MORGAN
DECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of
from a Code Enforcement Decision of
the. Director, Planning and Community
Development Department, Regarding Alleged
Viloations of the Shorelihe Master Program
[BIMC 16.20]
TOM AND BETH MORGAN, d/bla BLAKELY ROCK HOLDINGS, LLC COD393
ADM 14206
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 Tremaihe, LLP. The City of Bainbridge Island, Department
Representative, was Megan .McKnight. Duncan M. Greene and Jay P. Derr, of Gordon.
Derr, LLP, represented the Cityof'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.
Theis address is T0768 NE Country Club Road, Bainbridge Island, Washington 98110.
ORDER
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f
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 sahd, gravel, and
cobblestones on the beach. The appellants admit that they have not submitted ah
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 9~' 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 cou-d 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
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~~.
,<:
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November 2 and November 9, and all materials submitted subsequent thereto became
part of this record on appeal.
Mr. and Ms. Morgan owh 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 plastio 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 thi: lawn and applied a mixture of
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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 oh 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, ahd 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
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,.
submitted a request for a Code Interpretation based on hypotheticals, which was
eventually dismissed py 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 Ihterpretation 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 placemeht 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 fora 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.
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J
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 hypotheticats.
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 oh 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 arid 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
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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, 2006,. 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 ih 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 ofthe 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
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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 unless it is consistent with the policy of this chapter and, after
adoption or approval, as appropriate, the applicable guidelines, rules, or master
program." Ali developmental uses within the shoreline must comply with the Shoreline
Management Act and the Shoreline Management Program. Development that is
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ap
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(6)(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 ManagemenfAct (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
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.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 16.12.36D(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.
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During the hearing process, it came to the attentioh of the Hearing Examiner that
the appellants had been .involved in at least fwo 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 thaf 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 Morgahs 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 lahd use development application processed under regulations in
affect at the- time a comolete developmeht oermif ariblication is filed regardless of
subsequent. changes ih zonihg or other land use. regulations." The doctrine is a
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i
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, watertroht
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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cr..
a
shoreline requirements. In the Director's decision is the statement that the
current version of the Baihbridge 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 cannotapprove an application at this time
because of the prohibition. In other words, as stated in the appellants'
complaint in I<itsap £ounty Court, the applicatioh 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. ahd is not exempt from
this requirement. The appellants contend that their placement of sand is
ordinary maintenance of a preexisting play area:
a 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/ornewpermit applications for cobble`placement, and the proposed
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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 (B)(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 stilt comply with the
Shoreline Management Act and the Master Program pursuant to BIMC 16.12.360(B)(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
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T'
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 4hey 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
appearto supporttheir 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
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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)yrovides:
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 applicatioh 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
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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 fouhd 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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behalf of the appellants. No credible evidence was submitted during the hearing to
support their contention that they were merely repairing apre-existing structure.
SAND
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 forthis 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.
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s
The use of sand, as described by Mr. Mogan 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 4he 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 ac#ion 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 79 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.
N~
ORDERED this 2 day of C
CONCERNING FURTHER REVIEW
NOTE: It is the. responsibility of a person. seeking review of a Hearing Examiner decision
to consult applicable Code sections and other appropriate sources, including State law,
to determine his/her rights and responsibilities relative to appeal.
Request for judicial review of 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
CITY CLERK
DECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of
MORGAN
ADM14206
PARTIES PRESENT:
MORGAN
DENNIS REYNOLDS
TOM MORGAN III
MARK PEDERSON
SUMMARY OF REQUEST:
Mr. and Mrs. Morgan appeal from a letter decision of Larry Frazier, Director of Bainbridge
Island Department of Planning and Community Development dated August 13, 2006.
SUMMARY OF DECISION:
Appeal dismissed for lack of jurisdiction.
PUBLIC HEARING:
The public hearing was reopened on November 2,2006, at 10 a.m.
Parties wishing to testify were sworn in by the Examiner.
The list of Exhibits are attached and incorporated by reference.
MINUTES:
Appearing on behalf of the appellant is Dennis Reynolds of Davis Wright Tremaine, LLC.
Appearing on behalf of the respondent is Jeff Weber of Buck Gordon, LLP.
TOM MORGAN, Managing Agent for Blakley Rock, LLC appeals the administrative
decision dated August 31, 2006 issued by the Director of Bainbridge Island Department of
Community Planning denying in all material respects their request for a favorable code
interpretation. The decision which is being appealed states:
1. That an existing dinghy dock is exempt from the Shoreline Management Act
Substantial Development process on condition that the Morgans can provide more
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detail of the fair market value information concernjng the cost of the dock
construction and .nEtfact that it did not exceed $2500. In addition, the decision
allows the Morgans to file an after-the-fact shoreline exemption for the dinghy dock,
but only under the City's existing procedures.
2. The decision further implies that the application for an exemption for the dinghy
dock cannot be approved because it would be a new dock and no new docks are
currently allowed in the harbor.
3. The decision determines that the reseeding of an existing lawn is a regulated
activity under the Shoreline Management Act and the 1996 Bainbridge Island
Shoreline Master Program that allows the appellants to submit an after-the-fact
shoreline request for a permit exemption. The appellants contend that the decision
improperly indicates reseeding occurred waterward of an existing bulkhead when in
fact all reseeding was landward of the existing bulkhead and;
4. The decision determines that the Morgans removal of old tires, rusted metal, and
piling materials from upperbeach area above the ordinary high water mark, is a
regulated activity under the 1996 Shoreline Master Program. The decision also
determines that the replenishment of sand in a children's play area is a regulated
activity. The decision allows the Morgans to seek after-the -fact shoreline permit
exemptions.
Preliminarily, the parties stipulated that exhibits 1-37 were admitted into evidence. During
the hearing process, Exhibits 38, 39, and 40 were admitted into evidence with no objection.
Appearing was TOM MORGAN III, who indicated that the appellant Blakely Holdings, LLC
is a family limited partnership and in the form of trust for the Morgan children. Part of the
land is owned by him and the remainder is owned by the LLC.
Appearing was DENNIS REYNOLDS, who indicated that if the City at any time wished to
have the Examiner remand the case for further evidence that he would not object.
Reappearing was TOM MORGAN III who resides at 10768 Country Club Road. The
addresses along this area are being revised and 10768 is now 10770. Mr. Morgan
indicated that he has been actively involved in the community issues concerning Blakely
Harbor and the preservation of the same. When he purchased the property in 1997,
Blakely Harbor was basically undeveloped and he and his wife determined that they
wanted to help preserve the natural aspects of this area. They are involved in helping with
the drafting of ordinances for the harbor. He and his \.^Jife have been very involved in the
protection of the environment on the island, He is the incoming co-chair of Island Wood 1
an organization designed for the protection of the harbor area. He and his wife own four
parcels; three are waterfront. The address for the original house which he purchased was
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10768. The house was built in the 1940s and that house is now an accessory dwelling unit
which he uses for his home office. He and his wife, through their LLP, own 10770 and the
two parcels to the east of 10770. The dinghy dock which is in question is on what was
formerly 10768 and is now 10770. In addition to the dinghy dock, a single-family residence
and the original accessory dwelling unit exist on the premises. The family home, which he
now lives in, was started between 1993 and 1994. They took over the construction in
1997. To the best of his knowledge, all permits were obtained for the structure. The
dinghy pier, which is built, is limited to private recreational use for he and his family. It is
approximately 12 foot by four foot and the dinghy dock rests on three separate 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. Lot 10730 where the debris was
removed and sand installed is a single-family residence built in the 1940$ or 19505. It also
has a manufactured home that was installed in the early 19905. It is developed with the
bulkhead, a play area, and a grassy area. 10730 previously had a lawn. He also bought
the site to the east of 10730, which is a single-family residence and a small yard parcel
plus a bulkhead. As part of the general clean up of these parcels, he and his wife removed
all of the debris including leftover vehicles and other materials which were on the property.
Thereafter, he rototilled the lawn and applied a mixture of peat and other materials to
improve the lawn and then hydroseeded it. For purposes of grading the site, they drug a
long board across the site much as 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 one of
reestablishing an existing lawn. All work was done landward of the bulkhead. In addition
to reestablishing the lawn, they used wheelbarrows to bring sand to a play area and
reestablished the play area so that there was a gentle slope from the lawn to the sound.
From appearances, the sand was sloped in such a way that it covered up the existing
bulkhead, which was very short. They began working on the site in July of 2005. He was
approached by the City and received a phone call telling him to make arrangements to
discuss his revitalization of the area. They asked him to cease work because of theIr
concerns. He did stop work on the site. There was no equipment on the beach during this
process. They did bring small, rounded cobblestones to the beach for purposes of helping
to restore the beach. The sand, which was placed in the play area, was clean sand. There
was approximately 1200 cubic feet of sand in an area 8 by 90 with a height up to 19 inches
sloping downwards toward the water. He tried to recreate the natural topography of the
site with sand and the lawn. There are remains of a ship on site due to a shipwreck in the
1960s that was not disturbed. They did not seek a shoreline permit because the work did
not appear to exceed $2500 and they did not have enough time. They retained a biologist
by the name of Mark Pederson at Margnex International to review the work that they had
done and make the report to the City. That report is Exhibit 1 and received no comment. It
is his philosophy that he is a steward of the property. He has the use of it for a brief period
of time and it is his duty to ensure that there are no adverse impacts to the site while he is
residing there. The City has been difficult to deal with in that they appear to be shifting
positions and he is never quite sure exactly what it is they want him to do or what it is that
they are complaining about. He has a solar powered boat hoist on the site. In 2002 he
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hired a company to build bridges. That individual suggested that the pilings that are in
existence were a method of getting down to his boat. He built a platform that they then
placed on the pilings after the pilings had been wrapped in cement and wrapped in plastic
thereafter. The project was completed before 2002. He refers to Exhibit 6 and 7 with
reference to his proof as to the improvement being done before 2003. He stressed that the
site was created by dragging a board across the soil. The fawn was layered with an
organic matter to help the lawn retain moisture. The topography was not changed, and the
grade was not changed. He was basically cleaning up piles of debris and junk and
restoring the site to the original condition.
Upon cross-examination, Mr. Morgan indicated he did not have a building permit for the
dock. When he was questioned about the comments of 40 cubic yards of dead grass
being removed on Exhibit 9, he thought the 40 cubic yards of dead grass might be correct,
however he does not believe that the footnote there as to number of yards is correct. This
is the play area on the property in 2004 and believes that the sand is on or near the shore
and covers up part of the bulkhead. At this point, the parties stipulated that the dock issue
is not before the Hearing Examiner today.
Appearing was MARK PEDERSON who prepared Exhibit 1 which had been previously
entered into evidence. He also submitted Exhibit 34 which is a summary of his work
background and experience. He performed a biological assessment. He has done over
100 biological assessments for the federal government and had done work for Bainbridge
Island on many occasions. He worked with teams on this site including David Kold
geotech, Karen White, data collector, and Coast Engineering to research and define and
review this project. He issued a report on October 30, 2005 to the City of Bainbridge. In
performing his biological assessment, he conducted a site visit, read all of the material,
reviewed photographs of the site, discussed the issues with Dan Potella of Fisheries,
reviewed a fish map with reference to population of the water and beach in that area. The
shoreline in front of the Morgan home better fits the BIMHCA geomorphic class definition
for "low bank" rather than "spliUbarrier/backshore". The property is higher in elevation and
the slope is greater than 15% and there is a narrow foreshore with high water line on the
bulkhead protecting the bank. There is not a lot of wave action at this site. The deck of the
small dock is removable and was constructed on land. When installed it rests on three
pilings that existed when Mr. Morgan purchased the properties. These pilings were
enclosed in plastic casing because the old pilings appear to contain creosote. The work
was done at low tides using Best Management Practices for installation. It was built and
installed for less than $2000 in 2003. The deck is oriented south-southeast to north-
northwest and abutting the existing sea wall. It is used to launch and as access for small
dinghys. Because the dock is short and narrow, shading ofthe substraight is not an issue
of biological significance. Because of the size and the fact that it was built on exiting
pilings. it is unlikely to affect juvenile salmon migration. The dock is removable, further
diminishing the potential for negative impacts. The dock does not have any significant
negative environmental impacts nor were there any likely during construction because Best
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Management Practices were used. With reference to the reseeding ofthe lawn, the activity
appears to fall under single-family residential landscaping. Reseeding was not likely to
have a significant adverse impact effects upon the environment. There is not a very good
habitat site and Best Management Practices were used to minimize any detrimental
impacts that might be caused to the water. Materials were replaced for similar vegetation.
. With reference to the sand, 40-50 cubic yards were placed by hand over areas. Mr.
Pederson could not distinguish between the new sand and the old sand. It all appeared to
be the same. The sand was clean when it was purchased from a local source. He sees no
significant detrimental impact. The children's play area could well be above the ordinary
high water line. According to Mr. Pederson, there is a sandy beach in that area. 40-50
cubic yards of washed cobble and pea gravel were placed along the toe of the bulkhead to
try to trap sand from the site. These types of materials existed on the beach prior to
installation of additional materials. The rocks were placed byhand and they were brought
to the beach by wheelbarrows. The theory of the rocks was that it would reduce wave
energy, thus erosion. This action provided nourishment of the beach materials that will be
utilized on the substraight for forage fish. The material would replenish the piling materials
that may be moved more rapidly to the west by increased frequency of the waves (as they
turn the corner heading into the harbor). Placement of the larger river dock will support
attached microalgae and provide habitat for shorecrab and other invertebrates. Patches of
fine sediment between the cobble patches could still be utilized for forage fish farming if not
washed away by wave action. Mr. Pearson rendered an opinion that it would probably do
more ecological harm than good to remove the materials installed by Mr. Morgan. Sand
and gravel materials are frequently used for beach nourishment in other areas. Mineral
rocks have been moved around by natural wave action and are beginning to support
microalgea and invertebrate habitat. These rocks remain at the base ofthe bulkhead and
dissipate wave action and wave energy. He recommended that additional action be taken
to enhance the beach.
Upon cross-examination, Mr. Pederson testified that he has no idea how much soil was
added.
There was thereupon an exchange between Dennis Reynolds and Robert Thorpe.
There was also an exchange between Jeff Weber and Randi Thorpe of the Department of
Fish and Wildlife.
No one spoke further and the hearing was closed at p.m.
After due consideration of all the evidence in the record, the following shaH constitute the
findings, conclusions, and decision of the Hearing Examiner on this appeal.
FINDINGS, CONCLUSIONS AND DECISION:
FINDINGS:
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1. The Hearing Examiner has admitted Exhibits 1-55 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. The appropriate notices were given pursuant Brainbridge Island Municipal Code.
3. The appellants have a possessory interest in four parcels of property located at
10730 and 10768 Country Club Road NE, on the southern shore of Port Blakely on
Bainbridge Island. The Morgan property is in the Blakely Harbor Management area
(MA-6) and consists of approximately 347 front feet. The shoreline immediately
adjacent to the Morgan properties is lined with homes to the east and the west.
There are bulkheads and sea walls protecting the Morgan property and the homes
on either side. There is a vertical concrete bulkhead in front of the Morgan home
that existed when they purchased the property in 1997. There are. at least five (5)
cement and rock groins along the shore to the east. The western most groin is near
the Morgan's eastern property line. According to expert analysis, the groins are
deteriorating near the bulkhead. This deterioration is likely exacerbated by the
impact caused by the ferries. The groins are also trapping sand and other sediment
as the materials migrate along the shore from east to west on this reach of the
beach. According to expert analysis, immediately west to the groin, the northern
property appears to have a substantial erosion of sediment. These factors,
according to the appellant, contribute to the risk to the base of the Morgan's
bulkhead and establish a ne'ed for them to produce enhancement. (See Exhibit 1)
4. On July 17,2006, Dennis Reynolds, on behalf of the Morgan family, filed a request
for code interpretation with Larry Frazier, Planning Director, City of Bainbridge
Department of Planning and Community Development. In that request, he indicated
that the Morgans are owners of four parcels of property; three are waterfront. The
address for the original house, which is now an accessory dwelling unit, is 10768.
That house was built in the 1940s, and he and his wife, through their LLP, own
10770 and the parcels to the east of 10770. The family home, which the parties live
in, was started sometime between 1993 and 1994. The parties started a cleanup
of all four parcels and constructed a dinghy dock that was about 12 foot by 4 foot by
placing boards on top of existing pilings. As part of the cleanup, he and his wife
removed all of the debris, including leftover vehides and other materials that were
on the property. The'y rototilled the lawn and applied a mixture of peat and other
materials to improve the lawn. They established the lawn. They hauled sand to
establish a play area, and reestablished the natural slope of the lawn and sand.
They brought in approximately 1200 cubic feet of sand and cobble stones to protect
the sand from dissipation. During this process, the city asked them to stop work
because of the absence of permits.
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5. With that request for code interpretation, Mr. Morgan furnished Mr. Frazier with an
analysis performed by Mark Pederson, President of Margenex International. Mr.
Reynolds explained that the Morgan family intended to pursue land use applications
for the beach enhancement project pursuant to BIMC 16.12.300. They were
requesting the code interpretation pursuant to the B/Me 216.025A and BIMC
216.015B. They also indicated that in the future, they would be requesting a
shoreline permit exemption for the normal repair and maintenance of an existing
bulkhead located on their property.
With reference to reseeding, according to the Morgans, the vegetation behind the
existing seawall was "a maintained lawn with weeds. " They therefore rototilled the
area, added soil, and reseeded the area inland from the existing seawall.
With reference to replacement of sand in the play area, there was approximately 40
to 50 cubic yards of clean sand transported by foot and wheelbarrow to the beach.
It was placed above the Ordinary High Water Mark (OHWM). In the process they
removed old tires, rusting metal (railroad Jines) and piling materials (possibly
creosoted) from the upper beach area prior to the ptacing the sand on the beach.
6. Mr. Reynolds requested the following interpretation for Mr. and Mrs. Morgan:
1. For the dinghy dock, that the Director interpret the
Bainbridge Island Municipa/'Cod and applicable regulations
and procedures to conclude that pursuant to existing City
procedures, they are allowed to submit an "after-the-fact"
request for a shoreline exemption. In this regard, Mr. and
Mrs. Morgan are willing to pay any required application fees
for the exemption without protest, including enhanced
permit fees.
2. That the Director determine that reseeding the lawn is normal
landscaping activity for a pre-existing use and condition which
under a literal interpretation of the Shoreline Management Act
and the City Shoreline Master Program, as well as long
practice in Bainbridge Island, is unregulated. This
interpretation would obviate the need for Mr. and Mrs. Morgan
to secure an after-the-fact shoreline. exemption for this
common activity.
3. That the Director make the same determination requested
above, subparagraph (2), as to removing the junk materials
and replenishment of the sand in the children's play area.
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The requested interpretations, according the Mr. Reynolds, relate solely to
Shoreline Management Act and Bainbridge Island Shoreline Master Program
provisions relating to the permit process; specifically, whether or not an
exemption application can be submitted for: (a) dinghy dock, and (b) is not
required for the reseeding of the lawn or replacement of the sand in the play
area.
7. On August 13, 2006, Larry Frazier, Director of Planning and Community
Development issued a memorandum decision. (See Exhibit 8). In that
memorandum decision he indicated that:
The dinghy dock is exempt from substantial development permit process
provided the applicant can demonstrate a cost of only $2000. The evidence
submitted was insufficient to make a finding of a cost of less than $2000. He
indicated that the applicant could. submit an. after-the-fact application, but
under BIMC 16.12.340(C)(1), an after-the-fact application for a private use
dinghy dock could not be approved because it would be a new dock or pier in
Blakely Harbor, and new docks and piers are prohibited in Blakely Harbor.
The dinghy dock would therefore have to be removed.
In reference to lawn replacement, Mr. Frazier indicated that the lawn is an
existing non-conforming development and the SMA allows for normal
maintenance and repair, which can include replacement when that is the
common method of repair, including within the native vegetation zone. He
also indicated that an atter-the-fact application for exemption would be
appropriate. Further, if the grading and filling involved 50 or more cubic
yards, then a grading permit is required.
In reference to beach debris removal and sand replacement, Mr. Frazier
indicated the applicants were not exempt from the substantial development
permit process. The SMMP requires a shoreline conditional use permit for
beach enhancement, which includes beach nourishment, unless it is outright
prohibited because the beach is spawning, nesting, or breeding habitat. He
did indicate that the Morgans could submit an after-the-fact for debris
removal and sand replacement.
8. On September 13, 2006, Dennis Reynolds, on behalf of Tom and Beth
Morgan, filed an appeal of the administrative decision issued by Larry Frazier
dated August 13. 2006. In their appeal they indicated that the expert that
they retained, Mr. Mark Pederson performed an analysis that concluded that
the potential impacts related to the activities of the applicants were not
measurable or had positive impacts for the quiet environment. As to the
small dinghy, Mr. Pederson concluded that the feature does not have any
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significant negative environmental impacts, nor would it likely have any
during construction, assuming that best management practices were used.
They requested that th.e Hearing Examiner reverse the administrative
decision and approve their requested code interpretation. They also
requested that the Hearing Examiner grant any further relief that is just and
fair under the circumstances.
9. The hearing on the appeal opened on November 2,2006.
10. On December 6,2006, while the case was still pending before the Examiner,
the Examiner wrote each of the counsel and stated in pertinent part:
"I am requesting assistance from you.
First of all, I need to know what are the "justiciable" issues before me?
Secondly, ! would like to know what portions of the Bainbridge Island
Municipal Code authorize me to hear this case. Third, I would like to know
what the legal impact of my decision will be when and if I do render a
decision. I would like to know how my decision will be used by the City and
how my decision would be used by Mr. Morgan. I would like to know,
whether in your opinion, my decision is appealable. . . "
11. On December 21, 2006, the City filed a letter brief with the Examiner asking that the
case be dismissed for lack of justiciable issues. The Morgans responded with a
brief. The City indicated that the code interpretation addressed the procedural
question about what applications the Morgans could file pursuant to the City's
Shoreline Master Program in an attempt to legalize various work that the Morgans
had done without going through the applicable City processes. The appllcants have
not applied for any permits or for any exemptions. There is no actual or present,
existing dispute before the Hearing Examiner. The arguments tend to be
hypothetical, what would happen if. Therefore, the parties don't have genuine and
opposing interest. The interest that they have is a potential interest, a theoretical
interest. If the Examiner ruled in favor of the City, the decision would not be the
final decision on the matter. It would not resolve the dispute between the parties.
Following the Examiner's decision, the Morgans would need to decide whether or
not to submit the applications. If they decided not to, then the City would have to
decide what it would do next. Apparently, there is a dispute between the parties
before the Hearing Examiner, which is the second part of this appeal. The appeal
involving the code interpretation at this point would be meaningless. The second
part of their appeal involves one of the hypotheticals before the Examiner.
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CONCLUSIONS:
From the foregoing findings the Examiner makes the following Conclusions:
1. The Examiner does not have jurisdiction to decide the issues involved here because
of the absence of a justiciable issue, and any decision the Examiner would issue
would not be a final decision to settle the issues between the parties. It would be a
decision based upon hypotheticals.
2. The case should be dismissed for lack of jurisdiction. (See To-Ro Trade Shows v.
Collins, 144 Wn.2d 403,411,27 P.3d 1149 (2001)).
DECISION:
This case is hereby dismissed for lack of jurisdiction.
ORDERED this 19th day of June 2007.
~~~
TERRENCEF.McCARTHY
Hearing Examiner
10-
Compiled:l0-17-06, amended 10-23-06, 10-24-06, 10-27-06, 10-31-06
EXHIBIT LIST
ADM 14206 - MORGAN, TOM AND BETH
APPEAL OF ADMIN. DECISION
Staff Contact:
Peter Namtvedt Best
Public Hearing: 11-02-06
10:00 a.m.
Exhib' #
Dted
D R cd P
It a ate e ages
1 Code Interpretation Request with attachments 7-17-06 7-17-06 20
2 Application fonn 7-17-06 7-17-06 1
3 Corres to Reynolds from Gladstein re: staff 7-21-06 1
assignement
4 Corres to Frazier, Director (DPCD) from 8-1-06 8-2-06 1
Reynolds re: inappropriate staff assignment
5 E-mail corres to Reynolds from Frazier re: 8-1-06 8-2-06 2
final determination on code interpretation
6 Corres to Frazier from Reynolds re: 8-24-06 8-25-06 8
Argument for Code Interpretation Request
with Declaration of Thomas Morgan in
Support of Code Interpretation Request
7 Corres to Frazier from Reynolds re: 8-31-06 8-31-06 5
Declaration of Thomas M. North with
attached declaration and photographs:
A. Three Children on steps
B. Three Children on steps (closer view)
8 Memorandum to Morgan from Frazier re: 8-31-06 5
Code Interpretation
9 Appeal of Administrative Decision with 9-13-06 9-13-06 41
attachments
10 Notice of Public Hearing documentation
11 Notice of Appearance for COBl 9-20-06 2
I I I I
Page 1 of 3
ADM 14206
Morgan Appeal
Compilcd:l0-17-06, amended 10-23-06, 10-24-06,10-27-06, 10-31-06
12 Corres to Hearing Examiner Getches and 9-25-06 9-29-06
Reynolds re: Request for Pre-Hearing
Conference from Weber
13 Hearing Examiner Getches response re Pro 9-29-06 9-29-06 1
Tem appointment
14 Corres to Hearing Examiner Pro'Tem 10-2-06 10- 2-06 1
McCarthy and Reynolds re: prehearing
conference from Weber
15 Corres to Weber from Hearing Examiner 10-10-06 10-10-06 1
Weber re: Prehearing conference
16 Corres to Counsel from Hearing Examiner 10-23-06 10-23-06 2
re: pre-hearing conference
17 Respondent City of Bainbridge Island's 10-24-06 10-24-06 47
Response Briefwith attachments and
Declaration of Delivery
18 Respondent City of Bainbridge Island's 10-26-06 10-27-06 2
Witness and Exhibit List
RESPONDENT'S EXHIBITS:
19 (1) Site Map showing subject properties 1
20 (2) Aerial photo of subject properties with 1
property ownerships from September 2004
21 (3) Oblique aerial photo of subject properties 1
from 2000
22 (4) Vertical aerial photo of subject properties 1
from June 2002
23 (5) Vertical aerial photo of subject properties 1
from September 2004
24 (6) Five photos of site taken on July 28, 2005 by 5
Peter Namtvedt Best
\ 25 (7) Five photos of site taken on August 4, 2005 \ 5 \
by Peter Namtvedt Best
Page 2 of 3
ADM 14206
Morgan Appeal
Compiled:10-17-06, amended 10-23-06, ] 0-24-06, 10-27-06. 10-3 J..06
26 (8) Letter from LarryK. Frazier, AICP to 11-4-05 3
Thomas E, Morgan and DelUlis Reynolds
27 (9) COB I Shoreline Management Master 11-26-96 127
Program
28 (10) COBI Ordinance 96-38 9-30-96 2
29 (11) COBI Ordinance 2003-30 9-22-03 9
30 (12) Bainbridge Island Municipal Code Chapter
16.12
31 (13) WSR 00-24-031 11-29-00
APPELLANT'S EXlUBITS:
32 Appellants' Designation of Witnesses and 10-27-06 10-30-06 3
Hearing Exhibits
33 Resume of Robert W. Thorpe 10-30-06 2
34 Resume of Mark G. Pedersen 10-30-06 7
35 2006 Blakely Harbor Shoreline Amendment 9-15-06 10-30-06 3
36 2006 Blakely Harbor Dock Shoreline 7-13-06 10-30-06 1
Amendment - Process and Participation Plan
37 Settlement Agreement, Mutual Release of 8-29-06 10-30-06 58
Claims and Hold Harmless Agreement
ADM 14206
Morgan Appeal
Page 3 of 3
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BEFORE THE CITY OF BAINBRIDGE ISLAND HEARING EXAMINER
TOM and BETH MORGAN d/b/a BLAKELY
ROCK HOLDINGS,lLC,
Appellants,
No. ADM 14206
VS.
ORDER CLARIFYING RECORD
10
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CITY OF BAINBRIDGE ISLAND, acting
through its Director of the Department of
Community Development,
Respondent.
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This matter having come before the undersigned Hearing Examiner upon agreement
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of the parties.
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NOW, THEREFORE, IT IS HEREBY ORDERED that:
The entire record in the Interpretation Appeal (Case No. ADM 14206), including but
not limited to all declarations, reports, correspondence, exhibits, briefing, and testimony
submitted on behalf of the City and Appellants to the Bainbridge Island Office of Hearing
Examiner in the Interpretation Appeal, shall be included in the record for the Notice of
Violation Appeal (Case No. COD-393) and may be used by either party in the Notice of
Violation Appeal.
It is understood that the parties have agreed to transcribe tapes of proceedings held
before the Examiner on November 2, 2006, and November 7, 2006, in the Code
Interpretation Appeal and to make the transcript an exhibit in the Notice of Violation Appeal.
ORDER
TERRENCEF.McCARTHY
HEARING EXAMINER
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Mr. Reynolds, attorney for the Morgans, will have the tapes transcribed in his office and the
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City will review the tapes and transcripts and request any necessary corrections.
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It is also understood that the City does not object to Mr. Reynolds' submission of a
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transcript of the June 5, 2007, telephone conference with the Examiner, which was
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prepared by a court reporter.
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It is understood that all parties of record, including the Hearing Examiner, shall
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receive copies of the transcripts.
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ORDERED this 19th day of June 2007.
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ORDER
TERRENCEF.McCARTHY
HEARING EXAMINER