TOOLEE/MADSEN TREE HOUSE - DECISIONStewardship which involves giving technical assistance to the Code Enforcement
Officers. This is a Code Enforcement action surrounding an elevated structure,
which is located on a shoreline of statewide significance. The City's Shoreline
Master Program designates the upland site as semi-rural environment with
aquatic over water environment. The site is zoned residential two units per acre
R-2). The City Comprehensive Land Use map designates the site as open
space, residential, two units per acre (OSR-2). The structure, which is the focus
of this hearing, is located within the shoreline natural vegetation buffer. The
immediate area of the structure is also classified as a geological hazardous area
because of the steep slope, which is classified as unstable. Mr. Machen
considers the structure an accessory structure to a single-family residence
located on the site. It is approximately 16 feet above grade and 22 feet from the
bulkhead. Its existence is in violation of Bainbridge Island Municipal Code
BIMC) 16.12.090. Because this is a shoreline of statewide significance, it is
heavily regulated as the state has mandated that the public interest in its
shorelines be protected.
The structure is located within the jurisdiction of the Shoreline Master Program
and as previously stated, it is located in the native vegetation zone buffer
adjacent to the shoreline. BIMC 16.12.260 is exclusive. It prohibits all but a few
listed structures in the native vegetation zone. This wooden platform is not
provided for by the Code and therefore it is prohibited. The structure appears to
be approximately 12 feet by 12 feet and is resting on top of two maples, which
have been pruned to support the deck of the structure. The platform supports
are bolted to the tree. Attached to the structure is a ramp which rests on the
slope which has been previously described as a geological hazardous area.
Appearing was NEZAM TOOLOEE, appellant. His wife Berit Madsen did not
appear. The structure is a tree house. He built the structure for his children.
They had been playing at a tree house not too far from their residence. The tree
house eventually caved in. They were concerned about the safety of their
children so they built this tree house. The children have used it to play. The
appellants insist the tree house is not in violation of the code. It is in the air and
not located in the vegetative area because it is built in the trees which are located
in the vegetative buffer, above the ground. There is no provision in the code
which addresses or prohibits construction of a tree house. He believes he has
been singled out for negative treatment because of his political viewpoints and
the fact that he is a member of the City Council. The City has not been
responsive to his overtures to settle. They have instead requested that he
remove this structure. He cannot do so. His children are emotionally attached to
it and the family uses and enjoys the structure.
Appearing was JOHN MICHAELSON, the contractor who built the structure for
the appellants. He built this structure and took care to insure the health of the
trees. The structure is approximately 16 feet from the ground. There is no roof,
there are no wires, and it is designed to be used by the children. It is a platform.
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He designed the structure as a platform so that the children could build whatever
they wanted on the platform. It is a private area for the children to play games
and enjoy. It is not in violation of any Code, particularly Uniform Building Code.
The platform is intended for them to build something bigger on it. He used
traditional methods in building the structure and minimized the number of
fasteners used. He submitted into evidence Exhibit 51. In that journal, he refers
to the subject structure as a tree house. It is impossible to decrease the square
footage of the structure and it would be impossible to realign the beams. The
journal he submitted is something he maintained while he was building the
structure. In the distant future, this structure could disable the trees unless it is
properly maintained and the openings around the trees are enlarged as the tree
trunks increase in width. He used six single galvanized light bolts, approximately
12 inches in length, one half of that would have threads on it to secure the
structure to the maple trees. He also used four large size bolts and used
predrilled holes. He drilled holes about six inches and then inserted the screws.
There are three cross beams, which, with regular maintenance, could avoid
damage to the trees. He indicated that if the light bolts were removed, the trees
would recover from injuries caused by the bolts.
Appearing was SHANNON BOYNINGTON who was the nanny for the children.
She testified as to the use, the various games she and the children played on the
structure. It is a place the children love to play "pirates", read, eat, get out of the
sun, and basically a playhouse for the children.
Appearing was DR. OLAF RIBERIO, who has various degrees and is an arborist
amongst other skills and occupations. He inspected the trees. He found no
decay at the present time. He did not go on the tree house but observed it from
below. He submitted Exhibit 31 which Examiner had previously read and
admitted into evidence. His estimate of the structure being 25 feet above shore
was an estimate and 16 feet would probably be the correct estimate of distance.
He found no indication of disease or of decay at this time. The trees appear to
be healthy. Upon questioning from the Examiner, he indicated that he believed
the tees would withstand the winds off shore. At some point, if winds are
extremely high, the structure could cause damage to the trees. He felt that the
railing, which is attached to the floor of the structure and appears to be two by
twos spaced four to six inches apart would be sufficient to protect the trees from
the wind. He felt that this railing would deflect the wind and helps avoid damage
to the trees from the platform, as the trees shifted back and forth against the
platform.
At this point the appellants rested pending their Motion for Continuance and
additional testimony at a later date. They incorporated by reference all
documents hereby submitted.
Appearing was SCOTT BAKER, an arborist who indicated that he had looked at
the structure over the lunch hour and that he had previously done a diagnosis
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using photographs. He submitted a report (Exhibit 40) which was based upon his
review of photographs of the tree and the site. There are visual signs of decay
and insect infestation. He has a very high opinion about Dr. Robierro and was
hesitant to disagree with him, but it is very obvious that there are visual signs of
decay and insect infestation. The trees are suffering from stress. At this time
they are suffering from stress because of the weather conditions and the lack of
rain. He also disagrees with the Doctor's statements about the railing of the
platform reducing wind resistance. It is just not large enough to provide much
wind resistance.
Appearing was MEGAN MCKNIGHT, Code Enforcement Officer for Bainbridge
Island. She described the history of contact with the appellant and indicated that
she is the one who started these proceedings. The structure is located in native
vegetation zone which is prohibited by Code. From her perspective, it is a deck
with railing and ramp which is located in a geologically hazardous area. It is
located in the vegetative zone and in a Shoreline Buffer in violation of Code. The
slope in the area of the structure is greater than 40%. The structure is in
violation of the Shoreline Master Program.
Reappearing was JOSHUA MACHEN. He had reviewed a copy of the
appellant's brief. BIMC Section 16.12.260(B)(9) prohibits any accessory
structure other than those specifically listed. This platform structure, or tree
house is not a permitted accessory structure within the shoreline environment.
Depending on who wants to size the structure, it is from 144 to 185 square feet in
size. It is higher than 30 inches from the ground and it is in violation of the above
provisions. This is probably an accessory structure as defined by
16.12.030(A)(1). BIMC 16.12.260 outright prohibits development other than
specifically authorized. When questioned as to what can be done to keep this
facility, he indicated that perhaps they could apply for a variance, although the
variance criteria is very strict and they do not appear to meet all of the criteria for
a variance. BIMC 16.12.380 sets forth the criteria for a variance. The structure
is located on a shoreline of statewide significance. The Shoreline Management
Act regulates all activities within 200 feet of the shoreline, and this structure is
located well within that 200 feet. The native vegetative zone is a very protected
area within the shoreline management program.
Reappearing was SCOTT BAKER, consulting arborist for Bainbridge Island.
Rain produces decay. These trees have been topped. The use of cement as Mr.
Magnuson has done to protect the tree was something that was done 30-40
years ago. More recent studies have found that the use of cement usually
causes more problems than it solves. Mr. Baker has extensive experience with
tree houses. Usually they end up removing tree houses as they fall under
disrepair and get old. He described the ramp, which rests on the bank and is
attached to the deck. The platform is resting on two maple trees that have been
topped and have been seriously reduced in size. Galvanized layers have been
put at the top of stumps, which are used to support the structure. Drilling holes in
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the tree, which has been done, damages the tree and given time, it will decay.
Flashing areas will cause problems. Two maples are relatively healthy now but
with age more deterioration will show. A tree unattended will destroy the deck
and the deck will destroy the tree, or both. Given the steep slope here, there is a
possibility of slope failure.
No one spoke further and this matter was taken under advisement until
September 28, 2006.
The hearing was reconvened at 12:30 p.m. on September 28, 2006. Parties
present were RYAN VANCIL for appellant, BRIAN PAIGE for the City of
Bainbridge Island, JOSHUA MACHEN Senior Planner, MEGAN McKNIGHT
Code Enforcement Officer, SEAN PARKER architect.
Appearing was SEAN PARKER, architect in charge and responsible for the
development, design, and construction of Harbor Square on Bainbridge Island.
He has a vast amount of experience in the construction of public facilities such as
parks, multi-family dwelling units, and other projects. He is very familiar with the
Bainbridge Island Municipal Code. His resume was submitted and marked as
Exhibit 55 and admitted into evidence. He has worked on a vast number of
projects on Bainbridge Island. He was called as a witness with reference to his
experience in working with various structures and the difference between
structures.
Appearing was JOSHUA MACHEN who discussed the provIsions of the
Shoreline Management Program (SMP) and Accessory Structures.
No one spoke further and the hearing was closed at 12:50 p.m. The Hearing
Examiner left the record open for submission of additional briefs and arborist
reports.
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. CONCLUSIONS AND DECISION:
FINDINGS:
1. The Hearing Examiner has admitted Exhibits 1-57 into evidence into the
record, reviewed the same, heard testimony, judged credibility of
witnesses, viewed the site, researched the issues, and taken this matter
under advisement.
2. Notice of this appeal was filed in accordance with the provisions of
Bainbridge Island Municipal Code, see Exhibit 43.
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3. The appellants are the owners of a long, rectangular shaped, 1.34-acre
site, located at 6600 NE Seabold Road, Parcel No. 332602-2-028-2009.
This high bank parcel of property, which abuts Puget Sound, has a steep
slope which is an erosion control area. The shoreline is a shoreline of
statewide significance according to the maps submitted, and therefore all
property 200 feet landward of the ordinary high water mark is subject to
the provisions of the SMA. Exhibits 8-17 indicate that this long, narrow,
waterfront site has slopes in excess of 40% and wetlands as you
approach the Sound. The Exhibits also indicate that the slope of the site
is unstable. The slope is classified as an erosion hazard area. The site is
improved with a single-family residence, garage, and what the appellants
call a tree house which in reality appears to be a deck attached to the
steep slope approaching the beach. Exhibits 1-6 indicate that this deck
was not there in the year 2002 but was located there in the year 2006.
According to the appellant, he hired a contractor to build this deck in the
year 2003. They did not apply for any permits or exemptions for the
construction.
4. The structure is bolted to maple trees, which form the foundation.
According to the contractor, John Michaelson, he built this structure as a
platform for the children to build upon. He used traditional methods of
construction in building this structure and minimized the number of
fasteners used in the construction process. The cost of construction was
about $3000. The platform is a piece of work artificially built or composed
of parts, joined together in a definite manner above the surface of the
ground. It meets the definition of a structure as defined by BIMC
16.12.030(A)(176).
5. The issues in this appeal center around the existence of this very
handsome deck-like structure, which is located within a shoreline of
statewide significance. In order to better understand the issues
surrounding this structure, it is necessary to review the provisions of the
Shoreline Management Program (SMP). As previously stated, this site is
located on a shoreline of statewide significance and therefore it is subject
to the Shoreline Management Program.
6. The Bainbridge Island Shoreline Management Program is mandated by
the provisions of the Washington State Shoreline Management Act (SMA).
See RCW 90.58 et. seq.) The legislature, in enacting the SMA of 1971,
declared that the shorelines of the state are among the most valuable and
fragile of its natural resources and that there is great concern throughout
the state relating to the utilization, protection, restoration, and preservation
of the shoreline. In addition, it found that there are ever increasing
pressures of additional uses being placed on the shorelines, necessitating
increased coordination in the management and development of the
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shorelines. The legislature further found that much of the shoreline of the
state and the uplands adjacent thereto are in private ownership, that
unrestricted construction on the privately owned, publicly owned
shorelines of the state is not in the best interest of the public; and
therefore coordinating planning is necessary in order to protect the public
interest associated with the shorelines of the state while, at the same time
recognizing and protecting private property rights consistent with public
interest. The legislature indicated there is a clear and urgent demand for
a planned, rational, and concerted effort, jointly performed by the federal,
state, and local governments to prevent the inherent harm in
uncoordinated and piecemeal development1 of the state's shorelines. The
legislature went onto declare that it is the policy of the state to provide for
management of the shoreline of the state by planning for and fostering all
reasonable and appropriate uses. This policy is designed to insure that
development of these shorelines in a manner which, while allowing for
limited reduction of the rights of the public in the navigable waters, will
promote and enhance the public interest. This policy contemplates
protecting against adverse interest to the public health, the land and its
vegetation and wildlife, and the waters of the state, and their aquatic life
while protecting generally public rights of navigation and corollary rights
incidental thereto. See RCW 90.58.020 See also RCW 90.58.900 which
provides that the SMA of 1971 is to be broadly construed in order to
protect the state's shorelines as fully as possible. A liberal construction of
the act is also mandated by the Washington State Environmental Policy
Act of 1971. Any development on the shoreline is subject to the
provisions of the SMA, See Hunt v. Anderson, 30 Wn. App. 437 (1981).
The primary purpose of the SMA is to protect the state's shorelines as fully
as possible. See Lund v. Department of Ecology, 92 Wn. App. 329
1998). See also Bellevue Farmers Association v. Shorelines Hearing
Board, 100 Wn. App. 341 (2000).
7. As previously stated, the site is located on a shoreline of statewide
significance. The SMA of 1971 designated certain shorelines of
Bainbridge Island as shorelines of statewide significance because these
shorelines are resources from which all people in the state derive benefit,
preference is given to uses which favor public and long-range goals. The
policies require that we recognize and protect the statewide interest over
local interest. It is incumbent upon the City officials to preserve the natural
character of the shoreline. They are to designate and administer shoreline
environments and use regulations to minimize damage to the ecology and
environment of the shoreline as a result of manmade intrusions on the
shorelines. The intent of this designation to protect the resources and
ecology of the shoreline, to minimize development of activity that will
1 See RCW 90.58.030(3)(d) defmes development as "a use consisting of the construction ... of
structures. .. "
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interfere with the natural functioning of the shoreline ecosystem, including
but not limited to stability, drainage, aesthetic values, and water quality.
All shoreline development should be located, designed, constructed, and
managed to avoid the disturbance of and to minimize the impacts on fish
and wildlife resources, including spawning, nesting, rearing, and habitat
areas and migratory routes. The SMP provides with reference to water
quality that it is the policy to establish setbacks that minimize negative
impacts to water quality.
8. The SMP is intended to implement the Shoreline Management Act by
planning for and guiding the orderly developmene of the shoreline,
protecting shoreline resources, and helping to insure public access to the
shoreline. The SMP helps both property owners and city and state staff in
the permitting process. It also educates the community in the use and
protection of its shorelines. Amongst other things, the purpose of the Act
indicates that its paramount objectives are to protect and restore valuable
natural resources, that the shoreline represents, and to plan for and foster
all "reasonable and appropriate uses" that are dependant upon waterfront
location which offer the opportunities for the public to enjoy state
shorelines. The Bainbridge Island Shoreline is home to a quarter of the
Island's residents as well as numerous species of fish and wildlife. Bald
eagles, herons, seals, otters, and numerous waterfowl depend on this
shoreline. There are also salmon streams and bays necessary for fish,
shellfish, clams and vegetation to survive. Section 3 of the SMP provides:
all new shoreline uses and shoreline modification activities,
including those that do not require a shoreline substantial
development permit, must conform to all the applicable goals,
provisions, general provisions, environment designation provisions
including the shoreline environment), specific shoreline use
provisions, and shoreline modification activity provisions. Shoreline
modification activities must be in support of an allowable shoreline
use which conforms to the provisions of the Master Program,
except as otherwise noted, all shoreline modification activities not
associated with a legally existing or approved shoreline use are
prohibited.
SMP indicates that with reference to environmental impacts on page 35,
that:
all shoreline uses and activities shall be located, designed,
constructed, and managed to minimize adverse impact to fish and
wildlife resources, including spawning, nesting, rearing, and habitat
areas and migratory routes.
2 See BIMC 16.12.030(52) which defines development as "a use which consisting of construction... of
structures."
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9. With reference to environmentally sensitive areas, such as a geologically
hazardous area, the SMA provides that development should be located
away from shorelines that have been identified as unstable, as in this
case, or sensitive to erosion to avoid the hazardous condition and/or
property damage as well as to protect the valuable critical areas. Areas
adjacent to environmentally sensitive features such as we have in this
case, and native vegetation zone uses should be regulated to protect the
environmentally sensitive features. All development should be set back
far enough to avoid damage to said features and the native vegetation
zones.
10. With reference to native vegetation zone, the SMP provides that native
vegetation zone is a required vegetation buffer encompassing all uplands
from the ordinary high water mark to in this case 50-feet from the ordinary
high water mark. Its purpose is to protect and enhance the Island's natural
character, water quality, native plant communities, and wildlife habitat
along the shoreline. The policies regarding native vegetation zones
indicate that preservation of native plant species is key to maintaining the
ecology of the shoreline as well as preserving the Island's natural
character. The native vegetation zone is within the shoreline jurisdiction
and must be protected and maintained and enhanced. Development
should preserve existing environmental features to minimize disturbances
of natural systems. Native vegetation zone upland of ordinary high water
mark should be established for each shoreline use and shoreline
environment recognizing the pattern of development and the ecology of
the shoreline. Clearing, grading or construction may not be undertaken
within the native vegetation zone unless specifically provided for...
11. With reference to residential development the policies of the SMP indicate
that it is important to recognize the single purpose, irreversible, and space
consumptive nature of the shoreline residential development.
New development should provide adequate setbacks and native
vegetative buffers from the water and ample open space and
sideyard to preserve the views for both land and water and to
protect natural features and plankton. New residential development
and accessory uses should be prohibited from locating in
environmentally sensitive areas (and the native vegetation zones)
including marshes, bogs, swamps, mud flats, underlying steep or
unstable slopes, flood ways, fish and wildlife habitat, migratory
routes, spawning, and marine vegetation areas.
See page 89 of SMP. Regulations with reference to the SMP residential
development indicate that vegetation area zones should be established. A
total area of the native vegetative zones shall consist of the area
equivalent to the length of the property along the shoreline times the depth
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required for the environment in this case 50 feet. Regulations also provide
page 90) that no accessory structures shall be located within a required
native vegetation zone except a stairway to the beach, a tram, pier, or
dock, a boathouse, a deck less than 30 inches in height above grade, and
fences provided that they conform to all other City and State requirements
including provisions of the Master Program. It is interesting to note that all
stairways to beaches require a building permit and conform to standards
as established by a building official.
12. With the above provisions in mind, we turn to the issues involved in this
case. As previously stated, this appeal involves the construction of a
platform within 50 feet of the ordinary high water mark of a shoreline of
statewide significance.
13. Around the first part of February 2006, City staff received a report that
there appeared to be a deck-type structure in the shoreline native
vegetative zone on the appellants' property and that it was there without
shoreline authorization. Upon investigation by the City, the City indicated
that a review of past permits on this property did not include approval for
construction of this structure. See Exhibit 19.
14. On February 17, 2006, Megan McKnight notified Mr. Tooloee and Ms.
Madsen that construction of a deck-type structure within the native
vegetation zone on a geographically hazardous area without a building
permit or shoreline authorization on the above parcel appeared to be in
violation of code. She indicated that the construction was in violation of
Chapter 15.08 (16.12) and 16.02 of the BIMC. She further indicated that a
building permit is required to be issued before construction commences
BIMC 15.04.03A and 15.04.040A). A geotechnical analysis containing
information specified by a City Engineer which concludes the
developmental proposal is safe and the risk to adjacent property from
geological hazard is not increased is required before construction
commences... The letter indicated that any development use or activity
undertaken in the shoreline jurisdiction must comply with the requirements
of the SMP and be issued applicable permit or letter of exemption. She
indicated that the parties must remove the deck within 30 days or submit
application conference for a possible permitting options.
15. The appellants responded on March 6, 2006, See Exhibit 22, indicating
they did not believe there were code violations and proposing constructive
ways of resolving the matter. (Upon the Examiner's review of all the
correspondence between the appellant and the City, it is Examiner's belief
that there were no constructive ways of resolving the matter offered by the
appellant. The appellant was saying he was right and the City should
change their mind. That was the sum and substance of his response.
The Examiner was disappointed to see that appellant did not consider
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perhaps moving the deck to an area outside the jurisdiction of the
shoreline environment. From appearances, it would appear that moving
what he calls a tree house to the back portion of his property would have
avoided most of these issues.) The appellant explained that the structure
was a tree house, that it had sentimental value, and a building permit is
not required for a tree house. If it were required, they would apply. With
reference to the native vegetation zone, they indicated that if the City
decides that the house encroaches on the native vegetation zone, they
would plant an area equal to the size of the tree house and its ramp with
suitable plants behind the bulkhead. The appellant ignores the state's
mandate that this vegetative zone within geologically unstable slopes be
protected.
16. On March 30, 2006, See Exhibit 23, Megan McKnight responded that
while she could empathize with their desire to keep the structure due to
sentimental value, she had a duty to comply with Municipal Code and to
apply it consistently. She indicated that in order to bring property into
compliance with the Code, the structure must be removed or they would
need to apply for and obtain a shoreline variance, critical area variance,
geotechnical analysis, and building permits for the structure.
17. Appellant requested a review of Megan McKnight's determination. See
Exhibit 24. On April 28, 2006, the appellant submitted a shoreline
reconnaissance performed by Aspex Consultant which characterized John
Peterson's, a geotechnical engineer's, observations. A reconnaissance
consists of observations as opposed to analysis. Also submitted was
Exhibit 31 from a certified tree pathologist indicating that there was no
damage or injury to native vegetation that he could attribute to the
presence of the tree house that resides approximately 25 feet above the
shore. During the hearing, Dr. Olaf Riberio and Scott Baker, both of whom
appear to be highly qualified arborists, differed as to the amount of
damage done to the maple tree to which this structure is attached. The
Examiner finds that the testimony of Mr. Baker is more credible. The
testimony of Dr. Riberio appeared to be slightly biased in favor of the
appellants and based upon the testimony of Mr. Baker, the Examiner finds
that these trees are more likely than not damaged as a result of attaching
this structure to them. The Examiner also finds that it is doubtful that the
2x2 railing would provide much protection to the trees from high winds off
the shore.
18. On April 28, 2006 the appellant submitted Exhibit 32, indicating that the
structure was a tree house and not a deck. They did not build a deck,
they built a tree house of a unique design to insure the safety of their
children. They do not believe a tree house is regulated and presume that
no permits are required for any of the tree houses that one sees around
the island. They offered the geological reconnaissance as proof that they
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this deck without any complaints being filed. The fact that this structure
was seen by many members of the public and the staff before the
complaint was brought to the attention of the officials is not dispositive of
any issue. The testimony presented along this line was not helpful to
resolving the issues before the Examiner. This structure, by any name, is
located within a natural vegetation zone and in a geologically hazardous
area as defined by the City Code and is prohibited. This platform is a
piece of work artificially built or composed of parts joined together in
some definite manner, whether installed on, above, or below the surface
of the ground or water, except for vessels," and is a structure as
contemplated by BIMC 16.12.030(176) and for the above reasons, its
existence is in violation of various provisions of the BIMC.
23. During his presentation, Mr. Tooloee and his attorney indicated that as
they had throughout these proceedings that they felt the appellants were
being singled out for special treatment by the staff because of Mr.
Tooloee's action as a member of the City Council. Assuming arguendo
that this is a true statement, arguing these issues before the Hearing
Examiner was not helpful. The issues before the Hearing Examiner were
limited as to whether or not the appellants' structure and deck are
permitted by the Code. The Examiner would have no jurisdiction over
whether or not Mr. Tooloee was singled out for special treatment.
Arguments regarding special treatment could only be intimidating to the
staff. Based upon the Examiner's observations of the staff and the
Examiner's experience over the past many years, there is no evidence
that Mr. Tooloee was singled out for special treatment. Staff should be
commended for not responding to the barbs about their singling the
appellant out for special treatment. The presentation by the City was
limited to the fact that Mr. Tooloee had built a structure without complying
with any provisions of BIMC. There was no credible evidence of any
special treatment by the City against Mr. Tooloee because of his work on
the City Council.
24. BIMC 16.12.260(A) provides that all development within the shoreline
jurisdiction must comply with the Shoreline Management Act (Chapter
90.58 RCW or its successor) and the Shoreline Master Program (SMP).
Individual owner occupied single-family residence and its normal
appurtenances" are exempt from requirement that a Substantial
Development Permit be obtained from the local government (WAC 173-
14-040 or its successor). BIMC 16.12.260(9) provides that no accessory
structures shall be located within the required native vegetative zone,
except a stairway to the beach, a tram, a pier or dock, a boat, a permeable
deck less than 30 inches in height above grade, and fences; provided that
they conform to all other City and State requirements including the
provisions of the Master Program. The contractor has labeled this
structure as a platform, the observations of the Examiner are that it
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appears to be a deck. The appellant calls it a treehouse. Regardless of
what it is referred to, it is a structure as defined by the Code and it is
located within the native vegetation zone. It does not meet the definitions
of any of the qualified exemptions for building an accessory structure in
native vegetation zone. Therefore the appellants appear to be in violation
of this provision.
25. BIMC 16.12.090 provides in pertinent part that the native vegetation zone
is a required vegetation buffer encompassing all uplands in ordinary high
water mark to the dimension specified for that particular shoreline
environment. Its purpose is to protect and enhance the Island's natural
character, water quality, native plant communities, and wildlife habitat
along the shoreline.
The native vegetation zone provIsion applies to all shoreline
development, uses and activities, including those which do not
require shoreline permit and to existing development. Standards
for the native vegetation zone are based on the use category and
the environmental designations and are provided in part for
environmental designations Table 4.2.
Provisions for native vegetation zone intend that all existing native
vegetation within this zone remain unless specifically allowed to be altered
or removed. BIMC 16.12.090 provides that "no clearing, grading or
construction may be undertaken within the native vegetation zone unless
specifically provided for..." In the instant case, there is no provision which
allows the construction within the native vegetation zone on this property.
The contractor clearly described a construction of this structure which is
within this zone. If Mr. Tooloee's a member of the City Council, were
permitted to retain this structure within the area of the native vegetative
zone, it would set the precedent of allowing similar structures throughout
the waterfront area of Bainbridge Island, contrary to the provisions of the
SMP.
26. BIMC 16.12.360(A)(1) provides that:
a development, use, or activity shall not be undertaken within the
jurisdiction of the Shoreline Management Act... and the Shoreline
Master Program unless it is consistent with the policies and
procedures of the Shoreline Management Act, applicable state
regulations and the Shoreline Master Program.
BIMC 16.12.360(A)(3) provides that "any person looking to undertake
substantial development or exempt development on the shoreline shall
apply to the director for shoreline permits or statement of exemption." In
the instant case, the applicant has applied for neither prior to construction
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of this structure. The appellants have the benefit of living on a shoreline of
statewide significance. Part of the cost of living in this area is the cost of
complying with the regulations designed by the state and the City to
protect this fragile environment which has overwhelming demands placed
upon it by the general public of the state.
27. As previously stated, the slope on the site is a geologically hazardous
area. BIMC 16.20.080 prohibits construction within a 50-foot buffer of the
geological hazardous area. Construction within a geologically hazardous
area requires a geotechnical analysis and its location requires a variance.
The appellant has not applied for a variance. The testimony is
uncontrodicted. Mr. Michaelson built this platform within a geologically
hazardous area. The appellants' seemingly believe that it is up to the
contractor to make a determination as to whether or not they have violated
these provisions. It is not up to the contractor, it is up to the members of
the staff appointed by the public to make these determinations. The
testimony is clear
28. The provisions of the Shoreline Master Program clearly provide on Page
115, Section 2, Statement of Exemption: No exempt development, use, or
activity shall be taken within the jurisdiction of the shoreline management
act (Chapter 90.58 RCW or its successor) and the Master Program unless
a statement of exemption has been obtained from the director. Such
exemption has not been applied for or granted.
29. Page 114 of the SMP clearly states under Section E(1)(C): "any person
wishing to undertake substantial development or exempt development on
shorelines shall apply to the director from appropriate shoreline permit or
statement of exemption." No such application has been submitted.
Based upon the foregoing findings, the Examiner makes the following
conclusions:
CONCLUSION:
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, in making that decision, must
give substantial weight to the decision of the department director. See
BIMC 2.16.130(F)(2). 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.
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2. The appellant has failed to overcome that burden. The appellants have
constructed a wooden structure which the Examiner defines as a deck, in
the native vegetation zone of the shoreline. The appellants have
constructed a wooden structure within a critical area adjacent to a steep,
unstable, bank. The appellant has the privilege of owning property which
is on a shoreline of statewide significance which according to state law
and City Ordinance, is in need of substantial protections to protect the
interest of the general public in the shorelines of the state. The provisions
of the BIMC are designed to protect the shorelines against adverse effects
to the public health, the land and its vegetation, wildlife, and the waters of
the state and aquatic life while protecting generally the public rights to
navigation. The Bainbridge Island Shoreline Master Program governs all
shoreline development, use, and activities. The structure, regardless of its
name, is subject to each of the provisions of the Shoreline Management
Master Program, the Shoreline Master Program BIMC 16.12, and each of
the provisions of the City Code and the state law. The platform is a piece
of work artificially built or composed of parts joined together in a definite
manner above the surface of the ground. It is a structure which was built
in the native vegetation zone, in a geologically hazardous area, and on an
unstable slope. Its construction is development which is prohibited. The
construction and existence of the structure is in violation of multiple
provisions of the BIMC.
3. The City's letter of Larry K. Frazier dated June 1, 2006 from which the
appellants' appeal is hereby affirmed in all respects. See Exhibit 35. The
letter dated March 30, 2006 written by Megan McKnight is hereby affirmed
in all respects. The appellant has failed to meet his burden of proof.
DECISION:
The appellants' appeal from the Director's Decision of June 1, 2006, is denied
and this structure shall be removed forthwith from its current location, perhaps to
be relocated with appropriate permits to an area upland of its current location
beyond the jurisdiction of the Shoreline Management Act.
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ORDERED this ~ day of December, 2006.
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