021109_MORGAN_HEX_DECISIONDECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Application of
Thomas Morgan III SCUP14206
For a Shoreline Substantial Development/
Conditional Use Permit
Introduction
Thomas Morgan III applied for a Shoreline Conditional Use Permit for the action taken in
2005 to replenish the beach with sand, cobble and mixed rock and pea gravel at
10700, 10730 and 10770 Country Club Road.
An open record public hearing was held February 4, 2009. Dennis Reynolds, attorney at
law, represented the applicant. Joshua Machen, Senior Planner, represented the Department of
Planning and Community Development
All section numbers in the decision refer to the Bainbridge Island Municipal Code, unless
otherwise indicated.
After due consideration of all the evidence in the record consisting of the testimony and
exhibits admitted at the hearing, the following shall constitute the findings, conclusions, and
decision of the Hearing Examiner in this matter.
Findings
1. In 2005, Thomas Morgan III replenished the beach in front of his property at 10700, 10730
and 10770 Country Club Road with sand, cobble, and mixed rock and pea gravel. The three
waterfront lots are armored with a concrete bulkhead and, over time, the beach waterward of the
bulkhead had hardened and lowered to the point that the toe of the bulkhead was in danger of
being exposed. He did not obtain a shoreline permit for the replenishment project and the City
issued a Notice of Violation.
2. On August 18, 2008, Mr. Morgan applied for an "after- the - fact" shoreline conditional use
permit and shoreline substantial development permit for the "Morgan Sand and Cobble
Replenishment" project. The replenishment involved over 7,000 square feet of beach and
included 40 -50 cubic yards of sand, 40 -50 cubic yards of mixed round river rock, and 20 -30 cubic
yards of non - select pea gravel. (Exhibit 17) The application was determined to be complete on
October 1, 2008. (Exhibit 24)
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3. The City mailed and published a Notice of Application and posted the property.
4. The subject property consists of three waterfront parcels developed with single- family
residences, totaling 3.46 acres on the southern shore of Port Blakely. A fourth parcel has no
waterfront. The property has a Comprehensive Plan designation of Open Space Residential, two
residences per acre, and zoning designation of Residential 2 Units Per Acre (R -2). It is within the
shoreline and is designated as Semi -Rural environment by the City's Shoreline Master Program.
That environment is intended to allow for low to medium intensity residential development while
protecting natural resources.
5. The surrounding properties have similar designations and are developed with single family
residences.
6. The City was provided a report from Margenex International describing the impacts of the
activities of the replenishment activity based on observations by Mark Pedersen, a fisheries
scientist who was formerly a marine fish management biologist with the Washington Department
of Fish and Wildlife, from his visit in October 2005 (Exhibit 14), and a report of the results of a
survey by a fish biologist under the supervision of Mr. Pedersen for surf smelt and sand lance
spawn in the vicinity of the subject property in January 2007. (Exhibit 12). Additionally, the
report of Mr. Pedersen's visit to the site in February 2007 to delineate the Ordinary High Water
Mark was provided.
7. The first report concluded that the placement of the sand at the foot of the retaining wall on
the westernmost lot would likely have had a positive environmental effect in that it nourished the
beach, which would mitigate the effect of the bulkheads. The round rock placed on the beach was
found to be indistinguishable from the existing native cobble, but placed at a higher elevation than
it appeared to have been previously. The placement of the round rock at the base of the bulkhead
may serve to dissipate the energy of the waves in the ferries' wake that appears to be a major cause
of the erosion of the beach. The summertime placement of the pea gravel was deemed likely to
have had no negative effect on spawning of surf smelt which spawn in the winter and may have
provided additional beach materials that could be utilized as spawning substrate for forage fishes.
The report observed that the rocks are beginning to support attachment macro algae and
invertebrate habitat, as well as serving to dissipate wave energy, and concluded that removal of
the materials would probably do ecological harm.
8. The biologist who sampled sand and gravel in the vicinity for spawn found no evidence of
surf smelt or sand lance eggs.
9. Mr. Pedersen visited the property three weeks after his February 2007 visit to determine the
OHWM along the Morgan's beach to see if he could discern what materials had been deposited
and what was natural. He found the cobble covered with barnacles and bladderwort.
10. Bainbridge Island's SMP, which is an element of the Comprehensive Plan, contains
policies and regulations, incorporated into the Municipal Code, applicable to this proposal.
Section 16.12.050, Archeological and historic resources, requires that work be stopped and
permission be obtained to proceed if such archeological resources are discovered. The work done
involved only minor excavations and no archaeological resources were identified. Section
16.12.070, Environmental Impacts, provides regulations to minimize impacts of shoreline
activities. Section 16.12.080, Environmentally sensitive areas, is intended to supplement the
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regulations in the Critical Areas chapter to protect sensitive areas from disturbance and require
replacement of the resource function if there is disturbance. Section 16.12.300, Beach
Enhancement, addresses upgrading shorelines for the purposes of stabilization and recreational
enhancement, among others. The regulation supports enhancement except within spawning,
nesting, or breeding habitat and where littoral drift of the enhancement materials would harm
spawning grounds. The area of the action was determined not to be a spawning, nesting or
breeding habitat.
11. The City's Responsible Official issued a Determination of Nonsignificance (DNS)
pursuant to SEPA on December 23, 2008. [Exhibit 26] The DNS was not appealed.
12. The Director recommended approval of the Shoreline Conditional Use subject to
imposition of a condition prohibiting additional beach nourishment or bulkhead repairs without
appropriate permits. The applicant agrees that the condition is appropriate.
13. Section 16.12.380C(1) provides:
Uses classified as conditional uses may be authorized; provided, that the
applicant can demonstrate all of the following:
a. The proposed use will be consistent with the policies of RCW 90.58.020
or its successor and the policies of the master program.
b. The proposed use will not interfere with the normal public use of the
public shorelines.
c. The proposed use of the site and design of the project will be compatible
with other permitted uses within the area.
d. The proposed use will cause no unreasonably adverse effects to the
shoreline environment designation in which it is located.
e. The public interest suffers no substantial detrimental effect. (WAC
173 -14- 140(1) or its successor.)
f. The proposed use is consistent with the provisions of the zoning
ordinance (BIMC Title 18) and the comprehensive plan (Ordinance No.
94 -21).
14. Section 16.12.350B provides that:
1. The City of Bainbridge Island hearing examiner is vested with authority to:
a. Approve, approve with conditions, or deny shoreline variance and
shoreline conditional use permit applications after a public hearing and after
considering the findings and recommendations of the director, which shall be
given substantial weight; provided, that decisions may be appealed in
accordance with BIMC 16.12.370.B.
15. The policies of the Shoreline Management Act set out in RCW 90.58.020 include
protecting against adverse impacts to the land, to its vegetation, and to wildlife and the waters of
the state. The action taken would protect against adverse impacts to the single- family residential
properties and appears to have had no adverse affect on any vegetation, wildlife or the waters.
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16. Beach nourishment is consistent with the policies of the Shoreline Management Act and
the City's Shoreline Master Program.
17. The beach nourishment would not have any effect on the public use of the beach.
18. The other uses in the area are single - family residences. The beach nourishment did not
have any adverse effect on those uses and some may have benefited from the additional sand and
gravel that would move along the drift cell so the action was compatible.
19. The owner of property adjoining the subject property to the east was concerned about the
materials affecting her property but because the drift in the area is from the east to the west and her
property is immediately to the east of the subject property, the material that is eroded or carried
away should drift toward the west only so her property should be unaffected.
20. The beach nourishment may have had a temporary impact but no unreasonably adverse
effects to the shoreline environment. Removal could cause more harm than good at this point.
21. The public interest suffered no substantial detrimental effect from the beach nourishment
action.
22. The addition of material may have provided protection of the residential use and enhanced
the recreational use of the shoreline.
23. Because beach nourishment is encouraged when the shoreline is depleted of naturally
occurring sediment sources, it is unlikely that any cumulative impact caused by such replacement
on other properties would be harmful.
24. The replenishment is and was consistent with the provisions of the zoning ordinance and
the comprehensive plan.
25. The adjacent property owner expressed concern in her comment letter, Exhibit 41, about
the depiction of the common property line in the notice showing a skew in the line at the point it
reaches the second class tidelands. Where the shoreline is not a straight line, as at this location,
the tidelands are usually apportioned by what is often termed the "headland" rule, which may
have resulted in the skew in the property line shown on the map.
Conclusions
The Hearing Examiner has jurisdiction to hear and decide this matter.
2. Notice and public hearing requirements of the Code were met.
3. As the findings show that all of the criteria for approval of conditional use are met, the
application should be approved with the recommended condition.
Decision
The Shoreline Conditional Use Permit is granted subject to the following condition:
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No additional beach nourishment or shoreline bulkhead repairs shall occur on the
beach without first obtaining proper permits from local, sate and federal agencies as
appropriate.
Entered this 11th day of February 2009.
/s/ Margaret Klockars
Margaret Klockars
Hearing Examiner pro tem
Concerning Further Review
NOTE: It is the responsibility of a person seeking review of a Hearing
Examiner decision to consult applicable Code sections and other
appropriate sources, including State law, to determine his/her rights and
responsibilities relative to appeal.
The decision of the Hearing Examiner is the final decision of the City in this matter. The State
Department of Ecology will approve, approve with conditions or deny the conditional use within
the 30 days of the date it receives the permit from the City. Appeal of the Department of Ecology's
decision is to the Washington State Shorelines Hearings Board as provided by RCW 90.58.180 (or
its successor) and Chapter 461 -08 WAC (or its successor). To be timely, petition for review must
be filed within the 21 -day appeal period following the decision by the Department of Ecology. [see
BIMC 16.12.380].
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