051810_ALEXANDER_HEX_DECISIONDECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of
Dan and Harriet Alexander SSDP 15335
From the Administrative Decision
to Deny a Shoreline Substantial Development Permit
Introduction
Dan E. and Harriet H. Alexander, appeal the decision by the Director, Department of
Planning & Community and Development, denying their application for a substantial development
permit for a protective bulkhead for property at 10920 Broomgerrie Road.
A public hearing on the appeal was held on April 8, 2010. Appellants were represented at
hearing by their attorney, Dennis Reynolds, Dennis D. Reynolds Law Office, and the Director,
Planning and Community Development Department, by Rosemary A. Larson, Inslee Best Doezie
& Ryder. The record closed May 10, 2010.
For the purposes of this decision, all section numbers refer to the Bainbridge Island
Municipal Code unless otherwise indicated
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
1. Dan Alexander applied for a substantial development permit to construct a new rock
bulkhead with soft shore protection in front of undeveloped property at 10920 Broomgerrie Road
owned by Dan and Harriet Alexander and intended for recreational use and investment.
2. The subject property is a lot of over one half acre that extends on both sides of Broomgerrie
Road with a rolling upland in that there is a moderately flat area near the road on the west and then
as the topography drops toward the northeast there are two prominent benches midway and then a
bank at the shoreline that ranges from about 8 feet up to approximately 20 feet in height.
Testimony of Cousins. Overall vertical relief from the road to the beach is around 70 feet over the
approximate 250 ft. distance. Exhibit 18. Vegetation on the site consists of a mix of alder and
some cedar trees with ivy and blackberry understory growing on the shoreline bank approximately
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30 -40 feet deep, down to and overhanging the beach, then the upper slope that has been partially
cleared and periodically mowed with low growing vegetation on it now. There is one large cedar
tree in the treed slope area along with alders from 3 -4 inches to 12 inches or more in diameter plus
one or two sumac. The beach is sand with scattered gravel and slopes at approximately 1 OH: 1V
down to the water and a flatter lower intertidal area.. At the time of the hearing, there was no beach
berm so no backshore.
3. The subject property is on a topographic bench that represents a portion of a prehistoric
landslide area and is mapped as an active slide area on the City's GIS maps and classified as
geologically hazardous. Exhibit 4. It has slopes of 40 percent Appellants' geotechnical report
indicates awareness of landslide activity on the site and an adjacent site. Exhibit 18. The site
shows up as unstable in DOE records as having had recent landslides. Otherwise there is little in
the public record about the landslide history but anecdotal evidence of periodic activity that would
be greater than normal. Testimony of Cousins.
4. The site is zoned Residential Two Units Per Acre (R -2) as are lots in the surrounding
vicinity. The Shoreline Master Program (SMP) designation is Semi -rural environment with
Aquatic water environment.
5. Rock bulkheads protect the lots on both sides of the subject property. Of the 20 lots on
Broomgerrie Road, bulkheads protect 19, the subject property being the lone exception.
6. The Alexanders applied for a shoreline substantial development permit on June 17, 2008,
for the installation of a bulkhead. Mr. Alexander's reasons for wanting a bulkhead are to protect
the front of his property from eroding away, to protect his neighbors' property, to provide
structural support to prevent slides, and to create a way to reach the beach to make the property
usable for recreation and the enjoyment of his family. Mr. Alexander was advised by letter after a
preapplication conference that it was unlikely that approval for a shoreline armoring structure on
the property would be granted because the geotechnical report did not indicate there was a risk to
an adjacent residence or that the subject property was at risk due to serious wave erosion nor that
non - structural solutions would not provide the protection desired. Exhibit 10. Because of his
concern for his property and that of his neighbors, he decided to go forward with his application
and submitted a revised application on May 13, 2009, showing the rock bulkhead extending to the
neighbors rip rap with soft shore protection in front of the proposed rock bulkhead plus a ramp or
stairway down to the beach.
7. The proposed bulkhead would be a "hybrid" utilizing both soft and hard components to
achieve the goal of mimicking the natural condition of the shoreline while protecting the toe of the
slope. The two components would be a stopgap rock component between 6 and 7 feet high and a
series of anchored logs, stumps, imported sand, and cobble in front. The bulkhead would be built
at or above the ordinary high water mark (OHWM) and considerably landward of the mean high
higher water (MHHW). The slightly higher beach profile would allow for energy dissipation and
reduction to protect the beach and adjacent bulkheads, and with the soft materials in front of the
rock bulkhead would mimic natural conditions. Testimony of Cousins.
8. The application includes extending the bulkhead onto the Fink property to the north to
connect with the bulkhead on that property. The owner of that property, Lee Fink, did not sign the
application, however he testified at hearing that he would be willing to join in the application
because waves wash around the end of his bulkhead. He has observed that the vegetation in that
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area is moving back from the beach more rapidly on the Alexander side and is threatening the
integrity of his property. Testimony of Fink.
9. The Deputy Director of the Department of Planning and Community Development, on
behalf of the Director ( "Director "), denied the substantial development permit because the
applicant did not conclusively demonstrate that serious wave erosion threatens existing
development or land and because the applicant did not show that nonstructural protection was
unworkable. Testimony ofMachen; Exhibit 4.
10. Section 16.12.310.B.5 provides:
Revetments and bulkheads may be allowed only when evidence is presented which
conclusively demonstrates that the following conditions exist:
a. Serious wave erosion threatens an existing development or land;
b. Bulkheads or revetments may be approved for the operations and
location of water - dependent and water - related activities consistent
with the master program; provided, that all alternatives have proven
infeasible (i.e., use relocation, use redesign, nonstructural sore
stabilization options.) Such bulkheads or revetments must meet other
policies and regulations of this chapter; and
c. That use of natural materials and processes and nonstructural
solutions to bank stabilization are unworkable in protecting existing
development.
11. The Bainbridge Island Nearshore Assessment, Summary of Best Available Science
(October 2003) ( "Nearshore Assessment ") (Exhibit 25) describes physical characteristics and
dynamics, habitats, biological resources of the shoreline, and the effects of nearshore
modifications, among other topics. One of its conclusions is that shoreline modifications can have
direct, indirect, and cumulative impacts to estuarine and nearshore marine biological resources and
that the best way to protect sensitive shoreline habitat is to maintain it in a natural condition. The
Nearshore Assessment was intended to provide best available science to be used in making
planning and regulatory decisions.
12. The site is not identified in the Nearshore Assessment as a feeder bluff, that is one that
contributes a significant amount of sediment through erosion to the beach providing various
benefits to marine organisms. This east facing area is considered "semi- protected" as to wave
action. Exhibit 25.
13. Five observers with differing areas but similar levels of expertise observed the beach at the
subject site: Josh Machen, Senior Planner for the City with extensive shoreline permitting
experience; Robert Cousins, a licensed engineering geologist and hydrogeologist with almost 20
years of experience; Mark Pedersen, a Senior Aquatic/Marine Scientist and President of Margenex
International with over 25 years of experience in aquatic and marine environmental issues; Chris
Waldbillig, also with extensive experience working with municipalities on shoreline issues, who
implements the hydraulics code with the Washington State Department of Fish and Wildlife; and
Hugh Shipman, licensed geologist, who works in the Shorelands and Environmental Assistance
Program, Washington State Department of Ecology, and has thirty years of experience.
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14. Machen visited the subject site on several occasions and did not see serious wave erosion.
He observed vegetation growing down to the base of the slope and tree root systems right at the
beach that hold the bank together. He saw no significant undercutting of the bank. He explained
that where erosion has caused over steepening of a bank, one will observe trees falling over and
that is not happening at the subject site. He saw some erosion at the base but considered it typical
erosion for Puget Sound shoreline. Machen was actually surprised to see how little erosion there
has been given several significant storm events in the last five years. At the site, the MHHW is a
significant distance from the toe of the slope so water rarely meets the toe. Where he has observed
serious erosion, the MHHW is only a couple of feet from the OHWM
15. Cousins observed definite erosion at the toe of the slope on the beach with varying degrees
of scouring on both sides of the property creating pocket beaches and, relying on the neighboring
property owner's estimate of a 3 foot loss over seven or eight years, regarded it as serious wave
erosion because of the instability of the slope and because as the toe erodes, the upper part will
slide down to fill it in. He advised that loss at the toe of the slope destabilizes the upland by
removing the buttressing so the upper part of the slope will come down to fill in. As the erosion
continues it moves up the slope and the risk to adjacent houses increases. He believes that there is
no doubt that the continued erosion will cause deep- seated slope failure and though the bulkhead
would not provide significant buttressing of the larger landslide mass, that protection of the toe is
needed to remove the threat to the upland itself and to the houses on both the north and south sides,
which he estimated to be 60 and 100 feet from the shoreline of the subject property. He did not do
a risk factor calculation. His opinion is that the erosion should be regarded as serious, recognizing
that the judgment about seriousness of erosion is subjective. Cousins prepared a wave analysis
(Exhibit 19) for the site to calculate wave height to determine overall energy regime at the site and
compared his results with the National Weather Service predictions for a specific day to confirm
the analysis' accuracy. He opined that the wave characteristics from windstorms that he projected
would cause serious erosion if they strike the shore. He did not have information about the
frequency of such wave events. While he inferred from information provided by Alexander that
the erosion rate at the site averages 6 inches per year, he pointed out that the average could mean
no erosion one year and then a bad year with 5 feet of erosion, for example, and the latter would
destabilize the bank.
16. Pedersen saw evidence of wave - caused erosion and bank undercutting of the bank and
trees and a pocket beach at the adjacent property.
17. Waldbillig observed wave erosion at the toe of the slope of the subject property and on the
property to the north that he classified as minor because the riparian zone is intact with healthy
habitat, there are no shear faces on the bluff, and there is minor to no undercutting of the toe.
18. Shipman saw gradual movement that he did not regard as serious and observed no evidence
such as fresh wood or soil on the beach indicative of active wave erosion. He observed bare soil
under the overhanging ivy, but no undercutting. He could not reconcile what he observed with
even six inches of erosion a year and estimated something of the magnitude of a couple of inches,
though there could have been periods of greater erosion. He concluded that wave erosion for the
last several years on the property was not serious. He acknowledged that the right tides and storm
events could cause greater erosion. He explained that pocket beaches often occur between two
bulkheads and are very stable because sediment cannot escape. Here, Shipman observed a little
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scouring behind the bulkhead to the south, but drainpipes emptying at that location could be the
cause.
19. The estimates of annual toe erosion ranged from 2 inches (Shipman) to 6 inches (Cousins),
though several acknowledged that with the right tidal and storm events it could be greater in one
year.
20. The average wave erosion rate for Puget Sound is 4 -6 inches per year. Machen regards this
rate as normal and acceptable, especially on an undeveloped site, and a part of the natural process.
In his judgment, the site is experiencing much less than 6 inches per year but that even a 6 inch rate
of erosion would not "threaten" the land, when there are no structures and its use is only
recreational since it would be many years at that rate to impact recreational use. He would regard a
loss of several feet per year as serious wave erosion. Testimony ofMachen.
21. Donald Macleod who owns the property with a single - family residence adjoining the
subject site on the south described water coming up around his bulkhead on the Alexander side and
his having to backfill his bulkhead with rock and stack rocks every few years. He is fearful that his
bank will erode in time and topple his house. Testimony of Macleod. The bulkhead on that
property is functioning and likely extends below the OHWM. Testimony ofMachen.
22. The wave analysis results from Cousin's calculation may have been exaggerated as the
analysis assumed a straight line from the northeast where there would be fairly high exposure to
the site but the site is somewhat sheltered by Yeomalt Point and the dominant wave action at the
site is from the south. Testimony of Shipman.
23. High tides are more frequent in winter and that is when storm events occur so the potential
for erosion is greater at those times. Testimony of Pedersen. There have been several significant
storm events in the past five years but little evidence that they caused significant erosion at the site.
Testimony ofMachen.
24. The OHWM is landward on this site of where Pedersen would expect forage fish to spawn
and the site is not shown on the Department of Wildlife's website as a forage fish spawning area.
The site is not mapped for sand lance spawning either. Exhibit 22. Pedersen opined that the beach
could support spawning, but a survey would be necessary to determine if it occurs there. He also
observed that though the maps show eelgrass beds in front of the site, they are in the lower
intertidal over 150 feet away from the OHWM at the site. The soils eroding are highly organic so
would not contribute the quantity of sand that is needed for the health of eelgrass. Therefore he
would not expect the proposal to have a significant effect on eelgrass beds, especially with the
safeguards that the HPA would impose. The proposal would not have adverse effects on spawning
of forage fish or sand lance if there is spawning on the site as the timing of construction would
avoid spawning time. Testimony of Pedersen; Exhibit 22.
25. Waldbillig believes that forage fish spawning could occur on the beach at the subject site
because there is appropriate sand grain and gravel size on the beach. Surf smelt spawning is
mapped within the drift cell and there are salmon in the area. It is a "potential spawning beach ".
Testimony of Waldbillig.
26. The likely actual impacts on the shoreline environment would be the compaction caused by
construction equipment on the beach and displacement of woody debris, the alteration and
displacement in the intertidal habitat from cobble and logs, and refraction, scouring, turbidity and
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loss of beach material on the occasions when waves do reach the face of the bulkhead. The loss of
a minimum of a 10 foot swath of riparian vegetation, except for the cedar tree which would remain,
from construction of the 7 or 8 foot wide bulkhead, with its canopy extending 20 -25 feet over the
intertidal area and up the bank has the potential for an adverse impact because the vegetation
provides large woody debris to the shoreline to keep sand and gravel in place, leaf litter and insects
that benefit fish, and shading for keeping water cool and protection of eggs. Machen estimates that
it would take 20 -25 years to reestablish the existing level of vegetation at the shore. Testimony of
Machen.
27. Trees and other vegetation at the water's edge provide shade and insects for feeding fish
and organics and leaf litter and woody debris. Terrestrial insects provide between five and 100
percent of juvenile salmon's diet, depending upon the site. Testimony of Waldbillig. The removal
of invasive species of vegetation and revegetation behind the bulkhead with native vegetation
would result in a net gain; however there would be a temporal delay before the pre - project
condition is approximated but because part of the riparian vegetation would remain, there would
be some of the same contribution to the shoreline function of shade, leaf litter, and insects and no
measurable displacement of woody debris. If the bank is not protected, over time the existing
vegetation will wash away if the bank is not protected. Testimony of Pedersen.
28. Erosion of banks along the shore contributes sedimentary input to the drift cell. Bulkheads
eliminate the flow of those natural materials, but the degree of impact would depend upon location
and mitigation measures. Where the bulkhead is above the OHWM the impact is more limited.
Testimony of Waldbillig. If appropriate substrate is placed on the beach, and Pedersen found that
the proposed mix of sand and gravel is appropriate, the natural sediment supply would not be
reduced by the proposed protection. Testimony of Pedersen.
29. Because construction would be at or above the OHWM, the edge of the water would only
touch the base of the bulkhead for a few minutes approximately 15 -20 days per year, assuming
mild weather, so the bulkhead would not have the same detrimental effect on shoreline function as
those placed lower on the beach. Exhibit 22.
30. As 19 or the 20 properties along this reach already have bulkheads, the addition of one
additional bulkhead would not have a measurable cumulative effect on shoreline function.
Testimony of Pedersen.
31. Though the geotechnical report indicated that the proposed bulkhead would increase the
factor of safety of adjacent properties, the degree of increase was not indicated nor the length of
time before the support for the homes would fail if protection was not built. And though even six
inches per year of erosion of the toe of a bank could be serious depending upon the context, such as
very steep bank with no vegetation which is not the pattern here, Shipman does not anticipate any
increased factor of safety for the residences on the two adjacent properties from the proposed
bulkhead.
32. The City has never before received an application for a bulkhead to protect adjacent
property, according to Machen, and there is no provision that allows bulkheads to protect another
protective structure on adjacent property. In this case, the property to the north could extend its
bulkhead or construct wing walls to prevent erosion behind its bulkhead. Testimony of Machen.
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33. A low bulkhead was permitted in combination with soft protection at the Mackie property
on Yeomalt Point approximately a half mile south of the subject site. That site had no bank and
during a significant storm, a beach berm was taken away, woody debris moved out and water
reached the edge of the lawn and within 10 -15 feet of the drainfield on the adjacent property.
Testimony of Machen.
34. A bulkhead was permitted for protection of vacant property next to the Pace property,
which had a bulkhead, where there was an oversteepened bank. The bank experienced more
significant wave action than at the subject property and trees had fallen and large Douglas firs at
the top threatened the house on the Pace property. The MHHW was very close to the toe of the
bank. Exhibit 23; Testimony of Machen.
35. Cousins evaluated the site and concluded that a single - family residence could be sited on
the lot while meeting the critical areas ordinance requirements for a geologically hazardous site.
36. Cousins reviewed alternatives to the proposed bulkhead and concluded that supplemental
vegetation would only help with surface erosion as the stabilizing effect is no greater than four feet
in depth; a rock bulkhead would harden the shoreline and protect the toe in the smallest space; a
rock revetment would dissipate wave energy but be susceptible to more toe erosion and scouring;
and a soft bank would be adequate for day -to -day protection but would not alone be adequate to
protect the toe on this site which is not a low energy, protected environment during storm events.
He recommended the hybrid system because it would stop the erosion from wave action while
promoting the natural condition and at the proposed location at or above the OHWM, would have
no significant impact on beach functions. Testimony of Cousins.
37. The City did not complete its environmental analysis and make a threshold determination
pursuant to SEPA when it determined that the permit would not be granted.
38. BIMC 16.12.35013(1)(a) vests the Hearing Examiner with the authority to hear and decide
appeals of the Director's shoreline substantial development decisions.
Conclusions
1. The Hearing Examiner has jurisdiction to hear and decide this matter.
2. The hearing examiner is required to give substantial weight to the determination of the
Director. Section 2.16.130F(2). When a regulation requires that substantial weight is to be given,
the clearly erroneous standard is to be applied and the hearing examiner may reverse the Director's
decision only if she has a definite and firm conviction that a mistake has been made. See Hayden
v. Port Townsend, 93 Wn.2d 870, 613 P.2d 1164 (1980). The parties argue about whether an
interpretation by the Director as the official charged with a provision's enforcement of an
ambiguous provision is entitled to great weight, Milestone Homes v. City of Bonney Lake, 145
Wn.App. 118, 127, 186 P.3d 357 (2008), as indicated by various cases cited by the Department.
Appellants urge that no deference is due the Department's interpretation of the code because there
is no ambiguity, the Department ignored other code provisions such as the Critical Areas
Ordinance, the persuasive factors are not present, and the Department did not show that it had
similarly interpreted the provisions in the past.
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3. The hearing examiner does consider the provision, "serious wave erosion threatens
development or land" to be ambiguous. Where possible, effect is to be given each word in a
statute, City of Olympia v. Drebick, 156 Wn.2d 289, 295, 126 P.3d 802 (2006), and where
the terms are not defined in the code provision, the examiner is required to ascertain the plain and
ordinary meaning of the term by utilizing a standard dictionary. Qwest Corp. v. City of Kent, 157
Wn.2d 545, 553, 139 P.3d 1091 (2006). So the provision requires two showings, as
urged by the City: 1) that the erosion caused by waves is serious; and 2) that the erosion causes a
threat, if all words are to be given effect. As "serious" means "6. giving cause for apprehension;
critical or threatening.... , Webster's College Dictionary (1992,) the provision means that only
wave erosion that causes apprehension or a threat is serious. But "threatens" is used separately and
that use requires that it be given meaning as well. The parties have not offered a way of
reconciling this dilemma and the examiner is unable to do so using the common rules of statutory
construction. Therefore, relying on how the Shorelines Hearings Board, the body that is charged
by statute with reviewing the shorelines decisions of municipalities on appeal, applied the
provision to the circumstances of an application with very similar site characteristics is the
appropriate way to resolve this issue.
4. The Findings of Fact, Conclusions of Law, and Order in Stollar et al. v. City of Bainbridge
Island et al., SHB No. 06 -024 and 06 -027, Exhibit 3 Appendix A, show that the applicants sought
approval (there a conditional use permit) for a common bulkhead for several properties. The sites
were on a feeder bluff, were classified as unstable due to recent landslides and may have had a
rotational slide recently nearby, had vertical distances of 70 to 100 feet from the top of the bluff to
the beach, and experienced erosion described as 8 -10 feet over a ten year period, 2 -8 feet of which
was a result of a storm in 2006, but at an average rate of between less than 3 inches to six inches per
year, characteristics not unlike the Alexander's property, except that a feeder bluff is not involved
on the subject site. There the various homes were located 16, 45, 65, 80 and 85 feet from the top of
the bluff, much closer than the adjacent residences to the bank on the Alexander property. The
Shorelines Hearings Board (SHB) recognized the continuing risk of landslide because of the
eroding shoreline bluff. Id. Though decided on other grounds, the SHB indicated how it would
rule on the application of Section 16.12.310B.5 requiring evidence that conclusively demonstrates
that serious wave erosion threatens an existing development or land to the facts before it. The SHB
seems to have conflated the two parts of the required demonstration in that it did not address
separately the "serious" wave erosion and looked instead at the consequences of whatever erosion
was occurring.. Except for the house within 16 feet of the bluff, it concluded that appellants did
not conclusively demonstrate that the ongoing erosion threatens their homes "other than over a
period of many decades, or centuries." Id. p. 34. The showing was sufficient as to the closest
home in that even the smaller and ongoing slide activity could reach the structure "in a reasonable
period of time." Id.
5. The correspondence of the facts between the Stollar case and the one at hand, similar
geological and erosion characteristics and, even though expert opinion that there is no doubt that
continued erosion will cause slope failure, the lack of evidence regarding the time period in which
development or land would be threatened, the distance of the adjacent residences from the subject
property's shoreline, the minor wave or scouring effect on those properties, and availability of
other means of protection for them, persuades the examiner that here the applicant did not
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conclusively demonstrate the necessary "serious" erosion or level of threat, as interpreted by the
SHB.
6. It should be noted that the hearing examiner is not required to decide whether to give great
weight to the Director's interpretation of the provision that the erosion must at least be more than
normal to constitute a threat and the provision requires a showing of a threat to the land that is
quantifiable and can be predicted temporally because the substantial weight required by Section
2.16.130F.2 that the decision is required to be accorded is sufficient here. The record contains
experts' opinions that support the Director's decision that the erosion is not serious and the SHB
precedent supports the determination that some showing is necessary that the harm from the threat
would occur within a reasonable time. Since the applicant did not make the conclusive showing
required, the Director's decision was not shown to be clearly erroneous and should be affirmed.
7. Appellants also contend that the Director is required by Section 16.20.360 to read the
provisions of the SMP along with other City policies and code provisions that apply to the
property, such as the Critical Areas Ordinance (CAO) and Comprehensive Plan, and that the
director failed to do so. While the purpose of the CAO is to protect critical areas, which includes
geologically hazardous sites, its regulations contemplate providing that protection through
regulation of development. Section 16.20.010. As to the Comprehensive Plan, the Director's
decision shows that Comprehensive Plan policies were considered and Appellant has not shown
that the decision was contrary to any policy.
8. The Director's decision was also based upon the failure to show that a non - structural
shoreline solution is unworkable. The record does show that it would not be as effective and
would require maintenance, but it does not show that it would be unworkable.
9. Though the record does show that the proposed bulkhead is not likely to have the serious
effect on the shoreline function and resources that are the consequence of most bulkheads, the
Director's decision must be affirmed for failure to make the conclusive showing of the necessary
threat from the erosion.
Decision
The Director's decision to deny a substantial development permit is affirmed and the
appeal is denied.
Entered this 18th day of May 2010.
/s/ Margaret Klockars
Margaret Klockars
City of Bainbridge Island
Hearing Examiner pro tem
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Concerning Further Review
NOTE: It is the responsibility of a person seeking 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.
The decision of the Hearing Examiner is the final decision of the City in this matter. Appeal of this
decision is to the Washington State Shorelines Hearings Board as provided by RCW 90.58.180 (or
its successor) and Chapter 461 -08 WAC (or its successor). To be timely, petition for review must
be filed within the 21 -day appeal period [see BIMC 16.12.370].
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