerly on the waterfront and now blocked in, is suitable without the filled area. The right to have a boatyard on the dedicated site already existed. The boatyard site on the fill was in return for an easier and less costly solution to the EPA's cleanup requirement. Under the terms of the order, neither the City nor WSF had the right to substitue a mere twenty year understanding for a different spot for a site dedicated forever. So, we possibly have two abutting sites which WSF has an obligation to lease for the protected uses. There were two different deals. Our side has delivered its side of the bargain. Usually a dedicated easement would be wiped out when a State Agency condemns a property and this is the suppostion of people who have not examined the SHB Preliminary Memorandum. The order of the SHB puts the dedication in a different class from ordinary easements. It was a Covenant made as a condition for building the Eagle Harbor Condominiums, which were built. The State Supreme Court has held the SHB to be the paramount authority in maritime matters whose decisions cannot be overturned except on procedure. This dedication runs with the land forever by their order. "Forever" makes it worth the citizens' money for the City to go to the Courts for confirmation that the dedication still applies. Our analysis in 1974 showed that in the whole mid-Sound suitable sites for these uses was already scarce and it BIHC Minutes 9/21/04/04 Approved is much worse now. The City's subsequent SMP, its distribution of shoreline use zones, and costly pursuant developments on the remaining waterfront can be held to based on the trust that this site would serve the boatyard need. The community is done a grievous injury if the bargain is not kept. I understand a City, as well as a Port district, could have a municipal property of this sort. Since the State is US, since WSF is a State agency we own, we need to enlist our legislators to work to get us a deal to buy the boatyard site, preferably both, partly by grants, partly by contributions, and partly by something like the Open Space Levy. Public ownership would take the rent rate curse off the boat yard and would make a do-it-yourself maintenance possible. Remember how rare this site is and that the water belongs to everyone. We are talking about whether boating will be accessible to everybody or just to rich people. There has to be a place for people to maintain boats or they can't have them. We have high claims to state grants and consideration for a reasonable deal. This site is unique in the Central Sound and an AREA ASSET not to be lost or wasted . VI. Agenda set for October 5th. a. Meeting with Randy Witt and BI Rowing’s Dave Ward. b. Approve BIHC letter to Mayor to support the return of the boatyard. c. Take First round of Public Comment on the Draft Eagle Harbor Anchoring and Mooring Plan. Meeting adjourned 7:30