HAGSTROMER, CLAES & JENNIFER 2006-08-28
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DECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
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In the Matter of the Appeal of
CLAES AND JENNIFER HAGSTROMER
COD 0000297
from a Code Enforcement Decision of
the Director, Planning and Community
Development Department, Regarding Alleged
Violations of the Shoreline Master Program
[BIMC 16.20]
BACKGROUND
The Director affirmed an enforcement action regarding alleged violations of shoreline
regulations, including the following actions in the Native Vegetation Zone without
shoreline permit(s): construction of wood deck, construction of a rock retaining wall;
clearing of native vegetation, and setting up an above-ground swimming pool. The
property owner appealed the Director's decision.
At request of the Appellants, the Hearing Examiner held a prehearing conference with the
Appellant and representatives of the Director on February 16, 2006. The appeal hearing
was held on June 29, 2006. Parties represented at the hearing were the Director, Planning
and Community Development Department (PCD or Department), by Rosemary Larson,
Attorney for the City, and the Appellant, Claes Hagstromer, pro se. Following receipt of
post-hearing submittals, the record was closed on August 7, 2006, by the Hearing
Examiner's Order [Exhibit 48] regarding those submittals.
After due consideration of all the evidence in the record, the following shall constitute the
findings, conclusions, and decision of the Hearing Examiner on this appeal.
FINDINGS
Subiect Property
1. Claes and Jennifer Hagstromer own the residential property addressed as 11295
Wing Point Drive which is the subject of this appeal [second page, Exhibit 7]. The
residence, built in 1975, is located on the top of the bluff which is inclined steeply down
to the north shore of Eagle Harbor. (Exhibit 29]
2. In 1997, there were landslides that involved a large area of the slope on the
Hagstromers' property, as well as a large area of the slope to the northwest [see whitish
areas in Exhibit 32C]. A large wood crib wall was constructed as part of slope
stabilization efforts [the slide area and this wall are visible on the upper part of the bluff
in aerial photographs; see Exhibits 2F and 2G and Exhibit 3]. A permit was issued for
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"
slide repair [see note on Complaint Form, Exhibit 7]. A wooden stairway extending
down the slope provides access to the beach and a rock bulkhead [see in foreground
photo, Exhibit 2D], apparently built in 1992, lines the shore. [Exhibit 7; Exhibit 29;
Exhibit 34; Exhibit 35; Testimony of Hag stromer]
3. In 2001 the Hagstromers began living at the subject property and their purchase of
it was complete in December 2002. [Testimony of Hag stromer]
4. The property has a Semi-Rural designation under the City's Shoreline Master
Program. The first fifty feet of the property's shoreline, measured landward from the
Ordinary High Water Mark, is a Native Vegetation Zone (NVZ) [see BIMC 16.12.150,
Table 4-2].
Prior Complaint
5. In June 2005, the City received a complaint that the bluff ("embankment") had
been stripped bare of vegetation. [see last 4 pages of Exhibit 7] When Mr. Hagstromer
was contacted as part of the City's investigation of the complaint, he advised the code
enforcement officer that he maintained the bank by trimming the vegetation low once a
year.
6. The complaint was closed after the code enforcement officer conducted a site
investigation (June 16, 2005) and the property owner was required to submitted and
implement a restoration plan. The restoration plan committed to revegetation of 240 sq.
ft. of the NVZ in the southwest corner of the property where the vegetation had been
removed. The file notes that before the matter was closed, the property owner had been
"informed of the shoreline rules." [See last 4 pages of Exhibit 7.]
7. The restoration plan [see PCD "Worksheet" and page following in Exhibit 7]
proposed by the Hagstromers and approved by PCD in July 2005, included two trees
(Sitka Willow) and eight shrubs (flowering currant, wild rose, pampas grass and Coast
Silktassel). According to Mr. Hagstromer, the plants were planted per plan, but were
then removed when the wood deck was constructed in this location.
Enforcement Action
8. Approximately three months after the pnor complaint was closed, another
complaint regarding this property was received. As logged by PCD on September 20,
2005, it was reported that "homeowner has chained logs to make a bulkhead, built a deck,
brought in sand, constructed a rock wall, constructed a barbecue, brought in a pool, and
has stripped the vegetation from his property and the neighbor's property." [Exhibit 7,
page 1]
9. In the investigation of this complaint, PCD staff found no current permits
associated with any of the actions cited in the complaint. [Exhibit 7; Exhibit 8]
10. On October 27, 2005 the City's Code Enforcement Officer issued a Letter of
Violation [Exhibit 9] to Claes and Jennifer Hagstromer for alleged violations of the
Shoreline Master Program at residential property addressed as 11295 Wing Point Drive.
The letter advised that the City had received a complaint "regarding un-permitted items
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and construction in the native vegetation zone" on their property. The actions cited as in
violation of the shoreline regulations were: removal of native vegetation, installation of a
wood deck, construction of a rock retaining wall, and clearing an area for a patio. The
letter advised that a retaining wall requires a Shoreline Conditional Use Permit and,
depending upon their size, the deck and patio "may require a Shoreline Substantial
Development Exemption". All "un-permitted items" were to be removed and a
restorations plan submitted, or appropriate permits applied for within 30 days.
11. As provided in BIMC 1.26.070, the Hagstromers asked the PCD Director to
review the October 27, 2006 enforcement action [see Exhibit 11 and Exhibit 10]. The
Director's review meeting was held on November 8, 2005, and after that meeting the
Director advised the Hagstromers (by letter dated December 21, 2005 [Exhibit 13]) that
he was affirming the notice of violation. As corrective actions for the violations, the
Director instructed the Hagstromers to apply for exemptions or permits for the structures
noted in the notice of violation. The Director advised that: 1) the wood deck and the
patio would each "require a shoreline exemption permit"; 2) the disturbed native
vegetation zone must be replanted; 3) the retaining wall and swimming pool were not
permitted uses, but structures not specifically prohibited could be permitted if they met
the criteria for conditional uses. [Staff Report, Exhibit 28; Appeal, Exhibit 14;
Testimony of Preston; Testimony of Hag stromer]
Appeal of Director's Review
12. On January 4, 2006, the Hagstromers appealed the Director's decision to affirm
the enforcement action [Exhibit 14]. The appeal acknowledged that they would seek an
exemption for the wood deck, but asked that the Hearing Examiner to specify conditions
for that exemption as a part of the appeal decision. The appeal also asserted that the rock
retaining wall and the swimming pool should not need conditional use permits and that
the removal of vegetation and clearing for the patio should be allowed as normal
maintenance and repair.
13. The appeal hearing was scheduled for February 9, 2006 [Exhibit 18]. When the
Hearing Examiner granted Appellants' request for a pre-hearing conference, the hearing
was canceled and the pre-hearing conference held on February 16. 2006. [Exhibits 15,
17].
14. At the pre-hearing conference [Exhibit 21] it was agreed that the appeal hearing
would be held in abeyance to keep the appeal "alive" while the Appellants met with PCD
so that the issues subject to appeal could be distinguished from issues related to permit
applications. PCD committed to inform the Hagstromers as to what permits/exemptions
would be required.
15. The pre-application meeting was held on March 7,2006 and after that meeting, on
March 30, 2006, PCD staff provided written follow-up [Exhibit 23] summarizing the
discussion of permit requirements for the entire project (i.e., remodeling the existing
house and constructing a new retaining wall, in addition to obtaining "after-the-fact
permits for structures" in the Native Vegetation Zone that were the subject of the notice
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of violation. The Hagstromers were advised that they would need to apply for permits if
they intended to move forward on their project.
16. A month later, having not heard from Appellants regarding either submittal of a
permit application or a request to schedule the appeal hearing, peD sent a letter [Exhibit
24] setting May 19, 2006 as a deadline for the Hagstromers to initiate either of those
actions.
17. On May 19,2006, the Hagstromers requested that the Hearing Examiner schedule
the appeal hearing. The appeal hearing was rescheduled to be held on June 29,2006 and
required notice of hearing was given [Exhibit 27].
Hearing and Argument
18. There is no dispute about the facts of this situation. The Appellants and the
Director agree that the Hagstromers, without permit or letter of exemption, constructed a
wood deck, constructed a rock wall, set up an above-ground swimming pool, cleared
vegetation and established a patio. All these actions took place within the native
vegetation zone. (The clearing extended beyond the Hagstromers' property and they
removed vegetation from within the native vegetation zone of a neighboring property.)
The Hagstromers also built-in a barbecue in the rock retaining wall; although mentioned
in the complaint, this was not called out as separate violation. [Testimony of
Hagstromer; Testimony of Preston]
Deck
19. The Hagstromers built a wood deck with an area of approximately 120 sq. ft., in
the southwestern corner of the subject property. Located landward and above the rock
bulkhead, the deck is a few feet landward of the line of Ordinary High Water, entirely
within the Native Vegetation Zone of this property. [Exhibit 2D; Exhibit 29; Testimony
of Hagstromer ]
20. The Hagstromers built this structure in the summer of 2005, sometime after the
close of the prior complaint [see Finding 6]. The deck occupies the area that was
designated for restoration as remediation for the previously cited violation [see Finding
7]. Mr. Hagstromer testified that this area had been planted consistent with the
restoration plan and then the plants were removed when the deck was built. Mr.
Hagstromer further testified that these plants were replanted elsewhere "to the north", but
provided no evidence as to the specific location. [Exhibit 2D; Exhibit 7, diagram and
plant list attached to "Worksheet"; Exhibit 29; Testimony of Hag stromer]
21. The Appellants and the Director agree that this deck, at 120 sq. ft. or less, could
be exempt from Shoreline Substantial Development Permit (SSDP) requirements [see
Finding 38]. Appellants acknowledge that they must request and obtain the exemption,
but want the Hearing Examiner decide what, if any, conditions would attach to that
exemption.
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Rock Wall:
22. In 2005 the Hagstromers also built a rock retaining wall [see light colored stone
wall, left center in Exhibit 2C and right center in Exhibits 2b and 2D] near the base of the
toe of the bluff that descends to the beach, landward of the flat area that comprises most
of the NVZ. The wall, approximately 82 ft. in length from east to west (including the
southeastern most part of the wall that appears to extend onto the neighboring property),
is 6 ft. tall. For the westernmost 15 ft. the wall is 2 ft. high and is approximately 3 ft.
high next to the easterly side of the deck. [Exhibit 29; Exhibits 2b and 2D]
23. This rock wall is landward of the bulkhead and entirely within the Native
Vegetation Zone [see "Existing Rock Wall", Exhibit 29]. There is no record of any
permits being sought or obtained for the construction of this wall.
24. Appellants contend that a Shoreline permit is not required for this wall because
retaining walls in steep slopes are allowed without permit. The "Retaining Wall
Requirements" information sheet [Exhibit 42] notes that "No permit will be required for
retaining walls not over 4'0" and that "A permit will be required for retaining walls or
portion thereof over 4'0"; these walls are "required to be engineered". The Appellants
argue that only a building permit is needed and it is needed only for the part of the wall
over 4 ft. high and, because there are these building standards, there can be no Shoreline
permit requirement( s).
Clearing the Native Vegetation Zone:
25. As the corrective action for closing the prior complaint [see Findings 6 and 7],
appellants were to revegetate (with native plants according to an approved native plan)
240 sq. ft. of the NVZ that they had cleared. This part of the NVZ has not been planted
and maintained in native plants as per the approved plan. Instead, the wood deck
currently occupies the area identified for restoration.
26. The Hagstromers cleared the entire NVZ on their property and continued that
clearing "all the way" onto the adjacent Kitsap County property. Mr. Hagstromer
testified that the vegetation cleared was "mostly" invasive and non-native plants
(specifically mentioning ivy, blackberry, and weeds) and that this was "regular
maintenance". The area of the bluff between the rock retaining wall [see Finding 22] and
the permitted wood retaining wall farther upslope, has also been cleared of vegetation
[see Exhibits 2C and 2D]. The western part of the NVZ flat area is covered by the wood
deck and the remainder is covered with sand and/or gravel and used as a patio [see
Exhibit 2A]. Except for a couple of trees and a few plants just behind the bulkhead [see
in Exhibit 2D] there is no evidence of any vegetation in the NVZ.
27. The flat area behind the bulkhead appears to have been created when a former
owner constructed the bulkhead. The 1992 plans for the bulkhead [Exhibit 35] show
level "sand fill" proposed to be placed behind the bulkhead on what was then "beach
grass" on a slight slope extending waterward from the toe of the bluff. (Application was
made for bulkhead construction [Exhibit 35], but there is no record that the Washington
Department of Fisheries' objection [see March 9, 1992 letter in Exhibit 35] to the
bulkhead was resolved.)
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28. An aerial photo taken in 1992 [Exhibit 32A] shows the shoreline before the
construction of the bulkhead. The area slated for "sand fill" [see Finding 27] appears to
be covered with vegetation. (The Appellants' expert identified green areas as having
some type of low-lying vegetation; native, non-native cannot be determined [Testimony
of Curtis].) In a 1995 aerial photo [Exhibit 32B], that flat area appears to be covered with
sand (i. e., it has the same light gray color as the sand of the beach, not the darker color
that denotes vegetation). In the 1997 aerial photo [Exhibit 32] large white areas evidence
the slide activity that occurred that year [see Finding 2]. Aerial photos indicate that in
later years some type of vegetation was growing in the flat area between the bulkhead
and the toe of the bluff [in 2000, see Exhibit 2H, 2G and Exhibit 32D; in 2001, see
Exhibit 32E; in 2002, see Exhibit 32F].
29. The Appellants contend that the flat area (which comprises almost the entire
NVZ) has been maintained as a cleared area since 1992 so that it need not be maintained
in native vegetation.
Above-ground Swimming Pool:
30. In 2004 the Hagstromers installed an above-ground swimming pool in the
southwestern portion of the NVZ [see Exhibits 32G and 2F]. At that time, most of the
NVZ, from the bottom of the beach stair to the bulkhead, across the much of the beach
frontage, appears cleared of vegetation (i.e., is gray like the beach sand). In 2002 this
same area was covered with vegetation of some sort [see in Exhibit 32F]. Mr.
Hagstromer's testimony that they never brought in sand or gravel is not credible in light
of this photographic evidence [Exhibits 32G and 2F compared to 32F].]
31. The pool, although temporary (i.e., it is drained and removed off-season), is, at 15
ft. in diameter, larger than the deck which now occupies the southwest portion of the
NVZ (where the pool had been in September 2004 [see Exhibit 2F]). No plants, native or
otherwise, could survive under the pool during its use 3-4 months in summer. (The
swimming pool has been set up and used in the NVZ in 2004,2005, and 2006.)
32. Appellants contend that the pool is not a "structure" regulated by the Shoreline
Master Program, but an exempt "appurtenance" for recreational use associated with the
residence.
Bainbridge Island Municipal Code
33. The Shoreline Master Program, Chapter 16.12 of the Bainbridge Island Municipal
Code, regulates land use and development in the City's shoreline.
34. BIMC 16.12.030 includes the following definitions:
11. "Appurtenance" means a structure or development which is necessarily
connected to the use and enjoyment of a single1"amily residence. "Normal
appurtenance" means a garage, boat house, deck, driveway, utilities, fences, and
grading which does not exceed 250 cubic yards...
52. "Development" means a use consisting of the construction or exterior
alteration of structures; dredging; drilling; dumping; filling; removal of any
sand, gravel, or minerals; bulkheading; pile driving; placing of obstructions; or
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any project of a permanent or temporary nature which interferes with the normal
public use of the surface of the waters of the state...
70. "Exemption"... certain developments are exempt..from the substantial
development permit process ... An activity that is exempt... must still be carried out
in compliance with policies and standards of the Act and the local master
program. Conditional use and/or variance permits may also still be required
even though the activity does not need a substantial development permit...
119. "Nonconforming development" means a shoreline use or structure
which was lawfUlly constructed or established prior... and which no longer
conforms ...
122. "Normal maintenance" means those usual acts to prevent a decline,
lapse, or cessation from a lawfully established condition...
176. "Structure" means a permanent or temporary edifice or building, or any piece
of work artificially built or composed of parts joined together in some definite manner,
whether installed on, above, or below the surface of the ground or water...
35. The "Clearing and grading" regulations of the shoreline code, at BIMC
16.12.060.C, provide (emphasis added) that:
1. Clearing and grading shall be permitted landward of the native
vegetation zone when associated with a permitted shoreline use; orovided, that
upon completion of construction, remaining cleared areas shall be reolanted
within the first applicable planting season...
36. The "Native vegetation zone" (NVZ) section of the shoreline code, at BIMC
16.12.090, provides (emphasis added) that:
A. Definition and Purpose. The native vegetation zone is a required
vegetation buffer encompassing all uplands from the OHWM to the dimension
specified for that particular shoreline environment. Its purpose is to orotect and
enhance the Island's natural character, water quality, native plant communities,
and wildlife habitat along the shoreline.
B. Applicability. The native vegetation zone provisions apolv to all shoreline
develooment, uses, and activities, including those which do not require a
shoreline oermit, and to existing develooment...
C. Regulations.
1. A vegetation buffer, called a native vegetation zone, shall be
maintained immediatelv landward of the OHWM...
2. Existing native vegetation within this zone shall remain unless
specifically allowed to be altered or removed...
3. New olantings in this zone shall be native olant soecies, or other
aooroved soecies...
4. Removal of nonnative olants and olants on the state noxious weed list
shall be allowed within the native vegetation zone.
* * *
6. No clearing, grading, or construction mav be undertaken within the
native vegetation zone unless soecificallv orovided for in this section or in Part
VI, Specific Shoreline Use Regulations.
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***
37. The Native Vegetation Zone in the Semi-Rural shoreline environment is required
to be 50-ft. wide, as measured from the OHMW. [BIMC 162.12.150, Table 4-2]
38. Regarding residential development in the shoreline, BIMC 16.12.260 provides
that:
A. ... All development in the shoreline jurisdiction must comply with the
Shoreline Management Act... and the master program. While an individual
owner-occupied, single-family residence and its "normal appurtenances" are
exempt... thev must complv with this section and other provisions of the master
program.. .
In some circumstances a conditional use permit is required for developments
which are exempt from the SSDP...
Residential development is subject to... provisions for a native vegetation zone
adjacent to and landward ofOHWM... clearing and grading restrictions, public
access requirements, environmentally sensitive areas provisions...
B. Regulations - General.
***
9. No accessory structures shall be located within the required native
vegetation zone, except a stairwav to the beach, a tram, a pier or dock, a boat
house, permeable decks less than 30 inches in height above grade, and fences...
14. In the... semi-rural... environments, permeable (slatted) decks of 120
square feet or less that do not exceed 30 inches in height above grade shall be
permitted... It shall also be considered a normal appurtenance to residential
development not requiring a shoreline substantial development permit...
15. ... hand-installed steps to the beach, or as part of a trail system, shall
be permitted in the native vegetation zone.
39. Development within the shoreline, is required to have a permit or an exemption
and BIMC 16.12.360.A provides (emphasis added) that:
3. Any person wishing to undertake substantial development or exemTJt
development on shorelines shall applv to the director for an appropriate
shoreline permit or a statement of exemption.
* * *
40. Regarding a "Statement of Exemption", BIMC 16.12.360.B (emphasis added),
requires as follows:
1. No exemTJt development, use or activity shall be undertaken... unless a
statement of exemption has been obtained from the director.
***
5. ... The director shall condition statements of exemption to ensure the
exempt development or activity complies with the Shoreline Management Act and
the master program.
6. In the case of development subject to the policies and regulations of the
master program, but exempt from the substantial development, permit process,
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shoreline management requirements may be made conditions of the building
permits and/or other permits and approvals ...
* * *
41. BIMC 16.12.380.A provides that: "Where a development includes several uses
or activities and one or more uses or activities require a shoreline conditional use
permit, all uses and activities shall be processed and decided following the shoreline
conditional use procedures." Uses that are not specified as permitted or conditional use,
"may be authorized as conditional uses" where an applicant demonstrates that there are,
in addition to meeting the standard SCUP criteria, "extraordinary circumstances" that
would "preclude reasonable economic use of the property... "
42. Regarding "Nonconforming development" (i.e., uses or structures which were
lawfully established or constructed prior to the effective date of the master program, but
which do not conform to present regulations), BIMC 16.12.390.A.l provides (emphasis
added) that:
1. Nonconforming Uses.
a. Nonconforming uses shall not be altered or eXTJanded in anv wav that increases the
nonconformi ty.
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.
43. In considering appeals from "administrative decisions, departmental rulings and
interpretations...", BIMC 2.16.130.F authorizes the Hearing Examiner to: affirm the
Director's decision, affirm with modifications, reverse the decision, or remand it to the
Director. That section of the Code also requires that the Hearing Examiner give
"substantial weight to the decision of the department director. "
CONCLUSIONS
1. The Hearing Examiner has jurisdiction to hear and decide appeals of the
Director's administrative decisions regarding alleged violations and, pursuant to the
mandate of BIMC 2.16.130 [see Finding 43], in making that decision, must give
substantial weight to the decision of the department director. To overcome the
substantial weight accorded the Director, an appellant has to show 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 the definite and firm conviction that a mistake has
been made.
2. The Appellants made or caused made physical changes within the jurisdiction of
the Shoreline Master Program (BIMC Chapter 16.12) on their property at 11295 Wing
Point Drive. The Director correctly cited violations regarding the following activities
that were undertaken within the Native Vegetation Zone without having obtained
shoreline permit or exemption:
· Construction ofa wood deck in Native Vegetation Zone.
· Construction of a rock retaining wall in Native Vegetation Zone.
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· Clearing vegetation and having a patio in Native Vegetation Zone.
· Placing above-ground swimming pool in Native Vegetation Zone.
3. Deck: It is likely that the Director could determine that this structure is exempt
and issue a Letter of Exemption to that effect. However, it is a violation to have
constructed the deck without first obtaining that exemption. The corrective action
regarding the deck is for the Hagstromers to remove the deck or, if they want to have the
deck remain, obtain a shoreline substantial development permit exemption for it (or
obtain a SCUP if combined in application for other actions that require a SCUP).
4. Rock Wall: It is a violation to have constructed the rock retaining wall in the NVZ
without obtaining a shoreline permit. The wall, over 4 ft. tall, is not exempt from permit
requirements. A retaining wall of smaller size may be exempt from other permit
requirements, but (as a structure in the NVZ) would still require a Shoreline Conditional
Use Permit. The corrective action is for the Hagstromers to remove the wall or, if they
want to have the wall remain, apply for and obtain a Shoreline Conditional Use Permit
for it.
5. Clearing NVZ and Patio: The entire NVZ has been cleared and the flat area ofthe
NVZ landward of the bulkhead is covered by the wood deck, a gravel patio, and the
above-ground swimming pool. The slope above the rock retaining wall, including a
small area within the NVZ, has also been cleared, as was part of the adjacent property.
The Appellants' argument is that not having native vegetation and using the area as a
"front yard", created a nonconforming "use" back in 1992. This is not a persuasive
argument as vegetation was clearly present in subsequent years. Even if that dubious
theory is accepted, the development the deck, gravel patio, and swimming pool in the
NVZ would be an expansion of that non-conformity. Development within the NVZ
(deck, gravel patio, and swimming pool) all give rise to the requirement to maintain
(here, plant and maintain) native vegetation. The required corrective action is for the
NVZ that has been cleared to be revegetated with native vegetation.
6. The above-ground swimming pool is a "structure" placed in the NVZ without a
permit to do so. The pool is not a "normal appurtenance" [see Finding 34] and is subject
to shoreline permit requirements. (Further, the pool, with its size and impact, cannot
reasonably be argued, as Appellants' do, to be equivalent to non-structural, unregulated
items like "a chair" and "children's' toys".) As above-ground swimming pools are not
expressly specified as permitted or prohibited, it could be considered for a Shoreline
Conditional Use Permit (with additional criteria). The appropriate corrective action is to
remove the above-ground swimming pool and not allow its return, until and unless a
Shoreline Conditional Use Permit is approved for its location in the NVZ.
7. The Director has not been shown to have erred. The Director's decision regarding
the violations is no mistake and should be affirmed and the corrective actions enforced.
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DECISION
The Director's administrative decision regarding the subject violations is AFFIRMED.
If the property owners fail to, within thirty (30) days of this decision, take the four
corrective actions enumerated below, the Director may pursue civil and/or criminal
penalties provided for in BIMC 1.26.090 and 1.26.100, and/or seek any additional relief
or assistance in accomplishing the corrective actions, including that provided for in
BIMC 1.26.110.
Reouired Correetive Actions
The property ownen, Claes and Jennifer Hagstromer shaD, within
thirty (30) days of the date of this decision, take the foUowing four
enumerated corrective actions:
1. Deck:
(a) Remove the deck; OR,
(b) If this is the only structure that Appellants want to have in the
NVZ, apply for a Shoreline Substantial Development Exemption;
OR,
(c) If the Appellants want to have other, non-exempt development(s)
in the NVZ (e.g., rock retaining wall, above-ground swimming
pool), apply for a Shoreline Conditional Use Permit that includes
the deck [see Finding 41].
2. Rock WaU:
(a) Remove the rock retaining wall from the NVZ; OR,
(b) Apply for a Shoreline Conditional Use Permit that includes the rock
retaining wall in the NVZ.
3. Cleari.n2 Vet!etaDon from the NVZ:
Submit a satisfactory revegetation/restoration planting plan to the
Director AND by the end of the next planting seasoned after the
Director's approval of the planting plan, revegetate as per the plan
approved by the Director. (The actual planting is not subject to the 30
day deadline noted above.)
4. Above-t!l"Ound Swimmin2: Pool:
Remove the pool from the shoreline. Note: The owners may include the
pool in a Shoreline Conditional Use Permit application, but the pool
must be removed within the 30 day deadline and may not be located in
the NVZ until and unless a SCUP for it is properly issued.
Entered this 28th day of August 2006. r:) n~ ~
"i ~~~ Getches
Hearing Examiner
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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 this 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.
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