LOBISSER, GEORGE & NANCY HEX DECISIONDECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of
GEORGE AND NANCY LOBISSER Nos. ADM 12337 & SSDP 12337
From an Interpretation of the Code and
A Shoreline Substantial Development Permit
Introduction
George and Nancy Lobisser appealed the administrative decision issued by the Director,
Department of Planning and Community Development, regarding the interpretation of the code
regarding a cover on a boat lift and a condition of the shoreline substantial development permit for
the boat lift at 16304 Euclid Avenue NE.
A public hearing on the appeal was held September 25, 2009. Mr. Lobisser represented
appellants and Rosemary Larson, Inslee Best Doezie & Ryder, P.S., represented the Director,
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 at the
hearing and the documentary evidence admitted at the hearing, the following shall constitute the
findings, conclusions, and decision of the Hearing Examiner in this matter.
Findings
1. George and Nancy Lobisser (hereafter "Appellants ") purchased a boat lift in 2005 to add to
their residential dock at 16304 Euclid Avenue NE. Appellants paid the dealer to obtain all
necessary permits. An Army Corps of Engineers Regional General Permit 1 was obtained and the
lift installed. In 2006, Appellants put a canvas cover over the lift. In 2007, Appellants received a
letter from the City of Bainbridge Island ( "City ") requiring Appellants to remove the lift or obtain
a City required permit. Appellants applied for the needed shoreline substantial development
permit for the boat lift in November 2008 (Exhibit 4 Attachment D) with a translucent and
temporary cover, instead of the canvas cover. Upon being advised by the staff that a covered lift
was prohibited, Appellants requested an administrative interpretation of the relevant Code
provisions.
2. On May 29, 2009, Katharine Cook, Director, Department of Planning and Community
Development ( "Department "), issued a written code interpretation regarding whether a temporary,
ADM 12337 & SSDP 12337
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translucent cover is allowed over a boat lift. The Director interpreted Section 16.12.340(D)(9) to
prohibit new covered moorage on piers or docks. Exhibit 4, Attachment N. The Director relied, in
part, on The Memorandum of Opinion in Bainbridge Island Boatyard v. City of Bainbridge Island
( "McNabb decision "), Kitsap County Superior Court, No. 08 -2- 00515 -3.
3. Notice of Administrative Decision and Determination of Nonsignificance (DNS) (Exhibit
4 Attachment L) was issued June 4, 2009. The decision approved the shoreline substantial
development permit for the floating boat lift subject to conditions including Condition 3: "Work
shall be completed in accordance with the site plan and dock detail dated March 26, 2008, except
that the float shall not be covered."
4. Appellants filed an appeal of both the code interpretation and the shoreline substantial
development permit, as to Condition 3 only.
5. Section 16.12.340D.9 provides:
New boat houses and new covered moorage shall not be permitted on piers or
docks. Other structures on piers and docks shall be strictly limited in size and
height to avoid impacting shoreline views.
6. "Covered moorage" is defined as "boat moorage, with or without walls, that has a roof to
protect a vessel or vessels." Section 16.12.030A(48).
7. To "moor" is "to secure in place with or as if with lines, cables, or anchors." The American
Heritage Dictionary, 3d Ed. (1994).
8. "Roof' is:
1. The exterior top surface of a building and its supporting structures. 2. The top
covering of something. 3. The upper surface of the mouth. 4. The highest point or
limit.
The American Heritage Dictionary, 3d Ed. (1994).
9. Bainbridge Island Nearshore Assessment (Exhibit 4, Attachment O) showed the subject
property in a herring spawning area. Appellants submitted to the Department a Preliminary
Survey of Eelgrass / Macroalgae Habitat in Port Madison Bay, Bainbridge Island, Washington,
prepared by WSP Environment & Energy. The survey showed no eelgrass and less than or equal
to 10% coverage by macroalgae within the survey area. It did not address herring spawning,
however there was testimony that the immediate area was the site of the Port Madison Mill and is
basically dead. Testimony of Lobisser.
10. The Department determined that the aesthetic impacts of a covered boat lift are greater than
those of a boat lift with no cover. Exhibit 4.
11. Appellants' proposed cover would be flat and approximately 4 inches above the boat in the
lift. It would have little aesthetic impact in terms of interference with views, and less than sailboat
covers shown in Exhibit 5, Attachments 5 -9.
12. Boat lifts are beneficial in that more light can enter the water with the boat out of the water
and the boat's painted bottom is not continually in the water. The cover would be beneficial
because the boat is protected from bird droppings that require frequent washing of the boat that can
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introduce chemicals into the water. The cover is simply washed by the rain. The translucent cover
does not prevent bleaching of the boat as an opaque canvas cover would, however.
13. The Department has had three applications for boat lifts with covers, though none with
translucent covers. It previously interpreted the code provision at issue to prohibit covered boat
lifts in a marina. Exhibit 4. That interpretation was upheld in superior court and an appeal of that
decision is pending in the Court of Appeals, Division II. McNabb decision.
14. Appellants' request for the proposed covered boat lift is different from the situation in the
McNabb decision in that the boat lifts have covers made with two sides coming to a peak, they are
permanent, they are opaque, and they are in a commercial marina.
15. Appellants' boat lift is made up of floating pontoons attached to the dock by four mooring
lines. Appellants' practice is to move the lift to a different spot on the dock when their boat is
moved to dry storage for the winter. The cover would be in place from May until October.
Conclusions
1. The Hearing Examiner has jurisdiction to hear and decide this appeal pursuant to Sections
2.16.095, 2.16.130, and 16.12.370.
2. The Hearing Examiner is to give substantial weight to the decision of the Department
director. Section 2.16.130F.2. The "substantial weight" requirement means that the decision must
be reviewed under a "clearly erroneous" standard. Norway Hill Pres. & Prot. Assn v. King County
Council, 87 Wn.2d 267, 275, 552 P.2d 674 (1976), superseded by statute on other grounds as
recognized in Moss v. City of Bellingham, 109 Wn. App. 6, 21, 31 P.3d 703 (2001). A finding is
clearly erroneous when, although there is evidence to support it, the reviewer is left with the
definite and firm conviction that a mistake has been made. Wenatchee Sportsmen Assn v. Chelan
County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000).
3. Here, Appellants ask the hearing examiner to interpret the words "covered moorage" to
exclude the covering of a boat lift. Where terms are not defined in the regulations, their common
meaning is assumed to be intended so the Hearing Examiner is required to give words in a
provision their plain and ordinary meaning unless a contrary intent is evidenced in the statute.' "
Marriage of Caven, 136 Wn.2d 800, 806 (1998) (quoting Erection Co. v. Dept of Labor & Indus.,
121 Wn.2d 513, 518, 852 P.2d 288 (1993)). The common meaning of covered moorage is to be
obtained from a standard dictionary.
4. The dictionary definitions of "moorage" and "roof' show that the proposed boat lift is
moorage and the proposed covering is a roof. Therefore, the application seeks a new covered
moorage that Section 16.12.340(9) does not permit. The Hearing Examiner's role is not to judge
the wisdom of unambiguous provisions. Though the examiner may believe that prohibition of the
covering proposed in this case may not necessary to carry out the Council's intent, it does not
appear to be actually contrary to the Council's intent, so the provision must be applied as written.
5. Applying the common meanings of the undefined terms and giving substantial weight to
the decision of the Department that the covering on the boat lift is prohibited, the examiner cannot
find that the decision was clearly erroneous, so is required to affirm the decisions.
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Decision
The appeals of the Director's administrative code interpretation and the shoreline
substantial development permit, ADM 12337 and S SDP 12337 are denied and those determinations
are affirmed.
Entered this 8th day of October 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 shall be final in this matter unless, within 21 days
after issuance of a decision, a person with standing appeals the decision in accordance with
Chapter 36.70 RCW.
ADM 12337 & SSDP 12337
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