100207_morgan_appeal_hex_decisionDECISION OF THE HEARING EXAMINER
In the Matter of the Appeal of
TOM AND BETH MORGAN, d /b /a BLAKELY ROCK HOLDINGS, LLC COD393
ADM 14206
from a Code Enforcement Decision of
the Director, Planning and Community
Development Department, Regarding Alleged
Viloations of the Shoreline Master Program
[BIMC 16.20]
INTRODUCTION
Appellants, Tom and Beth Morgan, d /b /a Blakely Rock Holding, LLC, pursuant to
Bainbridge Island Municipal Code (BIMC), Section 2.16.130, appeal the Administrative
Decision of Mr. G. L. Byrme, Director of City of Bainbridge Island, Department of
Planning and Community Development decision dated March 13, 2007. That decision
denies the appellants' request for a Director's Review of a Notice of Violation issued
December 21, 2006.
Appellants' legal representatives were Dennis Reynold, Steven James, and Allen
Milleton of Davis Wright Tremaine, LLP. The City of Bainbridge Island, Department
Representative, was Megan McKnight. Duncan M. Greene and Jay P. Derr, of Gordon
Derr, LLP, represented the City of Bainbridge Island.
Mr. and Ms. Morgan and Blakely Rock Holding, LLC, own waterfront property on
Blakely Harbor located within the municipal boundaries of the City of Bainbridge Island.
Their address is 10768 NE Country Club Road, Bainbridge Island, Washington 98110.
ORDER TERRENCE F. McCARTHY
Page 1 of 20 HEARING EXAMINER
The basic
facts in this case are
not in dispute.
The appellants admitted that they
had engaged in work on their property
located on the
shoreline of Blakely Harbor. The
work at issue included
the construction
of a small pier
and dumping of sand, gravel, and
cobblestones on
the beach. The appellants
admit
that they have not submitted an
application for an
exemption or for any
type of permit for the work performed.
After due
consideration of all
the evidence in
the record, the following shall
constitute the findings, conclusions, and decision of this Hearing Examiner on this
appeal. The following findings are from time to time based upon conflicting evidence,
which called for the Examiner to make finding based upon credibility of the witnesses
and evidence.
FINDINGS
This matter originally came before this Hearing Examiner on 2 d and 9th of
November 2006. The hearings on November 2 and November 9 resulted eventually in
the decision of June 2007, wherein this Examiner dismissed the case before him for lack
of jurisdiction. The issues originally presented to the Hearing Examiner were
hypothetical. No action had been taken on behalf of the City. Basically, the City Director
had issued a decision, and the parties decided to come before the Hearing Examiner to
see how the Examiner would rule if in fact the City decided to issue Notices of Violation.
The Examiner could not find jurisdiction to issue a decision based upon hypotheticals
and dismissed the appeal. At the same time that the appeal was dismissed, based upon
a stipulation of the parties, the entire record before the Examiner on the dates of
ORDER TERRENCE F. McCARTHY
Rage 2 of 20 HEARING EXAMINER
November 2 and November 9, and all materials submitted subsequent thereto became
part of this record on appeal.
Mr. and Ms. Morgan own four parcels on Blakely Harbor; three of them are
waterfront. The original house was built in the 1940s, and that house is now an
accessory dwelling unit, which Mr. Morgan uses for his office. He and his wife, through
the LLP, own 10770 and the two waterfront parcels to the east of 10770. The family
home, which they now live in, was started between 1993 and 1994. The Morgans took
over construction in 1997. To the best of their knowledge, all of the needed permits were
obtained for the structure.
Mr. Morgan indicated that the unpermitted dinghy pier, which is at issue here, is
limited to private recreational use for Mr. Morgan and his family. It is approximately 12
foot by 4 foot. The deck rests on pilings, which were in existence when he purchased
the property. He wrapped the pilings in cement and plastic to avoid further harm to the
Sound and in all likelihood to help support the dinghy dock. From appearances in the
photographs, it seems to the Examiner that he also added additional cement to bring
each of the pilings to the same height.
In the summer of 2005, while he and his wife were working on the beach, he was
approached by the City by way of a telephone call telling him to make arrangements to
discuss his revitalization of his property. He was asked to stop work, and he stopped
work. At that time, he and his wife were in the process of cleaning up parcels they had
purchased. They removed all sorts of debris, including leftover vehicles and other
materials that were on the property. They rototilled the lawn and applied a mixture of
ORDER TERRENCE F. WCARTHY
Page 3 of 20 HEARING EXAMINER
peat and other materials to improve the lawn, level it, and reseed it. For purposes of
grading the site, they drug a long board across the site, much as it is done on baseball
fields between innings. They used this approach to even out the site and provide for a
gentle slope. The process was done on the existing lawn. All work was done landward
of the bulkhead. In addition to reestablishing their lawn, they used wheelbarrows to bring
sand to a play area and reestablish the play so that there is a gentle slope from the lawn
to the Sound. From appearances, the site was sloped in such a way that the sand
covered up the existing bulkhead, which was no more than 18 inches high. They began
working on the site in July 2005. They did not use any equipment on the beach during
the process, nor was any equipment placed on the beach. The appellants did bring
cobblestones and gravel to the beach to help restore it. The sand that was placed in the
play area was clean sand in the amount of approximately 1200 cubic feet of sand in an
area 8 feet by 90 feet, with height of up to 19 inches sloping toward the water, according
to the appellant. Mr. Morgan tried to recreate the natural topography of the site with
sand and lawn. The appellants did not seek a shoreline exemption or shoreline permit
for any of their work because they did not believe that their work would exceed $2500.
Other than the process of cleaning up and remodeling the area, they did construct a
dinghy dock as stated above. They were in the process of restoring the site to its original
condition when he was asked to stop work. According to the testimony of the appellants,
they placed approximately 40 -50 yards of sand, 40 -50 cubic yards of river rock, and 20-
30 cubic yards of pea gravel on the beach. After several months of discussion between
the parties, the City agreed to refrain from Code Enforcement while the appellants
ORDER TERRENCE F. McCARTHY
Page 4 of 20 HEARING EXAMINER
submitted a request for a Code Interpretation based on hypotheticals, which was
eventually dismissed by the Examiner. The request for Code Interpretation involved the
Morgans' failure to apply for exemptions and or permits for the lawn revitalization,
placement of sand, removal of articles from the beach, construction of the dinghy dock,
and placement of cobblestone and gravel on the beach.
On July 17, the appellants submitted a Code Interpretation Request that asked
the City to determine:
(1) That the appellants could submit an after - the -fact request for shoreline
exemption for the pier; and
(2) The lawn replacement, debris removal, and placement were unregulated
under SMA and SMP.
Because the appellant had indicated their willingness to submit a conditional use permit
in an attempt to legalize the placement of the cobblestone on the beach, this work was
not the subject of a code interpretation.
On August 31, 2006, the City issued a Code Interpretation, which determined that
the appellants could submit an after - the -fact application for a statement of exemption for
the pier, but that such an application could not be approved because the SMP prohibits
new docks and piers in the Blakely Harbor area, except for one public dock and two
community docks. The lawn replacement, debris removal, and placement of sand was
regulated under the SMA and SMP. (See Exhibit 8).
On September 14, 2006, appellants filed an appeal of the interpretation of the
Director.
ORDER TERRENCE F. McCARTHY
Page 5 of 20 HEARING EXAMINER
As previously stated, a hearing was held before the Examiner on the Code
Interpretation on November 2. On the second day of the hearing, November 9, 2007, the
Examiner, sua sponte, raised the issue of jurisdiction and whether or not there were
"justiciable" issues. At this point, the City decided to abandon the approach to the
Hearing Examiner based upon hypotheticals.
On December 21, 2006, the City issued a Notice of Violation regarding appellants'
property. (See Exhibit 67). The Notice of Violation involved the placement of
cobblestones on the beach, placement of sand on the beach, and construction of a pier,
all without obtaining a statement of exemption, or a shoreline substantial development
permit, a building permit, or a conditional use permit.
The appellants requested a Director's Review of the same on January 5, 2007.
On March 13, 2007, the City of Bainbridge Island Department of Planning and
Community Development Director, G. L. Byrme, upheld the Notice of Violation issued on
December 21, 2006. (See Exhibit 77). He noted that the Morgans had not applied for
any type of permit or exemptions, and that currently Blakely Harbor has a prohibition
against the construction of private docks in the area where the appellants reside. He
also noted the absence of an application for a conditional use permit with reference to
the sand and cobblestone.
On March 23, 2007, the appellants filed this appeal. (See Exhibit 41).
During the hearing process, Mr. Morgan indicated that he had been actively
involved in community issues concerning Blakely Harbor and the preservation of the
same. When he purchased his property in 1997, Blakely Harbor was still basically
ORDER TERRENCE F. McCARTHY
Rage 6 of 20 HEARING EXAMINER
undeveloped. He and his wife were determined that they wanted to help preserve the
natural aspects of the area. They were both involved in helping to draft ordinances with
reference to the harbor. However, they did not support the ban on private piers and
docks. Further, he and his wife have been very involved with the protection of the
environment on the island. He is the incoming Co -Chair of Island Wood, an organization
designed for the protection of the harbor area.
The Notice of Violation issued on December 21, 20067 did not include any
violation with reference to reseeding the existing lawn or a violation with reference to the
removal of materials from the beach, both of which were included as hypotheticals in the
first set of hearings. Between the hearings in November 2006 and this appeal process,
the City determined that two of their areas of concern were not a violation of code.
In 1991, the Washington State Legislature passed the Shoreline Management Act
of 1971. The intent section indicates that the shorelines of the state of Washington ". .
are among the most valuable and fragile of its natural resources and that there is great
concern throughout the state relating to their utilization, protection, restoration, and
preservation." In addition, the Legislature found that " ... ever increasing pressures of
additional uses are being placed on the shorelines necessitating increased coordination
in the management and development of the shorelines of the state. The legislature
further finds that much of the shorelines of the state and the uplands adjacent thereto
are in private ownership; that unrestricted construction on privately owned or publicly
owned shorelines of the state is not in the best public interest..." The Legislature called
for a joint effort performed by the federal, state, and local governments to prevent the
ORDER TERRENCE F. McCARTHY
Page 7 of 20 HEARING EXAMINER
inherent harm in an uncoordinated and piecemeal development of the state's shorelines.
The Legislature further declared that the interest of all of the people shall be paramount
in the management of shorelines of statewide significance. The Legislature indicated
that local governments were to develop master programs for the shorelines within their
jurisdiction, and that they "shall give preferences to uses in the following order of
preference which:
(1) Recognize and protect the statewide interest over local interest;
(2) Preserve the natural character of the shoreline;
(3) Result in long term over short term benefit;
(4) Protect the resources and ecology of the shoreline;
(5) Increase public access to publicly owned areas of the shorelines;
(6) Increase recreational opportunities for the public in the shoreline;
(7) Provide for any other element as defined in RCW 90.58.100 deemed
appropriate and necessary.
Blakely Harbor is a shoreline of statewide significance.
RCW 90.58.030 (3)(d), defines "Development" as "...a use consisting of the
construction or exterior alteration of structures; dredging; drilling; dumping; filling;
removal of any sand, gravel, or minerals; bulkheading; driving of piling; 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 overlying lands subject to this chapter at
any state of water level..."
RCW 90.58.140(1) provides that "A development shall not be undertaken on the
shorelines of the state
adoption or approval,
program." Ali deveiopl
Management Act and
ORDER
Page 8 of 20
unless it is consistent with the policy of this chapter and, after
as appropriate, the applicable guidelines, rules, or master
nentai uses within the shoreline must comply with the Shoreline
the Shoreline Management Program. Development that is
TERRENCE F. McCARTHY
HEARING EXAMINER
substantial requires a Substantial Shoreline Master Program. Development that is
exempt from the Substantial Development Permit because it is not a substantial
development is also regulated and must be controlled consistent with the provisions of
the Shoreline Management Act and Shoreline Master Program. Exemptions from the
Shoreline Development Permit process do not constitute exemptions from other
requirements of the Shoreline Management Act and the Shoreline Master Program.
Bainbridge Island's Master Program provides that revitalization and modification
activities that do not require a Shoreline Substantial Development Permit, still must
comply with the Shoreline Management Act and the Master Program and apply for a
conditioned statement of exemption to ensure exempt development or activities complies
with the Shoreline Management Act and the Master Program. See BIMC
16.12.360(B)(5).
BIMC16.12.360(A)(1) provides, "A development, use, or activity shall not be
undertaken within the jurisdiction of the Shoreline Management Act (Chapter 90.58 RCW
or its successor) and the shoreline master program, unless it is consistent with the policy
and procedures of the Shoreline Management Act, applicable state regulations and the
shoreline master program."
BIMC 16.12.360(A)(2) provides, "A substantial development shall not be
undertaken within the jurisdiction of the Shoreline Management Act (Chapter 90.58 RCW
or its successor) and the shoreline master program, unless an appropriate shoreline
permit has been obtained, the appeal period has been completed, any appeals have
ORDER TERRENCE F. McCARTHY
Page 9 of 20 HEARING EXAMINER
been resolved, and /or the applicant has been given permission by the proper authority to
proceed."
BIMC 16.12.360(A)(3) provides, "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."
BIMC 16.12.360(A)(4) provides, "If a development, use or activity is listed as a
conditional use by the shoreline master program, such development, use, or activity shall
not be undertaken within the jurisdiction of the Shoreline Management Act (Chapter
90.58 RCW or its successor) and the master program, unless a shoreline conditional use
permit has been obtained, the appeal period has been completed, any appeals have
been resolved, and /or the applicant given permission to proceed by the proper authority."
BIMC 16.12.360(A)(5) provides, "If a development, use, or activity cannot comply
with the regulations of the master program, a shoreline variance must be obtained before
commencement of development or construction, or beginning the use or activity. "
Bainbridge Island Municipal Code, Section 2.16.130 provides that the Hearing
Examiner, in making a decision, must give substantial weight to the decision of the
Development Director. To overcome substantial weight accorded the Director, an
appellant has to demonstrate 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 a
definite and firm conviction that a mistake has been made.
The above provisions provide the background for reviewing the Notice of Violation
issued herein involving the activities of the appellants.
ORDER TERRENCE F. McCARTHY
Page 10 of 20 HEARING EXAMINER
During the hearing process, it came to the attention of the Hearing Examiner that
the appellants had been involved in at least two lawsuits against the City with reference
to issues surrounding docks and the waterfront on Blakely Harbor. (See Exhibit 91,
which contains a complaint for monetary damages filed by the Morgans against the City
of Bainbridge Island).
This lawsuit was filed on the February 16, 2005. While it was admitted for limited
purposes during the hearing process, it is a public record of which the Examiner is
entitled to take notice. The Morgans allege in their Complaint that on August 8, 2001,
the City of Bainbridge Island City Council adopted Ordinance 2001 -32 imposing a
moratorium on the process and filing of applications for private docks in Blakely Harbor.
It alleges that the Morgans wanted to construct a private dock on their waterfront
property in Blakely Harbor, and to file a permit application with the City for that purpose,
but they were prevented from doing so because of the City Moratorium. The Complaint
further alleges that in September 2003, the City Council passed an ordinance that
prohibited private docks and piers in Blakely Harbor, but not on other shorelines of the
island. In the Complaint they allege, "because of the city's adoption of Ordinance 2003-
30, which amends the SMP to prohibit private docks on Blakely Harbor, plaintiffs can no
longer apply for or build a private dock on their waterfront property." The Complaint also
alleges, "Under Washington's vested rights doctrine, a private property owner has the
right to have his or her land use development application processed under regulations in
affect at the time a complete development permit application is filed, regardless of
subsequent changes in zoning or other land use regulations." The doctrine is a
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Page 11 of 20 HEARING EXAMINER
constitutional dimension, according to the appellant. The doctrine freezes, as of the date
of application, in a wide variety of laws and regulations affecting the development of
land, including shoreline regulations. An application for shoreline permit invokes the
vested rights doctrine.
The Complaint also states that because of the City's unlawful adoption of a
moratorium in 2001, and the City's unlawful extension of the moratorium, waterfront
property owners in Blakely Harbor, such as the plaintiffs, have been unable to construct,
or even submit an application to construct, long, accepted, preferred and /or over water
structures in the City of Bainbridge Island like piers and docks. They are precluded from
doing so by the City's SMP amendment that purported to prohibit private docks in
Blakely Harbor. It alleges that City's moratorium prevents the plaintiffs from re-
instituting or submitting new applications for dock permits that would have vested
subsequent to the adoption of the SMP.
The appeal, which was filed on March 23, 2007, by the Morgans, indicates that
the administrative decision issued by the Director of Bainbridge Island Planning and
Community Development denying in all material respects their request for Director's
Review of the Notice of Violation issued on December 21, 2006, was incorrect in the
following aspects:
a. The decision incorrectly determines that there was no existing dock
facility in existence prior to 2002 and that the work undertaken to
reconstruct the dinghy dock to its current condition does not constitute a
normal repair or maintenance of an existing facility exempt from the
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Page 12 of 20 HEARING EXAMINER
shoreline requirements. In the Director's decision is the statement that the
current version of the Bainbridge Island Shoreline Master Program
prohibits private docks in Blakely Harbor. Since the appellant has not
submitted an application for exemption, or an application for a substantial
development permit, the Director cannot approve an application at this time
because of the prohibition. In other words, as stated in the appellants'
complaint in Kitsap County Court, the application would vest as of the date
of application, and you are entitled to build in accordance with the rules in
effect on that date.
b. The decision provides that the replenishment of sand in the
children's play, what they classify as a historic condition, is beach
enhancement and /or landfill under the 1996 Shoreline Master Program,
which requires a Shoreline Conditional Use Permit and is not exempt from
this requirement. The appellants contend that their placement of sand is
ordinary maintenance of a preexisting play area.
C. The appellants state that they are ready and willing to submit an
application for a Shoreline Conditional Use Permit, either an after- the -fact
application or a new application for beach enhancement or restoration.
They argue that the City erroneously tied together cobblestone placement
and sand replenishment, which in fact were separate actions. They
request a stay of the schedule set out in the decision to submit after -the-
fact and /or new permit applications for cobble placement, and the proposed
ORDER TERRENCE F. McCARTHY
Page 13 of 20 HEARING EXAMINER
beach enhancement or restoration project until all issues in this
proceeding, and related appeal, #ADN14206, are resolved.
d. Bainbridge Island Municipal Code 16.12.360 (13)(1) provides: "No
exempt development, use or activity shall be undertaken 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."
DINGHY DOCK
As previously stated, all development, activity, and uses within in the shoreline
must comply with the Shoreline Management Act. See Bainbridge Island Municipal
Code 16.12.360(A)(1). Development that is substantial requires a Substantial
Development Permit. See Bainbridge Island Municipal Code 16.12.360(A)(2). The
construction of a saltwater dock, whose value does not exceed $2,500, would not be
required to obtain a substantial development permit. However, it would be required to
apply for an exemption. Exempt development and activities must still comply with the
Shoreline Management Act and the Master Program pursuant to BIMC 16.12.360(6)(5).
Exemptions from the shoreline substantial development permit process are to be
construed narrowly pursuant to WAC 173- 27- 140(1)(a). The applicant has the burden of
proving that a development or use is exempt pursuant to WAC 173- 27- 140(1)(c).
Mr. and Ms. Morgan contend that their dock does not require a substantial
development permit because it cost less than $2,500. Mr. Morgan's testimony was
rather sketchy in this area because of a faulty memory. He did locate an undated
ORDER TERRENCE F. McCARTHY
Page 14 of 20 HEARING EXAMINER
receipt, Exhibit #66, which indicates that the dock cost $2,300 probably plus taxes, that a
ladder, which was modified to fit the dock, cost $325. The remaining part of the sheet is
difficult for this Examiner to read. However, it is very clear to the Examiner that the
ladder, which is part of the dock and is used by the appellants, and was modified to fit
the dock cost $325; placing the price of the dock in excess of $2,500. The appellants
argue that they can remove the ladder and use it for other purposes. However, even in
the brief of the appellants, they acknowledge that they use the dock and ladder as a
single feature. It is this Examiner's finding that the dock cost more than $2,500, and
therefore requires a substantial development permit.
The Morgans also state that the dock has existed for a substantial period of time
and all they did was repair and maintain the dock. The evidence submitted by the
Morgans does not support this concept. The photographs submitted or the material
submitted did not demonstrate that a dock similar to the one that is currently in
existence, existed prior to the alleged "repair and maintenance ". Certainly, there were
three pilings that were there. The appellant cemented and wrapped and modified them
and then had a platform placed on top of the pilings. There is insufficient evidence to
establish that any type of structure such as such as the one that currently exists, existed
prior to constructing the existing dock and structure. The evidence in this area was very
scanty and did not support the appellant's argument. The photographic evidence did not
appear to support their argument.
To establish a nonconforming use, the Morgans have the initial burden of proving
that the use was lawfully established before the applicable zoning ordinances were
ORDER TERRENCE F. McCARTHY
Page 15 of 20 HEARING EXAMINER
adopted. See Jefferson County v. Lakeside Industries, 106 Wa. App 380 (201). In
determining whether a nonforming use lawfully existed before the adoption of the zoning
ordinances, the court looks to factors such as the issuance of a building permit for the
use. See Donwood, Inc. v. Spokane County, 90 Wn. App. 389(1998). No such evidence
was presented here. Bainbridge Island Municipal Code 16.12.390(A)(1) provides:
1. Nonconforming Uses.
a. Nonconforming uses shall (emphasis added) not be altered or expanded
in any way that increases the nonconformity.
b. If a nonconforming use is discontinued for 12 consecutive months, any
subsequent use shall be conforming.
c. A nonconforming use cannot be changed to another nonconforming use.
There is an absence of evidence in this area to support the appellants' contention that
the dock, which is now in existence, complies with the above provisions.
There is compelling evidence that a substantial development permit is required.
However, the appellants contend that the Director was wrong in indicating that he is
required to consider the application for a substantial development permit for a dock
under the laws in existence on the date the application is received. They contend that
their application for a permit for a dock must be considered under the laws in effect on
the date construction started. However, they did not submit any evidence as to the exact
date that construction started. This Examiner could find no case law or authority to
support their contention. Even within the lawsuit filed by the appellant against the City,
they recognize that an individual is vested to build in accordance with the provisions of
ORDER TERRENCE F. McCARTHY
Page 16 of 20 HEARING EXAMINER
the law on the date the application is submitted, not the date that the applicants start
work.
It is interesting to note that even the receipt submitted by the appellants for the
cost of construction does not have a date demonstrating exactly when this work was
done. To back date an application is to condone construction before securing any
permits. Applicants cannot take advantage of their failure to seek a permit prior to
construction to reach back and take advantage of a more favorable code. Although a
property owner has the right to put property to any permissible use as provided by
prevailing zoning ordinances, the right does not accrue until the property owner applies
for a building permit. See Ford v. Bellingham— District Board of Health, 16 Wa. App. 709
(1977). As the Director indicated, because the Shoreline Management Program
Prohibits new piers in the Blakely Harbor, the Director correctly determined that the City
could not approve the application for a substantial development permit to construct a
dock as long as the prohibition is in existence. See Complaint filed by Appellant,
wherein he recognizes and alleges that because of the prohibition, he cannot build a pier
at this time. Given the language in the appellants complaint, it is hard to understand the
appellants argument in this action.
Mr. Morgan failed to demonstrate that the new pier was comparable to the original
structure of development, including but not limited to, its size, shape, configuration,
location, and external appearance. The Director found no credible evidence that the
appellants' structure was comparable to the original structure in terms of size and
configuration. The Director's finding was based upon a substantial lack of evidence on
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Page 17 of 20 HEARING EXAMINER
behalf of the appellants. No credible evidence was submitted during the hearing to
support their contention that they were merely repairing a pre- existing structure.
Mr. Morgan testified that he used wheelbarrows to bring sand to a play area to
reestablish the play area so that there was a gentle slope from the lawn to the Sound. It
appears that the sand was sloped in such a way that it covered up the existing bulkhead,
which was no more than 18 inches high. The sand that was placed in the play area was
clean. There was approximately 1,200 cubic feet of sand in an area 8 feet by 90 feet,
with a height up to 19 inches, sloping downward toward the water. He tried to recreate
the natural topography of the site with sand and lawn. He did not seek a shoreline
permit or exemption. BIMC 16.12.330 requires a conditional use permit for this activity.
Bainbridge Island Municipal Code 16.12.030(A)(18) defines beach enhancement as
follows:
"Beach enhancement /restoration" means the process of restoring a beach
to a state more closely resembling a natural beach using beach feeding,
vegetation, drift sills, and other non - intrusive means, as applicable.
Bainbridge Island Municipal Code 16.12.030(A)(98) defines landfill as follows:
"Landfill" means the placement of soil, sand, rock, gravel, existing sediment
or other material (excluding solid waste) to create new land, tideland or
bottom land area along the shoreline below the OHWM, or on wetland or
upland areas in order to raise the elevation.
Bainbridge Island Municipal Code 16.12.030(A)(192) defines upland as follows:
"Upland" means generally described as the area above and landward of
the OHWM.
ORDER TERRENCE F. McCARTHY
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The use of sand, as described by Mr. Morgan in the hearing on November 2, 2006,
clearly falls within the provisions of beach enhancement of BIMC 16.12.300, and /or
landfill as previously described. These activities require a conditional use permit for all
environments, except aquatic. A conditional use permit and a grading permit is required
pursuant to BMIC 15.04.020. There was an absence of evidence other than self - serving
statements that the placement of this amount of sand was ordinary maintenance. No
records were submitted that demonstrated past placement of sand as a repair and
maintenance process. Rather, from appearances, the sand activity appears to be a
calculated approach to provide a very pleasing aesthetic approach to the beach. The
appellants' argument that the placement of this amount of sand was a repair or
maintenance of a nonconforming use is not supported by the record, nor is it supported
by the law. The appellant is to be congratulated on developing a beautiful waterfront
estate. It is unfortunate that he chose to ignore the provisions of the Bainbridge Island
Code in developing it. Once again, the staff is to be congratulated for the very
professional manner in which they have presented this case, particularly in view of the
appellants' harsh statements in their closing briefs.
DECISION
The Director's decision regarding separate violations is AFFIRMED. If the
appellant fails to take affirmative action required by the director within thirty (30) days of
this decision, the Director may pursue civil and /or criminal penalties provided for in
Bainbridge Island Municipal Code 1.26.090 and 1.26.100, or seek any additional relief or
ORDER TERRENCE F. McCARTHY
Page 19 of 20 HEARING EXAMINER
assistance in accomplishing the corrected actions, including that provided for in BIMC
1.26.110.
REQUIRED CORRECTIVE ACTIONS
1. The pier and /or dock must be removed within thirty (30) days from the date of this
decision.
2. Appropriate applications must be submitted for placement of sand, pea gravel,
and cobblestone within thirty (30) days from the date of this decision.
3. The appellant has no just cause for any further delay in complying with the
Bainbridge Island Code.
ORDERED this day of C
CONCERNING FURTHER REVIEW
(VOTE: 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 his 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.
ORDER TERRENCE F. McCARTHY
Page 20 of 20 HEARING EXAMINER