CYPRESS ISLAND, INC.CITY CLERK
__X:LSION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE LSEAND
In the Matter of the Application of
CYPRESS ISLAND, INC.
for a Shorelinc Substantial Dcvclopmcn*t
Permit ~d Shoreline Conditional Use Permit
for installation of new feeder machines and
other equipment for its aquaculture operation
SSDP/SCUP12425
HflR 8 nMlO:§9
Introduction
The Applicant seeks shoreline permits for installation of feeder machines and other
equipmem at a fish farm operation within the shoreline ~uatic environment. The
Director, Planning and Community Development Department. has issued a Staff Report
recommendin8 that the permits be approved with conditions. The Director has also
issued a SEPA threshold determination regarding this appliation and that determination
was timely appealed by Jeffrey Hollingsworth.
The undersigned Hearin8 Examiner pro tern held a consolidated hearing (i.e., combining
the public bearing on the SCUP application and appeal hearing on the SEPA threshold
determination) on February 5, 200~. Parties represented at the hearing were: the
Director, Planning and Community Development Department, by Joshua Machen,
Associate Planner, the Applicant. Cypress Island, Inc., by Richetd Elliot, attorney-at-law;
and, the Appellant, Se,~rey Hollinssworth, Esq., pro se. The record remained open
through February 18, 2004, for receipt of closing statements fi.om the parties.
Note: On January 1, 2004, the Applicant began operating as "Pan Fish USA Ltd."
[Exhibit 49]. Because the application for the mbjnc~ permits was made under the name
"Cypress Island, Inc.', this de~ision refers to as Cypress Island, Inc. as thc 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 Februa~ 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 conside~'afion 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.
SSDNSCUP12425 Pag~ I of ! I
28. State shoreline regulations, at WAC 173-26-241(3Xb), provide that aquaculture
is an activity storewide interest and, 'when consistent with control of pollution and
prevention of damage to the environment, is a prefened use of thc water area." Local
governments are cautioned to "consider local ecological conditions and provide limits
and conditions to assure appropriate compatible types of aquaculture for thc local
conditions as necessary to as,a~re no n~ Io~s of ecological functions." Local shoreline
master programs ate to "recognize the necessity tot 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('8) provides ,q~ecifi¢ shorclin¢ regulations for establishing an
aquaculture use. Subsection 17 limits thc height of over-water structures, storage, and
other apparatus for aquaculture projects to not more than 3 t~., but provides that #where
the vi~al impact of the proposed aquaculture structures will be minimaff greater height
may be allowed based upon written findings, without requiring a variaac~e,
30. I~IMC 16.12.380(C), which "applies to all applications for
shoreline...conditional ,,~e permits~, provides, in pertinent part, as follows:
/. IIA'e.¢ eltz~.¢ified as conditional uses may he authorized: provide& that thc,
applicant ~an demonstrate ail of the following:
a. The propo.¢ed t~e w~ll be conM~'ienl with the policies of RCF/
90. 58.020 or its suecesa'or and the policies of the n~ster prograr~
b. The propoa~:d use will not int¢,efere with the normal public uae of
the public s~orelira, s.
a 1'~ proposed use o.f the site and design of the project will be
aompatible with other permitted uses within the area.
d. The proposed use will cause no unreasonably adverse effects to
the shoreline environment designation tn which it is locate&
e. lhe public intere,~'t .~rs rn~ subston#al detr~rnental effect.
f 'lT~e pt'opo.,ed ~,*e t.* consfstent with the prOVisions of the zoning
ordinance.., and the compreher~ive plan...
31. BIMC 16.12.350(I Xa) authorlze~ the Hearing Examiner to:
Approve, approve with conditions, or deny...shoreline conditional m'e permit
applicattoA~ trflcr a public twar~ng and after eor~vtder~ng the firg, lin&~ and
recommendations of the d~rector, which ~'hall be givgn sul~tantiol weight ....
Conclusions
l. 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 thc hearing was madc and all the exhibits, testimony, and
comments were considered.
SSDP/SCUP12425 Page 8 of I I
3. The req~ed permits should be amhorized heca~se the application,
conditioned, meets the requirements ofBLMC l& 12.350(CX1) as follows:
Consist~noy with SMA and Master Program
a. Consistent with the Shoreline Management Act and thc City's
Shoreline Master Prosram, this application provides for technological
advances in the indust~ that are, or ate becoming, the standard necessary
for an aquaculture operation (a preferred shoreline use) to remain viable.
No Interference with Public Ace, e~s
b. The nomml public access to the public shoreline is not affected by
the subject structures and equipment aa they are located within the existing
aquaculture oprxation. Thc existing aquaculture operation is visible from
the public shoreline, but the heights of thc subjeat structures and
equipment are riot noticeably different from the height allowed by Code or
the prlot permit. As the difference is barely diseemible, there is minimal,
if any, interference with public visual access,
Compatibility with Other Permitted Uses
c. Thc aquaculture ,,~ at this site predates by decades thc 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 ate subject to this application do not
alter thc basic relationship between the aquaculture usc: and thc r~idential
use, Decreasing the noise from the generator and minimizing visual
impacts, should have the effect of incceasing "compatibility" with
residential uses.
No Unreasonably Adverse Effects
d. Thc subjcct structures and equipment have an insignificant visual
impact on thc views from residential properties and thc noise from the
generator is within the limits prescribed by the Noise Ordinance. The
undcrwatcr lights have the beneficial impact of reducing glatc on thc
waters surface. Credible evidence indicates that thc lights have no
adverse impacts on wild fish and there no scientific evidence to link the
lights with occasional increase in late night noise fi'om sea lions.
No Substantial Derdmefit to thc Public lmcrest
e. Because the subject structures and equipment have insignificant
visual impact and will comply with the Noise Ordinance. BIMC i 6.16, the
public interest auffers no substantial detriment.
SSDP/SCUP12425 Page 9 Of I I
Comistency with Zonin8 and Comprehensive Plan Designations
£ The Shotelinc Ma~tcr Plan is the defining land use control wittun
the shoreline and aquaculturc is a permitted uSe at thc subject site.
4. While the record and thc 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.
Oecision
Thc application of Cypress Island, Inc., for a Shoreline Substantial Development
Permit and Shoreline Conditional Use Permit to allow thc structures and/or equipment
noted in Findin8 6 above, is hereby Ae~OV~ wrm com~mo~s as follows:
1. No additional structures or changes to the existing structures shall
occur without prior written approval fi.om the City.
2. All activities and machinery msseciated 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.
Erected this 3rd day of MarcK 200a.
Hearing Examiner/no leto
SSDP/SCUP 12425 Page 10ofll
NOTE: R is ~e rcsponsibilit-y of a person sccki,g
E.x~min~ dc~ision ~o co~ult applicable Codc .s~c~io~s
~ourcc~. ~ncluding State law. to dc'rermi~c d~c rig~s
mlatJvc to appcai.
Thc dccisio~ of&c tt~tria$ Examiner is thc final decision thc City in this mat~cr, Appeal of this
decision is to the Washington State Shorclincs Hcarings ~ as providcd by RCW 90.55.150
(or im s~cccssor) and Chapter 461-08 WAC (or its successor). To bc timely, pcti~ion for rcvicw
must be filed withi~ thc 21-day appeal p~-~iod |sec mMC 16.12,370(B)].
SSDWSCUP12425 Page 11 ofll
CITY OF BAINBRIDGE ISLAND
oFFICE OF ~ HEARING EXAMINER · ·
APPLICATION FOR
SHORELINE SUBSTANTIAL
DEVELOPMENT/CONDITIONAL
USE PERMIT AMENDMENT
APPLICANT: CYPRESS
ISLAND, INC. ·
SSDP/CUPI2-20-00-1 (PRJ-10919)
ORDER GRANTING SUMMARY
JUDGMENT
MOTIONS FOR SUMMARY JUDGMENT
Cypress Island, Inc. "Cypress" and the Rich Passage Homeowners' Association
"Homeowners" have filed cross motions for summary judgment.
The Homeowners assert that the food storage warehouse barges cannot be attached to the
net pens because under the City's Shoreline Master Program, aquaculture structures and activities
that are not water dependent must be located landward of the OHWM on the shoreline. They
also assert that the 30-day supply barges are not necessary for the immediate and regular
operation of the business.
Cypress asserts that the proposed food storage barges are incidental and reasonably
necessary to the water dependent aquaculture use. Cypress asserts that the barges will be an
integral part of the feeding operation and are a water dependent activity essential to the regular
and immediate operation of the aquaculture business.
SUMMARY OF FACTS
Cypress has requested a Shoreline Substantial Development / Conditional Use Permit to
add two fish food storage warehouse barges at their aquaculture facility on the south end Of
Bainbridge Island. Cypress proposes to attach a large feed storage barge to each of its net pen
systems at Fort Ward and at Orchard Rocks. Cypress and its predecessors have been operating a
salmon rearing business at Fort Ward for many years. Prior permits have allowed installation of
submerged net pen systems that are serviced from storage facilities on the Fort Ward pier. Fish
food supplies have been trucked in daily from a food supplier in Vancouver, BC. Cypress now
wishes to expand its fish food storage capacity to a 30-day supply. Fish food will be deli~zered
monthly by an ocean going vessel. The food bags would be stored in large warehouse barges
attached to the net pens. These warehouse barges would be at least 100' long by 40' wide and
would stand at least 13 feet above the waterline. The warehouses would be used primarily for fish
SSDP/CUP12-20-00-1
Order Page - 1-
warehouses would be used primarily for fish food storage, however, each barge would also be
used to store other equipment including a forklift for transferring food bags from the barge to the
feeding machines on the net pens. Each warehouse would also contain dining and restroom
facilities for the employees.
Mr. Arve Mogster, filed a Declaration in Support of Cypress' Motion for Summary
Judgment. Mr. Mogster stated that the barge storage and feeding system has become an industry
standard and, in his opinion, Cypress must adopt this 30-day delivery system to remain
economically competitive in the fanned salmon business. Cypress does not have sufficient upland
warehouse space at its Fort Ward facility to store a 30-day supply offish food. The waterborne
delivery system will reduce labor and food supply costs for Cypress. The truck delivery system is
still available but is no longer economically feasible if Cypress is to remain competitive.
A change to the barge storage system will not change the level of production at the facility. The
method of feeding the fish through feeding machines attached to the net pens will remain the same
and the amount of food needed on a daily basis is not expected to change.
DISCUSSION
The Cypress application seeks amendment to its Shoreline Conditional Use Permit to
allow placement of feed storage barges seaward of the OHWM at its Fort Ward facility to expand
its feeding operation at the net pens. The 1988 SCUP stipulates that no structure attached to, or
part of the net pens and walkways, exceed 4 feet in height above the floating deck or platform and
further, any structure, including those necessary for the distribution or dispensing of feed that
would exceed the 4 foot height, must be reviewed through a shoreline permit revision. (EXHIBIT
23).
The City Shoreline Master Program has specific regulations that govern aquaculture
business within the City. This application must comply with the regulations listed in BIMC
16.12.170. Aquaculture is allowed as a conditional use in this aquatic shoreline environment.
BIMC 16.12.170 (B) (7) states:
/lquacultural structures and activities that are not water dependent, e.g.
warehouses for storage of products, parking lots, shall be located landward
of the OHWIv~, upland of water dependent portions of the project, and shall
minimize detrimental impacts to the shoreline.
Are the proposed feed storage barges water dependent aquacultural structures or activities?
BIMC 16.12.030 (A) (200) defines a water dependent use as follows:
"Water dependent" use means a use or a portion ora use which requires direct
contact with the water and cannot exist at a nonwater location due to the intrinsic
nature of its operations. Examples of water dependent uses may include ship
cargo terminals, barge areas, ferry and passenger terminals, barge loading
SSDP/CUP12-20-00-1 (PR J-10919)
Order Granting Motion for
Summary Judgement
Page -2-
facilities, ship building and dry docking, marinas, aquaculture, float plane
facilities, and sewer ouOralls.
All parties agree that the fish farming business conducted by Cypress is an aquaculture
business that is water dependent. Some aspects of that business operation, however, are not
water dependent. The SMP recognizes that distinction in specific regulations which apply
differently to water dependent and water related uses in the aquaculture business.
barges,
but are
defines
The City DPCD staff determined that the food storage facilities, including the proposed
are a water related use necessary for the operation of the Fort Ward aquaculture business
not water dependent. (EXHIBITI07, Pages 21 & 24). B1MC 16.12.030 (A) (203)
a water related use under the Shoreline Master Program.
"Water Related" means a use or a portion ora use which is not intrinsically
dependent on a waterfront location, but whose economic viability is dependent
upon a waterfront location because: a. Of a functioned requirement for a
waterfront location such as the arrival or shipment of materials by water or the
need for large quantities of water; or b. The use provides a necessary service
supportive of the water-dependent commercial activities and the proximity of the
use to its customers makes its services less expensive and/or more convenient.
Examples include: (i) manufacturers of ship parts large enough that
transportation becomes a signi, ficcmt factor in the product(s) cost; (i0
professional services serving primarily water dependent activities and (iii)
storage of water- transported foods.
Examples of water-related uses may include warehousing of goods transported by
water, seafood processing plants, hydroelectric generating plants, gravel storage
when trartsported by barge, oil refineries where transport is by tanker, and log
storage.
One of the examples given for water related uses is the warehousing of goods transported by
water. The use of a ship-delivered feed supply system creates a functional requirement for a
waterfront location since the materials will arrive by water. The feed storage is a necessary
service supportive of the water dependent net pen salmon raising operation. The proximity of the
storage of food to the net pens helps reduce the cost of operation of the business thereby reducing
the cost of the product. The food storage function of the aquaculture operation is dearly a water
related use under the BI/VIC 16.12.030 (A) (203) definition. The feed storage use does not
require direct contact with the water and can exist at a non water location therefore it is not a
water dependent use as defined in the Master Program. The Cypress facility has been receiving
fish food deliveries by truck on a daily basis. The bagged fish food has been stored on the Pier
until it can be transported by small vessel to the feeding machines on the net pens. Cypress now
wishes to change the quantity offish food it receives at Ach delivery. A ship delivered thirty day
supply will decrease the delivery and labor costs for fish feeding. Placing the storage warehouse
SSDP/CUP 12-20-00-1 (PR J- 10919)
Order Granting Motion for
Summary Judgement
Page -3-
on a barge to increase the economic competitiveness of this salmon farming operation does not
change the characterization of the use of the warehouse structure from a water related use to a
water dependent use. The present truck delivery system is still available to Cypress for delivery of
fish food to operate the Fort Ward facility. Additional upland storage space is needed to store a
30-day supply on the premises. The inability to store a 30-day supply offish food at the present
location does not change the intrinsic nature offish food storage to a water dependent function
under the City's aquaculture regulations. The fish feeding operation will remain the same. The
quantity of food used each day is not expected to change. The food will still have to be
transferred from the stored bags in the warehouse to the feeding machines on the net pens. The
fish production levels are expected to remain the same.
Cypress has also argued that BIMC 16.12.170 (B) (17) applies to this application.
Section 17 states as follows:
For aquacultural projects using over-water structures, storage of necessary
tools and apparatus seaward of the OHWM shall be limited to containers
of not more than three feet m height, as measured from the surface of the
raft or dock; providea[ that in locations where the visual impact of the
proposed aquaculture structures will be minimal, the city, based upon written
findings and without requiring a variance, may authorize storage containers
of greater height. In such cases, the burden of proof shall be on the applicant.
Materials which are not necessary for the immediate and regular operation of
the facility shall not be stored seaward of the ordinary high water mark.
Section 17 applies to aquacultural projects using over-water structures. Section 7 allows
only water dependent aquacultural structures seaward of the OHWM. The submerged net pens
are water dependent aquacultural structures that extend above the waterline. Cypress wants to
attach feed storage containers to the net pens. Section 17 would allow containers for storage of
necessary tools and apparatus to service the net pens. These containers can be located seaward of
the OHWM. The question then is what are "necessary tools and apparatus" under Section 17.
The terms "tools" and "apparatus" are not defined in the definition section of BIMC 16.12. The
American Heritage College Dictionary, Third Edition, cites the common definition for "tools" as
"a device used to perform or facilitate manual or mechanical work." The same dictionary defines
"apparatus" as "the means by which a function is performed or executed. An appliance or device
for a particular purpose." Section 17 further limits these storage containers to materials that are
necessary for the immediate and regular operation of the facility. Once again the term materials is
not defined in the code. The dictionary defines materials as "tools or apparatus for the
performance of a given task". The bags of fish food which Cypress wishes to store in an off shore
container are not tools or apparatus necessary for the immediate and regular operation of the
facility. Section 17 does not authorize warehouse barges to store a 30-day supply offish food.
SSDP/CUP 12-20-00-1 (PR J- 10919)
Order Granting Mohon for
Summary Judgement
Page -4-
CONCLUSION
The Cypress application to amend its Shoreline Conditional Use Permit to allow fish food
and equipment storage barges waterward of the OHWM on the shoreline at their Bainbridge
Island facility is specifically prohibited by BIMC 16.12.170 (B) (7). The warehouses are to be
used primarily for fish food storage. (Declaration ofArve Mogster, Page 4). The use of barge
warehouses for fish food storage is not a water dependent use of an aquacultural structure. The
storage of a 30-day supply offish food near the net pen systems is a relocation of a water related
use necessary for the economic viability of the Cypress salmon farming business, according to Mr.
Mogster. Water related uses must be located landward of the OHWM and upland of the water
dependent portions of their business under BIMC 16.12.170 (B) (7).
The Motion for Summary Judgment filed by the Homeowners is granted. The attachment
of the proposed feed storage warehouse barges to the net pens at Fort Ward and Orchard Rocks
is prohibited by the City's Shoreline Master Program regulations relating to aquaculture.
The Motion for Summary Judgment filed by Cypress is denied. The proposed use of
warehouse barges for fish feed storage is not a water dependent use and is therefore prohibited by
BIMC 16.12.170 (B) (7).
Dated this 30t~ day of October, 2002.
Robin Thomas Baker
Hearing Examiner Pro Tern
SSDP/CUP 12-20-00-1 (PRJ-10919)
Order Granting Motion for
Smnmary Judgement
Page -5-