LANE, ROBERT & TERRI6
CITY OF BAINBRIDGE ISLAND
OFFICE OF THE HEARING EXAMINER
APPEAL OF ADMINISTRATIVE
DECISION DENYING AN AFTER THE
FACT SHORELINE SUBSTANTIAL
DEVELOPMENT EXEMPTION
APPELLANTS: ROBERT AND TERRI
LANE
SSDE 10437
FINDINGS OF FACT
CONCLUSIONS OF LAW
AND DECISION
FINDINGS OF FACT
1. Robert and Terri Lane are the legal owners of property located at 15660 Euclid Avenue
NE in the City of Bainbridge Island. This property is legally described as:
Tract 19, Plat of Port Madison, Volume3, Page 3, Records of Kitsap County Washington.
Tax Parcel Number 4167 000 019 0000
2. The Lane property is a 28,000 square foot lot which has been developed with a single-
family residence. In 1995, the Lanes applied for, and were granted a permit to build a 110-foot
long pier/ramp/float structure over the tidelands on their property. This pier construction
required approval from the City of Bainbridge Island (Shoreline Substantial Development Permit -
. Washinmon State Department offish and Wildlife (Hydraulic Permit Approval --
- SSDP).. ~ . ,, ,-~,__: ..... rLetter of Permission) The plans submitted for
HPA), and the U.S. Army c;orp o~t:ngm~,~ ~ '
approval included mooring pilings next to the pier for installation of a Alum A Vator boat lift.
The original construction plans did not include a roof structure or covering over the boat lift
[EXHIBIT 13K]. Construction for this approved project was completed in the early summer of
1995.
3. Once the Lanes began using their new pier and boat lift, they found that bird droppings on
their boat and boat moorage were creating a serious problem that could damage their boat and
equipment. The Lanes began covering the boat with tarps, using the existing support structure of
the boat lift. Mr. Lane testified that he first laid a blue tarp over the I-beams of the boat lift and
the boat without securing the tarp permanently to the boat lift. In August, 1995, Mr. Lane built a
wood frame for the tarp cover. In the spring of 1996, he strengthened the wood frame by
doubling up the 2x4's, he removed the tarp, added plywood, skip sheeting and a canvas cover to
create a roof structure over his boat lift. This canvas roof remained until 1999 when Mr. and
Mrs. Lane decided to upgrade the roof by replacing the canvas covering with wood shingles and
adding white painted fascia board along the roof edges [EXHIBITS 27 and 28].
Appeal SSDE10437 Page - 1-
Lane
Hearing Examiner
City of Bainbridge Island
condition. "Normal Repair" means to restore a development to a state
comparable to its original condition within a reasonable period after decay or
partial destruction, except where repair involves total replacement which is not
common practice or causes substantial adverse effects to the shoreline resource
or environment.
Construction of a dock, designed for pleasure craft only, for the private
noncommercial use of the owners, lessees, or contract purchaser of a single
family residence which the cost or full market value, whichever is higher, does not
exceed $2,500.
WAC 173-14-115 requires a local government to prepare an Exemption Letter whenever
a development falls within the exemptions of WAC 173-14-040, and the development is subject to
a U.S. Corps of Engineers Section 10 Permit under the Rivers and Harbors Act of 1899, or a
Section 404 permit under the Federal Water Pollution Control Act of 1972.
Mr. Machen testified that he has been employed by the City of Bainbridge Island since
June of 1995. It is his recollection that during his tenure, the City of Bainbridge Island has
required an application for a Shoreline Substantial Development Exemption, in compliance with
that WAC provision. Exhibit 40 lists SSDE applications filed from March to November of 1995.
7. The initial construction of a wood frame for the cover over the boat lift was not repair or
maintenance for the boat lift or pier constructed earlier in the summer. No roof structure was
included in the original project design. This boat lift roof project began only a month and a half
after the completion of the larger permitted project. Under City policy, a boat lift is considered an
integral part of the pier. No separate permitting was required for the boat lift. The boat lift roof
addition is a continuation of the original permitted pier project. This addition was not
contemplated by the original permitting process. The addition of the roof did not constitute a
separate project which could qualify for an exemption based on the cost of materials used to build
the canvas roof. The total shoreline development cost more than $22,000. The additional
$479.00 cost to build the roof is added to the total development cost for the project.
8. The addition of the roof structure over the boat lift changed the use of that structure from
boat storage to covered boat storage. This change in use created potential environmental impacts
to the shoreline which should have been addressed through a shoreline permitting process. The
Kitsap County SMMP in effect in 1995 and 1996, did not prohibit covered boat storage along the
shoreline. If an application for a SSDP or SSDE had been filed by the Lanes, the City would have
had an opportunity to review the potential environmental impacts to determine what, if any,
mitigation would be required to approve the project. No application for SSDP or SSDE was
filed. No permits were issued by the City to approve the additions to the boat lift facility.
Covered boat storage is not listed as a use permitted on the shoreline under the Kitsap County
SMMPe WAC 173-14-030(4) defines a conditional use as a use which is classified as a conditional
use or is not classified within the applicable master program. No application for a SCUP was
filed.
9. No neighbors have filed complaints with the City regarding this boat cover construction.
The City has not provided any evidence of material interference with the use of the public
shoreline. The City has speculated that the addition of a roof cover over the boat lift may cause
Appeal S SDE 10437
Lane Page -3-
Hearing Examiner
City of Bainbridge Island
exemption under WAC 173-14-040. The burden was on the appellants to apply for the Letter of
Exemption or an SSDP.
3. Appeal Issue: Did WAC 173-14-040 (WAC 1990 Edition) exempt the 1996 boat lift
roof project from the SSDP process?
In 1996, the City's review of shoreline projects required compliance with applicable WAC
regulations. WAC 173-14-040 (1990 Edition) exempts developments from the SSDP
requirement if the total cost or fair market value of the project, whichever is higher, does not
exceed $2,500, if such development does not materially interfere with the normal public use of the
water or shorelines of the state. The appellants argued that their roof project should be
considered a separate development from the original permitted dock project. The appellants
submitted material receipts for the roof structure they built over their boat lift in the summer of
1995. These materials were purchased between July 28* and August 4th, 1995 [EXHIBIT 22].
The total cost of the supplies for the roof cover was approximately $479. The labor for
construction was contributed by the property owner. The SSDP for the original dock project was
approved by the City on May 8th, 1995 and was forwarded to the Department of Ecology for
review. Construction on the main dock project could not begin until mid June. Immediately after
construction was completed, the appellants began covering their boat using the existing support
structure of the boat lift. They used various types oftarps and covers, then in late July and early
August they built a covered structure on the boat lift crossbeams. This covered structure altered
the original design of the pier and boat lift project. The roof structure, as it became more
permanent, was made an integral part of the boat lift facility. The appellants have testified that the
original dock, ramp and boat lift project cost approximately $22,000. The addition of the roof
cover over the boat lift is a continuation of that original project. The roof structure is an integral
part of the boat lift and is not a separate development which would qualify for the exemption
allowed for minor projects under $2,500 in value.
The appellants' project also does not qualify for exemption under the WAC's repair and
maintenance exemption provisions. WAC 173-14-040(B) allows an exemption for normal
maintenance or repair of existing structures or developments, including damage by accident, fire
or elements. The addition of a roof over the boat lift was not contemplated as a part of the
original approved project and was not a lawfully permitted alteration to the plans submitted to the
City, WSDFW or to the U.S. Army Corps of Engineers during the permitting process. The roof
addition is not normal maintenance or repair of the approved boat lift design.
4. Appeal Issue: Can the appellants now file an application for a SSDP or SSDE to
approve their existing boat lift roof structure?
In December of 2002, the appellants filed an application with the City seeking a Shoreline
Exemption for the roof over their boat lift. This application was filed with a reservation stating
that the appellants did not believe a Shoreline Exemption application was required since their
1999 re-roofing project cost less than the threshold exemption level established under the WAC
regulations. The City denied the appellants request for a SSDE because the original 1995 roof
structure, shingled in 1999, had not been properly permitted. The repair exception to the WAC
regulations apply only to legally permitted, or to legal non-conforming structures on the shoreline.
The application for a SSDE for the boat lift roof structure is subject to the ordinances and
Appeal S SDE 10437
Lane Page -6-
Hearing Examiner
City of Bainbridge Island
does not qualify for an exemption. This covered moorage did require a permit when built in 1995
and 1996. Exemptions to the shoreline regulations must be narrowly construed. Only those
developments that meet the precise terms of one or more of the listed exemptions may be granted
an exemption from the SSDP process (WAC 173-27-040(A)). The appellant has the burden of
proof to show a development or use is exempt from the permit process (WAC 173-27-040(C)).
The boat lift roof does not qualify for an exemption from the SSDP process under WAC 173-27-
040. A retroactive SSDP cannot be granted for the project since current shoreline regulations do
not permit covered moorage on the shoreline.
DECISION
The decision of the Director denying the application for a Shoreline Substantial
Development Exemption is affirmed.
Dated this 6th day of April, 2004
Robin Thomas Baker
Hearing Examiner Pro Tem
APPEAL
The decision of the Hearing Examiner shall be final unless a person with standing appeals
the decision in accordance with BIMC 16.12.370.
Appeal SSDE10437
Lane Page -8-
Hearing Examiner
City of Bainbridge Island