MORGAN, TOM & BETH 2007-03-23
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BEFORE THE CITY OF BAINBRIDGE ISLAND
HEARING EXAMINER
8
9 TOM and BETH MORGAN d/b/a BLAKELY)
ROCK HOLDINGS, LLC, )
10 ) No.
Appellants, )
11 ) APPEAL OF ADMINISTRATIVE
v. ) DECISION
12 )
CITY OF BAINBRIDGE ISLAND, acting )
13 through its Director of the Department of )
Community Development, )
14 )
Respondents. )
15
16 Appellants Tom and Beth Morgan] d/b/a Blakely Rock Holdings, LLC, pursuant to
17 City of Bainbridge Island Municipal Code 9 2.16.130, hereby appeal to the Bainbridge
18 Island Office of Hearing Examiner that certain Administrative Decision dated March 13,
19 2007 (the "Decision"), issued by Mr. G.L. Byrne, Director ofthe City of Bainbridge Island
20 Department of Planning and Community Development. The Decision denies Appellants'
21 Request for Director's Review ofa Notice of Violation issued on December 21,2006.
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I.
NAME AND IDENTITY OF APPELLANT
1.1
Mr. and Mrs. Morgan and Blakely Rock Holdings, LLC own waterfront
24 properties on Blakely Harbor located within the municipal boundaries of the City of
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I Mr. and Mrs. Morgan also represent the Morgan Family Trust but respectfully request
27 that the Examiner not place their family trust in the caption assigned for this proceeding.
APPEAL OF ADMINISTRATIVE DECISION - 1
SEA 1862992v] 0064764-000010
ORIGINAL
Davis Wright Tremaine LLP
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1 Bainbridge Island. Mr. and Mrs. Morgan's home address is 10768 Northeast Country Club
2 Road, Bainbridge Island, W A 98110; telephone (206) 780-8500.
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1.2
Mr. Tom Morgan is the Managing Agent for Blakely Rock Holdings, LLC.
4 The contact information for Blakely Rock Holdings, LLC and the Morgan Family Trust is
5 the same as that set out above for Mr. and Mrs. Morgan.
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1.3
Appellant's legal representative in this matter is Davis Wright Tremaine
7 LLP, Dennis D. Reynolds, 1501 Fourth Avenue, Suite 2600, Seattle, Washington 98101;
8 telephone: (206) 903-3967; fax: (206) 628-7699.
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1.4
Appellants are aggrieved parties with standing to seek review and contest
10 the Decision. Appellants are prejudiced or likely to be prejudiced by the actions specified
11 below if no relief is granted. A ruling in favor of Appellants will substantially eliminate or
12 redress the prejudice that the Decision has caused, or likely will cause, for which review
13 and relief is requested.
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II.
DECISION APPEALED
2.1
Appellants appeal the Administrative Decision dated March 13,2007,
16 issued by the Director of the Bainbridge Island Department of Planning and Community
17 Development ("Director"), denying in all material respects their Request for Director's
18 Review pursuant to BIMC ~ 1.26.070 of a Notice of Violation issued December 21, 2006.
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2.2
A true and correct copy of the March 13,2007 decision for which review is
20 sought is annexed hereto to this appeal as Exhibit A, by reference made part hereof. A true
21 and correct copy of Appellant's Request for Director's Review dated January 3, 2007, is
22 annexed to this appeal as Exhibit B, by reference made a part thereof.2
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2.3
The Decision first incorrectly determines that there was no existing dock
24 facility in existence prior to 2002 and that secondly the work undertaken to reconstruct the
25 dinghy dock to its current condition does not constitute normal repair or maintenance of an
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27 2 The Notice of Violation dated December 21, 2006, is an attachment to Exhibit B.
APPEAL OF ADMINISTRATIVE DECISION- 2
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1 existing facility exempt from shoreline permit requirements. Then, after impermissibly
2 characterizing the situation as one of new dock construction, the Decision determines that
3 the existing dinghy dock requires a statement of exemption be obtained in order to
4 establish its legal status and the Notice of Violation must be sustained since Mr. and
5 Mrs. Morgan have "not made application" for such exemption. The Decision wholly fails
6 to acknowledge that the Morgans have not yet applied for an "after-the-fact" statement of
7 exemption because they first requested a review by the Director to determine whether the
8 validity of the dock structure in question is determined under the laws in existence at the
9 time of its repair and reconstruction. According to the Decision, the answer is "no," the
10 validity of the structure is determined under the laws in existence when the exemption
11 application is filed. The current version of the Bainbridge Island Shoreline Master
12 Program prohibits private docks in Blakely Harbor when at the time of its reconstruction in
13 2002 the law allowed structures such as the dinghy dock. Consequently, the Decision
14 effectively denies the exemption without providing an opportunity to submit it.
15 Recognizing this, the Decision determines that a "removal plan for the pier must be
16 submitted on or before March 30, 2007."
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2.4
The Decision determines that replenishment of a small amount of sand in a
18 "Children's Play Area" to maintain an existing historic condition is "beach enhancement"
19 and/or "landfill" under the 1996 Shoreline Master Program, which requires a shoreline
20 conditional use permit and is non-exempt from this requirement. The Decision fails to
21 hold that the minor sand replenishm.ent is maintenance of an existing legal, nonconforming
22 use. The Decision correctly acknowledges that placement of the sand in the Play Area
23 occurred landward of the ordinary high water mark.
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2.5
The Decision confirms what Mr. and Mrs. Morgan have been ready and
25 willing to do, which is to submit an application for a shoreline conditional use permit,
26 either an "after the fact" application, or a new application, for a beach enhancement or
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1 restoration project. In part, this application will sustain the validity of placement of a small
2 amount of cobbles below the ordinary high water mark which occurred in 2005. The
3 Decision misconstrues the Morgans' position, suggesting they urged that the cost for
4 proceeding with the restoration project is a basis for overturning the Notice of Violation as
5 to placement of the cobbles. While Appellants do not object to filing permit applications
6 for the beach restoration project, which would "subsume" and affirm the validity of the
7 cobbles placed in 2005, they do object to being forced to pursue these approvals when the
8 validity of the City's position as to the sand replenishment and other enforcement matters
9 is not yet determined. In this regard, the City impermissibly ties together the cobble
10 placement and sand replenishment when in fact they are separate. Thus, they request a
11 stay of the schedule set out in the Decision to submit "after-the-fact" and/or new permit
12 applications for the cobble placement and the proposed beach enhancement or restoration
13 project until all issues in this proceeding, and a related appeal, No. ADM 14206, are
14 resolved.
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III. RELEVANT FACTS
3.1
The Morgan property consists of four separate parcels, three of which are
17 waterfront parcels, located at 1 0730 (the beach house), 10768 (the office), and 10770
18 Country Club Road NE (the main house, formerly 10768). All ofthe Morgan properties
19 are located on the southern shore of Port Blakely on Bainbridge Island and collectively
20 include 347 feet of frontage along the shoreline. The instant dispute involves tax parcel
21 numbers 02240240172007,02240240162008 and 02240240152009. These parcels are
22 owned by Mr. and Mrs. Morgan, Blakely Harbor Rock Holdings LLC and/or the Morgan
23 Family Trust.
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3.2
The shoreline immediately adjacent to the Morgan property is lined with
25 homes to the east and west. There are bulkheads and seawalls protecting the Morgan home
26 as well as those homes on either side, although predominately eastward, as the westerly
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1 homes have lawn to sand beach. In front of the Morgan home and the other Morgan
2 properties is a vertical concrete bulkhead that existed when they purchased the property in
3 1997.
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3.3
At the time of purchase in 1997, there were a number of existing pilings and
5 more than one-half dozen dock pilings near the existing bulkhead, and in front of what is
6 now their home. Two groups of these pilings were in straight lines. One group of four
7 pilings had board remnants attached to them, which served as a dock or platform facility to
8 access the water.
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3.4
In 2002, the Morgan family was under contract with Mr. Cecil Johnson,
10 who was providing construction services which included building and erecting certain
11 bridge structures for an Asian garden they were developing on the upland portion of their
12 property. Mr. Johnson suggested that it was possible to "cap" three out of the four existing
13 pilings on the Morgan property with a new deck, thereby replacing the existing structure
14 with a new much safer version. According to Mr. Johnson, this work would be exempt
15 from City permitting requirements because the cost to reconstruct the facility, including
16 replacing the boards with a cap, would be less than $2,500. The Morgan family gave
17 Mr. Johnson permission to proceed with the work under the condition the cost would be
18 less than $2,500. Work on the cap for the piling commenced shortly thereafter in 2002.
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3.5
On Bainbridge Island, remnant historic docks are traditionally repaired by
20 essentially constructing new structures, viewed as "reconstruction." This is what occurred
21 with the Morgan dock. Four of the pilings existing were wrapped in a protective,
22 environmentally safe material and a new cap or platform was placed on the piles. The
23 reconstructed structure is only 12 feet by four feet which is essentially the configuration of
24 the historic facility.
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3.6
All of Mr. Johnson's work, including his services in the Asian garden and
26 the cap on the pilings, was complete by March 2003, which is prior to the City's adoption
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1 of Ordinance No. 2003-30, a law which precludes new private docks in Blakely Harbor.
2 Invoices show that the total cost to reconstruct the dinghy dock was $2,300.
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3.7
The dinghy dock structure has multiple uses. The actual use of the facility
4 as a dock is fairly limited. Dinghy craft are lowered into the water by a solar powered
5 hoist, which is located on the shore above the bulkhead. Once the Morgans' dinghy is
6 lowered into the water, members of the family climb down the ladder from the dock to get
7 into the rowboat. The dinghy is used most regularly for high-tide "rescues" of floating
8 logs. At times, family members and guests sit on the dock, using it as a viewing platform
9 to observe Blakely Harbor and Seattle across Puget Sound. The facility can be used for
10 "dock" purposes only at fairly high tides. At normal tides (generally during Summer
11 months), it has a more limited use for boat access.
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3.8
The beach on the Morgan property is subject to severe erosion wave action,
13 acerbated by operations of the Washington State Ferry System. The beach has in recent
14 years dramatically lowered in profile and the erosion is threatening the integrity of the
15 existing bulkhead structures on the Morgan property. In the summer of2005, as an
16 experiment, Mr. Morgan placed a small amount of "round rock" or "native cobble" in the
17 higher tidal elevations on the property to determine if this rock may have beneficial effects
18 in protecting the beach from erosion, and appurtenant bulkheads. No permit or approval
19 was obtained for the work because Mr. Morgan incorrectly but in good faith assumed a
20 minor in scope experiment was allowed without regulatory review.
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3.9
A Children's Play Area has been in place and use for over 50 years on the
22 Morgan property. Its use is for play and storage of small dinghies, or other recreational
23 equipment. These uses are historic and long-standing, predating adoption of the Shoreline
24 Management Act in 1971 and the 1996 Bainbridge Island Shoreline Master Program. In
25 the summer of 2005 Mr. Morgan placed by hand under 50 yards of clean sand in this area
26 above or landward by the ordinary high water mark. Replenishment of the sand was
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1 undertaken to maintain the area for its current uses, as sand had been lost over the years
2 due to extreme high tide or storm events or by surface water running off of the upland lawn
3 down into the area. The uses of this area have not expanded, but, in fact, have constricted
4 over the years based upon interpretation of aerial photos.
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3.10 In August 2005, the City expressed "concerns" relating to several or the
6 activities on the Morgan property set out above. The City's major concern was with the
7 placement of the cobbles below the ordinary high water mark as part of the beach
8 protection experiment. An additional concern related to the re-seeding of a lawn behind
9 the existing bulkhead located on the Morgan residential property and extending to the
10 adjacent property also owned by the Morgan family. The City also expressed concerns
11 over the replenishment of the sand in the Children's Play Area, contending this work
12 occurred below the ordinary high water mark. The City also objected to collecting some
13 junk or debris in this area for transport to an approved solid waste facility. Yet another
14 concern related to constructing a "new dinghy dock" allegedly after promulgation of the
15 law prohibiting such structures in Blakely Harbor, Ordinance No. 2003-30.
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3.11 To respond to the City's concerns, first, Mr. Morgan voluntarily agreed to
17 stop all work. Second, the Morgans retained an expert biological consultant, Mr. Mark
18 Pedersen, of Margenex International, to assess any impacts associated with their activities.
19 Third, Mr. and Mrs. Morgan agreed to seek shoreline permits or permit exemptions if
20 required, either "after-the-fact" permits or exemptions, or new permits or exemptions if
21 future regulated activity was contemplated.
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3.12 Mr. Pederson prepared a report dated October 30, 2005, which was
23 submitted to the City in early November ofthat year. In his report, Mr. Pedersen described
24 the activities relating to the dinghy dock, replenishment of the sand in the Children's Play
25 Area and the cobble placement as follows:
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Small Dine:hv Dock
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Background: According to Mr. Morgan, the deck of the
small dock (12 feet by 4 feet) is removable and it was
constructed on land. When installed, it rests on three pilings
that existed when he purchased the property. These were
enclosed in plastic casing because the old pilings appeared to
contain creosote. This was done at low tide using best
management practices (BMPs) for installation. It was built
and installed for less than $2,000 in 2003. The deck is
oriented south southeast to north northwest, with the south
end abutting the existing seawall. It is used to launch and
access small rowing dinghies.
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Beach Nourishment With Rock (Cobble Placement)
According to Mr. Morgan, there was approximately 40 to 50
cubic yards of mixed (4 to 8-inch diameter) round river rock,
and 20 to 30 cubic yards of 1/8-3/8" non-select pea gravel
from Port Orchard Sand & Gravel placed on his beach
during July of this year. The large rocks (cobble) and pea
gravel were unloaded at the west end of his property where
the protrusion of the bulkhead remains next door. The
materials were transported by wheelbarrow to locations
along the upper intertidal zone at the base of the vertical
bulkhead along the Morgan property. The larger river rock
material was positioned with wheel barrows and then the
slightly smaller original material was replaced back over the
larger rock. Mr. Morgan stated he was trying to "test" if this
would mitigate the erosive effects of waves generated by the
Washington State Ferries. He was considering it a precursor
to a full-scale long-term solution to the undermining of his
bulkhead. These types of materials already existed (though
the ratio of 4-inch and larger round rock was smaller than the
previous existing condition).
Pedersen Report, p. 5.
10
Replacement Sand in the Play Area
Background: According to Mr. Morgan, there was
approximately 40 to 50 cubic yards of clean sand (#4) from
Morrison's in Port Orchard, was placed at the foot ofthe
existing retaining wall on the west property, during July of
this year. It was deposited by dump truck from the land. It
was assumed to be placed above the Ordinary High Water
Mark (OHWM). Mr. Morgan also removed old tires, rusting
metal (railroad lines) and (possibly creosoted) piling
materials from the upper beach area prior to the delivery of
the clean sand.
Pederson Report, pp. 4-5.
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3.13 Mr. Pedersen's expert analysis concluded that the impacts related to the
activities of concern to the City either were: (a) immeasurable; or (b) had a positive effect
on the aquatic environment. Specifically, as to replenishment of the sand in the Play Area,
Mr. Pedersen concluded: "This action would appear to have a net positive effect on marine
5
habitat." Assessing placement of the cobbles, Mr. Pedersen concluded:
The round rock that was placed is indistinguishable from the
existing native cobble. Some of this larger material was,
however, placed at a higher tidal elevation than most such
cobble appears on adjacent reaches of beach (except for rock
from deteriorating groins to the east). Cobble is commonly
found in the mid intertidal on this type beach during the late
spring through fall. Reach 3110 is classified as
"semi-protected" according to the BINHCA, however, this
rating may consider only natural wind and wave patterns.
There has been an increase in the frequency of ferry wakes
that likely exacerbate the coarsening of the beach in front of
the Morgan home. In the winter months, when erosion
typically occurs, cobble is found at higher tidal elevations.
The BINHCA indicates vertical wall bulkheads reflect wave
energy that hastens erosion of sediments. Rip rap is not as
bad because the interstitial spaces dissipate wave energy.
Placement of round rock at the base of the Morgan bulkhead
would have a similar beneficial effect.
Port Blakely is known to support spawning of surf smelt in
the winter, although it has not been documented on the
Morgan property. The placement of the pea gravel during
the summer months would likely have no negative effect. In
fact, this action provided nourishment of the beach materials
that could be utilized as spawning substrate for forage fishes.
This material would replenish the finer materials that may be
moved more rapidly to the west by the increased frequency
of the ferry wakes (as they turn the comer heading into Eagle
Harbor).
Placement of the large river rock will support attachment
macroalgae and provide habitat for shore crabs and other
invertebrates. Patches of fine sediment between the cobble
patches could still be utilized for forage fish spawning, if not
washed away by wave action.
Pedersen Report, pp. 5-6. As to reconstruction of the small dinghy dock, Mr. Pedersen
concluded:
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1
I conclude this feature does not have any significant negative
environmental impacts, nor were there any likely during
construction, assuming BPMs were implemented.
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Pedersen Report, p. 4.
3.14 In September 2005, Mr. Morgan advised City of Bainbridge Island officials
5 that he would pursue a shoreline substantial development or other required shoreline
6 permits or approvals for a contemplated beach nourishment and enhancement project,
7 including an "after-the-fact" permit for placement of the cobbles that occurred below the
8 ordinary high water mark. He took the position that the lawn reseeding and replenishing
9 the sand in the Children's Play Area was "subsumed" into the single family exemption for
10 residential home construction and use provided under state and local law, and no additional
11 exemption or shoreline permit was required for these activities. In the alternative,
12 Mr. Morgan took the position that the work was normal repair and maintenance of existing
13 conditions or developments and, thus, no shoreline permit was required. Mr. Morgan
14 stated to City officials that he would voluntarily request an "after-the-fact" exemption for
15 the lawn reseeding and sand replenishment if not subsumed into the exemption for
16 residential home construction and use. He took the position that when taking out junk and
17 debris in the Children's Play Area, he was engaging in an activity unregulated under the
18 Shoreline Management Act and the 1996 Shoreline Master Program. As to the dock,
19 Mr. Morgan explained he had reconstructed an existing facility but if considered new
20 construction, the work on the dinghy dock was completed before enactment of the new law
21 prohibiting docks in Blakely Harbor.
22
3.15 To their surprise, City officials were not satisfied with the Morgans'
23 response. Thus, in an effort to break the impasse, Mr. and Mrs. Morgan suggested a code
24 interpretation resolution rather than dealing with the City from the position of alleged
25 "violators." The then Director of the Department, Mr. Larry Frazier, concurred with this
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I approach, although he expressed no opinion as to the outcome of the code interpretation
2 process.
3
3.16 In 2005 as set out above, Mr. Morgan retained a team of professionals to
4 prepare data and to take surveys and gather other information in support of a permit
5 application for the proposed beach nourishment project. The work was delayed when the
6 lead firm dropped out, and was replaced in the spring of 2006 by Aspect Consulting, a
7 reputable firm located on Bainbridge Island. To date, the cost of gathering the necessary
8 information has exceeded $80,000 in consulting fees. It was anticipated that a
9 pre-application conference on the beach enhancement project could be convened with the
10 City in late January, or early February of this year, but then the City issued the Notice of
II Violation at issue, and the permitting process was placed on hold while questions related to
12 the Notice were addressed. Mr. and Mrs. Morgan still hope to construct the enhancement
13 project, since it will provide a significant net gain to the aquatic environment in Blakely
14 Harbor, but the cost of defending themselves against the City's myriad enforcement
15 actions is growing and may preclude them going forward with this worthy project at this
16 time. If the Notice of Violation is vacated, Mr. and Mrs. Morgan hope that the
17 enhancement project can proceed.
18
3.17 In July of2006, the Morgans paid the required fee, and code interpretation
19 requests were filed to determine: (I) whether the lawn re-seeding, collection and disposal
20 of the junk and debris, and the sand replenishment in the Children's Play Area was
21 regulated under the Shoreline Management Act and the 1996 Shoreline Master Program
22 ("SMP") in terms of requiring new shoreline permit approvals or exemptions; and
23 (2) whether the City would be willing to allow the Morgans to apply for an "after-the-fact"
24 shoreline exemption for the dock reconstruction. Mr. and Mrs. Morgan said they would
25 file an "after-the-fact" shoreline permit exemption for the dock reconstruction if the City
26 would accept and issue them one. To support the code interpretation, Mr. Morgan
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I submitted photos to prove the dock work was complefed in 2002, a period when
2 construction of new docks was allowed. This was necessary because the City stated the
3 dock reconstruction post-dated adoption of Ordinance No. 2003-30. The Morgans did not
4 include the cobble placement in their request because an agreement was already in place to
5 prepare and submit a shoreline permit application encompassing this activity, as part of the
6 proposed new beach enhancement project.
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3.18 The Director rejected the Morgans' Code Interpretation Requests, including
8 that for the dock. This occurred even though Mr. Morgan conclusively demonstrated that
9 the City's position that the facility was reconstructed after enactment of the Blakely Harbor
10 prohibition was in error. Thus left with no further choice, per directives of the City of
11 Bainbridge Island Municipal Code, Mr. Morgan appealed to the Bainbridge Island Office
12 of Hearing Examiner, Case No. ADM 14206. The appeal in this case is still pending. The
13 issues raised in that appeal include the recycling activity, reseeding the lawn,
14 replenishment of the sand in the Children's Play Area, and the validity of the dinghy dock
15 reconstruction. The City did not address the beach cobble placement or the enhancement
16 project in its Code Interpretation Decision, as it was already agreed between the City and
17 the Morgans that a permit application would be filed and processed in good faith by staff
18 for these activities. Thus, the cobble placement is not part of the pending appeal.
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3.19 Hearing before the Bainbridge Island Office of Hearing Examiner on Mr.
20 and Mrs. Morgans' appeal in Case No. ADM 14206 commenced on November 2, 2006.
21 The City retained outside counsel to represent its interests. The City's attorney submitted a
22 detailed brief, essentially a "bill of changes," and insisted that Mr. and Mrs. Morgan
23 answer them by presenting their testimony up-front. This approach allowed staff to avoid
24 submitting any legal and factual support to the Examiner for the Director's decision. The
25 hearing did not end that day and recommenced on November 9, 2006, where by agreement
26 of the parties, the hearing was stayed pending efforts to resolve issues. Thus, as it stands,
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1 it is uncertain any support exists for the City's position set out in response to the Morgans'
2 Code Interpretation Request.
3
3.20 At the November 9, 2006 hearing, the Examiner expressed concerns over
4 whether 'justiciable" issues were presented for review. Thereafter, by letter dated
5 December 6, 2006, the Examiner expressed his concerns in writing. In apparent response,
6 without consultation with Mr. and Mrs. Morgan or their retained legal counsel, Bainbridge
7 Island staff unilaterally rescinded the agreement to have the City's concerns addressed
8 through a Code Interpretation process, and appeal to the Examiner, and instead issued the
9 Notice of Violation at issue in this appeal. The City's Code Enforcement Officer issued
10 the Notice without any contact with Mr. and Mrs. Morgan or expenditure of effort to
11 receive their explanation. Apparently, by this step, staff hoped to avoid a ruling by the
12 Examiner in the pending appeal, going so far as to take the position that the (former)
13 Director had no authority to issue Mr. and Mrs. Morgan code interpretations, even though
14 the City agreed a code interpretation request could be filed, the City accepted the Morgan's
15 Code Interpretation Request and the City deposited the fee required for processing and
16 answering their requests.
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3.21 Mr. and Mrs. Morgan have always acknowledged that placement of cobbles
18 below the ordinary high water mark is properly considered beach enhancement per BIMC
19 ~ 16.12.360 which requires a shoreline conditional use permit. At the time the Notice of
20 Violation was received, they had already agreed to apply for an "after the fact" shoreline
.21 conditional ?se permit for the small amount of cobble placement and related work which
22 occurred, on the one hand, and seek a permit for the proposed beach nourishment or
23 enhancement project on the other. Thus, Mr. and Mrs. Morgan were at a loss to
24 understand how the City believed it could violate its agreements with citizens and property
25 owners, and issue a notice of violation under the circumstances. On December 27,2006,
26 Mr. and Mrs. Morgan set out their position in writing and requested that the Bainbridge
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1 Island Code Enforcement Officer withdraw the Notice of Violation, but she refused to do
2 so. They then timely requested a Director's Review, with the result set out above.
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IV.
GROUNDS FOR RELIEF
4.1
The Shoreline Management Act ("SMA") declares that it "is the policy of
the state to provide for the management of the shorelines of the state by planning for and
fostering all reasonable and appropriate uses." RCW 90.58.020. According to this State's
Highest Court:
The SMA does not prohibit development of the state's
shorelines, but calls instead for "coordinated planning. . .
recognizing and protecting private property rights consistent
with the public interest."
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Nisqually Delta Ass'n v. City of DuPont, 103 Wn.2d 720, 727,696 P.2d 1222 (1985)
(emphasis added); see also RCW 90.58.020. The policy of the SMA as set forth in RCW
90.58.020 strikes a balance between protection of the shoreline environment and
reasonable and appropriate use of the waters of the state and their associated shoreline.
4.2
The balance envisioned by the SMA anticipates that there will be some
impact to shoreline areas by development or continued use, repair and maintenance of
existing structures or developments: "[a]lterations of the natural conditions of the
shorelines and shorelands shall be recognized by the department." RCW 90.58.020. The
counterbalance to this shoreline development is the requirement that "[p ]ermitted uses in
the shorelines of the state . . . be designed and conducted in a manner to minimize, insofar
as practical, any resultant damage to the ecology and environment of the shoreline
area. . . ." RCW 90.58.020.
4.3
The SMA and the City of Bainbridge Island Shoreline Master Program
("SMP") allow repair and maintenance of existing uses. Specifically, the SMA exempts,
"(ii) Normal maintenance or repair of existing structures or developments, including
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damage by accident, fire, or elements." RCW 90.58.030. See also
WAC 173-27-040(1)(b), which states:
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Normal maintenance or repair of existing structures
or developments, including damage by accident, fire or
elements. "Normal maintenance" includes those usual acts
to prevent a decline, lapse, or cessation from a lawfully
established condition. "Normal repair" means to restore a
development to a state comparable to its original condition,
including but not limited to its size, shape, configuration,
location and external appearance, within a reasonable period
after decay or partial destruction, except where repair causes
substantial adverse effects to shoreline resource or
environment. Replacement of a structure or development
may be authorized as repair where such replacement is the
common method of repair for the type of structure or
development and the replacement structure or development
is comparable to the original structure or development
including but not limited to its size, shape, configuration,
location and external appearance and the replacement does
not cause substantial adverse effects to shoreline resources or
environment . . .
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Washington Administrative Code SMA Guidelines.
4.4
According to the Decision, there is no "credible evidence" that the dinghy
15 dock which existed prior to the repair work "was anything like what the Morgans built."
16 The Director alludes to the fact that "no photos" were submitted. Mr. Morgan explained at
17 the Director's review that what existed prior to the repair and reconstruction work in
18 question. There is no obligation under the law to submit photos to support narrative
19 comment and verbal explanation.
20
4.5
The Decision incorrectly determines that to qualify as exempt repair and
21 maintenance, the repaired or reconstructed structure must be of the same "size or
22 configuration." However, under the law, a repaired facility only need be "comparable" to
23 the prior condition, not an exact match. Further, replacement is allowed. It is common to
24 replace old dock facilities on Bainbridge Island with a replacement structure. The current
25 version of the dinghy dock is a valid replacement structure and falls within the SMA
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1 exemption for normal repair and maintenance because comparable to the configuration of
2 the original structure or development.
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4.6
In the alternative, if the dinghy dock is considered a new facility, which it is
4 not, it is still exempt from SMA permitting requirements because its cost is less than
5 $2500. The SMA provides that developments on the shoreline that do not exceed a fair
6 market value of$5,000 are exempt from shoreline permitting requirements.
7 RCW 90.58.030(3)(e)(vi). Private docks valued under $2,500 are also specifically
8 exempted. Id. at 90.58.030(3)(e)(vii).
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4.7
Docks are preferred uses under the policies of the SMA and the Bainbridge
10 Island SMP. WAC 173-26-231 (3) (b). These policies give preference to uses of the
11 shoreline which increase "public access to publicly owned areas ofthe shorelines," and
12 increase "recreational opportunities for the public in the shoreline" that otherwise could be
13 impacted by unrestricted development. RCW 90.58.020. In terms of altering the natural
14 conditions of the shorelines, SMA policies also give priority to construction of single
15 family residences and appurtenant structures, which include docks. Docks associated with
16 residential development are allowed to be constructed even if it is not possible to fully
17 minimize and mitigate impacts to ecological functions or critical area resources such as eel
18 grass beds and fish habitats. WAC 173-26-231 (3)(b). These policies apply to exempt
19 docks, and the Morgan dinghy dock structure meets these policies.
20
4.8
After the dock was reconstructed, the City enacted an ordinance that
21 prohibited new private docks in Port Blakely Harbor, Ordinance No. 2003-3. The dinghy
22 dock was legally in existence, so it is vested against the current prohibition. That law
23 allows repair and reconstruction of existing facilities. The City's Notice of Violation
24 affirmed by the Director states that the dock requires a statement of exemption and that the
25 application must be reviewed under the "current standards" prohibiting private docks. The
26 City's "catch-22" ("tails I win, heads you lose") approach is flawed, and illegal, either if
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the dock is viewed as a reconstructed facility or as new construction. To the extent the
2 dinghy dock is considered "new construction," since an after-the-fact exemption is allowed
3 in the City of Bainbridge Island, there is no basis in law or fact to assess the validity of a
4 structure at the time an application for the exemption is filed. The validity of the
5 construction of an exempt facility is properly determined at the time the development work
6 actually occurred. As to an existing facility, repair and maintenance is not prohibited
7 under the law in effect at this time.
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4.9
As set out above, the facility as it exists today is reconstruction of an
9 existing historical facility, not construction of a new facility. Thus, to the extent the dingy
10 dock is considered normal repair and maintenance of an existing facility, which is the
11 correct characterization, it is nonsensical to consider the validity of this existing facility
12 under the laws in effect when an "after-the;-fact" exemption is filed. This interpretation
13 would take away a legal non-conforming use status. Such a status is specifically allowed
14 and recognized under the law and the SMP. The Director has no authority to make legal
15 non-conforming uses on structures illegal under the guise of administering "after-the- fact"
16 shoreline permit exemption requests.
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4.10 The City's SMP requires any person wishing to undertake exempt
18 development on shorelines to apply to the director for an appropriate shoreline permit or a
19 statement of exemption. BIMC S 16.12.360 (A)(3). A request for a statement of
20 exemption under the SMP must be in writing, on forms required by the director, and shall
21 include the information required by the director and a filing fee in an amount established
22 by resolution ofthe City Council. See id. atSS 16.12.360(B)(2) and I6.12.360(C). The
23 current fee for a shoreline exemption is $1,800 with SEPA review. In the case of
24 development subject to the master program, but exempt from the substantial development
25 permit process, the practice of Bainbridge Island is to include "conditions" as part of a
26 written statement of exception. See BIMC S 16.12.360(B)(6). As a result, the BIMC
27
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provides that any work proposed within shoreline management areas must proceed through
2 a permitting process, regardless of whether or not a shoreline substantial development
3 permit is required. This type of process is not what is envisioned under the SMA.
4 Appellants do not suggest that the City lacks authority to review exempt projects for
5 consistency with the SMA and the policies of the SMP. The City's position, however, as
6 set out in the Notice of Violation and the Decision, is that it has the right to a de novo
7 review of the dock, which is tantamount to a permitting process for a project that is exempt
8 from permitting, since it contended the laws in effect at the time of submittal of an
9 exemption request apply; not those when a facility is repaired or newly constructed. The
10 City's position is illegal and in conflict with Appellants vested rights, and the SMA and its
11 implementing guidelines, WAC Chapter 173-26, for exempt projects.
4.11 The Shorelines Hearings Board (SHB) considered a statement of exemption
process virtually identical to that employed by Bainbridge Island in Association of
Washington Business v. State of Washington, Department of Ecology, and struck it down.
In that case, the Board analyzed whether the following process constituted improper
regulation of exempt uses under the Shoreline Management Act, and concluded as follows:
The provisions governing letters of exemption under
[Department of Ecology Guidelines] exceed the statutory
authority of the SMA. The provisions are therefore invalid.
The [required] letter of exemption operates as a permit. It
sets forth conditions and requires enforcement mechanisms
for those conditions including, possibly, a bond. These
terms create a new permitting process for activities that are
specifically exempt from shoreline permit requirements. The
letter of exemption created [by Ecology] is also devoid of the
procedural requirements of a shoreline permit, or for that
matter, any other land use permit. Additionally, the
conditioned letters of exemption do not give notice to the
public as required under RCW 90.58.140 or an opportunity
to appeal the terms of the letter of exemption under the
SMA, RCW 90.58.180(1), for the permitee [sic] or an
aggrieved third party. Putnam v. Carroll, 13 Wn. App. 201
(1975). Because the new guidelines [by Ecology] essentially
create a permit for activities that are specifically exempt for
shoreline permits, [they are] invalid.
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4.12 The Letter of Exemption requirement struck down by the SHB is identical
in all material respects to the City's current system, except the City goes further, and
charges a fee for a shoreline permit exemption. In this regard, the SHB described the
illegal "letters of exemption" requirement as follows:
Part III of the guidelines regulates exempt uses by requiring
that local governments issue letters of exemption to cover
activities that are not subject to permit requirements. Those
letters must set forth a statement that "All uses and
development occurring within the shoreline jurisdiction must
conform to chapter 90.58 RCW, the Shoreline Management
Act and this master program." WAC 173-27-
190(2)( e )(iii)(A). Part IV of the guidelines requires, in the
case of exempt developments, that the letter of exemption
include conditions "where necessary to ensure that the
development does not cause significant ecological impacts or
contribute to potential adverse cumulative impacts." WAC
173-27-300(2)(g)(i). Under Part IV, the master program
must include a mechanism for assuring that the development
meets the mitigation requirements of the letter of
exemption. This may include a performance bond. WAC
173-27-300(2)(g)(ii). Local governments must also provide
a means for final inspection of exempted development and
send the results of final inspections to Ecology.
Id (Emphasis in original).
4.13 Based upon the SHB ruling, the City of Bainbridge Island cannot apply its
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19 process to secure shoreline permit exemptions set out in the 1996 Bainbridge Island SMP
20 in a way which constitutes an illegal permit system, by attempting to apply the laws in
21 existence at the time of submittal of an exemption request for the repair or reconstruction
22 of existing facilities, or new construction of a facility lawfully allowed or permitted at the
23 time of its the repair, reconstruction or construction, not the law in existence at the time the
24 work occurred.
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4.14 The Director when addressing replenishment of the sand in the Children's
27
26 Play Area uses circular logic. Specifically, the Decision under review illegally concludes
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that the Morgans' replenishment of the sand in the Children's Play Area does not fall
2 within provisions relating to nonconforming uses, because there is "no evidence that the
3 action of placing sand in this area, in support of a children's play use or otherwise, has ever
4 occurred before." There is no support under the law for the position taken in the Decision,
5 to the effect that in order to qualify as repair and maintenance of a legal non-conforming
6 use, some repair or maintenance work had to occur in the past. Under this approach, no
7 repair or maintenance of an existing legal non-conforming use would ever be possible or
8 allowed without securing a new shoreline permit in lieu of an exemption, because the first
9 instance such repair or maintenance occurred would be the "first time" for such activity.
10 This nonsensical circular reasoning is not supported legally or factually.
11
4.15 The use of the area defined as the Children's Play Area is historic. The
12 playground use is a legal nonconforming use, which use does not require an additional
13 permit or approval. By definition, a "nonconforming use" is a use which lawfully existed
14 prior to the enactment of a zoning ordinance, and which is maintained after the effective
15 date of the ordinance, although it does not comply with the zoning restrictions applicable
16 to the district in which it is situated. City of University Place v. McGuire, 144 Wash.2d
17 640,30 P.3d 453 (Wash. 2001); Rhod-A-Zalea & 35th, Inc. v. Snohomish County, 959
18 P.2d 1024 (Wash.1998). Nonconforming uses are considered vested property rights, and
19 as such, they cannot be immediately terminated by a local zoning ordinance. Rhod-A-
20 Zalea & 35th, supra, 136 Wn.2d 1, at 6. Generally, nonconforming uses may not be
21 enlarged or extended. Meridian Minerals Co. v. King County, 61 Wn.App. 195, 211, 810
22 P.2d 31 (1991). The City did not allege in the Notice of Violation that by placing new
23 sand over old sand, the use was enlarged in any way, so it is legal activity.
24
4.16 The law allows reconstruction or maintenance of a legal non-conforming
25 use with no restriction in terms of whether or not it was previously repaired or maintained.
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Prior repair or maintenance is not a condition precedent to retain such status. The
implementing regulations for the SMA state in this regard:
(I) "Nonconforming use or development" means a shoreline
use or development which was lawfully constructed or
established prior to the effective date of the act or the
applicable master program, or amendments thereto, but
which does not conform to present regulations or standards
of the program.
(2) Structures that were legally established and are used for a
conforming use but which are nonconforming with regard to
setbacks, buffers or yards; area; bulk; height or density may
be maintained and repaired and may be enlarged or expanded
provided that said enlargement does not increase the extent
of nonconformity by further encroaching upon or extending
into areas where construction or use would not be allowed
for new development or uses.
(3) Uses and developments that were legally established and
are nonconforming with regard to the use regulations of the
master program may continue as legal nonconforming uses.
Such uses shall not be enlarged or expanded, except that
nonconforming single-family residences that are located
landward of the ordinary high water mark may be enlarged
or expanded in conformance with applicable bulk and
dimensional standards by the addition of space to the main
structure or by the addition of normal appurtenances as
defined in WAC 173-27-040 (2)(g) upon approval of a
conditional use permit.
(4) A use which is listed as a conditional use but which
existed prior to adoption of the master program or any
relevant amendment and for which a conditional use permit
has not been obtained shall be considered a nonconforming
use. A use which is listed as a conditional use but which
existed prior to the applicability of the master program to the
site and for which a conditional use permit has not been
obtained shall be considered a nonconforming use.
WAC 173-27-080 (emphasis added).
4.17 As to nonconforming uses within the City's shoreline jurisdiction, the SMP
provides similar use authorization without limitation or condition as to prior repair or
maintenance. The SMP states that:
This section applies to shoreline uses or structures which
were lawfully constructed or established prior to the
effective date of the master program, but which do not
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conform to present regulations or standards of the master
program or the policies of the Shoreline Management Act.
Nonconforming uses and development may be continued;
provided, that they shall meet the following provisions:
a. Nonconforming uses shall 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.
BIMC 9 16.12.390 (A). (emphasis added)
4.18 Ignoring its vested non-conforming status, the Decision determines that
10 replenishment of the sand requires a conditional use permit because "beach enhancement."
11 Further, if placement of the sand does not qualify as "beach enhancement," according to
12 the Decision, a conditional use permit is still required because the activity constitutes "land
13 fill.,,3 According to the Decision, since a conditional use permit is required, the
14 exemptions from shoreline substantial development permit requirements do not apply.
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4.19 The Bainbridge Island Municipal Code (BIMC) contradicts the City's
position, stating that placing sand on a beach above the ordinary high water mark is not
considered landfill. BIMC ~ 16.12.330(A) states:
Landfill is 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. Any landfill activity _n
conducted within shoreline jurisdiction must comply with the
following policies and regulations. Beach enhancement as
defined in the shoreline master program shall not be
considered landfill.
3 According to the City's Code Enforcement Officer, "greater than 50 cubic yards" of
material was placed in the Children's Play Area. There is no factual support for this
determination, and it is at odds with Mr. Morgan's testimony under oath in the pending
proceeding before the Hearing Examiner, that less than 50 cubic yards of sand was used to
replenish the Children's Play Area.
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4.20 Beach enhancement is permitted by the BIMC unless it is within spawning,
3 nesting, or breeding habitat and also where littoral drift of the enhancement materials
4 adversely affects adjacent spawning grounds or other areas of biological significance. Id.
5 at ~ 16.12.300(B). There is no evidence whatsoever of the existence of any spawning,
6 nesting, or breeding habitat at the Children's Play Area above the ordinary high water
7 mark. Further, to interpret the minor sand replenishment in this area as a "beach
8 enhancement project" is unsupported factually or legally.
9
v.
CONSOLIDATION
10 Appellants request that their appeal be consolidated with their pending appeal in
11 Case No. ADM 14206.
VI.
STAY
6.1
Appellants request a stay of the portions of the Decision set out below
during the pendency of this appeal and the related appeal, No. ADM 14206:
For the foregoing reasons, the Director's Review Decision is
to sustain the Notice of Violation. However, pursuant to
BIMC 1.26.070.B.4, I am modifying the deadlines in the
Notice of Violation as follows:
Deadline to submit pre-application conference request
application for the beach protection, nourishment and
enhancement: March 30, 2007.
Deadline to submit after-the-fact application for shoreline
conditional use permit for sand placement (or to submit
written statement electing to combine sand and cobbles in
one after-the-fact application): April 30, 2007
Deadline to submit removal plan for pier: March 30, 2007.
Decision, pp. 2-3.
27 4 The Director determined the sand was placed above the ordinary high water line.
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VII. APPEAL FEE
The appeal fee is waived per agreement with the City of Bainbridge Island.
8.1
Appellants request that the Office of Hearing Examiner, upon review:
VIII. RELIEF REQUESTED
6 its entirety.
8.2
Reverse the Administrative Decision and vacate the Notice of Violation in
Grant any other further relief that is just and fair under the circumstances.
DATED this ~ day of March, 2007.
Davis Wright Tremaine LLP
Attorneys for Tom and Beth Morgan
a/k/a Blakely Rock Holdings, LLC
f '2
By \~ J ( ) A 0'11"-
Dennis D. Reynolds, WSBA #4762
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CITY OF BAINBRIDGE ISLAND
Department of Planning & Community Development
March 13,2007
Dennis D. Reynolds
Davis Wright Tremaine LLP
8600 Century Square
1501 Fourth Avenue
Seattle, W A 98101-1688
RE: MORGAN DIRECTOR'S REVIEW I COD-:393
Dear Mr. Reynolds:
This constitutes the Director's Review Decision regarding the Notice of Violation issued
on December 21,2006, regarding tax parcels 02240240172007,02240240162008, and
02240240152009. For the reasons discussed below, my decision is that the Notice of Violation
should be sustained in content with modification of the deadline.
I note that a great deal of your client's presentation at the Director Review meeting
addressed issues related to your client's lawn replacement and removal of certain debris. The
City declined to take code enforcement action with respect to those matters. Since those matters
were notsubjects of the Notice of Violation, they are not addressed here.
Pier
The Morgans cased three pilings and constructed and installed upon those pilings a 12
foot by four foot platform. The Morgans do not dispute that the work in question required a
statement of exemption. The Morgans have not yet applied for a statement of exemption. While
the City understands that this may be because the City has taken the position that it could not
grant a statement of exemption, as a technical matter the notice of violation must be sustained
absent application for a statement of exemption.
As to the legal issue of whether the City could grant a stateme,~~ of exemption for the
work, an application for a statement of exemption m,I,l~~be evaluated un<fer the Shoreline Master
Program ("SMP") in effect at the time of the applicatio(l. The current SMP prohibits new docks
and piers within the pertinent portion of Blakely Harbor.. The fact that the Morgans' work was
done prior to enactment of this prohibition does not pre'lt!~~t application of the prohibition given
thattheMorgans failed to obtain the rMuiredstatement of~xemption fo~ their work.
EXHIBIT A
As a factual matter, the Morgans' January 5, 2007, submittal contends that the work in
question was the reconstruction of a historic faciJity. There is no credible evidence that what
existed immediately prior to the Morgan's work was anything like what the Morgans built. Mr.
Morgan's declaration states that "one group (offour pilings) had board remnants attached to
them, which could serve as a 'de facto' dock or platform access to the water." No photos were
submitted, and the qualifiers "remnants" and "de facto" mean that this declaration falls far short
of establishing that these boards constituted a platform like what the Morgans built in terms of
size or configuration. Moreover, going back further in time, there is no evidence that the pilings
used by the Morgans (at the time those piles were initially placed) supported a platform of the
size the Morgans built.
The statement in the Morgans' January 5,2007, submittal that the Blakely Harbor
settlement agreement recognizes the historic status of the pier is not correct. A number of
"remnants" were identified in Blakely Harbor in the context of the settlement agreement, but no
such "remnant" was identified on the Morgans' property.
Placement of Sand
Under the SMP, if a conditional use permit is required, such a permit must be obtained
even if an exemption from the shoreline substantial development permit requirement would
apply. In this case, the placement of sand requires a conditional use permit as "beach
enhancement." If the placement did not qualify as "beach enhancement," it would still require a
conditional use permit as "landfill."
The Morgans submitted a report dated February 16,2007, regarding the location of the
ordinary high water mark relative to the area where the sand was placed. Based on this report,
the City agrees that the sand was placed above the OHWM.
Under the SMP, beach enhancement "concerns the upgrading of terrestrial and tidal
shorelines. . . for purpose of stabilization, recreational enhancement, and aquatic habitat creation
or restoration using native or similar material." BIMC 16.12.300.A.1 As evidenced by the
Morgans' characterization of the area in question as a "children's play area," the purpose of the
sand placement was recreational enhancement and thus the sand placement qualifies as "beach
enhancement. "
However, even if the placement of sand did not qualify as "beach enhancement," it would
still require a conditional use permit as "landfill." Under the SMP, placement of sand on upland
areas "in order to raise the elevation" constitutes landfill. BIMC 16.12.330.A. While the
Morgans refer to their action as replenishing sand (suggesting raising the elevation to an
elevation that had previously existed), nonetheless the action under review did raise the elevation
-- and, indeed, to the extent that natural processes may make it necessary for such replenishment
to occur periodically, that simply emphasizes the importance of review of the impacts of such
action upon the functioning of the beach ecosystem.
I "Terrestrial" means "of or relating to land as distinct from air or water." BIMC 16.12.030.A.183.
The Morgans' argument that the play area use is a legal nonconforming use does not
change this analysis. The issue is whether the Morgans must comply with applicable permitting
requirements for the physical action of placing sand. There is no evidence that the action of
placing sand in this area, in support of a children's play use or otherwise, has ever occurred
before (with or without a permit).
Placement of Cobbles
The Morgans acknowledge that the placement of cobbles requires an after-the-fact
conditional use permit for beach enhancement.. They suggest, however, that they may not be
willing to proceed with obtaining such a permit in light of the overall expense they have incurred
in this matter. That is not a basis for overturning the notice of violation where an after-the-fact
conditional use permit is required under applicable regulations. The notice of violation
established a reasonable schedule for pursuit of the CUP, and the Morgans do not provide any
argument as to why that schedule is unreasonable.
For the foregoing reasons, the Director's Review Decision is to sustain the Notice of
Violation. However, pursuant to BIMC 1.26.070.B.4, I am modifYing the deadlines in the
Notice of Violation as follows:
Deadline to submit pre-application conference request application for the beach
protection, nourishment and enhancement: March 30,2007.
Deadline to submit after-the-fact application for shoreline conditional use permit for sand
placement (or to submit written statement electing to combine sand and cobbles in one
after-the-fact application): April 30, 2007
Deadline to submit removal plan for pier: March 30, 2007
This decision is appealable to the City Hearing Examiner pursuant to the procedures set
forth in BIMC 2.16.130. Pursuant to our previous agreement, the City will waive the appeal fee
in the event that the Morgans choose to file an appeal.
I appreciate the time taken by your experts, Mr. Morgan, and yourself in meeting with me
and explaining some of the history of the property. Thank you for your consideration of this
matter.
Sincerely,
c; COD-393
280 MADISON AVENUE NORTH. BAlNBRIOOE ISLAND, W A. 9811O~1812
PHONE: (206) 842~2552. FAX: (206) 780-0955. EMAlL: pcd@ci.bainbridge~isl.wa.us
www.ci.bainbridge-isl.wa.us
LAWYERS
1m
Davis Wright TreInaine LLP
ANCHOR AGE llElLIVUI LOS ANGElES NEW YORK PORTLAND SAN FRANCISCO SEA,TlE SHANGHAI WASH/NG,ON. D.C.
DENNIS D. REYNOLDS
DIReCT (206) 90}.3967
de n nlS J (' yno Jds@dwl.(om
2600 CENTURY SQUARE
1501 fOURTH AVENUE
SEATTLE, WA 98101-1688
TEL (20b) 622.3150
FAX (206) 628.7699
www.dwt.com
January 5, 2007
VIA FACSIMILE AND U.S. MAIL
James P. Harris, Interim Director
Dept of Planning and Community Development
City of Bainbridge Island
280 Madison Avenue North
Bainbridge Island, Washington 98110
Re: Request For Director's Review: Notice of Violation, TPN #02240240172007,
02240240162008, 02240240152009/10700, 10730, 10768, 10770 County Club Road
(Tom and Beth Morgan)
Dear Director Harris:
In accordance with Bainbridge Island Municipal Code 9 1.26.070, please treat this letter as a
Request For Director's Review on behalf of Tom and Beth Morgan. Mr. and Mrs. Morgan
reside at 10768 Northeast Country Club Road, Bainbridge Island, Washington. This Request
seeks review of a Notice of Violation dated December 21,2006 ("the Notice"), a true and correct
copy of which is annexed hereto. The Notice was received by OUT clients just before the
Christmas holiday. Our firm has acknowledged and accepted receipt of the Notice of Violation
on behalf ofMr. and Mrs. Morgan. For reasons which follow, upon review, the Notice should be
rescinded and vacated in its entirety.
The Notice addresses three discrete and separate activities occurring on Mr. and Mrs. Morgan's
ownership located on Blakely Harbor:
1. Placement of cobbles;
2. Replenishment of sand in the Children's Play Area which the Notice characterizes
as "placement of sand;" and
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3. Construction (actually repair and reconstruction) of a small dinghy pier.
The City's Notice of Violation correctly states that the intention in placing the cobbles is for
"beach protection, nourishment and enhancement." Other than that, the Notice is replete with
factual misstatements and misapplication or misinterpretation of City Code provisions. In this
Request, our clients intend to correct these errors of fact and law on the part of the Bainbridge
Island Code Enforcement Officer. Our client's request that all of their submittals to date to the
City be considered as part of the Director's review process, including three declarations, an
expert report submitted by Mr. Morgan, correspondence our finn submitted on behalf of Mr. and
Mrs. Morgan, and exhibits, briefing and testimony submitted to the Bainbridge Island Office of
Hearing Ii*aminer in Case No. ADM 1-4206.
BASIC FACTS
The Morgan property consists of four separate parcels, three of which are waterfront parcels,
located at 10700 (the modular), ] 0730 (the beach house), 10768 (the office) and 10770 Country
Club Road NE (the main house, fonnerly 10768). All of the properties are located on the
southern shore of Port B]akely on Bainbridge Is]and, and are owned by Mr. and Mrs. Morgan,
Blake]y Rock Ho]dings LLC and/or the Morgan Family Trust. Mr. Tom Morgan is the
manager/agent for Blakely Rock Holdings LLC. The parcels include 347 feet of frontage along
the shoreline.
The shoreline immediately adjacent to the Morgan property is lined with homes to the east and
west. There are bulkheads and seawalls protecting the Morgan home as well as the homes on
either side, although predominately eastward, as the westerly homes have lawn to sand beach. In
front of the Morgan home and the other Morgan properties is a concrete bulkhead that existed
when they purchased the property in 1997.
At the time of purchase in ]997, there were a number of existing pilings and more than one-half
dozen "dock" pilings near the existing bulkhead, and in front of what is now their home. Two
groups of these pilings were in straight lines. One group of four pilings had board remnants
attached to them, which served as a dock or platform to access the water.
In 2002, the Morgan family was under contract with Mr. Cecil Johnson, who was providing
construction services, included building and erecting certain bridge structures for an Asian
garden they were developing on the upland portion of their property. This garden is located
outside of Shoreline Management Act jurisdiction. Mr. Johnson suggested that it was possible to
repair the existing facility by "capping" three out of the four existing grouped pilings on the
Morgan property and provide a new or replacement surface deck, since the existing facility was
in disrepair and dangerous. According to Mr. Johnson, this facility would be "exempt" from
City permitting requirements, in part, because the cost to construct and replace the boards with
the cap would be less than $2,500. The Morgan family gave Mr. Johnson permission to proceed
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James P. Harris, Interim Director
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with the work under the condition the cost of the repair and reconstruction would be less than
$2,500.
Work on the cap for the pilings commenced shortly thereafter in 2002. All ofMr. Johnson's
work, including his services in the Asian garden and the cap on the pilings, was complete by
March 2003, which is prior to the City's adoption of Ordinance No. 2003-30 precluding new
private docks in Blakely Harbor. Invoices show that the total cost to repair and reconstruct the
dinghy dock was under $2,500. See enclosed invoice.
The dinghy dock structure has multiple uses. The actual use of the facility as a dock is fairly
limited. Dinghy craft are lowered into the water by a sblar poWered hoist, which is located on
the shore above the bulkhead. Once the Morgans' dinghy is lowered into the water, members of
the family climb down the ladder from the dock to get into the rowboat. The dinghy is used most
regularly for high-tide "rescues" of floating logs. At times, family members and guests sit on the
dock, using it as a viewing platform to observe Blakely Harbor and Seattle acrossPuget Sound.
The facility can be used for "dock" purposes only at fairly high tides. At normal tides (generally
during Summer months), it has a more limited use for boat access.
THE CITY EXPRESSES "CONCERNS"
In August 2005, the City expressed "concerns" relating to certain activities on the Morgan
property. The City's major concern was with the placement of some cobbles below the ordinary
high water mark. An additional concern related to the re-seeding of the lawn behind the existing
bulkhead located on the Morgan residential property and extending to the adjacent property also
owned by the Morgan family. The City also expressed concerns over the "placement" of
approximately 40 cubic yards of clean sand in a Children's Play Area and collecting some junk
or debris in this area for transport to an approved solid waste facility. Yet another concern
related to the dinghy dock.
To respond to the City's concerns, first, Mr. Morgan voluntarily agreed to stop alJ work.
Second, the Morgans retained an expert biological consultant, Mr. Mark Pedersen, ofMargenex
International, to assess potential impacts, if any, associated with these activities. Third,
Mr. Morgan agreed to seek shoreline permits or permit exemptions if required, either
"after-the-fact" permits or exemptions or new permits or exemptions if future regulated activity
was contemplated.
THE PEDERSEN REPORT
Mr. Pedersen prepared a report dated October 30, 2005, which was submitted to the City. In the
report, Mr. Pedersen describes the activities relating to the dinghy dock, the lawn, the Children's
Play area and the cobble placement as follows:
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James P. Harris, Interim Director
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Small Dinehv Dock
Background: According to Mr. Morgan, the deck of the sma))
dock (12 feet by 4 feet) is removable and it was constructed on
land. When installed, it rests on three pilings that existed when he
purchased the property. These were enclosed in plastic casing
because the old pilings appeared to contain creosote. This was
done at low tide using best management practices (BMPs) for
installation. It was built and installed for less than $2,0001 in
2003. The deck is oriented south southeast to north northwest,
with the"S-Ollthe-ndabuUing the exislingseawall. It is used to
launch and access small rowing dinghies.
Re-seedine of the Lawn
Background: According to Mr. Morgan, the vegetation present
behind the existing seawall was a poorly maintained lawn with
weeds. The actions taken by Morgan were: rototilling the area;
adding soil amendment, and re-seeding the area inland from the
existing seawall.
Replacement Sand in the Plav Area
Background: According to Mr. Morgan, approximately 40 to 50
cubic yards of clean sand (#4) from Morrison's in Port Orchard
was placed at the foot of the existing retaining wall on the west
property, during July of this year. It was deposited by dump truck
from the land. It was assumed to be placed above the Ordinary
High Water Mark (OHWM). Mr. Morgan also removed old tires,
rusting metal (railroad lines) and (possibly creosoted) piling
materials from the upper beach area prior to the delivery of the
clean sand.
Pedersen Report, pp. 4-5.
Beach Nourishment With Rock (Cobble Placement)
According to Mr. Morgan, there was approximately 40 to 50 cubic
yards of mixed (4 to 8-inch diameter) round river rock, and 20 to
30 cubic yards of 1/8-3/8" non-select pea gravel from Port Orchard
Sand & Gravel placed on his beach during July of this year. The
I Actually, the dock was repaired and reconstructed for under $2,500.
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James P. Harris, Interim Director
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large rocks (cobble) and pea gravel were unloaded at the west end
of his property where the protrusion of the bulkhead remains next
door. The materials were transported by wheelbarrow to locations
along the upper intertidal zone at the base of the vertical bulkhead
along the Morgan property. The larger river rock material was
positioned with wheel barrows and then the slightly smaller
original material was replaced back over the larger rock.
Mr. Morgan stated he was trying to "test" if this would mitigate the
erosive effects of waves generated by the Washington State
Ferries. He was considering it a precursor to a full-scale long-term
solution to the underrniningofhis bulkhead. These types of
materials already existed (though the ratio of 4-inch and larger
round rock was smaller than the previous existing condition).
Pedersen Report, p. 5.
Mr. Pedersen's expert analysis concluded that the potential impacts related to the activities of
City concern either: (a) were immeasurable; or (b) had positive impacts for the aquatic
environment. As to the small dinghy dock, Mr. Pedersen concluded:
I conclude this feature does not have any significant negative
enviromnental impacts, nor were there any likely during
construction, assuming BMPs were implemented.
Pedersen Report, p. 4.
As to replenishment of the sand in the play area, Mr. Pedersen concluded: "This action would
appear to have a net positive effect on marine habitat." Assessing placement of the cobbles,
Mr. Pedersen concluded:
The rOWld rock that was placed is indistinguishable from the
existing native cobble. Some of this larger material was, however,
placed at a higher tidal elevation than most such cobble appears on
adjacent reaches of beach (except for rock from deteriorating
groins to the east). Cobble is commonly found in the mid intertidal
on this type beach during the late spring through falL Reach 3110
is classified as "semi-protected" according to the BINHCA,
however, this rating may consider only natural wind and wave
patterns. There has been an increase in the frequency of ferry
wakes that likely exacerbate the coarsening of the beach in front of
the Morgan home. In the winter months, when erosion typically
occurs, cobble is found at higher tidal elevations. The BINHCA
indicates vertical wall bulkheads reflect wave energy that hastens
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James P. Harris, Interim Director
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erosion of sediments. Rip rap is not as bad because the interstitial
spaces dissipate wave energy. Placement of round rock at the base
of the Morgan bulkhead would have a similar beneficial effect.
Port Blakely is known to support spawning of surf smelt in the
winter, although it has not been documented on the Morgan
property. The placement of the pea gravel during the summer
months would likely have no negative effect. In fact, this action
provided nourislunent of the beach materials that could be utilized
as spawning substrate for forage fishes. This material would
replenish the finer materials that may be moved more rapidly to the
west by the increased frequency of the ferry wakes (as they turn
the comer heading into Eagle Harbor).
Placement of the large river rock will support attachment
macroalgae and provide habitat for shore crabs and other
invertebrates. Patches of fine sediment between the cobble patches
could still be utilized for forage fish spawning, if not washed away
by wave action.
Pedersen Report, pp. 5-6.
AGREEMENT TO SUBMIT CODE INTERPRETATION REQUEST
Mr. Morgan, in September 2006, advised the City of Bainbridge Island that he would pursue a
shoreline substantial development or other required shoreline permit for the beach nourishment
or enhancement work that occurred below the ordinary high water mark. He took the position
that the lawn reseeding, replenishing the sand, and taking the junk and other material out of the
Children's Play Area before replenishing the sand was "subsumed" into the single family
exemption for residential home construction and use provided under state and local law,
however, and no additional exemption or shoreline permit was required for the activities. He
also took the position that when taking out some junk and debris in the Children's Play Area, he
was engaging in an activity unregulated under the Shoreline Management Act and the 1996
Shoreline Master Program.
City officials were not satisfied with the Morgans' response. Thus, in an effort to break the
impasse, Mr. and Mrs. Morgan suggested a code interpretation resolution rather than dealing
with the City from the perspective of an alleged "violator," as a defendant in a code violation
proceeding. The then Director of the Department concurred with this approach, although he
expressed no opinion as to the outcome of the Code Interpretation process.
In July of2006, the Morgans paid the required fee, and official code interpretations were sought
to determine: (I) whether the lawn re-seeding and play area activities were regulated under the
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James P. Harris, Interim Director
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Shoreline Management Act and the 1996 Shoreline Master Program ("SMP") in terms of
requiring a new shoreline exemption; and (2) whether the City would be willing to allow the
Morgans to apply for "after-the-fact" shoreline approvals for the dock.
Mr. and Mrs. Morgan indicated that they believed the dock construction fell within articulated
exemptions to the shoreline substantial development permit requirements set out in the SMA, its
implementing regulations and the 1996 Shoreline Master Program. Mr. and Mrs. Morgan said
they would file an "after-the-fact" shoreline permit exemption for the dock work, if the City
would accept and issue them one. The Morgans did not include the cobble placement because an
agreement was already in place to prepare and submit a shoreline permit application
encompassing this activity.
After the Director rejected Mr. Morgan's Code Interpretation Request, per directives of the City
of Bainbridge Island Municipal Code, as set out in the Director's Code Interpretation Decision,
Mr. Morgan appealed to the Bainbridge Island Office of Hearing Examiner, Case No. ADM
14206. The issues raised in that appeal, which is pending, include the recycling activity,
reseeding the lawn, and replenishment of the sand in the Children's Play Area. The City did not
address the beach enhancement project in its Code Interpretation Decision, as it was already
agreed between the City and the Morgans that a permit application would be filed and processed
in good faith by staff, so the cobble placement is not part of the pending appeal.
Hearing before the Bainbridge Island Office of Hearing Examiner on Mr. and Mrs. Morgans'
appeal commenced on November 2,2006. For the hearing, the City retained outside counsel,
who submitted a detailed brief, used as a "bill of changes." The City's counsel insisted that Mr.
and Mrs. Morgan present their testimony up-front, a de facto shift in the burden of proof This
approach put staff in the role of avoiding presenting legal and factual support for the Director's
decision. The hearing did not end that day and recommenced on November 9, 2006, where by
agreement of the parties, the hearing was stayed pending efforts to resolve issues. At this point,
a global solution has not been reached between staff and. our clients.
At the November 9, 2006 hearing, the Examiner expressed concerns over whether "justiciable"
issues were presented for review. Thereafter, by letter dated December 6, 2006, the Examiner
set out his concerns in writing. See enclosed letter. In apparent response to the concerns of the
Examiner, without consultation with Mr. and Mrs. Morgan, City staff unilaterally rescinded the
agreement to have the City's "concerns" addressed in a non-adversarial way through a Code
Interpretation process, and has now issued the Notice of Violation at issue. Apparently, by this
step, staff hopes to avoid a ruling by the Examiner in the pending appeal. Mr. and Mrs. Morgan
do not understand why staff seeks to avoid an impartial third party review of the expressed City
position.
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SHORELINE MANAGEMENT ACT ("SMA") POLICIES
. The SMA declares that it "is the policy of the state to provide for the management of the
shorelines of the state by planning for and fostering all reasonable and appropriate uses." RCW
90.58.020. According to this State's Highest Court:
The SMA does not prohibit development of the state's shorelines,
but calls instead for "coordinated planning. . . recognizing and
protecting private property rights consistent with the public
interest. "
Nisqually Delta Ass 'n v. City of DuPont, 103 Wn.2d 720, 727, 696 P .2d ] 222 (1985) (emphasis
added); see a/so RCW 90.58.020. The policy of the SMA as set forth in RCW 90.58.020 strikes
a balance between protection of the shoreline environment and reasonable and appropriate use of
the waters of the state and their associated shoreline.
The balance envisioned by the SMA anticipates that there will be some impact to shoreline areas
by development or continued use, repair and maintenance of existing structures or developments:
"[a]lterations of the natural conditions of the shorelines and shorelands shaH be recognized by
the department." RCW 90.58.020. The counterbalance to this shoreline development is the
requirement that "[p )ermitted uses in the shorelines of the state. . . be designed and conducted in
a manner to minimize, insofar as practical, any resultant damage to the ecology and environment
of the shoreline area. . . ." RCW 90.58.020.
Docks are preferred uses under the policies of the SMA and the Bainbridge Island SMP . WAC
173-26-231 (3)(b). These policies give preference to uses of the shoreline which increase "public
access to publicly owned areas of the shorelines," and increase "recreational opportunities for the
public in the shoreline" that otherwise could be impacted by unrestricted development. RCW
90.58.020. In terms of altering the natural conditions of the shorelines, SMA policies also give
priority to construction of single-family residences and appurtenant structures, which include
docks. Docks associated with residential development are allowed to be constructed even if it is
not possible to fully minimize and mitigate impacts to ecological functions or critical area
resources such as eel grass beds and fish habitats. WAC 173-26-231(3)(b). These policies apply
to exempt as well as non-exempt docks.
1. Placement of Cobbles
Mr. and Mrs. Morgan acknowledge the placement of cobbles below the ordinary high water
mark is properly considered beach enhancement per BIMC S 16.12.360 which requires a
shoreline conditional use permit. They have already agreed to apply for an "after the fact"
shoreline conditional use permit for the work which occurred, on the one hand, and seek a permit
for the proposed beach nourishment or enhancement project on the other. This agreement was
made after the former Director of Planning and Community Development agreed that
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enforcement action would not be taken. Mr. and Mrs. Morgan are at a loss to understand how
the City believes it can violate its OWn agreements with citizens and property owners, and issue a
notice of violation under these circumstances. Hopefu))y, if you wi)) exercise sound judgment,
the City staff will direct focus on solutions, not punishment, and this worthy project can proceed.
Mr. Morgan has retained a team of professionals, including Aspect Consulting, and other
professionals, to prepare data and to take surveys and gather other information in support of
permit application for the proposed beach nourishment project. To date, the cost of gathering the
necessary information has exceeded $80,000 in consulting fees. It is anticipated that the
pre-application conference on the beach enha.nc~ment P!oj~ct~a.~. be convened with the City in
late TailUary, or eariyFebruary of this year, if the project is pursued. That is now an open
question. Mr. and Mrs. Morgan still hope to construct the enhancement project, since it will
provide a significant net gain to the aquatic environment in Blakely Harbor, but the cost of
defending themselves is growing and may preclude going forward with this worthy project.
Hopefully, the Director will exercise sound judgment, vacate the Notice and direct City staff to
focus on solutions, not punishment. If the Notice is vacated, the enhancement project can
proceed.
The whole approach of the City of Bainbridge Island in this matter is suspect. First, the City's
own procedures require the Code Enforcement Officer to meet with citizens and obtain voluntary
compliance, without issuing a formal notice of violation, but this has not occurred. In this case,
our clients have already agreed to do exactly what the City's Notice of Violation states is
required: prepare and file a permit application. Second, Mr. and Mrs. Morgan have
constitutionally protected rights, including the right to use and develop the property in a
reasonable fashion, and to be free of arbitrary governmental decision making, which have not
been taken into consideration.
On December 27, 2006, Mr. and Mrs. Morgan requested that the Bainbridge Island Code
Enforcement Officer withdraw the Notice ofYiolation, but she refused to do so. This error
needs to be corrected through the Director's review process. The failure of the Code
Enforcement Officer to follow prescribed procedures or recognize our client's civil rights by
withdrawing the Notice of Violation is most unfortunate.
2. Replenishment of Sand
At the hearing before the Examiner, Mr. Morgan testified that the sand placed in the Children's
Play Area was less than 50 cubic yards. This factual testimony is totally ignored by the City's
Code Enforcement Officer, who claims that "greater than 50 cubic yards" of material was placed.
The only way the Code Enforcement Officer gets to this strained conclusion is by considering
placement of the replenishment sand in the Children's Play Area as part of the same project,
which, according to her, includes placing cobbles below the ordinary high water mark.
Mr. Morgan has testified under oath that these two activities are separate and distinct. It is
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arbitrary and nonsensical for the City to try to lump the two distinct activities together, simply to
support issuance of an i II-advised notice of violation.
At the hearing before the Examiner, an expert witness, Mr. Mark Petersen, testified that
placement of the sand in the Children's Play Area was landward of the ordinary high water mark.
A site view would demonstrate that the sand which was placed in August, 2005, is still in place,
despite the extreme high storm events which occurred in 2006. At most, some minor erosion of
the sand caused by rainwater sheeting across the existing lawn has occurred. Mr. and
Mrs. Morgan have requested that Mr. Pedersen place his OHWM delineation in writing. Once
available, it will be forwarded to your attention.
The Children's Play Area, as Mr. Morgan testified under oath, has been in place and use for over
50 years. Its use is for play and storage of small dinghies, or other recreational equipment.
These uses are historic and long-standing. These uses predate adoption of the Shoreline
Management Act in 1971 and the 1996 Bainbridge Island Shoreline Master Program.
Replenishment of the sand was simply to maintain the area for its current uses. The uses of this
area have not expanded, but, in fact, have constricted based upon interpretation of aerial photos.
The question ofthe validity of the replenishment of the sand is already before the Hearing
Examiner, and is being answered in an orderly fashion. In that proceeding, as noted, Mr. and
Mrs. Morgan contest the City's authority to require a shoreline conditional use pennit. The
Morgans position is the replenishment of the sand is "subsumed" under the existing shoreline
exemption for a single family home use, or, ifnot, would still be repair and maintenance of an
existing, historic use, which is exempt from SMA permitting requirements.
The City's Code Enforcement Officer appears to have ulterior motives in issuing the Notice of
Violation. One staffperson employed by the Department of Planning and Community
Development, Mr. Peter Best, has insisted that the Morgans combine the sand replenishment
with a permit for the beach restoration or enhancement project. The Morgans have refused to do
so, as the replenishment of the sand is a totally separate activity from the proposed beach
enhancement project. This individual apparently now seeks to force Mr. and Mrs. Morgan to
"restore,,2 native vegetation in the Children's Play Area, which ifdone, would negate use ofthe
area for any other activity other than shoreline restoration. Property owners should be free to
make their own permitting choices, including whether to voluntarily restore site conditions
resulting from historic development predating adoption of the SMA.
Further, the Morgans have actively opposed policies urged for adoption by this individual to the
Bainbridge Island City Council, including a prohibition of private docks in Blakely Harbor. The
Morgans opposition has been public. The same individual was able to institute code
enforcement actions against the Morgans' neighbors, Mr. and Mrs. Hacker, who also oppose
2 The absence of any natural vegetation is the pre.action condition. The Morgans did nothing which impacted native
vegetation at the site because there is none.
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Mr. Best's urged shoreline regulatory policies. This retaliation cost the City thousands of dollars
in damages after the Examiner rejected the City's enforcement actions as to the Hackers in all
material respects.
Now, Mr. Best's retaliation has shifted to the Morgans, as it appears he has been able to urge the
City's Code Enforcement Officer to issue the Notice of Violation in question. Mr. and Mrs.
Morgan have a right to comment on public proposals and, in good faith, to use administrative
procedures to contest staff interpretations, including filing Code Interpretation Requests and
pursuing appeals to the Office of Hearing Examiner. Issuance of the Notice of Violation is
blatant retaliation for Mr. and Mrs. Morgans exercise of their basic civil rights, and it should be
immediately withdrawn.
The City's Notice of Violation treats the minor sand replenishment as "beach enhancement" and
potentiaUy"landfill." It is neither. The Bainbridge Island Municipal Code (BIMe) contradicts
this position, stating clearly that placing sand on a beach is not considered landfiU. BIMC ~
16.12.330(A) states:
Landfill is 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. Any landfill activity conducted within shoreline
jurisdiction must comply with the following policies and
regulations. Beach enhancement as defined in the shoreline master
program shall not be considered landfill.
Id. Enhancement, on the other hand, is permitted by the BIMC unless it is within spawning,
nesting, or breeding habitat and also where littoral drift of the enhancement materials adversely
affects adjacent spawning grounds or other areas of biological significance. Id. at
g 16.12.300(B). There is no evidence whatsoever of the existence of any spawning, nesting, or
breeding habitat at the Play Area. Further, to interpret the sand replenishment as a "beach
enhancement project" is a stretch, to say the least. The Morgans are indeed proposing a beach
enhancement project, but that proposal is significantly different in kind, as weU as degree, from
what is involved in this appeal.
The Notice aUudes to the need to secure a required conditional use permit. The use as a
children's play area is historic, however, and has been aU owed for generations. The playground
use is therefore considered a legal nonconforming use, which use does not require an additional
pennit or approval. By definition, a "nonconfonning use" is a use which lawfully existed prior
to the enactment of a zoning ordinance, and which is maintained after the effective date of the
ordinance, although it does not comply with the zoning restrictions applicable to the district in
which it is situated. City of University Place v. McGuire, ] 44 Wash.2d 640, 30 P.3d 453 (Wash.
2001); Rhod-A-Zalea & 35th, Inc. v..Snohomish County, 959 P.2d 1024 (Wash.]998).
SEA J933504vl 0064764-{)OOOO7
Seattle
James P. Harris, Interim Director
January 5, 2007
Page 12
1m
Nonconforming uses are considered vested property rights, and as such, they cannot be
immediately terminated by a local zoning ordinance. Rhod-A-Zalea & 351h, supra, 136 Wn.2d I,
at 6. Generally, nonconforming uses may not be enlarged or extended. Meridian Minerals Co.
v. King County, 61 Wn.App. 195,21 1,810 P.2d 31 (1991). The City has not alleged in the
Notice that by placing new sand over old sand, the use is enlarged in any way.
The Washington Administrative Code (WAC) is in accord when addressing nonconforming uses
in relation to a Shoreline Master Program. The WAC standards also provide that nonconforming
uses (which were in place prior to adoption of the master program) may continue but the
nonconformity may not be expanded or enlarged. See WASH. ADMIN. CODE 173-27-080 (2006).
The statute specifically provides:
(I) "Nonconforming use or development" means a shoreline use or
development which was lawfully constructed or established prior
to the effective date of the act or the applicable master program. or
amendments thereto, but which does not conform to present
regulations or standards of the program.
(2) Structures that were legally established and are used for a
conforming use but which are nonconforming with regard to
setbacks, buffers or yards; area; bulk; height or density may be
maintained and repaired and may be enlarged or expanded
provided that said enlargement does not increase the extent of
nonconformity by further encroaching upon or extending into areas
where construction or use would not be allowed for new
development or uses.
(3) Uses and developments that were le2ally established and are
nonconforming with regard to the use regulations of the master
proR:farn may continue as legal nonconforming: uses. Such uses
shall not be enlarged or expanded, except that nonconforming
single-family residences that are located landward ofthe ordinary
high water mark may be enlarged or expanded in conformance
with applicable bulk and dimensional standards by the addition of
space to the main structure or by the addition of normal
appurtenances as defined in WAC 173-27-040 (2)(g) upon
approval of a conditional use permit.
(4) A use which is listed as a conditional use but which existed
prior to adoption of the master program or any relevant amendment
and for which a conditional use permit has not been obtained shall
be considered a nonconforming use. A use which is listed as a
conditional use but which existed prior to the applicability of the
SEA I 933504vl 0064764-000007
Sealtle
James P. Harris, Interim Director
January 5, 2007
Page 13
iii
master program to the site and for which a conditional use permit
has not been obtained shall be considered a nonconforming use.
See id. (emphasis added).
As to nonconforming uses within the City's shoreline jurisdiction, the SMP provides similar use
authorization. The SMP states that:
This section applies to shoreline uses or structures which were
lawfully constructed or established Drior to the effective date of the
master- PTosam, but which do not conform to present regulations
or standards of the master program or the policies of the Shoreline
Management Act.
Nonconforming uses and development may be continued;
provided, that they shall meet the following provisions:
a. Nonconforming uses shaH not be altered or expanded in
any way that increases the nonconformity.
b. If a nonconfonning use is discontinued for 12 consecutive
months, any subsequent use shaH be conforming.
c. A nonconforming use cannot be changed to another
nonconforming use.
BIMC ~ 16.12.390 (A). Consequently, the Play Area use is a legal nonconforming use, which
may continue without the necessity of an additional conditional use permit, and is consistent in
aH respects with the City Code and applicable State law. At most, an "after-the-fact" exemption
for normal repair or maintenance is required, if the Director determines the activity is not
subsumed into the single-family residential use exemption.
3. Dinghy Dock.
At the time the dinghy dock was repaired and reconstructed, shoreline use regulations alJowed
the siting, construction and utilization of private docks in Blakely Harbor. In addition, repair of
existing facilities was allowed under a shoreline moratorium imposed by the City in August,
2001.3
Mr. Best has made removal of a smaH dinghy dock located on the Morgans property a
philosophical priority since his discovery of the facility in August, 2005. As set out above, the
dock was repaired and reconstructed in 2002, with the work completed in early 2003. Mr. and
J The City's shoreline moratorium has twice been declared illegal by the Washington courts.
SEA 1933S04vl 0064764-000007
Seallle
James P. Harris, Interim Director
January 5,2007
Page ] 4
1m
Mrs. Morgan have entered into a settlement agreement with the City Council, which documents
the historic status of the Morgan facility. Yet Staff apparently disagrees with the City Council's
actions, since they have continued to state publicly that the Morgan dock is "illegal."
The small dock platform measures only 12' x 4', and is actually a reconstruction of an existing
historic facility, not a construction of a new facility. After the dock was reconstructed, the City
enacted an Ordinance that prohibited new private docks in Port Blakely Harbor. As the
Morgans' dock was legally in existence, it is vested against this subsequent prohibition. The
vested status was immediately disputed by the City, however, with Mr. Best claiming that the
dock had to be removed because there was "no evidence" that it was reconstructed prior to
adoption of the new law, Ordinance No. 2003-30. Only after the Morgans provided
documentary and photographic evidence to the City conclusively proving the existence of the
dock prior to the enactment of Ordinance No. 2003-30, did the City rescind its removal directive.
Now, over three years after the dock reconstruction and repair, the City's Notice states that the
work requires a statement of exemption and that the application must be reviewed under the
current standards prohibiting such docks. In effect, if your dock was built before enactment of
Ordinance No. 2003-30 it must be removed, and if it was built after the Ordinance, it still must
be removed. The City embraces this Catch-22 ["tails I win, heads you lose"] approach in the
Notice. The City's position, however, is flawed and illogical.
The SMA provides that developments on the shoreline that do not exceed a fair market value of
$5,000 are exempt from shoreline permitting requirements. RCW 90.58.030(3)(e)(vi). Private
docks valued under $2,500 are also specifically exempted. !d. at 90.58.030(3)(e)(vii). Further,
repair and maintenance of existing facilities are exempt. RCW 90.58.030(3)(e).
The City's SMP requires any person wishing to undertake exempt development on shorelines to
apply to the director for an appropriate shoreline permit or a statement of exemption. BIMC ~
16.12.360 (A)(3). The Morgans do not suggest that the City lacks authority to review exempt
projects for consistency with the SMA and the policies of the SMP. The City's position,
however, as set out in the Notice, is that it has the right to a de novo review of the dock, which is
tantamount to a permitting process for a project that is exempt from permitting. What the City
really wants is authority to collaterally deny a vested development that is exempt from the
requirements of the SMA. This position violates the SMA and the Washington State
Constitution, Article XI, Section 11.
CONCLUSIONS
In sum, the notice is factually and legally baseless and so it should be vacated. In addition, our
clients object to the City's approach in this matter. On the last point, Ms. McKnight has a
practice of making decisions without initiating any prior contact with the property owners. She
makes assumptions as to activities or developments on a site, and comes to unilateral and
uninformed conclusions. She does not attempt to interview the involved property owners. Then,
SEA 1933504vl 0064764..()OOOO7
Seattle
James P. Harris, Interim Director
January 5, 2007
Page 15
1m
based upon misperceptions, a Notice ofYiolation is issued. This action immediately creates an
adversarial and costly situation between the property owners and the City, even though the
alleged purpose of the City's enforcement program is to secure voluntary compliance.
How is it possible to engage the easy cooperation of property owners with this type of approach?
Obviously, it is not. Nonetheless, our clients are desirous of meeting with yourself, and the City
attorney, to provide a fuJ] explanation of their activities, and to answer any concerns on
questions. 1 will attend the Director's Review meeting. Please schedule the Director's Review
Meeting directly with our office. Thank you for your attention to Mr. and Mrs. Morgan's
Request for Director's Review.
Yery truly.yours,
Davis Wright Tremaine LLP
~- ~.e,"'1k
Dennis D. Reynolds
Enclosures
cc: Tom Morgan (w/o end)
Paul McMurray, City Attorney (w/encl)
SEA 1933504vl 0064764.{)OOOO7
Seaule
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CITY OF BAINBRIDGE ISLAND
Department of Planning & Community Development
December 21,2006
Tom and Beth MorganlBlakely Rock Holdings LLC
c/o Dennis D. Reynolds
Davis Wright Tremaine LLP
2600 Century Square
1501 Fourtb Avenue
Seattle, WA 98101-1688
RE: TPN# 02240240172007, 02240240162008, 02240240152009/
10130, 10768; 10770 COUNTRY cum 'ROAD I NdtiCE OF vrOLA TION
Dear Mr. and Mrs. Morgan,
Since August 2005, the City has been working with Mr. Reynolds and the Morgans regarding
numerous concerns regarding work activity occurring within the shoreline jurisdiction without the
necessary permits or reviews. In July 2006, an administrative code interpretation request was
submitted. by Mr. Reynolds on behalf of the Morgans for determination by the director regarding
some of the discussed concerns. The decision on this request was issued August 31, 2006 and was
subsequently appealed September 13,2006. In light of the Hearing Examiner's concerns regarding
his jw-isdiction over the appeal, and given the need to establish an enforceable schedule for
compliance, tbe City is issuing this notice of vioJation. The notice of violation may be amended in
order to cite additional authority for a stated violation. .
As set forth below, the placement of cobbles and sand on the beach, and the construction of a pier,
without authorization are violations o( Chapters 16. I 2, Shoreline Master Program, and 15.04,
Building Code.
). Placement of cobbles.
Consistent with the stated intention that the cobbles are providing "beach protection, nourishment
and enhancemel!t" the notice of violation will address the work activity as said. Should the scope of
. the work change, or the proper permits not be obtained, the cobbles may be required to be removed.
The placement of large cobbles at the base of the bulkhead, groin and on the beach can be considered
beach enhancement and as such are a violation ofBIMC Sections 16.12.290(B)(2), .300(A), and
.360(A)(4) and Table 4-1 of the Bainbridge Island Shoreline Management Master Program (SMMP)
and Section VI (B) of the SMMP(not codified) in tbe absence of a conditional use permit The
cobbles placed on the property along with the sand placed on the property, totaling greater fh~'50
cubic yards, without a grading permit is a violation of Section 15.04.020 of the Bainbridge Island
Municipal Code. The Morgans may submit an after-the-fact shoreline conditional use permit
application for a beach protection, nourisrunent and enhancement project, including the cobbles
already placed on the beach.
. .
.
RE: TPN# 02240240172007, 02240240162008, 0224024~)} 52009/
10730, 10768, 10170 COUNfRY CLUB ROAD / NOTICE OF VIOLA nON
Page 2 ofl
The following deadlines apply:
You must submit a pfl~-appJication conference request application for the beach protection,
nourishment, and enhancement by 4:00 p.m. on March 2,2007. The pre-application conference must
be held within three weeks of the request Within three months of the date of the pre-application
conference, you must submit the shoreline conditional use application (SCUP). Any information
requested by the City for review of the SCUP must be submitted expediently to allow for the pennit
to be processed by December 31, 2009. As a significant number of specialists have been reviewing
and preparing the submittal for the past year, I expect these deadlines will not be problematic to
meet
2. Placement of sand
The placement of sand on the beach without obtaining a conditional use permit constitutes a violation
ofBIM:C Sections 16.12.300(A) pnd .360{A)(4) and Table 4-1 of the SMMP and Section VI (B) of
the SMMP(not codified). Depending on the location of the Ordinary High Water Mark there may be
a violation ofBIMC Section 16.12.330{A). Tho sand placed on the property along with fhe cobbles
placed on the property, totaling greater tban 50 cubic yards, without a grading pennif is a violation of
Section 15.04.020 of the Bainbridge Island Municipal Code.
The Morgans may submit an after-the-fact application for a shoreline conditional use permit for. the
placement of the sand. If the Morgans choose to submit a separate application for the placement of
-the sand (as distinct from the placement ofihe cobbl.e), such application must be submitted by March
2,2001. The City strongly encourages that the sand and cobbles be combined into one after-the-fact
application. If the Morgans choose to pursue this option, the Morgans must elect to do so in a written
statement by March ~, 2007, at which point the deadlines set forth above for the shoreline conditional
use permit for the cobble will apply. Ifthe Morgans do not submit either a separate application or
statement of election by March 2, 2007, or jf an appropriate permit is not ultimately issued, the
Morgans will seek fines and restoration of native dune grass in the backshore area waterward of the
bulkhead.
3. Pier
The construction of a pier located on the above referenced parcel without obtaining a statement of
exemption cr shoreline substantial development permit, and without obtaining a building permit, is a
violation ofBIMC Sections 16.l2.340(A), .340(B)(9), .340(C)(1), .340(0)(11), .340(G)(6),
.360{A){I), .360(A){2), .360(A)(3), .360(B)(1) and 15.04.020. The Ciiy could not approve an after-
the-fact application for the pier under applicable regulations. Therefore, you must remove the pier.
You must submit a removal plan for the pier to the City for approval, including a proper disposal
location and timeline, by 4:00 p.m. on January 26,2007.
. .
&.'
RE: 1PN# 02240240172007, 02240240]62008, 02240240152009/
J 0730, 10768, ] 0770 COUNTRY CLUB ROAD I NOTICE OF VIOLA nON
Page 3 of3
- -
With respect to all three oflhe foregoing items, if you intend to bring the property into compliance
but caf1l!ot meet the stated deadline, please contact this office. Jf compliance is not obtained by said
date, and you have not received an extension, this matter wdl be referred to the prosecuting attorney
for enforcement action, in accordance with BIMC Section 1.26.110 and 1.26.090. Any subsequent
violations may result in criminal prosecution as provided in BlMC 1.26.100.
You may requosl a review of this matter by the director. Under the City's Code, the request must be
made in writing within seven days after.service of this notice. As an accommodation in light of the
holiday season, the city will extend that deadline until 4:00 p.rn. on Friday, January 5, 2007, if the
deadline would otMrwise fall before that date. Thus, a request for nwiow rnust be made in ~ting
wi#IiD- S"evendaYSlft!nervta~nni~1il)1fco, 'of 1>y2J:tJ[Jp.m: on Friday, "Jinuary 5; '2-001, WliiCTiever
is later. I appreciate your expedient attention to this matter.
Sincerely,
r
Meghan McKnight
Code Enforcement Officer
c: JlImea P. Hania. Imcri.. Dircc:lor
rcleo- Nlmlvedl-Ooal, Associate PIIMU
lcffWcbct. Bude &. Ootdoo LLP
Sent Certiliod &. RO&1d., Moil: 70060100 COOS 2902 9SU
Sent CllItificd &. Regular Mail; 70060100 OOOS 2902 9S39
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Bainbridge Wind, W A 9811 0
280 MADISON AVENUE NORTH 0 BAlNBRlDOE ISLAND, W A. 98110-1812
PHONE: (206) 842-2552 · PAX: (206) 780-0955 ~ EMAiL: Pcd@ci.bainbridge-isl.w8.us
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CITY OF BAINBRIDGE ISLAND
December 6, 2006
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Dennis Reynolds
Davis Wright Tremaine. LLP
2600 Century Square
1501 Fourth Avenue
Seattle, WA 98101
Jeffrey Weber
Duncan Green
Buck & Gordan, lLP
2025 First Avenue, Ste 500
Seattle, WA 98121
Re: Morgan, et al v. City of Bainbridge Island, ADM 14206
Dear Gentlemen:
I am requesting assistance from you.
First of all, I need to know what are the "justiciable" issues before me?
Secondly, I would like to know what portions of the Bainbridge Island Municipal
Code authorize me to hear this case. Third,l would like to know what the legal
impact of my decisior will be when and if I do rendera 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 <;fecision
is appealable. .
In reviewing photographs of the site, it appears to me that currently the
small deck/dock has more support posts than .would be anticipated if only left
over remaining pilings were used. Could you please look into this?
Gentlemen, I still have concerns about the lack of any justiciable issue in
frorit of me and I need your assistance. Pleasehave a response to all of the
above concern3 before the Christmas holiday.
dc
.cc: Diane Sawyer
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