HEX Morgan Decision 4-21-11SPB15435-60
Page 1 of 6
DECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of
Michael Morgan SPB15435-60
From an Administrative Decision
Of the Director, Dept. of Planning and
Community Development
Introduction
Michael Morgan appealed the administrative decision issued by the Director,
Department of Planning and Community Development, regarding the denial of the
programmatic buoy application for approval of a recreational buoy in Fletcher Bay.
A public hearing on the appeal was held April 7, 2011. Mr. Morgan represented
himself and Josh Machen, Planning Manager, represented the Director, Department of
Planning and Community Development.
All section numbers in the decision refer to the Bainbridge Island Municipal
Code, unless otherwise indicated.
After due consideration of all the evidence in the record consisting of the
testimony at the hearing and the documentary evidence admitted at the hearing, the
following shall constitute the findings, conclusions, and decision of the Hearing
Examiner in this matter.
Findings
1. The City of Bainbridge Island processed a programmatic shoreline substantial
development permit intended to bring buoys in waters around Bainbridge Island into
compliance with the SMP by recognizing buoys in existence prior to the requirement for
permits and provide an inexpensive and streamlined permitting mechanism for those
installed since 1996 without a permit and future buoys. The programmatic SSDP
included twelve conditions for approval of applications for the buoys.
2. In October 2010, Leann McDonald applied on behalf of Michael Morgan
(hereafter “Applicant”) for approval of a recreational mooring buoy in Fletcher Bay
adjacent to Applicant‟s property at 8815 Woodbank Drive NE. The buoy had been
installed since 1996. On February 14, 2011, the Director, Department of Planning and
Community Development (“Director”), issued her Notice of Administrative Decision,
SPB15435-60
Page 2 of 6
Exhibit 1, Attachment. A letter accompanying the Notice of Administrative Decision
explained that the denial was based on Condition No. 3 of the programmatic buoy
approval that prohibits approval of buoys under the programmatic permit if they are
located in a location that is mapped or meets the definition of being an Aquatic
Conservancy Shoreline designation. The letter stated that Fletcher Bay meets the
definition of an “Aquatic Conservancy Shoreline area.” Exhibit 1, Attachment.
Applicant appealed the administrative decision on February 25, 2011.
3. The “inner” part of Fletcher Bay is mapped in the City‟s Shoreline Management
Plan as an Aquatic Conservancy Area. Applicant‟s buoy is located in the “outer” portion
of the bay that is not so mapped.
4. An area is designated Aquatic Conservancy environment if it fits any of four
regime descriptions “whether or not it is mapped as such.” Section 16.12.140J.2.
Regime I is tidal lagoons, defined as “Bodies of saline water…with a constricted or
subsurface outlet that is subject to periodic, but not necessarily daily, exchange of water
with Puget Sound or a tidal inlet. The connection between the sea and the lagoon may be
subsurface through permeable gravel or sand berms.” The section states there are two
currently identified tidal lagoons, Tolo Lagoon and Battle Point Lagoon.
5. The Director‟s determination was based on previous work done by the
department. In October 2004, Peter Best, then a planner with the Department of Planning
and Community Development, contacted Hugh Shipman, a shoreline geologist employed
by the state Department of Ecology familiar with Bainbridge Island and Puget Sound, for
assistance in determining whether Fletcher Bay is a “tidal lagoon”. Exhibit 3,
Attachment A.
6. Best offered his opinion to Mr. Shipman that Fletcher Bay meets the criteria of a
tidal lagoon and described Fletcher Bay as characterized by a spit at its mouth, extending
from south to north, consistent with the direction of net-shore drift from Point White to
Battle Point. He said that behind the spit is a tidal delta of sand and gravel formed by the
velocity of flooding tides with a basin behind the delta with a depth of maybe –12 feet
MLLW which always stores water at low tide. Beyond this basin, he said that Fletcher
Bay is best characterized as a low-gradient sand and/or mud flat. He reported that local
residents advised him that Fletcher Bay is tidally influenced above a tidal elevation of
approximately +2 feet MLLW. Two major fish-bearing streams drain into the end of
Fletcher Bay and several seasonal drainages discharge through the rest of the bay and
make it an estuarine environment.
7. Mr. Shipman responded, in part:
This definition (the BI SMP definition of „tidal lagoon”) would seem to
include bodies of water for which the connection to the main body of
Puget Sound is significantly restricted, but where marine influence still
dominates the hydrology. I would interpret this to preclude more open
inlets such as Eagle Harbor or Manzanita Bay, where tidal exchange is
largely unrestricted, but I would expect it to apply to features such as
SPB15435-60
Page 3 of 6
Fletcher Bay or the tidal water body behind the Point Monroe sand spit.
The definition is also clearly written to extend to the aquatic systems at
Battle Point and Tolo Lagoon, where there is even greater restriction of
tidal exchange between the features and the open marine environment.
Exhibit 3, Attachment B.
8. Mr. Shipman did say that there are other terms that might be applied to Fletcher
Bay such as pocket estuary, estuarine lagoon, restricted stream-mouth estuary, barrier
estuary, drowned stream-valley estuary with an enclosing spit. “Which term is used may
depend on the situation and the need to emphasize salinity regime, tidal exchange,
ecological character, or geological history.”
9. In December 2004, Best advised the then director that he believed that Fletcher
Bay meets the classification criteria for tidal lagoons and that the map for Fletcher Bay is
in error and recommended that Fletcher Bay in its entirety should be mapped as an
Aquatic Conservancy shoreline environment designation “because it meets the
designation criteria under Regime I and contains the types of sensitive environmental
features that the Aquatic Conservancy designation is meant to protect.” Exhibit 3,
Attachment C. He offered that the shallow, low-velocity, estuarine waters of the bay
serve as an important nursery where outmigrating juvenile salmon undergo physiological
transformation, spend time rearing, seek refuge, and migrate and serve nursery functions
for important forage fish and other fish and invertebrates, along with important functions
for birds and wildlife and where oysters are able to exist without cultivation.
10. At some point after this communication to the then director, planning staff was
advised to regard all of Fletcher Bay as Aquatic Conservancy indicating that the director
agreed with the recommendation. Testimony of Machen. The map remained unchanged.
11. Section 16.12.140J.1 states the purpose of the designation:
The aquatic conservancy environment is intended to preserve those
portions of the marine waters of the city whose existing natural state is
relatively free of human influence, or whose resources, biological
diversity, or other features are particularly sensitive to human activity, or
whose unique historical, archaeological, cultural, or educational features
merit special protection.
* * *
12. The inlet to Fletcher Bay is much larger than that for the two lagoons specified in
the Regime I description and Fletcher Bay is a navigable waterway with watercraft
moored in the bay year round. More than two thirds of the properties on the bay have
floats, piers and/or buoys. Testimony of Morgan. The bay has a long history of moorage
and recreational boating use. Testimony of Beierle.
13. The decision to treat the entirety of Fletcher Bay was not accompanied by any
formal process in that there was no public notification, map change, public hearing or
adoption of a formal ruling.
SPB15435-60
Page 4 of 6
14. Staff anticipate that the status of Fletcher Bay will be clarified as part of the City
Council‟s action on the update to the City‟s Shoreline Master Program.
15. Section 16.12.140J.3 requires the city to map the limits of the designation. It
provides that “(w)here there is a conflict between the map and criteria, the criteria will
prevail provided a report is prepared by a qualified professional verifying that the map is
in error. The report will be the responsibility of the party requesting the map change.”
Conclusions
1. The Hearing Examiner has jurisdiction to hear and decide this appeal pursuant to
Section 2.16.095.
2. Grounds for appeal asserted by Applicant are that:
1) Permitting the buoy would be consistent with current use of Fletcher Bay;
2) The outer portion of Fletcher Bay is different from the designated and mapped
Aquatic Conservancy Areas; and
3) Due process was denied in the designation change to Aquatic Conservancy.
3. The Code provides that where there is a conflict between the map showing the
aquatic conservancy area and the criteria, the criteria prevail over the mapping, “provided
a report is prepared by a qualified professional verifying the map is in error.” If that
provision is to be read literally, because the Applicant seeks to rely on the map and it is
the Department that perceives a conflict between the map and the criteria, it is the
Department that must have such a report prepared. The Department argues that the
provision applies only when someone claims that the mapping of aquatic conservancy
area includes property that does not meet the criteria, so the party making that claim must
provide such a report to have designation removed. That may have been the intended
result, but the language used does so limit the requirement for expert verification.
4. The issue then is whether the memo from Mr. Shipman constitutes a “report
prepared by qualified professional verifying that the map is in error” as required b y the
Code. There was no dispute that Mr. Shipman is qualified to render an opinion as to
whether the entirety of Fletcher Bay is a “tidal lagoon”, the relevant criterion. His
statement that “I would expect it to apply to features such as Fletcher Bay or the tidal
water body behind the Point Monroe sand spit” leaves a question in this reviewer‟s mind
as to whether it is his definitive opinion that the map is in error for failing to include the
entire lagoon. In fact, the meanings given in several dictionaries for the word “would”
include expressing “futurity”, softening the force of a statement, and expressing an
uncertainty, any of which raises a real question as to whether Mr. Shipman‟s opinion was
that the map is in error because Fletcher Bay is in fact a tidal lagoon. See, e.g., Webster‟s
New World Dictionary, 2d. College Edition (1982), Random House Webster‟s College
Dictionary (1992), Webster‟s New World Dictionary (2002). While the Director
apparently believed that he had the required report, over the six or so years since the
SPB15435-60
Page 5 of 6
Director informally decided that the map was in error, no action to correct the error such
as to amend the map or the Code to specifically refer to Fletcher Bay that would give
notice to property owners or the public was taken. Though Applicant‟s ability to present
evidence in the appeal of the denial of a permit could be viewed as correcting such
violation, it should be recognized that on appeal he must overcome the substantial weight
to be given to the Director‟s decision, where if he had been aware of a proposed map
change or Code amendment he merely would have needed to convince the Director or the
City Council that the existing mapping is indeed correct. Whether this offends due
process need not be decided.
5. As mentioned above, the hearing examiner is required to give substantial weight
to the decision of the Director. Section 2.16.130F.2. The "substantial weight"
requirement means that the decision must be reviewed under a "clearly erroneous"
standard. Norway Hill Pres. & Prot. Ass'n v. King County Council, 87 Wn.2d 267, 275,
552 P.2d 674 (1976), superseded by statute on other grounds as recognized in Moss v.
City of Bellingham, 109 Wn. App. 6, 21, 31 P.3d 703 (2001). A finding is clearly
erroneous when, although there is evidence to support it, the reviewer is left with the
definite and firm conviction that a mistake has been made. Wenatchee Sportsmen Ass'n v.
Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000). Though Applicant presented
facts that showed that the characteristics of Fletcher Bay are different from those of the
named tidal lagoons, he did not provide expert testimony that would have allowed the
hearing examiner to conclude that the bay is not a tidal lagoon. But, because the decision
of the Director is based on an informal decision made by a previous director that relied on
a “report” with an ambiguous statement of opinion by the expert, this reviewer is
convinced that it was a mistake to rely on that earlier informal decision without obtaining
clarification from the expert. The only recourse is to vacate the denial and remand the
matter to the Director for a new decision based on a report containing an expert opinion
that the map is in error, or not.
6. In light of this outcome, the issue of whether Applicant was denied due process in
the informal decision to treat the entirety of Fletcher Bay as an Aquatic Conservancy area
without the notice and opportunity to be heard that would have been associated with a
formal map change or Code amendment need not be addressed
Decision
The Director‟s Administrative Decision is vacated and the matter is remanded for
a new decision consistent with the requirements of the Code.
Entered this 21st day of April 2011.
/s/ Margaret Klockars
Margaret Klockars
Hearing Examiner pro tem
SPB15435-60
Page 6 of 6
Concerning Further Review
NOTE: It is the responsibility of a person seeking review of a
Hearing Examiner decision to consult applicable Code sections
and other appropriate sources, including State law, to determine
his/her rights and responsibilities relative to appeal.
The decision of the hearing examiner shall be final in this matter unless, within 21
days after issuance of a decision, a person with standing appeals the decision in
accordance with Chapter 36.70 RCW.