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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