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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 BP 5969 Hearing Examiner 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 BP 5969 Heating Examiner Charles Cole Page -2- City of Bainbridge Island 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 BP 5969 Hearing Examiner 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 BP 5969 Hearing Examiner Charles Cole Page -4- City of Bainbridge Island 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)] BP 5969 Heating Examiner Charles Cole Page -5- City of Bainbridge Island 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