051607_decision_hammer_appealDECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of
Kenneth S. Hammer SSDP 13664
From the decision to issue a Shoreline
Substantial Development Permit and MDNS
Introduction
Kenneth S. Hammer appeals the decision by the Director, Department of Planning
& Community and Development, to issue a shoreline substantial development permit and
a Mitigated Determination of Non - significance for a dock to be located at 15090
Sievertson Road, on Port Madison Bay. A public hearing on the appeal was held on
March 22, April 3, 6 and 19, 2007. Parties represented at hearing were the Appellant by
his attorneys, K. P. Kellogg, and R. Bruce Johnston, the Director, Planning and
Community Development Department, by its attorney, Rosemary Larson, and the
property owners, William and Barbara Knapp, by their attorney, Brian Lawler.
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
1. Marine Floats Corp. applied for a substantial development permit on behalf of
William Knapp "to construct a 4'x165' pier, 3'x44' ramp, an 8'x10' float at an "ell" with
50% functional grating and (19) steel piling. (sic) The overall lenth is 220'. " The site is
at 15090 Sievertson Road on Port Madison Bay. [Exhibit 7, p. 4]
2. Joshua Machen, AICP, Senior Planner with the Department of Planning and
Community Development (hereafter "Department ") was assigned to review the
application. The application with environmental checklist was submitted to the
Department on October 24, 2005. After reviewing it, Mr. Machen determined that it was
incomplete and required additional information. Revised drawings and a survey were
submitted and, on May 16, 2006, the application was determined to be complete. During
the comment period, Kenneth Hammer provided extensive comments, which Mr. Machen
reviewed and considered, including questioning the survey provided by the applicant.
On November 16, 2006, the staff report recommending approval of the permit subject to
SSDP 13664
Page 1 of 10
conditions, the administrative decision conditionally approving the application, and a
SEPA mitigated determination of nonsignificance (MDNS) were issued. [Exhibits 30, 31;
Testimony of Machen]
3. Project conditions imposed included those that required modification of the
structure. The "L" shaped float was to be no greater than 8 by 10 feet supporting the
ramp and 35 feet exterior dimension providing the moorage slip. The pier is to be
reduced in length to 197 feet "or the length necessary to obtain four feet of water at the
landward limit of the moorage slip at extreme low water and is a minimum of 60 feet
from the neighbor's existing mooring buoy to the west." [Exhibit 31, p.3] This reduction
in length was based on the location of the existing docks and buoy and the depth at the
moorage slip. [Exhibit 30; Testimony of Machen] The conditions also required that a
building permit from the Department, hydraulic project approval from the Washington
State Department of Fish & Wildlife, and Army Corps of Engineers permit be obtained
prior to beginning work on the project and that any conditions of those permits become
conditions of the approval.
4. At hearing the Department agreed that Condition No. 14 regarding the length of
the dock and depth of water should be modified to add the phrase "whichever is less."
5. The plans available to the planner showed the location, dimensions and other
details of the proposed pier, ramp and float. They showed that the pilings would be steel
and 10" in diameter and the float would have 50 percent grating. [Exhibit 30, Att. C;
Testimony of Machen]
6. Kenneth Hammer filed an appeal of the administrative decision and MDNS on
December 7, 2006, alleging that the Department failed to consider the issues identified in
his, his attorney's, and his engineer's comment letters, that the City has a conflict of
interest because of the Mayor's interest in the outcome, that the information submitted
was incomplete, that the easterly littoral boundary is not clear and the Cove Rule was not
properly applied, that the proposal will have significant adverse impacts, that the permit
would violate Shorelines policies, among other allegations. [Exhibit 32]
7. The subject site, owned by Knapps, is a 2.4 -acre lot zoned Residential Two Units
Per Acre (R -2) and developed with a single family residence. The owners own the 2nd
class tidelands that extend waterward approximately 175 feet in the location of the
proposed dock, which is approximately 80 ft. east of the section line. The upland part of
the site is designated Semi -rural by the City's Shoreline Master Program and the water
environment is designated Aquatic. The Comprehensive Plan designates the site as Open
Space Residential Two Units Per Acre (OSR -2). [Exhibit 30]
8. The Knapp's property lies between property owned by the Hammers on the
westerly side and property owned by James Abbott and Darlene Kordonowy (hereafter,
the "Abbott" property) on the easterly side. Both adjoining properties have docks.
Darlene Kordonowy is mayor of the City of Bainbridge.
9. A biological evaluation (BE) prepared for the Army Corps of Engineers and
Washington State Department of Fish and Wildlife was submitted in connection with the
SSDP 13664
Page 2 of 10
application for the shoreline permit as requested by the Department. A BE is not a
requirement of the City. A dive survey was done using nine parallel transects, ten feet
apart except for the sides which were 20 feet, to identify flora and fauna and get other
information. Water visibility was reported to be poor, about one foot. Port Madison Bay
is shallow with a muddy substrate so low visibility is typical. Fish and Wildlife
requirements dictate the timing of the dive survey. Sea hair was observed between 80 and
90 feet out, primarily west of the proposed pier. Red algae were found at approximately
200 ft. but no other macroalgae or eelgrass was found. These results are consistent with
other information the planner had available about marine habitat in the area. The survey
allowed the planner to conclude that the proposed dock would be located outside the
herring spawning and macroalgae habitat so, with the conditions on size and design, any
impact would be minimized. [Testimony of Daley; Testimony of Machen; Exhibits 1, pp.
8 and 30, pp. 7, 8]
10. Wayne Daley, a fisheries biologist testifying for appellant, faulted the BE for not
addressing cumulative effects of the proposal, as required by federal regulations. He
testified that it was also deficient for not including photographs taken along and between
the transects. He also explained that reasonable visibility is required and one foot would
violate standards of care in the field. [Testimony of Daley; Exhibit 841
11. Mr. Machen relies on the state Department of Fish and Wildlife to determine if
the BE is adequate and if any problem is identified in the BE that needs to be addressed.
He always attempts to communicate with the fisheries biologist before the Department
makes its decision and did in this case. She did not indicate any concern. Reliance on
that expertise is reasonable. [ Testimony of Machen]
12. As the result of a state and federally funded project, the City has information,
which Mr. Machen utilized, about the shorelines nearshore habitat including location of
eelgrass and kelp and forage fish spawning areas. The mapping shows herring spawning
habitat in front of the Knapp property but no known eelgrass beds, either continuous or
patchy. [Exhibit 88; Testimony of Machen]
13. Shading from overwater structures can have a negative effect on the growth of
eelgrass and macroalgae. The macroalgae that is present is in the pier area. [Exhibit 1]
14. There is extensive dense vegetation overhanging the shore on the Knapp property
except for one area in the center where there is less. The foot of the pier is to be located
just east of center. Some vegetation would be removed for access to the pier. The pier is
proposed to be four feet wide so Mr. Machen, who had identified the approximate
location on his site visit, estimated that approximately six feet of brush would be cut back
but because of the proposed location, no significant trees would be removed. Mr. Daley
testified that he believes the amount would be greater than eight feet, but that in any
event, loss of any magnitude would impact the resource. Because of Mr. Machen's
greater opportunity to assess the condition of the vegetation and location of the foot of
the pier, his estimate will be given greater weight. The amount of disturbance would be
typical for residential access to the shore, with or without a dock, and would not be
significant in Mr. Machen's opinion. Overhanging vegetation is important for shading
and the rearing of some fish species. [Testimony of Daley; Testimony of Machen]
SSDP 13664
Page 3 of 10
15. The Hydraulic Project Approval (HPA) includes a condition, incorporated into the
shoreline decision, limiting the amount of vegetation removal to that necessary for
construction of the project. [Exhibit 87 p. 3]
16. The BE reported an active bald eagle nest approximately 3,600 feet north of the
site, separated by a hill and trees. That is consistent with information the City has and
would be outside the typical management zone for eagles.
17. In 1983, the Hammers applied for a shoreline substantial development permit to
construct a dock on their property. Mr. Knapp objected to the placement of the dock,
believing that it encroached on his property. The Court of Appeals in an unpublished
opinion eventually affirmed the Kitsap Superior Court's application of the Massachusetts
Rule or "Cove Rule" determining that the lateral boundary between the tideland of the
Knapps' and Hammers' property was a line "extending from the meander line at its
intersection with the section line between Sections 33 and 34 at a bearing of South 27°
East measured as a deflection from the extension of the section line...." [Exhibits 67,
p.3 & 39]
18. Prior owners of the Abbott property, the Strongs, applied for and received a
shoreline permit to construct a dock on that property in 1984. The permit was
conditioned on the dock being oriented consistent with the Cove Rule. Appellant
contends that this condition was violated when the dock was built. [Testimony of
DeGroot; Exhibits 78, 89]
19. Mr. Knapp applied for a shoreline permit in 1985 to construct a dock on his
property, the subject site. That application was approved subject to certain conditions.
The dock was never constructed. [Exhibits 104, 109; Testimony Hammer; Testimony of
Knapp]
20. Mr. Knapp moors his boat at a buoy located between the Hammer and Abbott
docks. The Abbott /Kordonowys, as did their predecessor the Strongs, allow Mr. Knapp
to store a dinghy on their dock for use in accessing his boat and, on occasion, allow him
to moor his boat at their dock for provisioning or cleaning. This use has continued for
some 10 -14 years. Both Ms. Kordonowy and Mr. Knapp regard this as a neighborly
accommodation or permissive use only. No joint use covenant has been filed with the
City and no written agreement exists between the two parties regarding use of the dock.
[Testimony of Knapp; Testimony of Kordonowy] James Abbott and Darlene Kordonowy
submitted a comment letter to the City indicating that they are not interested in joint
ownership of their dock. [Exhibit 30, Att. K]
21. At the preapplication meeting and in a follow -up letter, Mr. Machen explained the
policy of the SMP to encourage joint use of docks and asked the applicant's agent to
discuss with the Knapps the possibility of sharing a dock. [Testimony of Machen;
Exhibit 76]
22. The boundary line in the tidelands between the Abbott property and the Knapp
property has not been fixed by recorded survey. Mr. Knapp has assumed that it is a line
extending the upland lateral boundary between the lots. [Testimony of Knapp]
SSDP 13664
Page 4 of 10
23. The City required a survey of the tidelands to identify tidal elevations a minimum
of 20 feet waterward from the proposed dock and to show the location of docks on
adjoining properties. The applicant provided a site plan based on a survey by Bruce
MacLearnsberry, PLS. The City had Mr. Hammer's comments where he contended that
the boundaries shown were incorrect (Exhibit 30, Att. I), comments from his surveyor,
Mr. DeGroot (Exhibit 26), the survey done by ADA Engineering for Mr. Hammer
(Exhibit 28), and a response with survey from Mr. MacLearnsberry (Exhibit 30, Att. J).
The City's surveyor reviewed the information and advised Mr. Machen that he saw no
problem with the MacLearnsberry methodology. More than one possible boundary was
shown but Mr. Machen understood, based on the letter from Abbott and Kordonowy, that
there was no disagreement between the two owners about where the location of the
boundary. Considering the information from both the applicant's surveyor and that
supplied by Mr. Hammer, Mr. Machen concluded that no further boundary work was
needed in that whichever line was used, the proposed dock would meet required setbacks.
[Exhibit 75; Testimony of Machen]
24. Appellant's surveyor witness, Peter DeGroot, testified that applying the Cove
Rule would place the easterly lateral littoral boundary of the Knapp's property such that
the line would bisect the Abbott dock. Knapp's surveyor testified that application of the
Cove Rule has subjective elements and could result in various lines depending upon what
one judges the limits of the cove to be, for example.
25. Even if the property's easterly boundary actually bisected the Abbott dock, Mr.
Machen testified that the City would treat the encroachment as it normally does when an
encroachment is called to its attention, which is to call it to the attention of the properties'
owners. The City treats such encroachments as private matters to be resolved between
the parties. [Testimony of Machen]
26. The Abbott/Kordonowys and the Knapps have recently entered into an agreement,
Exhibit 97, fixing the littoral boundary between them as shown in the "Trimble Lot 6,
Hidden Cove Littoral /Aquatic Survey" dated March 24, 2006. They intend to record the
document. [Testimony of Knapp] The effect of the agreed -to boundary is to avoid any
encroachment of the Abbott dock into Knapp property.
27. The revised location of the slip is shown at approximately —8.5 NAVD88.
[Exhibit 93] According to unrebutted testimony by DeGroot, there would be
approximately 1.5 feet of water, not four feet, in the moorage slip at extreme low tide
(ELT). Four feet would occur only some 30 -40 feet further waterward at -10.9 NAVD88
( -8.5 MLLW). With a depth of approximately 1.5 feet at the revised location, part of the
float would be on the beach at ELT, according to Mr. DeGroot. He testified that the
frequency of this occurrence would be "quite seldom." Buoys could be used for moorage
at ELT.
28. The proposed float stops would prevent the float itself from grounding. [Exhibit
1]
29. Mr. Machen considered whether the proposed dock would present any navigation
or safety issues. He looked at other marinas for comparison of distances and found that
they ranged in aisle width from 45 -55 feet. Since, as proposed, the float would be at least
SSDP 13664
Page 5 of 10
50 feet from the Abbott dock and at least 48 feet from the Hammer dock, the original
proposed location would have allowed a reasonable distance between the structures for
navigation. That separation would be increased by the condition requiring the dock to be
shortened. (Exhibit 25; Testimony of DeGroot; Testimony of Machen.) Because BIMC
16.12.340H(5) requires that new buoys be at least 20 yards from preexisting structures,
Mr. Machen decided that the proposed dock should be no closer than 60 feet from the
buoy leased by Mr. Hammer that is waterward of the Hammer dock and imposed a
condition to that effect. [Exhibit 31; Testimony of Machen]
30. The City's policy regarding size of single - family dock slips is based on the
average size of slips within 15 nautical miles. A condition requiring reduction of the slip
to 35 feet was imposed to make it consistent with the City's policy for single - family
docks. [Testimony of Machen]
31. Because the structure will be primarily over and in the water, piles will be driven,
and the excavation for the footing for the head of the dock is similar to a stairway to the
beach, Mr. Machen determined that the possibility of impacts on archeological artifacts is
close to nil. [Testimony of Machen]
32. Hydraulic Project Approval was issued for the proposed dock on December 6,
2006. The approval was subject to numerous conditions including incorporation of the
SEPA mitigating conditions. Condition No. 21 limits the removal or destruction of
overhanging bankline vegetation to that necessary for construction of the project.
Design and location to avoid shading of eelgrass is required. No portion of the dock or
float system may ground and at least 12 inches is to be maintained at all times between
the bottom of the dock or float and the beach grade. [Exhibit 87]
33. The Director concluded that, as conditioned, the proposal would be consistent
with the applicable provisions of the Shoreline Master Program (BIMC 16.12.050,
16.12.060, 16.12.090). [Exhibit 32]
34. The Shoreline Master Program (SMP), BIMC Chap. 16.12, regulates development
in the shoreline. The SMP contains policies relating to docks including two cited by
Appellant:
1. Multiple use and expansion of existing conforming piers, docks, and
floats should be encouraged over the addition and/or proliferation of new
facilities. Joint use facilities are preferred over new, single use piers,
docks, and floats.
4. Piers, floats, and docks should be sited and designed to minimize
possible adverse environmental impacts, including potential impacts on
littoral drift, sand movement, water circulation and quality, and fish and
wildlife habitat.
BIMP 16.12.340 B. Policies.
35. The SMP regulation, BIMC 16.12.340C(2), sets out the information required for
proposals that includes a description of the proposed structure, ownerships within 300
feet, proposed location, location and size of piers or docks on adjacent properties, and
SSDP 13664
Page 6 of 10
any agreements for cooperative use. This information was provided. The regulations
also establish various development standards such as minimum vertical clearance for
pilings of one foot above extreme high water, inclusion of stops to keep floats off the
bottom of tidelands, the allowable length of piers which is either the average length of the
piers on the two adjoining properties or the distance necessary to obtain a depth of four
feet of water as measured at extreme low tide at the landward limit of the moorage slip,
the size, and side yard setbacks of at least 10 feet from side property lines. BIMC
16.12.340D & G.
36. The Director has the authority to approve, approve with conditions, or deny
shoreline substantial development permits. BIMC 16.12. 350 A. The SMP provides that
b. In making the decision, the director shall consider the applicable
provisions of the Shoreline Management Act of 1971, as amended,
Chapter 173 -14 WAC or its successor, the master program, all other
applicable law, and any related documents and approvals. The director
shall also consider whether the cumulative impact of additional past and
future requests that reasonably may be made in accordance with the
comprehensive plan, or similar planning document, for like actions in the
area will result in substantial adverse effects on the shoreline environment
and shoreline resources.
BIMC 16.12.360E(4).
37. BIMC 16.12.350B(1)(a) vests the Hearing Examiner with the authority to hear
and decide appeals of the Director's shoreline substantial development decisions.
38. Authority for the Hearing Examiner to hear and decide SEPA appeals is granted
in BIMC 16.04.170.
Conclusions
1. The Hearing Examiner has jurisdiction to hear and decide this matter.
2. In an appeal of a SEPA determination, the Hearing Examiner is required to give
substantial weight to the decision of the responsible official. BIMC 16.04.170E. The
threshold determination is reviewed under the clearly erroneous standard. Norway Hill v.
King County Council, 87 Wn.2d 267, 275, 552 P.2d 674 (1976). The decision to issue an
MDNS is not clearly erroneous if the record shows that the Department considered
environmental factors "in a manner sufficient to amount to prima facie compliance with
the procedural requirements of SEPA," and the decision is based on information
sufficient to evaluate the proposal's environmental impact. Boehm v. City of Vancouver,
111 Wn. App. 711, 718 (2002), citing Lassila v. City of Wenatchee, 89 Wn.2d 804, 814,
576 P.2d 54 (1978).
3. Issuance of an MDNS as the threshold determination is permitted when the
responsible official determines that with the imposition of conditions, the proposal will
not have significant adverse impacts on the environment. WAC 197 -11 -350. The
SSDP 13664
Page 7 of 10
Appellant contends that the City had incomplete information and faults the Director's
consideration of impacts of the proposed dock on fish and marine habitat. The Appellant
must either show that the planner failed to consider impacts on those elements of the
environment or that it was clearly erroneous not to determine that the impacts is these
areas would be more than moderate. The record shows that the planner gathered
sufficient information from various sources to evaluate the potential impact of the
proposal, that potential impact on fish and marine habitat was considered, mitigating
conditions imposed, and with those conditions he determined there would be no
significant adverse environmental impact. While some impact is possible even with the
conditions imposed, Appellant's evidence did not show that the impact is likely to cause
a probable significant adverse impact. The MDNS should be affirmed.
4. In an appeal of a decision to approve a substantial development permit, the Code
requires the hearing examiner also to give substantial weight to the decision of the
Department director. BIMC 2.16.230F. When substantial weight is to be given, the
clearly erroneous standard is to be applied and the hearing examiner may reverse the
Director's decision only if she has a definite and firm conviction that a mistake has been
made. See Hayden v. Port Townsend, 93 Wn.2d 870,613 P.2d 1164 (1980)
5. Appellant argued that applying the Cove Rule to determine the easterly boundary
of Knapp's property would result in the encroachment of part of the Abbott dock onto the
subject property thus permitting the proposed dock would allow more than one dock on a
lot, contrary to SMP regulations. The lot boundary agreement entered into between the
two owners removes the encroachment and avoids this issue.
6. Appellant also contends that the Abbott dock is in joint use which use must be
continued because of the shoreline policy encouraging joint use of docks based on both
the location of the Abbott dock vis -a -vis the property line and the history of use by the
Knapps. The facts show that the Knapps' use of the dock was by permission so, even if it
were crossing a lot boundary line, it would not have been treated as a joint dock by the
City. Moreover, the City did observe the policy of "encouraging" joint use when it asked
that joint use be considered by the applicant. No City regulation or state statute requires
joint use.
7. Appellant's contention that the Abbott dock was constructed contrary to the
conditions of approval, even if accurate, has no bearing on the correctness of the
shoreline decision on this proposal.
8. The concern that the proposed dock would place an unreasonable navigational
burden because of proximity to other docks and buoys was addressed by conditions
imposed to assure adequate separation between the adjacent slips and the new structure
and the buoy and the new structure.
9. Appellant questioned whether the cumulative effects on the environment of the
proposed dock, along with existing docks, had properly been taken into account. SEPA
requires consideration of cumulative effects if an EIS is prepared. WAC 197 -11 -060.
The cumulative impacts to be considered are those from additional actions that may be
induced by the proposed action or if the proposal is dependent upon future proposed
development, not factors here. Boehm v. Vancouver, 111 Wn.App. 711, (2002).
SSDP 13664
Page 8 of 10
However, the SMP does require that the decisionmaker consider whether the proposal
will result in substantial adverse effects on the shoreline environment and shoreline
resources in conjunction with other likely applications. It is clear from the planner's
analysis and Director's decision that they concluded that because of the conditions
imposed, and that also would be imposed on future applications, this dock and docks that
can be anticipated will not result in substantial effects on the environment and resources.
Appellant adduced no evidence of substantial cumulative adverse effects. The Director's
decision as to cumulative effects was not clearly erroneous.
10. Appellant's argument that the res judicata effect of the Court's determination as to
the littoral boundary between the Hammer and Knapp property prevents the Knapps and
Abbott /Kordonowys from determining the boundary between their properties through a
boundary line agreement is unavailing. If there were a dispute between the property
owners so that court action were necessary instead of utilizing the process provided by
RCW 58.04.007, there is no concurrence of identity in all respects necessary for res
judicata effect.
11. Conclusion No. 14, as modified at hearing, will result in overall length no greater
than 197 ft. but will not assure 4 ft. of water at ELT, because of the unreconciled
difference in datums used. Because of the possible grounding of the float stops at ELT
there is the potential for some environmental degradation, however slight and infrequent.
Avoidance of that consequence, however, would likely necessitate an additional 30 -40 ft.,
or 120 to 160 square feet of overwater structure and coverage and, even if fully grated,
some shading of the habitat. Because of the infrequency of ELT and the limited contact
assured by the float stops, the lesser water level does not require that the condition be
revised.
12. The Director's shoreline substantial development permit decision, not being
shown to be clearly erroneous, should be affirmed.
Decision
The Director's decision to issue a MDNS is affirmed. The Director's approval of
the Shoreline Substantial Development Permit with conditions, as amended at hearing, is
affirmed.
Entered this 16th day of May 2007.
/s/ Margaret Klockars
Margaret Klockars
City of Bainbridge Island
Hearing Examiner pro tem
SSDP 13664
Page 9 of 10
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.
The decision of the Hearing Examiner is the final decision of the City in this matter.
Appeal of this decision is to the Washington State Shorelines Hearings Board as provided
by RCW 90.58.180 (or its successor) and Chapter 461 -08 WAC (or its successor). To be
timely, petition for review must be filed within the 21 -day appeal period [see BIMC
16.12.370].
SSDP 13664
Page 10 of 10