COLE, CHARLES BP# 5969 CITY OF BAINBRIDGE ISLAND
OFFICE OF THE HEARING EXAMI~KJ~
APPEAL OF ADMINISTRATIVE
DECISION REQUIRING ACQUISITION
OF A SHORELINE SUBSTANTIAL
DEVELOPMENT PERMIT
APPELLANT: CHARLES COLE
BP 5969
FINDINGS OF FACT
CONCLUSIONS OF LAW
AND DECISION.
MOTION TO REOPEN RECORD.
After the close of the public hearing, a motion was filed by the applicant to reopen the
record. The motion did not indicate that the documents were unavailable at the time of the
hearing. Mr. Mattson's status as a retired civil engineer was evident from the record. The motion
to reopen the record was denied.
FINDINGS OF FACT
1. Charles Cole is the owner of lots 25 and 26 of the Murden Cove Plat located on Manitou
Beach Drive in the City of Bainbridge Island. The lots are identified by Tax Parcel No's: 4206-
000-026-004 and 4206-000-025-005. Mr. Cole has owned these properties since 1962.
2. Prior to Mr. Cole's ownership, lots 25 and 26 had been filled and graded. The Murden
Cove Plat was platted by Mr. Cole in 1973. All lots were sold except lots 25 and 26. All lots
were developed except those retained by Mr. Cole. In the early 1980's, Kitsap County began
dumping ditch cleanings on the lots. The county also installed a catch basin in front of lot 27 and
dug a ditch and installed a culvert along Mr. Cole's south property line. These storm drainage
improvements were located partially on lots 25 and 26. The improvements were installed without
Mr. Cole's permission. When Mr. Cole returned to Bainbridge Island in 1988, he graded lots 25
and 26, spreading the ditch debris over the lots. Between 1988 and 1992, Kitsap County, and the
City of Bainbridge Island, continued to dump debris on the lots without permission from Mr.
Cole. People from the neighborhood were illegally dumping yard debris on the lots. Mr. Cole had
the lots regraded, spreading the ditch tailings and yard debris across the lots. Soggy areas
developed on the lots. Storm water run-offfrom uphill homes drained onto Mr. Cole's property,
saturating the soils. No springs or streams were identified on the property. An extensive wetland
area developed on lots 25 and 26.
3. In 1997, Mr. Cole retained Bill Nelson to obtain a building permit and build a residence on
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Charles Cole Page - 1- City of Bainbridge Island
his Murden Cove lots. Mr. Nelson applied to the city for a building permit. As a part of the
building permit application review, Mr. Cole was required to obtain a wetlands analysis for his
property. In June of 1997, Joanne Bartlett of Wiltermood and Associates performed that wetland
analysis. She identified an emergent wetland of approximately 11,000 sq.fi, spanning across lots
25 and 26. She found the wetland was not hydrologically connected to any other wetlands in the
area. The wetland, according to Ms. Bartlett, appeared to have been historically degraded by the
placement of ditch spoils during roadside ditch maintenance and by the dumping of yard waste on
the lots. The onsite wetland was delineated using the presence ofhydric soils and wetland
hydrology with less reliance on hydrophytic vegetation since it was dominated by a single platt
species. The wetland had a seasonable hydrologic regime fed by direct rainfall and surface water
runoff from adjacent homes and roads. The wetland was hydrologically isolated from the wetland
system on properties to the northeast. Ms. Bartlett concluded that the wetland was a Category IV
wetland according to the Bainbridge Island and the Department of Ecology's wetland rating
systems. The main function of the wetland was water quality protection.
Ms. Bartlett also concluded that the standing water in a deep depression on the southwest
corner of the lots was not connected to the wetland. This pothole collects stormwater runoff
from ditches along adjacent roads. The stormwater is then conveyed into Murden Cove through a
culvert under Manitou Beach Road. [See EXHIBIT38, Attachment 2.]
4. In October of 1998 a building permit (BP5969) was issued authorizing the building of a
single family residence. Grading and fill work was required to raise the elevation of the building
site to meet Federal Emergency Management Agency (FEMA) requirements. A right-of- way
construction permit (CP99143) was issued in August of 1999, authorizing work on the ditch and
culvert located on the southern portion of the Cole property. Culvert work was completed and
lots 25 and 26 were filled and graded by September of 1999. No house foundation or other
appurtenances have been constructed at the site. The building permit was extended to March,
2000 and another extension is pending. A visit to the site in 2001 shows that the lots have been
filled and graded so that the wetland is no longer evident on the lots.
5. Grade preparation work for the home occurred between June and September of 1999.
During that time many truck loads of fill were brought to the lots from offsite to fill the delineated
wetland and raise the grade for the building pad at the home site to meet FEMA grade
requirements. Mr. Nelson testified that 18 inches of fill material were added to the wetland area
[EXHIBIT39.] The proposed home footprint straddles the boundary line between lots 25 and 26.
The delineated wetland was located on both lots 25 and 26. A portion of the home building pad
was built inside the perimeter of the wetland and is located within 200 fi. of the shoreline of
Murden Cove.
6. The applicant did not provide a cost estimate for the fill materials that were imported to
the property. There is no evidence in the record which indicates that the value of the fill work
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done at the site was under $2,500.
7. In 1999, during grading at the site, the Murden Cove Neighborhood Association filed
complaints with the City of Bainbridge Island regarding the placement of fill in the shoreline
wetland. An investigation by the city determined that a delineated Class IV wetland within 200 ft.
of the Murden Cove shoreline had been filled on the Cole property pursuant to City of Bainbridge
Island Building Permit BP5969. On February 14, 2001, the Department of Planning and
Community Development (DPCD), through its Code Enforcement Officer Will Peddy, notified
Mr. Cole that a Shoreline Substantial Development Permit (SSDP) would be required for the
project before Mr. Cole could proceed with work authorized in BP 5969.
8. Mr. Cole filed an appeal of that administrative decision on the 27~ day of February, 2001.
9. On April 19, 2001 a Public Hearing was held before the Hearing Examiner to consider the
application. Prior to the heating notice was published in the Bainbridge Review on April 4, 2001;
notice of the public hearing was mailed to the owners of property within 300 feet of the proposed
project, and notices were posted at the City Hall, the Chamber of Commerce, and the Feny
Terminal on March 30, 2001; notice was posted at the subject property on April 4, 2001.
[EXHIBIT32.]
CONCLUSIONS OF LAW
1. This matter is properly before the Hearing Examiner. It is an appeal of an administrative
decision by Stephanie Warren, Director of the Department of Planning and Community
Development and was filed within the required time limits for appeal. This appeal is reviewed
under the procedures set forth in Bainbridge Island Municipal Code (BIMC) 2.16.130.
2. Adequate legal notice was given for the public hearing held in this matter on April 19,
2001.
3. Building Permit 5969 is for a single family residence to be built on shorelands within 200
ft. of the shoreline of Murden Cove within the City of Bainbridge Island. RCW 90.58 exempts a
s'mgle family residence from the requirement of a Shoreline Substantial Development Permit.
RCW 90.58 does not define the terms single family residence, however, the State Department of
Ecology is authorized to issue regulations for implementation of the Shoreline Management Act
(SMA) and is granted independent authority to ensure compliance with the SMA.
4. WAC 173.27.040.1. states that (a) exemptions from the requirement ora Shoreline
Substantial Development Permit shall be construed narrowly. Only those developments that
meet the precise terms of one or more of the listed exemptions is to be granted exemption from
the Substantial Shoreline Development Permit process. (c) The burden of proof that a
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Charles Cole Page -3- City of Bainbridge Island
development is exempt from the permit process is on the applicant.
5. The requirement of an SSDP for this project does not violate RCW 90.58 which exempts
construction ora single family residence on shorelands. RCW 90.58 allows construction on
shorelands provided the project meets all requirements of the state agency or local government
having jurisdiction over the project. The Department of Ecology regulations issued to implement
the SMA do not exempt fill placed with the perimeter of a wetland. Ifa portion of the project is
not exempt, then the SSDP is required for the whole project. RCW 90.58.030 (3)(vi), WAC 173-
27-040 (1)(d).
6. The Department of Ecology has issued administrative regulations further explaining the
exemptions from a Shoreline Substantial Development Permit allowed under RCW 90.58.
Washington Administrative Code (WAC), Section 173.27.040 describes developments which are
exempt from the substantial development permit requirement under the Shoreline Management
Act. Under Section 173.20.040(2)(g), the exemption for construction on shorelands by an owner
of a single family residence for his own use or for the use of his family is reiterated. This
regulation defines a "single family residence" as a detached dwelling designed for and occupied
by one family including those structures and developments within a contiguous ownership which
are a normal appurtenance. The filling and grading required to construct this single family
residence are "developments" as defined in WAC 173.27.030(6) and would be appurtenant
activites necessary for construction of this single family residence. However, an appurtenance is
further limited under WAC 173.27.030 (2)(g) to structures and developments which are
necessarily connected to the use and enjoyment ora single family residence and are located
landward of the Ordinary High Water Mark and the perimeter of a wetland. The regulation cites
examples of "normal appurtenances."
Since the chosen building site on the Cole property requires fill to be placed within the
perimeter of a wetland located within 200 ft. of the shoreline, that activity would not be a normal
appurtenance included in the exemption for the single family residence. The placement of fill in a
wetland within the jurisdiction of the SMA requires a Shoreline Substantial Development Permit.
7. The wetland delineated on the Cole property was properly identified by Joanne Bartlett of
Wiltermood Associates using standards accepted by the city of Bainbridge Island and the
Department of Ecology. The wetland was approximately 11,000 sq.ft, in area. Both Ms. Bartlett
and Mr. Morse of the Department of Planning and Community Development identified this
wetland as a Class IV wetland under BIMC Because of its size, the wetland was not a regulated
wetland under the Bainbridge Island Critical Areas Ordinance.
8. The Shoreline Management Act, however, has concurrent jurisdiction over this wetland
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since it lies in part within the 200 ft. of the Murden Cove shoreline. RCW 90.58.030 (2)(h)
defines wetlands for purposes of the Shoreline Management Act. Wetlands are defined as areas
that are inundated or saturated by surface water or groundwater at a frequency and duration
sufficient to support, and that under normal circumstances do support, a prevalence of
vegetation typically adapted for life in saturated soils conditions. Wetlands generally include
swamps, marshes, bogs and similar areas. Wetlands do not include those artificial wetlands
intentionally created from non-wetland sites, including, but not limited to, irrigation and
drainage ditches, grass line swales, canals, detention facilities, waste-water treatment facilities,
farm ponds, and landscape amenities', or those wetlands created after July 1, 1990 that were
unintentionally created as a result of the construction of a road, street, or highway. Wetlands
may include those artificial wetlands intentionally created from non-wetland sites to mitigate the
conversion of wetlands. The wetland on the Cole property was described as a small wetland that
had been degraded over a long period of time by the dumping of ditch spoils and yard waste (See
Bartlett Report E. tJtlBIT 38). Mr. Cole's regrading of the lots spread the ditch tailings and yard
waste over the lots. The compaction ofhydric soils collected rainwater and stormwater runoffin
the area later identified as a Class IV wetland. This wetland supported vegetation typically
adapted for life in saturated soil conditions. Ms. Bartlett's description of this wetland meets the
criteria for a wetland under the jurisdiction of the SMA. This wetland is not an artificial wetland
intentionally created from a non-wetland site. The depression in the southwest coruer of the Cole
property is not identified by Ms. Bartlett as a wetland and is not a wetland area regulated by the
SMA since it is an intentionally created drainage ditch.
9. The applicant has argued that he has a vested fight to proceed under the terms of his
Building Permit 5969 issued by the City of Bainbfidge Island on October 19, 1998. At the time of
issuance of the building permit the City of Bainbridge Island failed to require Mr. Cole to obtain a
Shoreline Substantial Development Permit. The Director has now notified the applicant that the
permit is required for this project. A portion of the project (the grading and fill ora shoreline
wetland) is not exempt from the SSDP requirements of the SMA. Under WAC 173-27-040
(1)(d) if any part ofa proposed development is not eligible for exemption, then a substantial
development permit is required for the entire proposed development project.
A building permit should not have been issued until all necessary permits were obtained,
including the required Shoreline Substantial Development Permit. A building permit issued in
violation of the Shoreline Management Act does not confer upon the landowner any vested rights.
The building permit issued by the City of Bainbridge Island was issued in error. [See Samuels
Furniture vs. Department of Ecology, 105 Wash. App. 2 78(3,Iarch 2001.) and Parker vs.
Department of Ecology, 82-41 Shorelines Hearings Board, Final Findings of Fact, Conclusions
of Law and Order, App. 5 (April 11, 1983)]
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10. The applicant has argued that the decision by the city that a Shoreline Substantial
Development Permit was not required for this project is a final land use decision by the City of
Bainbridge Island. The applicant argues that the decision was not appealed and is now binding.
The Washington Court of Appeals, Division One, recently decided in SarnuelsFurniture vs. The
Department of Ecology, Id. that a local jurisdiction's threshold determination on SMA jurisdiction
is reviewable by the Department of Ecology and is not a final land use decision appealable under
LUPA An earlier Appeals Court decision also held that a local jurisdiction's decision that an
SSDP is not required is not a final decision and is not appealable to the Shorelines Heating Board.
Toandos Peninsula Assn. v. Jefferson County 32 Wash. App 473, 485, 648 P2d 448 (1982). The
doctrine of administrative finality would not apply to this case, since the City's original decision
not to require an SSDP was not a final decision.
11. The decision by the Planning Director was an administrative decision and not a quasi-
judicial decision. The revocation of that decision does not violate the principles of res judicata or
administrative finality. [See Chelan County vs. Nykreim, 105 Wash. App. 339 (Triarch 2001)]
12. The City of Bainbridge Island Director of Planning and Community Development has the
authority under B1MC 2.16.025 to make an administrative decision regarding Shoreline
Substantial Development Permits. The Director originally determined that a SSDP was not
required for this project. The Planning Director, after extensive review, has revoked her prior
decision and notified the applicant that a Shoreline Substantial Development Permit is required for
this project. Her interpretation ofthe Shoreline Management Act threshold jurisdiction is entitled
to substantial weight by the Hearing Examiner in a review of her decision on appeal. BIMC
2.16.130 (F)(2).
DECISION
The appeal filed by Charles Cole is denied. The requirement by the Director that the
applicant complete the Shoreline Substantial Development Permit process is affirmed.
Dated this 18th day of June, 2001
By:
Robin Thomas Baker
Heating Examiner Pro Tern
APPEAL
The Decision of the Hearing Examiner shall be final unless, within 21 days after issuance of
a decision, the decision is appealed in accordance with RCW 36.70.
BP 5969 Hearing Examiner
Charles Cole Page -6- City of Bainbridge Island