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030304 Cypress IslandDECISION OF THE HEARING EXAMINER CITY OF BAINBRIDGE ISLAND In the Matter of the Application of CYPRESS ISLAND, INC. SSDP/SCUP12425 for a Shoreline Substantial Development Permit and Shoreline Conditional Use Permit for installation of new feeder machines and other equipment for its aquaculture operation Introduction The Applicant seeks shoreline permits for installation of feeder machines and other equipment at a fish farm operation within the shoreline aquatic environment. The Director, Planning and Community Development Department, has issued a Staff Report recommending that the permits be approved with conditions. The Director has also issued a SEPA threshold determination regarding this application and that determination was timely appealed by Jeffrey Hollingsworth. The undersigned Hearing Examiner pro tem held a consolidated hearing (i.e., combining the public hearing on the SCUP application and appeal hearing on the SEPA threshold determination) on February 5, 2004. Parties represented at the hearing were: the Director, Planning and Community Development Department, by Joshua Machen, Associate Planner; the Applicant, Cypress Island, Inc., by Richard Elliot, attorney-at-law; and, the Appellant, Jeffrey Hollingsworth, Esq., pro se. The record remained open through February 18, 2004, for receipt of closing statements from the parties. Note: On January 1, 2004, the Applicant began operating as "Pan Fish USA Ltd." [Exhibit 49]. Because the application for the subject permits was made under the name "Cypress Island, Inc.", this decision refers to as Cypress Island, Inc. as the Applicant. On February 13, 2004, Mr. Hollingsworth submitted a request to withdraw his appeal and, consistent with the Hearing Examiner Rules, the request was granted as a matter of right, with an Order dismissing the appeal issued on February 20, 2004. The decision that follows addresses only the requested shoreline permits (evidence admitted in the SEPA portion of the hearing was considered and is included in the record of decision). After due consideration of all the evidence in the record, the following shall constitute the findings of fact, conclusions of law, and decision of the Hearing Examiner on this application. Findings Background 1. The subject site, addressed as 9507 South Beach Drive, is located at the southern end of Bainbridge Island near Fort Ward State Park. The Applicant operates a salmon farm at the site. Development consists primarily of net pens and a fixed pier. There are two sets of net pens: the Fort Ward net pen complex adjacent to the pier, with a "footprint" of 614 ft. X 179 ft., and the larger 879 ft. X 179 ft. Orchard Rocks complex, approximately 700 ft. southwest of the Fort Ward net pens. The pier, extending 400 ft. from the shore directly south of the intersection of South Beach Road with Fort Ward Hill Road, has a variety of structures on its deck including storage and warehouse buildings. [Exhibit 60, page 3; Exhibit 43, pages 1 and 2] 2. The zoning is R-2 (Residential with two units per acre). The City's Shoreline Master Program designates the upland portion of the site "Semi-Rural" and there is an "Aquatic" designation over water. The Comprehensive Plan designation is Open Space Residential, two units per acre. [Staff Report, Exhibit 60, pages 1-4] 3. As detailed in the Director's Staff Report [Exhibit 60, pages 4-6], aquaculture (fish farming) activity has been taking place at this location since 1973. In 1988, Kitsap County issued a SSDP/SCUP to Global Aqua for use of the Fort Ward and Orchard Rocks net pen locations. This approval included installation of new net pens to raise Atlantic salmon. The new net pens were approved in a different orientation and configuration, but no changes to the operations on the pier were proposed. Kitsap County's permit approval had included a 30 ft. X 40 ft. barge with a feed storage shed, employee break room, and restroom, all 8 ft. or less in height [Exhibit 78]. The Washington Department of Ecology (DOE) exercised its permit review authority and conditioned the permit with a 4 ft. height limitation on new structures; effectively eliminated the shed, employee break room, and restroom [Exhibits 74 and 75]. Application 4. Sometime in 2000, the Applicant here, Cypress Island, Inc., upland owner and lessee of the submerged lands, installed new state-of-the-art pens. Around this time, other equipment (including a central feeding machine, a generator on a separate float, submersible lights, and a sani-can) was installed without permit. The Director later determined that these changes/additions required permit review under the City's Shoreline Master Program [Exhibit 79]. As aquaculture [see Finding 27] is a conditional use in the shoreline "Aquatic" environment [see Finding 26], the Director required a Shoreline Conditional Use Permit (SCUP) for the equipment/activities not contemplated within the scope of the 1988 shoreline permit noted above [see Finding 3 and Exhibits 74 and 75]. 5. The Applicant submitted an application to the Planning and Community Development Department (Department) for a Shoreline Substantial Development Permit (SSDP) and a Shoreline Conditional Use Permit (SCUP) on June 30, 2003 [Exhibits 9-12]. A revised Notice of Application was properly published on September 24, 2003 [Exhibit 34]. The Director [Staff Report, Exhibit 60, page 1] describes the permit request as an "after the fact" permit for installation of feeder machines, a generator enclosure on a float, a moveable sani-can, predator net support rails five feet above the net pen decks, and under water lights, illuminating the net pens. 6. The Director [Staff Report, Exhibit 60, pages 2 and 8-10], referring to the action as a "proposed amendment to the existing conditional use permit", has determined that it is consistent with the applicable provisions of the Shoreline Master Program (i.e., BIMC 16.12.070, Aquaculture and 16.12.380(C) Conditional Use Permits) and recommends that the following facilities, previously installed, be permitted to remain: a. Predator protection nets at a height of five feet above the deck line of the rafts. b. Feeder machines at a height of five feet with the movable arm at seven feet above the deck line. c. Sani-Can at the Orchard Rocks Pen at a height of seven feet above the deck line. d. Underwater lights, one light per pen. e. Generator in its current location, within a sound insulated container. 7. The Director [Staff Report, Exhibit 60, page 2], also recommended that the permit approval include the following conditions: 1. No additional structures or changes to the existing structures shall occur without prior written approval from the City. 2. All activities and machinery shall be operated in accordance with the City's noise ordinance contained in Bainbridge Island Municipal Code Chapter 16.16. 3. All conditions and restrictions of previous approvals shall continue to apply to this project except for those specific structures covered by this application. Facilities Included in the Proposal [Exhibits 43, 60, 66] 8. In recent years the Applicant has added and/or changed some structures and facilities to modernize the operation. In 2001 the Applicant obtained a shoreline exemption (for repair and maintenance) to replace the old pen systems with new systems that are reputed to be "stronger, safer and have a better appearance." Other modernization efforts have included the facilities described in Findings 9 through 21 for which a SCUP is currently being sought. 9. The net pens installed in 2001 included 5 ft. tall rails to support the "jump out and predator nets" [see photo, Exhibit 15A]. These rails exceed the 4 ft. limit imposed in the 1988 shoreline permit [see Finding 3]. The support rails are made of metal tubing and the predator nets are hung over the rails surrounding the pens that hold the fish. The predator nets have been an effective barrier keeping sea lions from making holes in the net pens and depleting fish stocks. The "jump out nets" are attached to the predator nets and their purpose is to prevent marine mammals from jumping over the nets and into the pens. The 5 ft. height is considered by the Applicant to be the minimum height to be effective at keeping predators out of the pens. [Exhibit 43; Testimony of Mogster] 10. The Applicant had an architectural firm prepare a computer-assisted visual analysis of the new facilities that exceed the 4-ft. height limitation [Exhibit 46; Testimony of Spelman]. The rails are visible in the photographs included in the visual analysis, but consistent with the size of the support rails and the distance from the shore, the rails at 5-ft. have no more visual impact than would 4-ft. rails. 11. New feeder machines were also added in 2001 [see photo, Exhibit 15A]; these machines replaced the previously used feed transport system [see photo, Exhibit 72]. Six such machines are located on the deck of the Fort Ward pen system and 10 are located on the Orchard Rocks' deck. Each machine has a height of five feet and the moveable arm on each machine that dispenses the feed, reaches a height of 7.5 feet above the deck. The automatic feeder machines are considered the current standard in the industry as they provide the optimum feed-to-fish ratio at rate impossible for hand-feeding and much better than the previous machines. The machines were designed to be the minimum height necessary to properly function. [Exhibit 43; Testimony of Mogster] 12. The feeder machines and their moveable arms are visible from shore, but the difference between the existing heights and heights at 4-ft. is insignificant [Exhibit 46; Testimony of Spelman]. 13. A 7-ft. tall Sani-Can has been placed on the deck of the Orchard Rocks complex for the use of the employees working there. (There are also sanitary facilities for the employees on the pier.) Without the Sani-Can at the Orchard Rocks pens, employees have to be ferried to and from the pier to use the toilet there. Having the Sani-Can at the Orchard Rocks complex reduces the amount of small boat traffic between the complex and the pier. [Exhibit 43] 14. The Sani-Can is visible from the shore, but the difference between the 7-ft. actual height and a 4-ft. height is not discernible in the visual impact analysis [Exhibit 46; Testimony of Spelman]. 15. The Applicant began using underwater lights in the net pens in 1999. There are two purposes for lights: 1) increasing periods of light will increase the growth of the fish; and, 2) increasing periods of light will decrease the rate of premature maturation which produces physically immature salmon that are not marketable [Exhibit 43; Testimony of Mogster]. The Applicant indicates that the underwater lights replaced overhead lights at a rate of one underwater light to four overhead. The underwater lights produce no glare on the water's surface and are only operated between November and June (when the days are "shorter"). [Exhibit 43; Testimony of Mogster] Use of underwater lights is increasing in the industry and they are becoming the industry standard [Testimony of Mogster and Brooks]. 16. Concern was raised about whether the underwater lights could have potential adverse effects on the local marine environment. Much of this concern focused on the question of whether the lights draw large numbers of sea lions which in turn would feed excessively on native fish and, in the process, make more than the typical amount of noise [Exhibit 70, pages 7-9; Testimony of Hollingsworth, Myers, and Detrick]. Several employees at the fish farm testified that they have not noticed the sea lions to be especially attracted to, or agitated by the lights [Testimony of Mogster, Miller, and Blankenship]. 17. Expert testimony of an experienced marine biologist established that there is no credible evidence that the use of underwater lights has a harmful effect on wild fish. This expert knows of no studies linking underwater lights to attracting and/or agitating sea lions and when he questioned a colleague who is a seal expert, that person indicated that seals avoid light. [Exhibit 68; Testimony of Brooks] 18. The Washington Department of Fish and Wildlife (WDFW) did not have any information regarding the question of whether the underwater lights could have adverse effect on migrating juvenile salmonids [Exhibits 17 and 18]. The Director contacted the National Oceanic and Atmospheric Administration (NOAA) with that question and NOAA's response was that there are "no scientific research papers on the main aquatic databases" dealing with this question and opined that this was the case "probably because it is a non-issue" [Exhibit 47]. 19. The proposal originally contemplated a generator located in a 17-ft. X 16-ft., 9-ft. tall shed located on the deck of the Orchard Rocks complex [see photo of this generator and shed, Exhibits 15C and 15D]. In July 2003, that generator was replaced with a new, muffled generator set in an insulated enclosure that is 7.5 ft. long, 43 inches wide, and five feet tall [see photo, Exhibit 15B]. The generator is used to power feeder machines and compressors at the Orchard Rocks complex because the distance to shore makes the use of shore power uneconomical and difficult operate safely (i.e., Orchard Rocks is approximately 1,600 ft. from shore and could require up to 3,000 ft. of cable, much of it laid on the deep and irregular bottom). [Exhibit 43, pages 3-5; Testimony of Mogster] 20. The generator enclosure installed in 2003 is much smaller than the shed that previously housed the generator and consequently is less visible from the shore. The difference between the enclosure at its 5-ft. height and a 4-ft. height is not discernible in the visual impact analysis [Exhibit 46; Testimony of Spelman]. 21. While the 2002 noise study [Exhibit 41] indicates noise from the previous generator did not exceed the BIMC noise ordinance daytime limits, that equipment was the source of complaints from neighboring residents [see Finding 22]. The new, enclosed generator installed in 2003 produces substantially less noise than previous one [Testimony of Machen, Wallace, and Mogster]. The noise study conducted in January 2004 [Exhibit 64] indicates that, when operating alone, this generator easily meets the daytime standard of BIMC 16.16 and would not exceed the nighttime maximum. (The generator is not normally operated at night because the feeders, which it powers, are not used at night [Testimony of Mogster].) Public Comment 22. The Director received written comments about the fish farm and the facilities included in the application as follows: Name Exhibit Comment Donald & Gayle Ashton 27 After-the-fact request not acceptable; object to lights (agitate sea lions); need to address truck traffic; should not allow night time processing John Fletcher 29 The diesel-powered generators and compressors are very noisy and should be discontinued; lights attract seals which make excessive noise at night; industrial operation has adverse impact on area. Ted & Jayni Detrick 30 Oppose use of underwater lights because they attract native salmon and agitate predators; unpermitted facilities (feeding machines) should be removed and Noise Ordinance and other code provisions enforced. Jeffrey Hollingsworth 31 Industrial operation is out of character and has adverse impacts on the increasingly residential character of the area (especially noise at night). Malcolm Davis 37 Concerned about pollution from the operation (especially noise pollution); distrusts Cypress. Robert Hillman 55 This business operates day and night; generator is noisy; sea lions are more active (noisy) at night because of the lights. Deborah Myers 57 After-the-fact permit and outrageous conduct; City has done nothing about the problems caused by non-permitted activities; never had overhead lights; generator wakes her up; lights aggravate the sea lions so they bark more; operation has expanded into a major factory. 23. At the public hearing the following individuals made comments: Name Comments Jeffrey Hollingsworth The area has become more residential and the fish farm has become more industrial; should be looking at use issues; Director didn't have information about effects of underwater lights when the MDNS was issued. Deborah Myers Photos in visual analysis don't resemble reality; eagles and herons are present in neighborhood; there has been constant increase in noise; lights agitate sea lions. Ted Detrick His house is closest to fish farm; photo study too grainy to show any detail; when the lights were on in the Fall, sea lions agitated and when turned off, sea lions returned to normal; is satisfied with status quo, but operation has history of acting without permit (City needs to enforce conditions). Donald Ashton Doesn't like them coming in after the fact and asking for more and more; doesn't remember lights over the pens; they have cleaned up pretty well; new pens, rails, etc., are o.k.; objects to underwater lights and nighttime activity. C. A. Ross Believes residents and fish farm can co-exist; they cleaned up storage and the pens no longer have stench; noise from generator was a problem, but has decreased. C. E. Ross Photo from 1971 [Exhibit 77] shows that much has changed; more seals now; sea lions decreased in number; same number of eagles; believes residential lights cause nocturnal disturbance. Code Provisions 24. Shoreline Master Program, BIMC Chap. 16.12, regulates development in the shoreline. 25. BIMC 16.12.140(A) provides that: Uses which are consistent with a particular environment are encouraged, while uses which are in conflict are prohibited. A conditional use process is available when further review is needed to determine whether the use is compatible with the particular environment at the proposed site. 26. BIMC 16.12.170 provides that aquaculture is a conditional use in the Aquatic environment. 27. BIMC 16.12.030(A)(12) defines "Aquaculture" to mean: "the cultivation of fish, shellfish, and/or other aquatic animals or plants, including the harvesting and incidental preparation of these products for human use. Activities include the hatching, cultivating, planting, feeding, raising and harvesting of aquatic plants and animals, and the maintenance and construction of necessary equipment, buildings, and growing areas. Cultivation methods include, but are not limited to, fish pens, shellfish rafts, racks and long lines, seaweed floats and nets, and the culture of clams and oysters on tidelands and subtidal areas." 28. State shoreline regulations, at WAC 173-26-241(3)(b), provide that aquaculture is an activity statewide interest and, "when consistent with control of pollution and prevention of damage to the environment, is a preferred use of the water area." Local governments are cautioned to "consider local ecological conditions and provide limits and conditions to assure appropriate compatible types of aquaculture for the local conditions as necessary to assure no net loss of ecological functions." Local shoreline master programs are to "recognize the necessity for some latitude in the development of this use as well as its potential impact on existing uses and natural systems." 29. BIMC 16.12.170(B) provides specific shoreline regulations for establishing an aquaculture use. Subsection 17 limits the height of over-water structures, storage, and other apparatus for aquaculture projects to not more than 3 ft., but provides that "where the visual impact of the proposed aquaculture structures will be minimal" greater height may be allowed based upon written findings, without requiring a variance. 30. BIMC 16.12.380(C), which "applies to all applications for shoreline…conditional use permits", provides, in pertinent part, as follows: 1. Uses classified as conditional uses may be authorized; provided, that the applicant can demonstrate all of the following: a. The proposed use will be consistent with the policies of RCW 90.58.020 or its successor and the policies of the master program. b. The proposed use will not interfere with the normal public use of the public shorelines. c. The proposed use of the site and design of the project will be compatible with other permitted uses within the area. d. The proposed use will cause no unreasonably adverse effects to the shoreline environment designation in which it is located. e. The public interest suffers no substantial detrimental effect. f. The proposed use is consistent with the provisions of the zoning ordinance…and the comprehensive plan… 31. BIMC 16.12.350(1)(a) authorizes the Hearing Examiner to: Approve, approve with conditions, or deny…shoreline conditional use permit applications after a public hearing and after considering the findings and recommendations of the director, which shall be given substantial weight…. Conclusions 1. The Hearing Examiner has jurisdiction to hear and decide this matter and is required to give the Director's recommendation substantial weight. 2. Appropriate notice of the hearing was made and all the exhibits, testimony, and comments were considered. 3. The requested permits should be authorized because the application, as conditioned, meets the requirements of BIMC 16.12.380(C)(1) as follows: Consistency with SMA and Master Program a. Consistent with the Shoreline Management Act and the City's Shoreline Master Program, this application provides for technological advances in the industry that are, or are becoming, the standard necessary for an aquaculture operation (a preferred shoreline use) to remain viable. No Interference with Public Access b. The normal public access to the public shoreline is not affected by the subject structures and equipment as they are located within the existing aquaculture operation. The existing aquaculture operation is visible from the public shoreline, but the heights of the subject structures and equipment are not noticeably different from the height allowed by Code or the prior permit. As the difference is barely discernible, there is minimal, if any, interference with public visual access. Compatibility with Other Permitted Uses c. The aquaculture use at this site predates by decades the residential uses on the shore. The industrial-type activities (e.g., truck traffic, equipment noise, etc.) of the aquaculture operation can disturb residents. The additions and/or changes that are subject to this application do not alter the basic relationship between the aquaculture use and the residential use. Decreasing the noise from the generator and minimizing visual impacts, should have the effect of increasing "compatibility" with residential uses. No Unreasonably Adverse Effects d. The subject structures and equipment have an insignificant visual impact on the views from residential properties and the noise from the generator is within the limits prescribed by the Noise Ordinance. The underwater lights have the beneficial impact of reducing glare on the water's surface. Credible evidence indicates that the lights have no adverse impacts on wild fish and there no scientific evidence to link the lights with occasional increase in late night noise from sea lions. No Substantial Detriment to the Public Interest e. Because the subject structures and equipment have insignificant visual impact and will comply with the Noise Ordinance, BIMC 16.16, the public interest suffers no substantial detriment. Consistency with Zoning and Comprehensive Plan Designations f. The Shoreline Master Plan is the defining land use control within the shoreline and aquaculture is a permitted use at the subject site. 4. While the record and the Code both support the approval of the requested permits, it is understandable that the neighboring residents are disturbed when industrial-type activities with impacts that disrupt their lives appear to be increasing without benefit of permit and without respect for their interests. There are enforcement tools for the neighbors to use. However, the Applicant (as a good neighbor) could and should take some reasonable and positive steps to minimize impacts - particularly at night (like properly shielding the lights on the pier and minimizing nighttime noise) and, hopefully, preclude wrangling over the sights and sounds produced by the aquaculture operation. Decision 1. The application of Cypress Island, Inc., for a Shoreline Substantial Development Permit and Shoreline Conditional Use Permit to allow the structures and/or equipment noted in Finding 6 above, is hereby approved with conditions as follows: 1. No additional structures or changes to the existing structures shall occur without prior written approval from the City. 2. All activities and machinery associated with this property shall be operated in accordance with the City's noise ordinance (Bainbridge Island Municipal Code, Chapter 16.16). 3. All conditions and restrictions of previous permit approvals shall continue to apply to this project except for those specific structures covered by this application. Entered this 3rd day of March, 2004. /S/ Meredith A. Getches Hearing Examiner pro tem 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 the rights and responsibilities relative to appeal. The decision of the Hearing Examiner is the final decision 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(B)].