HACKER, ROBERT & JO ANNE (2)DECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of
ROBERT AND JO ANNE HACKER COD 0000274
COD 0000275
from Code Enforcement Decisions of
the Director, Planning and Community
Development Department
Introduction
The Director found violations for the alleged repair and expansion of a deck and a pier.
The property owners appealed that Director's decisions.
The Hearing Examiner held hearing on June 16, 2005. Parties represented at the hearing
were the Director, Planning and Community Development Department (PCD or
Department), by Rosemary Larson, Assistant City Attorney, and the Appellant, Robert
and Jo Anne Hacker, by their attorney, Dennis Reynolds.
After due consideration of all the evidence in the record, the following shall constitute the
findings, conclusions, and decision of the Hearing Examiner on this appeal.
Findings of Fact
Background
1. The Director has cited violations of the Shoreline Master Program on two
adjacent lots that are located on the south shore of Blakely Harbor within the shoreline
[see Exhibit 37A]. Both properties are owned by Robert and Jo Anne Hacker. The
violations alleged are: repair and widening an existing pier without obtaining permit or
exemption, and repair and expansion of an existing deck without obtaining permit or
exemption:
File #
Structure
Address - --
Tax I.D. #
COD 274
Pier
10832 Country Club Road
02240 -4- 020 -2002
COD 275
Deck
10798 Country Club Road
02240 -4- 019 -2005
[Staff Report, pages 1 -2, Exhibit 36; Exhibit 39, page 1; Testimony of Best]
2. The Hackers purchased the subject properties in 2000. At that time, there was a
deck at the 10798 Country Club Road property and a pier at the 10832 Country Club
Road property. [Testimony of J. Hacker]
3. In 2001 the Hackers filed an application to rebuild and extended the pier, adding a
ramp and float. This application was later withdrawn and the work subject to COD 274
was not that envision by that application. [Staff Report, page 4, Exhibit 36; Exhibit 38]
Violations Cited
4. In February 2005, while conducting other City business on the water in Blakely
Harbor, PCD staff observed what was believed to be new construction. Following an
investigation that included checking permit records and comparing photos of the subject
properties [including Exhibits 1 -7], PCD Planner Peter Best completed a code
enforcement complaint form noting alleged violations for "repair and expansion of a
deck" and "repair and expansion of a dock" without "shoreline authorization ". [Exhibits
12 and 13; Testimony of Best]
5. By Letter of Violation dated February 16, 2005 [Exhibit 14], the Code
Enforcement Officer advised the Hackers that the City had determined that there was a
Code violation related to the "dock" at the property addressed as 10832 NE Country Club
Road. The letter advised that illegal activity must cease, that the property must be
brought into compliance, and that failure to comply would result in formal enforcement
action. An "enforcement fee" of $180.00 for staff time "spent thus far" was noted and
the letter warned that additional enforcement activity would be billed at $180.00 per hour
[see also 30 and 31 for COD -274 and Exhibits 27 and 29 for COD -275].
6. An enforcement fee of $180.00 (after "adjustment ") has been charged for "code
enforcement labor" related to the dock at 10832 NE Country Club Road and another
enforcement fee of $180.00 for enforcement labor related to the alleged deck repair and
expansion at 10798 Country Club Road. Staff time (for the Code Enforcement Officer
and PCD Planners investigating the alleged violations) likely exceeded the two hours of
labor charged. There is no evidence presented to support Appellants' assertion that the
hourly rate charged is excessive (i.e., not based upon the City's costs of doing the work).
[Exhibits 26 -33; Testimony of Peddy; Testimony of Best]
7. By a letter to the Director dated February 24, 2005 [Exhibit 15], the Hackers
asserted that the work done on the dock had been "normal maintenance and repair" with a
cost below the $5,000 threshold for exempt activity. They further asserted, based on a
2001 Shoreline Hearings Board decision, that the City could not require a written
exemption. The Hackers' letter also requested a Director's review to consider their
comments. The Director denied this request by letter dated March 3, 2005 [Exhibit 16].
Deck: COD 275
8. Mrs. Hacker gave credible testimony that the deck was in need of repair and
maintenance when the Hackers purchased the property. Evidence in this record
establishes that the deck was in existence as long ago as 1961 [Exhibit 46] and after 40
years, it is plausible that the surface planks had become, in Mrs. Hacker's terms:
"spongy ", "unsafe ", and in need of replacement [see also Exhibit 51]. The deck
planking, fascia boards, and some stringers were replaced sometime in 2004. Records of
the expenditures for the deck repair were not kept, but the lumber yard quote for
materials for this size deck, credibly establish that cost as approaching $6200 [Exhibit 50;
Testimony of R. Hacker].
9. PCD staff examined aerial photographs from 2001 and 2004 [Exhibits 2, 3, 4, 7]
to determine if the size of the deck had been expanded. From measurements taken off the
photos, the Director concluded that in 2001 the deck was 615 sq. ft., with a shed/boat
house measuring an additional 185 sq. ft., and in 2004, after that work was done, it was
870 sq. ft. [Exhibit 37B].
10. The deck is bordered on two sides (south and east) by concrete walls that can be
seen in aerial photos taken in 2002 and 2004 and in a photo taken in 1961. Expansion to
the west is constrained by the property line. The credible evidence adduced at hearing
establish that the Hackers have not expanded the size of the deck. The only direction
where expansion could have occurred is waterward, to the north. In the 1961 photograph
the deck can be seen to extend beyond the face of the bulkhead some small distance more
than it does now [see also Finding 11]. [Exhibit 2; Exhibit 7; Exhibit 37C; Exhibit 37D;
Exhibit 46]
11. The Appellants' more credible interpretation of aerial photographs [Testimony of
Curtis; Exhibits 53 -57], and photographic evidence supports the finding that the deck, as
repaired by the Hackers, is somewhat smaller than the original deck. At hearing it was
established that the deck is now 832 sq. ft. (approximately 81 sq. ft. smaller than the size
of the deck before the Hackers completed work on it). The Director was incorrect about
the size of the deck having been expanded. [Testimony of R. Hacker; Exhibit 49; Exhibit
50]
12. The Director's assertions [Testimony of Best] that the removal of the
shed/boathouse from the surface of the deck affected the size of the deck, is not
convincing. The size of the shed, a floorless, movable structure that rested on the deck, is
unrelated to the size of the deck. The deck size was the same whether or not the shed was
on it.
Pier COD274
13. The subject structure, a fixed platform over the water, abutting the shoreline and
extending waterward, is most correctly categorized as a pier, not a dock [see definitions
in Finding 21].
14. Credible evidence in the record indicates that the pier has been in this location as
far back as the 1960's and that some repairs were made in the 1980's. In the 1960's, a
float, accessed via a ramp, extended from a fixed pier. (Photos from that time also show
a cable or rope "railing" on posts along the east side of the pier from the bulkhead to just
onto the ramp.) [Exhibit 41; Exhibit 42; Exhibit 43] Photographs of the pier in the
1980's show that the float and ramp had been removed. (The cable railing and its
supports are also gone by this time.) The pier appears to be the same structure in the
photos taken in the 1980's [Exhibit 44], in 2000, and in 2001 [Exhibit 37C and Exhibit
5].
15. When the Hackers purchased the property the pier was in need of repair: some
decking was missing and some was rotted. The Hackers also believed that the pier was
too narrow to be used safely, especially by children. They decided to resurface the pier at
about the same width (4 ft. 10 in. instead of 4 ft. 6 in.) for most of its length and to widen
the most waterward section to 10 ft. (This widened portion gives of the pier a "paddle"
shape in aerial photos - see Exhibit 2.) The length of the pier was not changed, no pilings
were added and all the work occurred on the walking surface of the pier, no work was
done in the water or on land periodically covered by water. [Exhibits 37B & D; Exhibit
51; Exhibits 53 & 55; Testimony of J. Hacker; Testimony of R. Hacker].
16. The Director, having scaled/calculated measurements from aerial photographs,
has concluded that the Hackers expanded the walkway portion of the pier from 4 ft. to 5
ft., and created 10 ft. paddle shaped "bulge" in the end section of the pier. [Testimony of
Best]
17. Plans drawn in May 2001 [Exhibit 38] that accompanied an application by the
Hackers for a "proposed pier" show a 4 ft. wide pier on piles with a dock at the end,
connected to the pier by a ramp. The elements that comprise this structure (narrow
walkway with ramp and floating end section), are similar to those that made up the
1960's structure [Exhibit 41].
18. The Hackers did not keep records to document the actual costs of materials and
labor for the repairs that were made. However, the cost of decking materials for the pier
repair is fairly estimated at approximately $1400 [Exhibit 48] and labor cost was in the
$2500 -$3000 range.
Appeal
19. On March 15, 2005, the Hackers timely filed an appeal to the Hearing Examiner
[Exhibit 18; Exhibit 23]. Required notice of the appeal hearing was completed as of June
1, 2005 [Exhibit 25] and hearing was held on June 16, 2005.
20. At hearing the Director asserted that the Hackers have violated the Code by
repairing and expanding the deck and the pier without having applied for and received an
exemption or SSDP for each [Exhibit 58]. The Hackers argue that the work done on both
the pier and the deck was exempt as normal repair and maintenance and the City cannot
require a letter of exemption [Exhibit 39].
Shoreline Regulations
21. The Bainbridge Island Municipal Code (BIMC) includes the following definitions
in Chapter 16.12.030 of the Shoreline Code:
52. `Development" means a use consisting of the construction or
exterior alteration of structures; dredging; drilling; dumping; filling; removal of
any sand, gravel, or minerals; bulkheading; pile driving; placing of obstructions;
or any project of a permanent or temporary nature which interferes with the
normal public use of the surface of the waters of the state...
54. `Dock" means a floating platform which abuts the shoreline,
extending waterward from ordinary high water, or from the bottom of a ramp
extending from a pier, generally used as a landing or moorage place for
commercial and /or pleasure craft.
70. `Exemption " means certain developments are exempt from the
definition of substantial developments and, therefore, are exempt from the
substantial development permit process of the Shoreline Management Act. An
activity that is exempt from the substantial development provisions of the
Shoreline Management Act must still be carried out in compliance with policies
and standards of the Act and the local master program. Conditional use and /or
variance permits may also still be required even though the activity does not
need a substantial development permit...
72. `Fair market value" means the expected price at which the
development can be sold to a willing buyer. For developments which involve
nonstructural operations such as dredging, drilling, dumping, or filling, the fair
market value is the expected cost of hiring a contractor to perform the operation,
or where no such value can be calculated, the total of labor, equipment use,
transportation, and other costs incurred for the duration of the permitted
project...
119. `Nonconforming development" means a shoreline use or
structure which was lawfully constructed or established prior to the effective date
of the applicable Shoreline Management Act /SMP provision, and which no
longer conforms to the applicable shoreline provisions...
122. `Normal maintenance" means those usual acts to prevent a
decline, lapse, or cessation from a lawfully established condition...
124. `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...
131. `Pier" means a fixed platform above the water which abuts the
shoreline, extending waterward from ordinary high water, and which is generally
used as a landing or moorage place for industrial, commercial, and /or pleasure
craft.
178. `Substantial development" means any development of which the
total cost or fair market value exceeds $2,500 (or another amount established in
RCW 90.58.030(3)(e) or its successor), or any development which materially
interferes with the normal public use of the water or shorelines of the state,
except as specifically exempted pursuant to RCW 90.58.030(3)(e) or its successor
and WAC 173 -14 -040 or its successor. See definitions for "Development" and
"Exemption. "
22. Regarding exemptions, WAC 173 -27 -040 provides:
2) The following developments shall not require substantial development
permits:
(a) Any development of which the total cost or fair market value,
whichever is higher, does not exceed two thousand five hundred dollars, if such
development does not materially interfere with the normal public use of the water
or shorelines of the state. For purposes of determining whether or not a permit is
required, the total cost or fair market value shall be based on the value of
development... The total cost or fair market value of the development shall
include the fair market value of any donated, contributed or found labor,
equipment or materials;
(b) Normal maintenance or repair of existing structures or developments,
including damage by accident, fire or elements. "Normal maintenance" includes
those usual acts to prevent a decline, lapse, or cessation from a lawfully
established condition. "Normal repair" means to restore a development to a state
comparable to its original condition, including but not limited to its size, shape,
configuration, location and external appearance, within a reasonable period after
decay or partial destruction, except where repair causes substantial adverse
effects to shoreline resource or environment. Replacement of a structure or
development may be authorized as repair where such replacement is the common
method of repair for the type of structure or development and the replacement
structure or development is comparable to the original structure or development
including but not limited to its size, shape, configuration, location and external
appearance and the replacement does not cause substantial adverse effects to
shoreline resources or environment;
(h) Construction of a dock, including a community dock, designed for
pleasure craft only, for the private noncommercial use of the owners ... of a
single - family and multiple - family residences. A dock is a landing and moorage
facility for watercraft and does not include recreational decks, storage facilities or
other appurtenances. This exception applies if ... (i) In salt waters, the fair market
value of the dock does not exceed two thousand five hundred dollars...
23. Development of new docks and piers is prohibited in Blakely Harbor by BIMC
16.12.340.13.9. and 16.12.340.C. I. The subject pier is not "new" [see Findings 2 and 15].
24. Within the shoreline a permit or an exemption is require pursuant to BIMC
16.12.360.A, which provides, in pertinent part (emphasis added) that:
1. A development, use, or activity shall not be undertaken... unless
it is consistent with the policy and procedures of the Shoreline Management Act,
applicable state regulations and the shoreline master program.
2. A substantial development shall not be undertaken... unless an
appropriate shoreline permit has been obtained, the appeal period has been
completed, any appeals have been resolved, andlor the applicant has been given
permission by the proper authority to proceed.
3. Any person wishing to undertake substantial development or
exempt development on shorelines shall apply to the director for an appropriate
shoreline permit or a statement of exemption.
25. Regarding a Statement of Exemption, BIMC 16.12.360.B (emphasis added),
requires as follows:
1. No exempt development, use or activity shall be
undertaken... unless a statement of exemption has been obtained from the
director.
2. The request for the statement of exemption shall be in writing, on
forms required by the director, and shall include the information required by the
director...
3. The director shall decide requests for a statement of exemption
based on WAC 173 -14 -040 or its successor and the provisions of the Shoreline
Management Act and the master program.
4. Before determining that a proposal is exempt, the director may
conduct a site inspection to ensure that the proposal meets the exemption
criteria.
5. Exempt developments and activities shall comply with the
Shoreline Management Act and the master program. The director shall
condition statements of exemption to ensure the exempt development or activity
complies with the Shoreline Management Act and the master program.
6 In the case of development subject to the policies and regulations
of the master program, but exempt from the substantial development, permit
process, shoreline management requirements may be made conditions of the
building permits andlor other permits and approvals. For example, the approval
of a building permit for a single-family residence can be conditioned with,
provisions from the master program.
7. Whenever a development falls within the exemptions stated in
WAC 173 -14 -040 or its successor, but is still subject to those permits listed in
WAC 173 -14 -115 (as amended), a letter exempting the development from the
substantial development permit requirements of Chapter 90.58 RCW or its
successor shall be given to the applicant and Department of Ecology.
26. Regarding fees for permits and statements of exemption, BIMC 16.12.360.0
provides that: "A filing fee in an amount established by the City Council by resolution
shall be paid at the time of application. After the fact permit fees will be triple the
normal amount. "
27. BIMC 16.12.350.A.1 (emphasis added), vests the Director with:
a. Overall administrative responsibility for the master program;
b. Authority to grant statements of exemption from shoreline
permits;
C. Authority to approve, approve with conditions, or deny shoreline
substantial development permits and permit revisions in accordance with the
policies and regulations of the master program...
28. Regarding nonconforming development, BIMC 16.12.390 (emphasis added),
provides:
A. Applicability. This section applies to shoreline uses or
structures which were lawfully constructed or established prior to the effective
date of the master program, but which do not conform to present regulations or
standards of the master program or the policies of the Shoreline Management
Act.
Nonconforming uses and development may be continued; provided, that
they shall meet the following provisions:
1. Nonconforming Uses.
a. Nonconforming uses shall not be altered or expanded in
any way that increases the nonconformity.
2. Nonconforming Structures.
a. Expansion which increases the nonconformity shall not
be allowed without a shoreline variance. Repair, reconstruction, and expansion
of nonconforming structures which does not increase the nonconformity shall
be perm itted.
b. Permitted expansion of a nonconforming structure shall
not obstruct the existing views of the water from primary waterfront residences
or public rights -of -way to any greater degree than a fully conforming structure.
C. If a nonconforming structure is damaged or destroyed, it
may be reconstructed to the configuration existing immediately prior to the time
the structure was damaged or destroyed unless a shoreline variance is granted.
29. BIMC Chapter 1.26 provides Code enforcement procedures. BIMC 1.26.020.A
provides that it is the duty of the Director "to enforce the applicable chapters and titles of
this code" BIMC 1.26.070 allows that an appeal of a director's decision regarding a
violation is 'pursuant to the procedures set forth in BIMC 2.16130. "
30. BIMC 2.16.130 applies to appeals of "administrative decisions, departmental
rulings and interpretations... " In considering such appeals, BIMC 2.16.1301 authorizes
the Hearing Examiner to: affirm the Director's decision, affirm with modifications,
reverse the decision, or remand it to the Director. That section of the Code also requires
that the Hearing Examiner give "substantial weight to the decision of the department
director. "
31. BIMC 1.28.030 mandates that a "Code enforcement fee" be charged as follows:
"Whenever the City is required to act to enforce any provision of the Code, in addition to
any other fines, charges or penalties imposed on the person committing the violation, the
city shall charge the person an appropriate fee established by the city by resolution. "
The City's current hourly rate is $180.00 [see BIMC 1.28.035.E] and BIMC 1.28.035.D
provides that a disputed charge may be appealed to the Hearing Examiner for final
decision.
Conclusions
1. The Hearing Examiner has jurisdiction to hear and decide appeals of the
Director's administrative decisions regarding alleged violations and, pursuant to the
mandate of BIMC 2.16.130 [see Finding 30], in making that decision, must give
substantial weight to the decision of the department director. To overcome the
substantial weight accorded the Director, an appellant has to show that the Director's
decision is clearly erroneous. Under this standard of review, the Director can be reversed
if the Hearing Examiner is left with the definite and firm conviction that a mistake has
been made.
2. BIMC 1.28.035.D authorizes the Hearing Examiner to decide the appeals
regarding the amount charged for the enforcement fee.
3. The matters appealed are properly before the Hearing Examiner.
4. It is not disputed that the Appellants made or caused to be made physical changes
in structures located within the jurisdiction of the Shoreline Master Program (BIMC
Chapter 16.12): the deck located at 10798 Country Club Road and the pier located at
10832 Country Club Road. The Director has cited two violations of BIMC 16.12; the
violation regarding the deck has file number COD - 000275 (abbreviated here as COD275)
and the violation regarding the pier has file number COD - 000274 (abbreviated here as
COD274).
5. Appellants argue that there is no violation because the activities were exempt and
they are not required to obtain a statement of exemption. This argument is half right.
The facts adduced at hearing support the position that the Director was mistaken in
concluding that the deck and the pier have been expanded; the subject developments are
properly considered exempt activities as "normal repair" [see Conclusions 6 -12].
However, the Director has not been shown to be mistaken in deciding that statements of
exemption pursuant to BIMC 16.12.360.13 are required; Appellants' argument that these
exemption are unnecessary and/or improper, is not persuasive.
Deck
6. The work done on the deck was "normal repair" as that term is defined by Code
[see Findings 21 and 22]. Replacement of deteriorated wood decking is not an
uncommon or unreasonable method of repair. The finished structure is slightly smaller in
size, but is located in the same place on the property, with the same shape, and has
similar materials to the original deck. It is "comparable" to the original and, as it is
somewhat smaller, it has not been expanded. No substantial adverse effect to shoreline
resources or environment has been alleged to have been occurred, nor would such effects
be likely in these circumstances. It was a mistake for the Director to find that the
Hackers expanded the deck.
7. The deck was originally built at this approximate size, with similar materials, in
this location, prior to the passage of the Shoreline Management Act and the adoption of
BIMC Chapter 16.12. As such, the deck was a legal nonconforming structure eligible to
be repaired, reconstructed and even expanded, as long as those actions did not "increase
in the nonconformity" [Finding 28]. Although the issue was not discussed in depth, the
nonconformity of the deck is apparently its size in this location (i.e., only a deck of 120
sq. ft. is allowed in the Native Vegetation Zone (NVZ) without a Shoreline Conditional
Use Permit [see BIMC 16.12.20]). The work done on the deck did not increase the
deck's nonconformity: size is the nonconforming aspect and size was not increased.
8. The deck repair is properly considered "development ", but as it is "repair"
within the definition of the Shoreline Master Program, it is exempt (i.e., a Shoreline
Substantial Development Permit is not required). As the development is exempt, the cost
of the work is irrelevant.
Pier
9. The work done on the pier was "normal repair" as this term is defined by Code [see
Findings 21 and 22]. Much of the decking was deteriorated and some decking was missing.
Replacing all the decking was not an unreasonable method of repairing this pier. This was not
total replacement of the pier; only the surface of the pier was changed. The pilings that support
the pier were not changed in any way and the pier is the same length as it was previously.
10. Through about 3/4's of the length of the pier, its width was increased to 4 ft. 10 in., an
inconsequential increase from the width of 4 ft. 6 in. before repair. The last section of the pier
was widened to 10 ft. The repaired pier remains "comparable to the original structure" [Finding
22]: the same location, the same height over the water, same length extending from the
shore, the same configuration, the same type of material, and having the same general
appearance from the shore and from the water. No substantial adverse effects to shoreline
resources or environment have been alleged to have been occurred, nor would such effects be
likely in these circumstances. The Director was mistaken to conclude that the pier was expanded.
11. The originally pier was built here prior to the passage of the Shoreline
Management Act and the adoption of BIMC Chapter 16.12. As such, the pier was a legal
nonconforming structure eligible to be repaired, reconstructed and even expanded, as
long as those actions did not "increase in the nonconformity" [Finding 28]. The
nonconformity of the deck is apparently its presence in this location (i.e., new piers and
dock are not allowed in Blakely Harbor [see Finding 23]). The work done on the pier did
not increase the nonconformity: the existing pier was repaired, no new pier was
developed; the nature and extent of the nonconformity remains unchanged.
12. The work on the pier is properly considered "development", but as it was
"repair" within the definition of the Shoreline Master Program [Finding 21], it is exempt
(i.e., a Shoreline Substantial Development Permit is not required).
Determining Exemption
13. It is undisputed that the Appellants did work on the deck and the pier without
obtaining either Shoreline Substantial Development Permits or Shoreline Substantial
Development Exemptions. The record here establishes that the "development" in both
instances was repair - eligible for exemption from the SSDP process. However, the Code
[BIMC 16.12.360.B.1, see Finding 25] is unambiguous: no exempt development is to be
undertaken without obtaining a statement of exemption from the Director.
14. No statement of exemption was obtained for either the deck repairs or the pier
repairs. In each instance, the failure obtain the exemption determination from the
Director is properly considered a violation. The Director has not been shown to have
erred in deciding that failing to obtain exemptions are violations.
15. As sanctions for the violations, the Director would have the Hackers remove those
portions of the structures that the Director considers expansion and seek statements of
exemption for the exempt work. Appellants argue that neither structure has been
expanded and they need not seek the Director's determinations of exemption as the
Shoreline Hearing Board's decision in Association of Washington Business, et al. v.
Department of Ecology, SHB No. 00 -037, 2001 (referred to as AWB) disallows such a
requirement. Neither position is wholly acceptable.
16. The facts here do not support the Director's sanction requiring removal of parts of
the structures. As the physical changes made to the deck and to the pier are within the
ambit of "normal repair" pursuant to BIMC 16.12.030.A and as permitted by BIMC
16.12.390.A, there are no expanded parts to be removed.
17. The Director's decision that statements of exemption must be obtained before
performing exempt development is correct. To be "exempt ", a development must fit
within the parameters for exemption. The Code [BIMC 16.12.350.A.1.b] gives the
Director this authority and logically requires that such determinations be made (i.e.,
statement of exemption obtained) before proceeding with the physical changes [BIMC
16.12.360.B.1].
18. Under the Appellants' argument, the Director would not be asked to determine if
a development was exempt, everyone would make his or her own determinations and
proceed to do whatever he or she believed to be exempt (with enforcement actions
presumably the City's means to "correct" mistakes that the owners made about
exemptions). This is an irrational scenario. The Code empowers the Director to
determine what is exempt and AWB cannot reasonably be interpreted as having
eliminated that authority. Someone must determine if a development is exempt and the
Code gives authority to the Director to make these determinations. Sensibly, the Code
expects the Director to make a site inspection and check compliance with shoreline
policies before deciding on an exemption. The Code does not require a "permit ", but sets
up a rational administrative process for determining exemptions.
Fee Dispute
19. The Code authorizes and directs that a "code enforcement fee " be charged "to
enforce any provision of the code". Charging an enforcement fee was not a part of the
Director's administrative decisions regarding the alleged violations, but the amount
charged may be appealed under BIMC 1.28.035 [see Finding 31]. The appellants dispute
the amount charged for the code enforcement fee and raised that issue in their appeals
here.
20. The amount of the code enforcement fee charged is not unreasonable in terms of
staff time and the hourly rate is not excessive. Charging for an hour on each matter is
reasonable and it appears that it may be considerably less time than was actually
involved. There is no factual basis upon which to argue that the City's hourly rate of
$180 is excessive. The Code [at BIMC 1.28.035] specifies a methodology for
determining the standard rate and there is no evidence to suggest that the current rate is in
excess of that necessary to recoup all the City's reasonable costs (i.e., the hourly rate has
to cover all costs, not simply the hourly salary paid to the staff involved).
Other Permits
21. This decision does not address whether and/or what other permits or approvals
(e.g., building permit, Corps of Engineers permit, SEPA review, etc.) may be required for
the work done on the deck and the pier. It is not readily apparent that such reviews and
permits are necessary for the subject deck and pier repairs. It is yet to be determined
whether "other permits" are necessary for the work done. Mention in the Staff Report of
the possibility of violations for not obtaining other permits, is not an allegation of other
violations or a decision about them. This makes irrelevant Appellants' argument
regarding administrative finality.
22. When the requests for exemptions are reviewed and it is determined what permits
are and are not required, the actions on both the pier and the deck are to be considered
repair of existing legally non - conforming structures.
Decision
The Director's administrative decision citing violations and ordering sanctions is
REVERSED IN PART AND REMANDED to the Director for further consideration as follows:
COD - 000274 PIER 10832 COUNTRY CLUB ROAD
The Director's decision that part of the pier be removed and application be made
for an after - the -fact Shoreline Substantial Development Permit is REVERSED.
The Hackers are hereby ORDERED to request, and the Director shall issue, a
statement of exemption pursuant to BIMC 16.12.360.B. The normal filing fee
for a request for a statement of exemption shall be required (the triple fees for
"after the fact" permits of BIMC 16.12.360.0 do not apply as the statement of
exemption is not a permit).
COD - 000275 DECK 10789 COUNTRY CLUB ROAD
The Director's decision that part of the deck be removed and application be made
for an after - the -fact Shoreline Substantial Development Permit is REVERSED.
The Hackers are hereby ORDERED to request, and the Director shall issue, a
statement of exemption pursuant to BIMC 16.12.360.B. The normal filing fee
for a request for a statement of exemption shall be required (the triple fees for
"after the fact" permits of BIMC 16.12.360.0 do not apply as the statement of
exemption is not a permit).
Entered this day of July 2005.
Meredith A. Getches
City of Bainbridge Island
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 his/her rights and responsibilities relative to appeal.
Request for judicial review of this decision by a person with standing can be made by filing a
land use petition in Superior Court within 21 days in accordance with the Land Use Petition Act,
Revised Code of Washington (RCW), Chapter 36.70C.