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HomeMy WebLinkAboutMEP2008-00047 GRD2008-00006 SEP2008-00088 Hearing Findings - MEP Letters / Memos - 10/26/2022 HEX2008-00035 Page 1 of 5 Written 08/14/08 f l 2-9�' Mason County +� j 000 Department of Planning Buildin411N. 5 ► 0 O �l g I * 411 N. 5th Street * P.O. Box 279 C D Shelton, Washington 98584 TO: Mason County g Hearin Examiner FROM: Planning Staff—Rebecca Hersha; 360.427.9670 X 593;rebecch(@co.mason.wa.us RE: Open Record Appeal Hearing—Administrative Appeal HEX2008-00035 © u l+ uu v 5-pf c k STAFF REPORT e- I. Intro ction. -dIJ �c, .��•-� ap,P e�a This report evaluates an Administrative Appeal of a Final Decision made b Mason County Pp Y h' staff in reference to environmental reviews and approved permits for a proposed project. The proposed project is a residential development with 20 home sites located in Rural Residential 5 zoning. It required State Environmental Protection Act(SEP2008-00088) review for grading(GRD2008-00006) and a Mason Environmental Permit(MEP2008- 00047) for activities within wetland buffers. The appellant disagrees with the SEPA Mitigated Determination of Non-Significance made by county Staff. He also contests Staff s approval of the Mason Environmental Permit and the approval of a Boundary Line Adjustment. The grading permit has not been issued yet as it is pending review of a geological assessment for nearby slopes as well as storm-water review. II. Appellant: Robert A. Pastore III. Project Applicant: Glen Jurges IV. Summary of Project: Develop approximately )acres of rural residential lands (Exhibit #4)with 20 homes. This involves grading, improvements to existing platted roads, wetland buffer impact and mitigation, stormwater design, and geological review. The proposed wetland buffer impacts required a Mason Environmental Permit (Exhibit# 9 and 10)with a Habitat Management Plan(Exhibit# 11). The grading application triggered SEPA review. V. Date of Appeal: July 31St,2008 VI. Project Location: West of Grapeview Loop Road in the plat of Detroit#2 in Grapeview, WA. The NW t/4 and SW t/4 of Section 5 in Township 21 N, Range 1 W, W.M. Parcel#'s 12105-51-44001, 3, 5, 6, 10; 12105-51-45006, 10, 11; 12105-51-54002, 5, 9; 12105-51- 55002, 6; 12105-51-56002,3, 5, 7, 9; 12105-51-58002, 3, 4, 6; 12105-51-59002. VII. Findings. A. Boundary Line Adjustment The appeal of the approval of the Boundary Line Adjustment(BLA) is invalid due to failure to appeal within 14 days of its approval as required per Section 15.11.020 of the PiFr olgclgon� JUL 3 12008 MASON COUNTY COMM NERS BEFORE THE MASON COUNTY HEARING EXAMIN APPEAL OF FINAL MITIGATED DETERMINATION OF NONSIGNIFICANCE ISSUED BY MASON COUNTY SEPA RESPONSIBLE OFFICIAL REBECCA HERSHA, JULY 16, 2008 ON SEP2008-00088 STATEMENT OF APPEAL PURSUANT TO MCC 15.11.020 1. THE DECISIONS BEING APPEALED: A. The final Mitigated Determination of NonSignficance Issued by Mason County SEPA Responsible Official Rebecca Hersha,July 16, 2007, on SEP2008-00088. B. The approval of the boundary line adjustment and environmental (critical area) permit, discovered by Appellant on July 28, 2008. 2. THE NAME AND ADDRESS OF THE APPELLANT AND HIS INTERESTS IN THE MATTER: Robert A. Pastore P.O. Box 5 5294 Grapeview Loop Road Grapeview, WA 98546 Appellant owns approximately 15 acres of land surrounding a portion of the proposed project. Appellant's land also was divided into many small lots in an 1890 plat. Unlike the Applicant Jurges, Appellant Pastore has no plans to develop any of these lots. However, if Appellant were to sell this land, any development which is permitted on the ]urges land would be precedent for similar development on Appellant's land. Much of the Appellant's and proposed project property is wetlands as established by various governmental agencies. A stream traversing the proposed project flows into Case Inlet on Puget Sound. The density of the development is many times higher than allowed by current Washington State Growth Management Act goals and policies and the Mason County comprehensive plan and development regulation Ordinances, and the accompanying septic systems, which have been grouped on two specific Lots, will be dangerously close to the stream and within its watershed. The predecessor to the current project developer was cited by the U.S. Army Corp of Engineers and subsequently required to restore the stream and wetlands after removing timber without the required permits from the DNR. The current project developer has filled in, without the required permitting, almost two acres of wetlands on which he now proposes to construct six homes. 1 The proposed access road is situated on property that is currently owned by the Appellant. The Appellant has not granted a public or private easement to the developer for use of the access road. Because Applicant ]urges does not own the portion of the former Atwater right- of-way, which intersects with Grapeview Loop Road and is owned exclusively by Appellant Pastore, Applicant Jurges has no right to seek a permit to build a road and encroach upon wetlands for the portion of that road on land owned by Appellant Pastore. The Appellant's environmental interest in protecting wetlands on the subject property and the Appellant's own contiguous and adjacent property and the Appellant's land use and environmental interests in avoiding the consequences of sprawling development far in excess of rural densities would be irreversibly harmed by the proposed development unless the major new mitigation measures described below are required or unless an environmental impact statement (EIS) is prepared and appropriate mitigation measures are imposed on the basis of the EIS. 3. THE SPECIFIC REASONS WHY THE APPELLANT BELIEVES THE APPEALED DECISIONS WERE ERRONEOUS: A. INTRODUCTION. County SEPA Responsible Official Rebecca Hersha issued a mitigated determination of nonsignificance (MDNS) on June 18, 2008. Near the end of the 14-day comment period on this MDNS, Appellant and other concerned people informed Ms. Hersha that they had just learned of the MDNS because the notice was posted far away to the south of the location of the proposed new road construction in critical wetland areas at the former Atwater right-of- way. Appellant Pastore and the other interested persons live at or north of the location of the former Atwater right-of-way and only learned about the notice through word of mouth near the end of the comment period. In response, Ms. Hersha agreed to repost the notice of the MDNS at the location of the former Atwater right-of-way and did so on July 1, 2008 extending the comment period for an additional 14 days to July 15, 2008. In doing so, she informed Appellant and other concerned people that she would make her final threshold determination on July 16, 2008 and appeals of her final threshold determination to the County Hearing Examiner could be filed during an additional 14-day period. This Appeal to the County Hearing Examiner is being filed within this 14-day period. In this appeal, Appellant challenges as clearly erroneous both the initial MDNS and the decision to retain the MDNS as clearly erroneous. The MDNS was clearly erroneous because it was based on erroneous or inadequate information regarding the adverse environmental impacts of the proposal and because it did not include adequate mitigation measures to reduce significant adverse environmental impacts below the threshold of significance. Extensive comments on the MDNS were submitted to Ms. Hersha by Appellant on July 14, 2008, by Richard Settle on July 14, 2008, and by Steven Winter on July 15, 2008. These comments are attached and incorporated into this Statement of Appeal by this reference. 2 Appellant has just discovered on July 28, 2008 that the County has unlawfully approved the boundary line adjustment and Mason Environmental (critical area) Permit before SEPA compliance was complete. This is a clear violation of WAC 197-11-070. Appellant received no notice of the County's actions on these approvals and learned about them on July 28, 2008 only because he inquired about the status of those applications and when County action on them was expected. B. REASONS THAT THE COUNTY'S MDNS DECISIONS AND THE COUNTY'S APPROVAL OF THE BOUNDARY LINE ADJUSTMENT AND MASON ENVIRONMENTAL (CRITICAL AREA) PERMIT WERE ERRONEOUS. (1) The proposal, by introducing 20 units of high density residential density in a rural area would have significant adverse environmental impacts on the County's land use plan (Comprehensive Plan), WAC 197-11-444(2)(b)(i). The proposed construction of 20 homes on approximately 19 acres ( which at first glance appears to be a density of slightly more than one dwelling unit per acre, but actually is much higher density, as explained below) in a rural area for which a maximum density of one dwelling unit per five (5) acres as prescribed by the State Growth Management Act, the Mason County Comprehensive Plan, and the Mason County Development Regulations (zoning). In actuality, the density will be significantly higher than one dwelling unit per acre, as indicated below, using the original Plat of Detroit 2 Block designation (200 x 300 feet) and Mr. ]urges' submission as points of reference: Block 46 = 6 Lots or 1 Lot per .22 acres. Block 54 = 3 Lots or 1 Lot per .46 acres. Block 57 = 5 Lots or 1 Lot per .28 acres Block 58 = 4 Lots or 1 Lot per .34 acres This is an extreme example of the kind of "sprawl" that the Growth Management Act was adopted to prevent because of its harm to numerous elements of the environment which will be detailed in the comments below. The GMA's primary goals are to concentrate development in cities and other urban growth areas and avoid growth and sprawl in rural and resource areas. This proposal is diametrically in conflict with these central GMA goals and with the policies of the County Comprehensive Plan implementing these goals. The County Plan and Development Regulations limit density in rural areas to a maximum of one unit per 5 acres. The GMA and the County Plan limit density in rural areas to avoid numerous adverse impacts. High density development in rural areas creates demand for urban governmental services which are prohibited outside of urban growth areas. High density development in rural areas has adverse impacts on environmentally 3 critical areas that are primarily located in rural and resource areas. High density development is incompatible with the use of timber, agricultural, and mineral resource lands in rural areas. Ms. Hersha, in her Notice to Retain MDNS, briefly responds to these concerns expressed in my comments on the MDNS by essentially saying that the site of the development was subdivided in 1890 at very high density and the proposed development consolidates some of these lots so that the density is not a high as it could have been if each of the 1890 lots were developed with a separate residence. Ms. Hersha's response is inadequate for several reasons. First, there is no legal requirement in Washington that local governments allow development of lots that were created long before the era of modern police power regulation of land subdivision. This is especially so when such grossly substandard lots created in ancient subdivisions are in common ownership so that the County could require consolidation of these lots to meet present minimum lot-size requirements. The Western Washington Growth Management Hearings Board (GMHB) frequently has invalidated county comprehensive plans where they fail to require consolidation of such substandard lots in rural areas. Apparently, the County's permissive provision allowing development of such lots, MCC 17.03.032 B.2, was not appealed to the GMHB. If it had been, the GMHB would have held it violative of the anti- sprawl and rural density limitations of the GMA. Second, even the permissive MCC 17.03.032 B.2, cited by Ms. Hersha, allows development of such previously platted nonconforming substandard lots only if"the lot could comply with all other applicable standards and requirements." MCC 17.O3.O32.B.2(b)(3)(Emphasis added). Given applicable septic system, critical area buffer and setback, zoning setback, and other requirements, it is erroneous to say, as Ms. Hersha did, that these lots could have been developed at much higher densities. Moreover, SEPA is one of the other laws with which the proposal must comply. Third, Ms. Hersha's essential response was that the proposal is not environmentally significant because it could have been much worse. But that is not the question in a SEPA threshold determination. The question is not whether some other proposal would have been worse, but whether the actual proposal has significant adverse environmental impacts. Introducing high density residential development in a rural area several miles from any urban growth area would have the significant adverse environmental impacts described above. In addition, by allowing high density housing in this location, demand will be reduced for high density housing in urban growth areas in Allyn and Belfair, where such development should be located because it can be efficiently provided with urban services avoiding the adverse impacts on the County's plan policies for rural areas, public services in rural areas, critical areas and resource lands, and climate change as a result of excessive and unnecessary greenhouse gas emissions. Fourth, Ms. Hersha's MDNS contains no mitigation measures addressing and mitigating the significant adverse impacts of high density residential development in the rural area and critical wetland areas. The County had ample substantive authority under SEPA (RCW 4 43.21C.060; WAC 197-11-660) to require that lots be consolidated to satisfy the 5-acre minimum lot size requirement, but she failed to require any consolidation whatsoever. Fifth, Mr. ]urges by exploiting the County's provision for development of substandard lots, is consciously making a choice to develop in a way that will have significant adverse environmental impacts, as described above. By doing so, he cannot complain that a DS must be issued and an EIS must be prepared under SEPA to identify, analyze, and disclose the significant adverse environmental impacts of his proposal. Mr. ]urges and the County must either mitigate these adverse environmental impacts by limiting density to one unit per 5 acres or prepare an EIS. They cannot"have it both ways." (2) The proposed development would have significant adverse impacts on critical designated wetland areas, a designated creek, and the water quality of Puget Sound by proposing development within designated wetlands and their buffers that were illegally filled by the applicant and his predecessor in ownership. The proposed development would unnecessarily construct roads and other facilities in wetlands, wetland and creek buffer areas. Such development on septic systems adjacent to a designated creek that enters Case Inlet of Puget Sound nearby could be modified to avoid such impacts. Under SEPA's required mitigation sequence, an impact must be avoided if possible. Because these impacts could have been avoided by redesigning the proposal, failure to require such mitigation renders the MDNS erroneous. It must be withdrawn, a DS issued, and an EIS prepared. Or alternatively, the proposal must be modified to incorporate mitigation measures that will avoid such significant adverse impacts. The mitigation measures included in the MDNS are virtually meaningless and woefully inadequate under SEPA. Condition No. 2 provides that "[r]esidential development on shorelines and wetlands should be planned with minimum adverse environmental and visual impact." (Emphasis added.) This mitigation measure imposes no requirement whatsoever ("should") and even if it were mandatory provides no specific requirement or standard to ensure that adverse environmental impacts will be brought below the level of significance. Unless specific mitigation measures are imposed that will avoid the significant adverse environmental impacts, a DS must be issued and an EIS must be prepared. In her response to my comments related to these significant impacts, Ms. Hersha in her "notice to retain MDNS" responded: "[a]lthough his proposal does involve encroachment into the wetland buffers for road improvements and well access, it is arguably less than the impact that would have resulted had he sold each lot individually." This response is erroneous and irrelevant. First, the question is not what impacts a different proposal would have had, but what this proposal would have. This proposal would have unmitigated significant adverse impacts under SEPA and, thus, unless adequately mitigated, a DS must be issued and an EIS must be prepared. Second, the standard is not whether the proposal would "arguably" not have significant impacts, but whether it "probably" would have significant adverse impacts. An EIS must be prepared where a proposal would have "probable significant adverse environmental impacts." RCW 43.21C.031. Third, as emphasized above, MCC 5 17.03.032.B.2(a)(2) allows development on substandard lots only if the lot could "comply with all other applicable standards and requirements." Because the development, as proposed cannot comply with critical area requirements, it is not allowed and certainly the even higher density development that Ms. Hersha hypothesizes might have been proposed, would not be allowed. The proposal and the MDNS make a mockery of our State's urgent measures to avoid further deterioration of Puget Sound and further decimation of the endangered and threatened salmonid species that depend on the water quality of Puget Sound. Any additional increment of pollution of Puget Sound is too much and is a significant adverse environmental impact. The applicant has illegally filled the very wetlands where this development is proposed. Specifically, Lot 46 of the plat of Detroit 2—which was primarily wetlands—was filled by a construction firm under the direction of, and while the property was owned by, Mr. ]urges without even a grading permit. It is ironic that Mr. ]urges is proposing to install a storm pond (East Storm Pond) in the wetland area which he illegally filled. The significant adverse impacts of such illegal filling must be identified, analyzed, and disclosed in an EIS unless they are fully mitigated by requirements that the illegally filled wetlands be restored to their prior condition with adequate security to ensure such restoration. (3) At a time of intense concern about the effect of GHG emissions on climate change, the submitted SEPA checklist does not even mention any impacts on climate or air quality as a result of the excessive and unnecessary greenhouse gas emissions from this high density rural sprawl. Such sprawling development in rural areas instead of the urban growth areas where it belongs are the worst offenders regarding greenhouse gas emissions and resulting climate change impacts. There are numerous means of mitigating such impacts, such as reducing the allowed density to that appropriate in rural areas, requiring low-emission construction practices and building design, exclusion of fossil-fuel burning fireplaces and heating systems, requiring the setting aside and enhancement of vegetative "carbon sinks" to compensate for greenhouse gas emissions, requiring a homeowners' association to provide Mason Transit passes through the assessment of dues on homeowners, and other measures. The environmental checklist absolutely ignores such impacts and mitigation measures. Even worse, Ms. Hersha fails to even respond to comments regarding greenhouse gas emissions and climate change impacts. Unless the proposal is adequately mitigated to avoid significant adverse greenhouse gas emissions and climate change impacts, an EIS must be prepared to identify, analyze, and disclose such impacts. (4) The proposal's impacts clearly would be significant under SEPA's definitions of"significant". WAC 197-11-330(3) provides that"the same proposal may have significant adverse impact in one location but not in another location." If this proposal were not in a rural area and would not encroach upon and adversely affect designated wetlands, a designated creek, and the water quality of adjacent Puget Sound, it may not be significant. But this proposal is in a rural area far remove from urban growth areas, would encroach upon high quality designated 6 wetlands, a designated creek, and the water quality of adjacent Puget Sound. As such, it clearly would be significant because of its location. The MDNS was clearly erroneous. WAC 197-11-330(3) also provides that "[s]everal marginal impacts when considered together may result in a significant adverse impact." While none of the impacts of the proposal are marginal, when considered together, they clearly are significant. The MDNS was clearly erroneous. WAC 197-11-330 also provides that a 'proposal may be significant because to a significant degree [it would] [a]dversely affect environmentally sensitive or special areas, such as...wetlands... ." The proposal has significant adverse impacts on designated wetlands including illegally filled wetlands. The MDNS was clearly erroneous for this reason, as well. WAC 197-11-330 also provides that a proposal may to a significant degree ":[a]dversely affect endangered or threatened species or their habitats." The environmental checklist was erroneous in saying that no endangered or threatened species would be affected. Since Puget Sound is the habitat of endangered or threatened salmonid species and this proposal would inject high density residential development in a critical area with a designated creek flowing into adjacent Puget Sound, the proposal has significant adverse impacts for this reason, as well. If Puget Sound and its listed species are to recover, regulation of development adjacent to Puget Sound and encroaching on wetlands and creeks hydrologically connected to Puget Sound cannot be carried out on a "business as usual" basis. And yet that is exactly what the County has done here. The MDNS was clearly erroneous for this reason, as well. WAC 197-11-330 also provides that a proposal may to a significant degree "[c]onflict with local, state, or federal laws or requirements for protection of the environment." As previously emphasized, the proposal flagrantly conflicts with the mission of the GMA and the County's own Plan policies and development regulations by allowing development at a much higher density than one dwelling unit per 5 acres. These GMA requirements, as previously stressed, are designed to avoid adverse environmental impacts in rural areas. Whether or not, the City's ordinance allows such development on existing substandard lots, such development is clearly in conflict with local and state policies and requirements for development in rural areas. As such, the proposed development is environmentally significant, and the MDNS was clearly erroneous. WAC 197-11-330(3)(e) also provides that a proposal may to a significant degree "[e]stablish a precedent for future actions with significant effects... ." There are numerous small lots created by ancient plats in the immediate area of this proposed development . If this development of urban sprawl in a rural area is allowed, it will serve as precedent for numerous other potential development proposals in this area. The cumulative effects of the proposed development and the foreseeable future development for which this development would be precedential would have immense significant adverse impacts on the rural area, adjacent Puget Sound, and the salmonid species that depend on the water quality of Puget Sound, and greenhouse gas emissions and climate change impacts. 7 THE COUNTY'S APPROVAL OF THE BOUNDARY LINE ADJUSTMENT AND MASON ENVIRONMENTAL (CRITICAL AREA) PERMIT BEFORE SEPA COMPLIANCE WAS COMPLETE CLEARLY VIOLATED WAC 197-11-070. . The County made a mockery of SEPA and flagrantly violated both the letter and spirit of SEPA by approving the proposed boundary line adjustment and Mason Environmental (Critical Area) Permit before SEPA compliance was complete. Because the boundary line adjustment, critical area permit, and grading permit were interrelated parts of the proposal, they could not be acted upon in piecemeal fashion by the County under WAC 107-11-060. By acting upon parts of the proposal before completing SEPA review of the whole proposal, the County clearly violated SEPA. RCW 43.21C.030; WAC 197-11-070. 4. THE DESIRED OUTCOME OR CHANGES TO THE DECISION SOUGHT BY APPELLANT: A. MDNS DECISIONS OF THE SEPA RESPONSIBLE OFFICIAL. Appellant requests the Hearing Examiner to rule that the MDNS was based on inadequate environmental information in the environmental checklist and inadequate mitigation measures to reduce the proposal's significant adverse environmental impacts below the standard of significance. On these bases, the applicant requests the Hearing Examiner to rule that the MDNS was legally erroneous and a Determination of Significance (DS) must be issued and an environmental impact statement must be prepared unless additional mitigation measures are included in a revised MDNS . The additional mitigation measures that would have to be included in a revised MDNS to bring significant adverse environmental impacts below the standard of significance must include at least the following: (1) Disallow all development on Block 46 of the Plat of Detroit 2 in the proposed project and restore the illegally filled and destroyed wetlands to their condition before they were illegally filled and destroyed. (2) Provide enhancement of other wetlands to compensate for the risk that the illegally filled wetlands will not be successfully returned to their condition before the illegal fill. (3) Provide adequate bonding or other suretyship that will be enforceable for ten years after the required measures to restore the illegally filled wetlands and to provide compensatory enhancement of other wetlands have been completed to ensure that they have met performance standards set forth in the revised MDNS. (4) Reduce the total number of lots to 4 to avoid significant adverse environmental impacts on the County Comprehensive Plan provisions limiting rural density to one residential unit per five acres. 8 (5) Remove all group septic systems from the proximity of the stream and wetlands and require that all such septic systems, including their drainfields be setback at least 150 feet from the previously illegally filled wetlands, presently existing wetlands, and high-water mark of the stream (6) Allow access to parts of the development that may go forward under the preceding mitigation measures only via the right-of-way which would intersect Grapeview Loop Road at the Fair Harbor Marina and not by the so-called right-of-way of Atwater Avenue which from Grapeview Loop Road to the property owned by ]urges Enterprises is not a right-of-way at all, but is privately and exclusively owned by the Appellant Robert A. Pastore by operation of law. (7) Impose covenants upon the proposed lots created by the lot-line adjustments that would ensure no net increase in greenhouse gas (GHG) emissions. These covenants may achieve this no net increase in GHG standard by a combination of measures that would increase "carbon sinks" by enhancing and increasing the amount of land permanently committed to forest land preservation and measures that would reduce the emissions resulting from the development by reducing the density and imposing covenants requiring that all buildings meet LEED standards and that a homeowners' association be created that would provide all residents of the proposed development with monthly Mason Transit passes. (8) Allow no access road development within the required buffers for designated wetlands, the previously illegally filled wetlands and the stream traversing the site before entering Puget Sound. B. THE BOUNDARY LINE ADJUSTMENT AND MASON ENVIRONMENTAL (CRITICAL AREA) PERMIT UNLAWFULLY ISSUED BY MASON COUNTY. THE GRANTING OF THE BOUNDARY LINE ADJUSTMENT AND ENVIRONMENTAL PERMIT, JUST DISCOVERED BY APPLICANT, CLEARLY WERE UNLAWFUL UNDER WAC 197-11-070 BECAUSE THESE ACTIONS WERE TAKEN BY THE COUNTY BEFORE ISSUANCE OF A FINAL DETERMINATION OF NONSIGNIFICANCE OF FINAL EIS. NONE OF THE EXCEPTIONS TO WAC 197-11-070 ARE APPLICABLE. THE COUNTY'S ACTION APPROVING THE BOUNDARY LINE ADJUSTMENT AND ENVIRONMENTAL (CRITICAL AREA) PERMIT MUST BE INVALIDATED AND REMANDED TO THE COUNTY FOR ACTION AFTER SEPA COMPLIANCE HAS BEEN COMPLETED. Respectfully submitted this 29th day of July, 2008, - JL I) - - R bert A. Pastore 9 APPENDIX A MDNS COMMENTS ROBERT A. PASTORE Appendix A Comments of Robert A. Pastore Via email July 14, 2008 Ms. Rebecca Hersha Planner I Community Development Mason County, Washington Thank you for meeting with me on Thursday, July 10 regarding the development proposal by Glen Jurges in the Grapeview area of Mason County, specifically: Parcel Number: 121055144001 Legal Description: DETROIT #2 PCL 1 OF BLA #07-82 PTN BLKS 44,45,46 As I emphasized, I am extremely concerned about this development proposal and the harm it would cause to the community and, most importantly, to the waters of adjacent Case Inlet of Puget Sound. I am commenting specifically on the SEPA Mitigated Determination of Nonsignificance (MDNS) for the proposed Mason Environmental Permit for the construction of roads through environmentally critical wetland areas and creek buffer areas and the proposed construction of 20 homes on approximately 19 acres, which at first glance) appears as a density of less than one dwelling unit per acre in a rural area for which a maximum density of one dwelling unit per five (5) acres is prescribed by the State Growth Management Act, the Mason County Comprehensive Plan, and the Mason County Development Regulations (zoning). In actuality, the density will be significantly higher and as follows — I am using the old Detroit 2 Block designation (200 x 300 feet) and Mr. Jurges'submission as my point of reference: Block 46 = 6 Lots or 1 Lot per .22 acres. Block 54 = 3 Lots or 1 Lot per .46 acres. Block 57 = 5 Lots or 1 Lot per .28 acres Block 58 = 4 Lots or 1 Lot per.34 acres This is an extreme example of the kind of"sprawl" that the Growth Management Act was adopted to prevent because of its harm to numerous elements of the environment which will be detailed in the comments below. The MDNS must be withdrawn and a Determination of Significance (DS) must be issued because the proposed development would have unmitigated significant adverse environmental impacts on numerous elements of the natural and built environment, including the existing County land use plan, water quality of the creek that traverses the site, related wetlands, and adjacent Case Inlet of Puget Sound, plants and animals as a result of probable septic system failures over the useful life of the proposed development, which failures would pollute the creek and Puget Sound, adversely affecting the habitat for salmon and other species of plants and animals, air quality by unnecessarily introducing large quantities of greenhouse gases (GHG), which are the cause of climate change, without any mitigation measures to avoid, minimize, or compensate for such GHG emissions, energy and natural resources, with no mitigation measures to avoid, minimize, or compensate for energy use and waste, and transportation impacts because the proposed access to the 20 proposed homes would be in the formerly platted right of way designated as "Atwater Avenue" in an ancient plat, which once platted right of way no longer exists. By operation of state law, this formerly platted right of way reverted to private ownership and is owned by me, Robert Pastore and not by Glen Jurges. If this proposed development is approved on the basis of access by the so-called "Atwater Avenue Right of Way",that access will be successfully legally challenged and access will not be available by that route. As a result, lots could be sold and homes could be built that will have no vehicular access to the road system, a significant adverse impact on the road system that supposedly would serve the proposed development. Appendix A Comments of Robert A. Pastore The septic drainfields on Plat of Detroit 2 Block 55 (Tract"B" Drainfields) planned at nine (9) drainfields on 1.377 acres is a density of one (1) per .15 acre; the drainfield on Plat of Detroit 2 Block 59 (Tract"A" Drainfields) plans for eleven (11) drainfields or approximately one (1) per .125 per acre. Both of these drainfields are adjacent to, if not in, wetlands which were the subject of a dispute with the pervious land owners (Mr. Richard Scott and Mr. Craig Eldridge) and the Army Corp of Engineers (Letter dated July 21, 1998, Col. James Rigsby, USACE). The five mitigation measures included in the MDNS do not even come close to addressing all of the significant adverse environmental impacts. Two of them are not even mitigation requirements at all, but are merely recommendations ("should"). More specifically, the MDNS should be withdrawn and a DS should be issued for the following reasons. 1. The density of the proposed development is many orders of magnitude larger than the density that is allowed in Rural areas by the Growth Management Act (GMA) , the County Comprehensive Plan, and the County Development Regulations (zoning ordinance). The County contrary to the anti-sprawl goal of the GMA and County plan policies, allowed development on grossly substandard lots in this century-old plat even though the County could have required owners of contiguous substandard lots to consolidate those lots in order to meet the present one unit per five acre zoning requirement. Whether or not the County had authority to allow development of these substandard lots, such development has significant adverse impacts caused by such extreme sprawl that is diametrically in conflict with the County's land use plan policies regarding development in rural areas of the County. Impacts on existing land use plans are impacts on the built environment under WAC 197-11-444. The impacts of development many times over the density allowed by the existing County comprehensive plan for rural areas certainly is a significant adverse impact. Given the blatant conflict of the proposed development with current State and County policy for rural development, the impact certainly is significant and an Environmental Impact Statement (EIS) must be prepared. Even if the County may allow development on existing substandard lots, the County may not approve this specific development on such substandard lots, construction in wetlands and buffer areas, and grave potential septic system, stormwater, and other impacts on Puget Sound and salmon species residing in Case Inlet of Puget Sound. The County may not approve such development so extremely at variance with State and County policies for development in rural areas with high quality wetlands and a creek, served by septic systems, adjacent to Puget Sound without full awareness of the potential significant adverse environmental impacts by requiring preparation of an EIS. While the County code may allow development of substandard lots, all County approvals of development are subject to the County's substantive SEPA authority under RCW 43.21C.060 and WAC 197-11-660. Under this substantive SEPA authority, the County has broad authority to impose stringent mitigation requirements to protect the environment. Such mitigation requirements should include much larger lot size, less area of impervious surfaces, relocation and much stricter design requirements for septic systems, given their proximity to high quality wetlands, a creek, and Puget Sound. Given the urgency of protecting Puget Sound and the vulnerability of Case Inlet to pollution, it would be blatantly irresponsible for the County to allow this development to proceed without an EIS and stringent mitigation requirements. 2.The proposed development would unnecessarily construct roads and other facilities in wetlands and/or wetland or creek buffer areas. There are far greater areas of roadways, impervious surfaces, than is necessary if access were provided to the proposed development in the vicinity of the platted Griswold Avenue which is already the main access used by Mr. Jurges to his property. In addition, Griswold Avenue has long been considered by Mason County as a reliever for Grapeview Loop Road by extending it from its present terminus at Grapeview Loop Road and Mr. Jurges' property through to Route 3 . Along with the other significant adverse impacts of the proposed development, the County must have full awareness of potential significant adverse environmental impacts, alternatives, and the full range of potential mitigation measures by preparation of an EIS. Moreover, the proposed access road from Grapeview Loop Road not only would be constructed in environmental critical areas, but it is proposed to be located on land that I, Appendix A Comments of Robert A. Pastore Robert Pastore own by operation of state law. I will legally challenge any road on my property, and the road would have to be relocated elsewhere contrary to the proposed plans for this development. 3. At a time of intense concern about the effect of GHG emissions on climate change, the submitted SEPA Checklist does not even mention GHG emissions over the life span of this project and their impacts on climate change. Sprawling, low density development are the worst offenders regarding GHG emissions. There are numerous means of mitigating GHG emissions, such as"green" building design and the exclusion of fossil-fuel burning fireplaces and stoves. This proposal and the scant mitigation measures in the MDNS do not even mention mitigation of GHG emissions and adverse climate change impacts. 4. The applicant has illegally filled wetlands in the past where this development is proposed. Specifically, Block 46 of the Plat of Detroit 2—which was primary wetlands - was filled by a construction firm under the direction of, and while the property was owned by, Mr. ]urges without a grading permit. It is ironic that Mr. Jurges is planning to install a storm pond (East Storm Pond) which he filled in during the illegal grading. The significant adverse impacts of such illegal filling must be analyzed in an EIS and appropriately mitigated by requirements of restoration of the illegally filled wetlands. 5. While the applicant is free to propose this extreme development so contrary to what is allowed in rural areas with critical areas and adjacent to Puget Sound, with minimal mitigation, by doing so, the applicant is making a proposal with unquestionable significant adverse impacts on the environment. As such, the proposal may not go forward without preparation of an EIS so that the County, State agencies, and interested members of the public will be fully informed of the significant adverse environmental impacts if this proposal is approved. This developer is not a resident of Mason County and apparently has no incentive not to irreparably harm the environment of Mason County. He must not be allowed to do so. As stewards of the County's environment, the County must require this applicant to behave responsibly by preparing an EIS and fully mitigating the significant adverse impacts of his proposal. Thank you for this opportunity to comment on the proposed MDNS. I respectfully request that the MDNS be withdrawn and a DS issued so that the significant adverse environmental impacts of the proposed development will be fully identified and disclosed through the EIS process.. Very truly yours, �XL Robert Pastore PO Box 5 5294 Grapeview Loop Road Grapeview, WA 98546 APPENDIX B MDNS COMMENTS RICHARD L. SETTLE Appendix B Comments of Richard L. Settle July 14, 2008 Rebecca Hersha SEPA Responsible Official Mason County Department of Community Development Re: MDNS on Jurges Enterprises Development Proposal Adjacent to Grapeview Loop Road Dear Ms. Hersha: I live at 7104 Grapeview Loop Road(Mailing Address is 1111 Third Avenue, Suite 3400, Seattle, WA 98101). I have been collaborating with Robert Pastore in formulating comments on the Jurges Enterprises proposed development adjacent to Grapeview Loop Road. I have reviewed and endorse the comments that Robert Pastore will be separately submitting to you. I add only the following. The size of a proposed development does not determine whether SEPA requires an EIS. The standard is whether the proposal is likely to have significant adverse environmental impacts. While the Jurges Enterprises proposal may not seem large, it is extremely significant environmentally because it is so grossly contrary to state and local policies and regulations regarding development of rural lands and, because it is on illegally filled wetlands, and because it would invade and disrupt high quality wetlands and wetland and creek buffers, and because it would place high density development in a rural area adjacent to Puget Sound, utilizing septic systems located close to a creek with runs into Case Inlet of Puget Sound. Significance is based not merely on the absolute size of a proposal but its location and the vulnerability of the location. WAC 197-11-330. This hazardous development must not be allowed to proceed without fully informing government agencies and the public of potential adverse environmental consequences through preparation of an EIS. This is especially so because the five mitigation measures listed as conditions in the MDNS are virtually meaningless and woefully inadequate to avoid significant adverse environmental impacts. Sincerely, Richard L. Settle Richard(Dick) L. Settle Attorney FOSTER PEPPER PLLC I I I I Third Avenue, Suite 3400 Seattle, WA 98101-3299 Phone: 206-447-8980 Fax: 206-749-2011 settr@foster.com www.foster.com APPENDIX C MDNS COMMENTS STEVE WINTER, HYDROLOGIST Appendix C Comments of Steve Winter, Hydrologist From: Steven Winter[swinter@earthlink.net] Sent:Tuesday,July 15, 2008 10:45 AM To: Rebecca Hersha Subject: Re: Grapeview Development Project Dear Ms. Hersha: I was asked by John and Judy Ringle(owners of E5290 Grapeview Loop Road)to review the proposed development at Fair Harbor Tracts along Grapeview Road. I am a wetland hydrologist and they were concerned about potential impacts to streams,wetlands, and drainage in the area as part of the proposed development. I'm afraid I only received the project submittal materials last night to review, so I have yet to perform a full review. Therefore, these findings are preliminary and I have not seen some key reports(e.g., the wetland delineation report). My initial comments are listed below: 1. The use of an older wetland delineation is often acceptable, but in this case I think the wetland boundaries should be revisited. This site was significantly disturbed in the past, and drainage patterns may have adjusted over time. 2. The SEPA checklist indicates that one of the wetlands on the site is isolated. I find this curious since there is a direct surface connection from this site(via the stream or the roadside drainage system)to the tidal waters of Case Inlet. Has this determination been confirmed by the Corps of Engineers-Seattle District? 3. This site has a previous wetland mitigation project to offset grading impacts, installed in 2000. Was the requisite monitoring performed on this project to determine if it was successful? 4. 1 am concerned about the use of the 1992 Stormwater Manual to design and implement flow control and water quality treatment measures for this development. This manual is two iterations old (significantly revised in 2001 and in 2005), and has typically been found to not be protective of downstream resources. It is well established that the South Puget Sound is sensitive to changes in water quality, and protecting this resource should be a primary goal. 5. The Habitat report indicates that a beaver dam in the unnamed stream is a full blockage to anadromous salmonids. While this might be the case here, typically salmonids can move upstream through beaver ponds,even in small streams. Several studies have found that beaver pond/dam systems are incredibly productive in terms of both resident and anadromous fish and their supporting food webs. Further,the recent culvert replacement along Grapeview Loop Road may have improved passage conditions into the stream from the inlet. 6. The delineated wetland to the west on the plans appears to extend through the proposed access road (Crogan Avenue). This road crossing therefore has the poteritial to impact the wetland system,which is inconsistent with the stated goal of no direct impacts to wetlands or streams. 7. While they appear to refer to buffer impacts,the legend on the plan sheets includes the terms'wetland gain'and 'wetland loss.' This should be clarified if in fact no direct impacts to the wetlands or stream system are proposed. 8. The use of many drainfields in this area mapped as Alderwood soil is also concerning. Maintenance of septic systems will always be an issue to ensure proper functioning. Further,typical septic systems are not effective in removing nitrogen from the waste stream. I look forward to the continued opportunity to comment on this proposal once I have seen all the applicable submittal materials. Thank you for your time, Steve Winter HEX2008-00035 Page 2 of 5 Written 08/14/08 Mason Count Code. The BLA (Exhibit# 16) was approved on January 30th, 2008 and recorded at the Mason County Auditor's Office on January 31 St, 2008. 1. APPELLANT CONTENDS: According to WAC197-11-070, this BLA should not have been approved before the SEPA compliance was complete. STAFF RESPONSE: BLA's do not increase density and they do not increase the non-conformity of lots to the zoning or critical area regulations. Therefore they do not"have an adverse environmental impact"nor do they"limit the choice of reasonable alternatives"and are not subject to SEPA review. 2. APPELLANT CONTENDS: "The density of the development is many times greater than that allowed by current Washington State Growth Management Act goals and policies and the Mason County Comprehensive Plan and Development Regulation Ordinances..." STAFF RESPONSE: According to Mason County Development Regulations Section 17.03.032.B.2, existing lots that do not meet current density restrictions may be developed provided that the lot could comply with all other standards and requirements. Therefore, Mason County does not prohibit BLA's with resulting lots that are at a higher density than current requirements, as long as the legal non-conforming lots are the same size or larger than the original and as long as the resulting lots have sufficient area to meet setbacks from critical areas (without obtaining a Variance). The original lots were platted in 1890 and were very small. In the BLA, 146 of these lots were combined into 23 much larger lots. A wetland delineation and categorization was reviewed by staff to ensure that each resulting lot had sufficient area outside of wetland buffers to develop a single family residence prior to approving the BLA. 3. APPELLANT CONTENDS: Section 17.03.032.B.2 of the Development Regulations does not comply with the Growth Management Act. STAFF RESPONSE: This is not something that can be addressed in this appeal. It must wait until the Development Regulations are updated, at which point he may appeal that section to the Growth Management Hearings Board. 4. APPELLENT CONTENDS: Mr. Jurges cannot use Atwater Avenue as the access to these lots and enter the property for road construction because it has been vacated and is owned by the Appellant. STAFF RESPONSE: This argument may have merit, however, it is Staff s understanding that even after platted roads are vacated by statute and/or vacated through a public process, the property owners within the plat still have a right to use the roads. RCW 64.04.175 states, "Easements established by a dedication are property rights that cannot be extinguished or altered without the approval of the HEX2008-00035 Page 3 of 5 Written 08/14/08 easement owner or owners, unless the plat or other document creating the dedicated easement provides for an alternative method or methods to extinguish or alter the easement." Therefore, a platted right of way may only be eliminated by a process that includes obtaining signatures from each property owner within the plat. B. SEPA Determination 1. APPELLANT CONTENDS: This project introduces "high density residential development in a rural area..." STAFF RESPONSE: As noted above, Jurges' project is not increasing density. The BLA resulted in a decrease in the original platted density. 2. APPELLANT CONTENDS: The"DNS contains no mitigation measures addressing and mitigating the significant adverse environmental impacts of high density residential development in the rural area and critical wetland areas." STAFF RESPONSE: There are 11 conditions (Exhibit# 6) attached to the SEPA MDNS. Staff feels that these conditions along with the conditions of the MEP (Exhibit # 12) adequately address potential environmental, culturalihistorical, and visual impacts that may occur. The SEPA checklist with SEPA Determination was sent along with the Mason Environmental Permit and project drawings to the Squaxin Tribal Nation, WA Department of Ecology, the WA Department of Archeology and Historic Preservation, WA Department of Transportation, the U.S. Army Corps of Engineers, and Mason County Public Works for review and comment. Comments were submitted by WA Department of Ecology and WA Department of Archeology and Historic Preservation (Exhibit# 7),which were incorporated into the conditions of the SEPA Determination. 3. APPELLANT CONTENDS: Air quality and greenhouse gas emission impacts were not addressed in the SEPA Checklist or conditions. STAFF RESPONSE: Staff feels that greenhouse gas emissions from 20 homes and associated automobiles is not significant, and does not warrant an EIS. 4. APPELLANT CONTENDS: The total impacts of the proposal are significant enough to warrant an EIS. STAFF RESPONSE: Staff feels that the impacts have been mitigated to be marginal in total with a Habitat Management Plan, Stormwater Plan, Eagle Management Plan, and conditions attached to the SEPA and MEP. The stormwater plan is still being reviewed by the Mason County Public Works Department. If they find that changes or additional measures are necessary to protect nearby waters, they will require revised plans or condition the grading permit. C. Mason Environmental Permit 1. APPELLANT CONTENDS: The County approved the MEP before SEPA compliance was complete. HEX2008-00035 Page 4 of 5 Written 08/14/08 STAFF RESPONSE: This is incorrect. The SEPA determination was issued on July 1'% 2008. The SEPA commentperiod ended 14 days later on July 15t", 2008. The MEP was approved on July 22' . 2. APPELLANT CONTENDS: Wetlands were illegally filled by Mr. Jurges. STAFF RESPONSE: The County has not been provided with evidence that Mr. Jurges has filled any wetlands. VH. Conclusion. For the reasons specified above, it is staff s opinion that impacts resulting from the proposed project will not result in probable significant adverse environmental impacts as defined at WAC 197-11-794 and that the BLA and MEP were issued in accordance with all applicable Mason County regulations and policies. HEX2008-00035 Page 5 of 5 Written 08/14/08 EXHIBITS 1. Notice of Hearing for Administrative Appeal 2. Appeal Submitted by Robert Pastore (17 pages) 3. Aerial Photo 4. Site Plan 5. SEPA Checklist (15 pages) 6. SEPA Mitigated Determination of Non-Significance (3rd page has conditions added after receiving comments) 7. SEPA Comments Received (12 pages) 8. Notice to Retain DNS (2 pages) 9. Mason Environmental Permit Application (2 pages) 10. MEP Map with Wetland Boundaries and Buffers 11. Habitat Management Plan, Dated(with Eagle Management Plan) (37 pages) 12. Mason Environmental Permit with Conditions (2 pages) 13. Grading and TESC Plan with Notes and Details (2 pages) 14. Drainage Plan, Notes, and Details (3 pages) 15. Road Details (4 pages) 16. Maps from Boundary Line Adjustment# 07-82 (2 pages) 17. S~; 1 F I9. 5�'� tta b� �. s� 71 - 1 d( r,-�l U--ldrWt- *The Wetland Categorization(ApiV 2007) and Stormwater Report are several pages in length, therefore, are available upon request. 17T, 5 i i i i I RECEIVED AUG 2 s 7097 August 21, 2007 Mr. Ryan Crater, Planner IICCD - PLANNING_ Mason County Community Development P.O. Box 279 Shelton, WA 98584 Via UPS Certified Mail Dear Mr. Crater, Sue and I would like to thank you for carving out some of your valuable daily time today to meet with us and explain the Mason County planning and approval process for an intended development contiguous to our property on Grapeview Loop Road in Grapeview. As related to you during our meeting, the land which we own -- Blocks 38, 39, 40, 41, 42 and 47 in the Plat of Detroit 2, also described as Assessor Parcel Numbers 12105-51-38001 through 12105-51-47001 -- is being donated to the Mason Conservation District to be kept in perpetuity. Most of this land is wetlands. As explained to you, we understand that a Mr. Glen ]urges, a developer from Kitsap County is attempting to develop Blocks 44, 45 and 46 (and perhaps other adjacent areas) to sell as building parcels. Mr. Jurges has not been a friend to the Grapeview community in that he has, in our opinion, acted deceptively in his development process. We gave you aerial pictures of that property before and after Mr. ]urges'acquisition of the land which shows the grading accomplished under his direction. You indicate that he has graded these wetlands without a permit from Mason County. You also indicated to us that there is a wetlands violation already in place for the land in question and that we should contact the Mason County Code Enforcement division to acquire specific details. We will do that as soon as possible. We discussed that Mr. ]urges is attempting to use as an access to his development unvacated and undeveloped Atwater Avenue. According to Mr. Steven Whitehouse, our attorney, since this land was platted in 1890 and not developed by Mason County, Atwater Avenue between Blocks 38 and 47 has become our land by action of law. Mr. David Bayley of Mason County Title Company (who is also an attorney) concurs in that assessment. It then falls to us to negotiate with Mr. ]urges egress/ingress across Atwater via an easement from us. However, another complication has arisen. We presented to you a copy of the Skillings Connolly diagram of the property prepared for the right-of-way acquisition for the overhaul of Grapeview Loop Road. That document designates the property on Block 38 and 47 on either side of Atwater Avenue as wetlands: more specifically, Wetlands #18 and Wetlands #19. I have been in contact with Mr. Brian Fagerness of Skillings Connolly who will research the wetlands delineation and get back to me. His recollection was that Skillings Connolly hired a third party to accomplish the evaluation. This exercise may be moot as Mr. ]urges has other access to his planned development. We also presented to you, Mr. Howard Noyd's effort to stop the previous owners of that land before Mr. ]urges acquired it through foreclosure. Those owners, a Mr. Scott and Mr. Eldridge, were subsequently ordered to repair the wetlands by the Army Corps of Engineers. Once we scan this hardcopy evidence we will forward it to you. Mr. Ryan Crater, Planner Mason County Community Development August 21, 2007 Page 2 You emphasized that public notification and perhaps a public hearing would have to be conducted prior to any permits being issued. We respectfully request to be kept apprised by all Mason Coun departments involved with this issue. S cerely, E Robe Pastore Sue K. Bar 5294 Grapeview Loop Road Grapeview, WA 98546 Cc: Barb Robinson, Director, Mason County Community Development John Bolender, Director, Mason Conservation District Rick Brush, Manager, Mason County Property Manager Lynda Ring Erickson, Mason County Commissioner District I �e0N co MASON COUNTY � rA Shelton (360) 427-9670 DEPARTMENT OF COMMUNITY DEVELOPMENT - Belfair (360) 275-4467 Planning Mason County Bldg.1 411 N.5th Elma (360) 482-5269 P.O.Box 279 Shelton,WA 98584 1854 NOTICE OF HEARING ADMINISTRATIVE APPEAL Notice is hereby given that Robert Pastore has filed an Administrative Appeal. This appeal is in dispute of a Final Determination of Non-Significance made by Mason County staff in reference to the State Environmental Policy Act(SEPA) Checklist, the approval of a Boundary Line Adjustment (BLA), and the approval of a Mason Environmental Permit(MEP). Project Location: West of Grapeview Loop Road in the Plat of Detroit#2 in Grapeview,WA. NW '/4 and SW 1/4 of Township 21 N, Range 1 W, Section 5. Parcel Numbers: 12105-51-44001,3, 5, 6, 10; 12105-51-45006, 10, 11; 12105-51- 54002, 5, 9; 12105-51-55002, 6; 12105-51-56002,3, 5, 7, 9; 12105-51-58002,3, 4, 6; 12105-51-59002. Date of Filing: July 318% 2008 A HEARING will be held by the Mason County Hearings Examiner regarding the Administrative Appeal on Tuesday,August 26th, 2008 at 1:00 p.m. in the Commissioner's Chambers Building I, 411 North Fifth Street, Shelton, WA. If special accommodations are needed, contact the Commissioner's Office, (360)427-9670. Any person of record desiring to express their views or to be notified of the action taken on the Appeal should come to the hearing on August 26th, 2008 or mail comments to Rebecca Hersha, Land Use Planner, Mason County Dept. of Community Development, PO Box 279, Shelton, WA 98584. Please contact Rebecca Hersha of the Mason County Department of Community Development at (360) 427-9670 ext. 593, or at the address listed above, with questions regarding this Administrative Appeal. 1 2 3 4 Open Record Appeal Hearing August 26, 2008 5 1 :00 P.M. 6 BEFORE THE HEARING EXAMINER 7 FOR MASON COUNTY 8 9 ) RE: JURGES APPLICATION ) NO. HEX2008-00035 10 ) APPLICANT'S PRE-HEARING 11 ) BRIEF 12 ) 13 I. INTRODUCTION 14 The Applicant is the owner of nine blocks of real property in the Plat of 15 16 Detroit No. 2, located near Grapeview in Mason County, Washington. At the time 17 he came into title, the property contained 146 vested "legacy" lots. A boundary 18 line adjustment completed in January, 2008, consolidated these lots into the 20 19 vested lots at issue in this appeal. The Applicant sought, and was granted, a 20 Mason Environmental Permit ("MEP") to address the wetland and habitat critical 21 areas on the site. 22 The proposal is the subject of studies, including wetlands and streams, 23 habitat management, and drainage. The project will provide significant open areas 24 25 to protect the wetland and habitat resources identified on-site. The County's 26 decisions at issue here are supported by a substantial record and there is no basis 27 on which to grant the opponent's appeal. 28 APPLICANT'S PRE-HEARING BRIEF - 1 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 3 II. PROCEDURAL HISTORY 4 In 2007 Mr. Jurges applied for a boundary line adjustment for his Grapeview 5 property. The filing with Mason County provided for consolidation of the 146 lots 6 into 20 building lots and associated supporting tracts. The ministerial application 7 8 was processed under Mason County Code ("MCC") Chapter 16.40, and approved 9 by Mason County in accordance with the Code on January 30, 2008. The 10 boundary line adjustment was recorded with the Mason County Auditor on January 11 31 , 2008. No timely appeal was taken to this approval. 12 In accordance with the Mason County Resource Ordinance, an application for 13 a Mason Environmental Permit was filed with Mason County on June 12, 2008. As 14 provided under the Ordinance, the permit application was accompanied with a 15 16 SEPA checklist. The purpose of the permit is to allow land development, 17 stormwater improvements, road improvements, and associated grading of the 18 Grapeview property. 19 Reviewing the checklist against the existing regulatory backdrop, Mason 20 County carefully evaluated this application as required by the State Environmental 21 Policy Act. Having completed its review, a mitigated determination of non- 22 significance ("MDNS") was issued, a practice favorably regarded by Washington 23 courts and the Department of Ecology. See Anderson v. Pierce County, 86 24 25 Wn.App. 290, 303, 936 P.2d 432 (1997)(MDNS process is "eminently sensible"). 26 The MDNS imposed a number of conditions to mitigate potential environmental 27 impacts. 28 APPLICANT'S PRE-HEARING BRIEF - 2 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 3 The SEPA MDNS issued by Mason County was transmitted to all interested 4 parties on July 16, 2008. See E-mail from Rebecca Hersha to Glen Jurges dated 5 July 16, 2008, with associated attachment (attached hereto as Exhibit A), see also 6 Pastore Appeal (acknowledging issuance of SEPA determination on July 16, 2008). 7 8 On July 31 , 2008, 15 days after the determination was transmitted to all parties, 9 Mr. Pastore filed his appeal of the SEPA MDNS. See Pastore Appeal (reflecting 10 date stamp of July 31 , 2008, attached hereto as Exhibit B). No other appeal was 11 filed with regard to SEPA. 12 Mason County issued its Environmental Permit on July 22, 2008. In addition 13 to the conditions imposed by the SEPA MDNS, additional conditions were imposed 14 on Mr. Jurges. Mr. Pastore also filed his appeal with regard to the Mason 15 16 Environmental Permit on July 31 , 2008. The SEPA and MEP appeals have been 17 consolidated by Mason County. 18 III. APPELLANT'S APPEALS OF THE BOUNDARY LINE ADJUSTMENT AND SEPA DETERMINATION ARE TIME BARRED. 19 Timely filing is a condition precedent to providing the Hearing Examiner with 20 21 authority to hear an appeal. Failure to comply with time limitations requires the 22 dismissal of the appeal. A good example of the application of this rule is found in 23 Graham Thrift Group, Inc. v. Pierce County, 75 Wn.App. 263, 877 P.2d 228. In 24 Graham Thrift, an appellant failed to pay an appeal fee within ten days as required 25 by the Pierce County Code. The Court held that neither the Court nor the Pierce 26 County Council, which was acting in a quasi-judicial capacity, had jurisdiction to 27 28 APPLICANT'S PRE-HEARING BRIEF - 3 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 decide the appeal given the untimely payment of the appeal fee. Id. 75 Wn.App. at 3 267. 4 The policy reasons for the application of this rule to land use actions was 5 outlined by the Supreme Court in Chelan County v. Nykreim, 146 Wn.2d 904, 931- 6 32, 52 P.3d 1 (2002): 7 8 Applying LUPA and following this court's decision in Wenatchee Sportsmen in this case is consistent with this court's stringent 9 adherence to statutory time limits. This court has also recognized a strong public policy supporting administrative 10 finality in land use decisions. In fact, this court has stated that "[i]f there were not finality [in land use decisions], no owner of 11 land would ever be safe in proceeding with development of his 12 property.... To make an exception ... would completely defeat the purpose and policy of the law in making a definite time 13 limit." 14 In Nykreim, the Court dismissed an untimely appeal of a boundary line adjustment 15 decision after it had been approved by the Chelan County Planning Director and 16 recorded. Id. 17 In the case before the Hearing Examiner, the Appellant failed to file timely 18 appeals for both the boundary line adjustment and SEPA matters. Boundary line 19 adjustments are processed under Mason County Ordinance 1 6.40.040-045. Under 20 21 the Mason County Code, determinations on boundary line adjustments are a Type 1 22 ministerial decisions. SEPA decisions are Type II administrative determinations. 23 MCC 15.15.010. 24 25 26 27 28 APPLICANT'S PRE-HEARING BRIEF - 4 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 The Mason County Code places strict time limits on filing appeals: 3 15.1 1 .020 Appeal to the hearing examiner. 4 (a) Filing. Every appeal to the hearing examiner shall be filed 5 with the clerk of the board within fourteen days after the date of the decision being appealed. 6 Here, it is uncontroverted that no appeal to the Hearing Examiner was taken 7 8 with regard to the boundary line adjustment until more than six months after it was 9 approved by Mason County and recorded with the Mason County Auditor. 10 Additionally, no Land Use Petition Act appeal was filed with the superior court 11 within 21 days of the decision. Accordingly, the Pastore appeal was not timely 12 filed, and the Hearing Examiner has no jurisdiction to consider the boundary line 13 adjustment matter. 14 Similarly, the SEPA appeal in this action was not timely filed. The record 15 16 establishes that Mason County transmitted its threshold determination on July 16, 17 2008. See, Exhibit A. The appeal by Mr. Pastore was not filed with the County 18 until July 31 , 2008, beyond the 14-day time period for filing an appeal. Having not 19 filed his appeal during the period provided by the Mason County Code, the Hearing 20 Examiner has no jurisdiction to decide Mr. Pastore's SEPA appeal. Thus, as set 21 forth in Graham Thrift, and Nykreim, the Hearing Examiner should summarily 22 dismiss these appeals. 23 IV. STANDARD OF REVIEW 24 25 An agency's administrative determinations are accorded substantial weight. 26 Hayden v. City of Port Townsend, 93 Wn.2d 870, 880, 613 P.2d 1164 (1980); 27 Wenatchee Sportsman Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 28 APPLICANT'S PRE-HEARING BRIEF - 5 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 (2000) (standard of review in appeal of MDNS); Indian Trail Prop. Owner's Ass'n v. 3 City of Spokane, 76 Wn.App. 430, 442, 886 P.2d 209 (1 994); RCW 43.21 C.090. 4 Mason County's determinations here are presumptively valid, and are reviewed 5 under the "clearly erroneous" standard. See Ass'n of Rural Residents v. Kitsap 6 County, 141 Wn.2d 185, 195-96, 4 P.3d 115 (2000); RCW 36.70C.130(1 )(d). "A 7 8 decision is clearly erroneous when there is evidence to support it, but the reviewing 9 body is 'left with the definite and firm conviction that a mistake has been 10 committed."' Rural Residents, 141 Wn.2d at 196. Upon reviewing the entire 11 record and the evidence, the Hearing Examiner must affirm unless it finds the 12 determination to be "clearly erroneous." Norway Hill Pres. & Prot. Ass'n v. King 13 County Council, 87 Wn.2d 267, 274-76, 552 P.2d 674 (1976). 14 15 V. MASON COUNTY HAS APPROPRIATELY REVIEWED AND CONDITIONED THE 16 APPLICANT'S PROPOSAL 17 It is not disputed that this proposal requires a Mason Environmental Permit. 18 Mason County has carefully reviewed Mr. Jurges' permit application and 19 conditioned his project to ensure protection of critical areas. Prior to issuing its 20 21 determination, Mason County required the applicant to prepare a Mason 22 Environmental Permit Map that outlined the wetland boundaries and buffers 23 associated with this application. See Staff Report, at Exhibit 10. Additional 24 engineering documentation included a grading plan, drainage plan, and road detail 25 documentation. Id. at Exhibits 13 through 15. Mason County also required a 26 habitat management plan to be prepared, with associated studies. Id. at Exhibit 11 . 27 28 APPLICANT'S PRE-HEARING BRIEF - 6 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 The Mason Environmental Permit issued by the County specifically 3 incorporated the engineering, wetlands and habitat management reports as 4 requirements for this proposal. The record reflects that Mason County carefully 5 considered environmental factors and issued its Mason Environmental Permit in full 6 compliance with Mason County's Resource Ordinance. Here, the critical 7 8 environmental resources associated with the permit application, wetlands and 9 habitat areas, have been studied and the MEP conditioned to provide environmental 10 protection. 11 If the permit meets the Code requirements for a Mason Environmental Permit, 12 the Hearing Examiner must uphold the issuance of the permit. See Mission Springs 13 Inc. v. City of Spokane, 134 Wn.2d 947, 960-961 , 954 P.2d 250 (1998) (stating 14 that if an applicant meets criteria a permit must be issued). In this case, the 15 16 proposal has met all requirements contained in the Mason County Resource 17 Ordinance, and the Appellant has failed to identify anything to the contrary. Thus, 18 the County's decision to approve the MEP should be affirmed. 19 VI. ISSUES RAISED IN THE PASTORE APPEAL DO NOT ESTABLISH "CLEARLY ERRONEOUS" ACTIONS BY MASON COUNTY 20 21 The Pastore appeal is a litany of issues that have limited or no relevance to 22 the decisions made by Mason County. The appeal at pages three through eight, 23 lists four asserted reasons for this appeal. None of these "reasons" constitutes a 24 basis for a "clearly erroneous" finding by the Hearing Examiner. 25 26 27 28 APPLICANT'S PRE-HEARING BRIEF - 7 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 A. The Applicant's Proposal is Vested and Complies with the Growth 3 Management Act. 4 The first reason raised by the Appellant for invalidating Mason 5 County's decisions is an assertion that the density of the Applicant's 6 proposal violates the Growth Management Act, and Mason County's 7 8 Comprehensive Plan and Development Regulations. This is simply 9 incorrect. 10 Mason County has adopted development regulations, plat 11 regulations and zoning regulations to comply with the mandates of 12 Growth Management Act. Mason County's Code, in conformance with 13 State law regarding vesting and the Growth Management Act, includes 14 a provision that protects property owners' vested rights in "legacy" lots. 15 16 MCC 17.03.032(b)(2); see Viking Props., Inc. v. Holm, 155 Wn.2d 17 112, 128, 118 P.3d 322 (2005) (Growth Management Act includes 18 important goal of "protecting private property rights"). The Code also 19 contemplates allowing boundary line adjustments between vested lots 20 provided no additional lots are created. MCC 16.40.040 - 045. As 21 conceded by Mr. Pastore in his appeal, these portions of the Code were 22 not the subject of an appeal to the Growth Management Hearings Board 23 at the time the Comprehensive Plan and implementing development 24 25 regulations were adopted. Pastore Appeal at page 4. 26 Here, the Applicant held vested rights in 146 building lots. 27 After the boundary line adjustment, the Applicant now holds 20 vested 28 APPLICANT'S PRE-HEARING BRIEF - 8 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 building lots. Appellant would have the Hearing Examiner find that 3 Mason County violated the Growth Management Act by approving an 4 application that significantly reduced the number of building lots within 5 the zone, and brought the property more nearly into compliance with its 6 rural residential zoning. 7 8 Further, the provisions of the Growth Management Act guide 9 future land use planning; they do not apply to a site-specific permit. 10 See Viking Props. supra, 155 Wn.2d at 125-126 (concluding that local 11 development regulations constrain a landowner's use of property, not 12 the GMA or comprehensive plans). In this case, the County Code 13 expressly permits higher density development than would be considered 14 "rural" under the GMA by allowing historic lots of record to be 15 16 developed with single family dwellings and their accessory uses. While 17 the Appellant obviously takes issue with the County's allowance of 18 substandard lots, this is not the appropriate forum in which to pursue a 19 challenge of the County's underlying zoning ordinances. 20 B. Mason County has Properly Considered Critical Areas. 21 Mr. Pastore next argues, at pages 5 and 6 of his briefing, that 22 the Applicant's proposal would result in illegal impacts on wetlands, a 23 creek and associated buffers. This is simply untrue. 24 25 As provided in the MEP map submitted to Mason County with 26 this application, care has taken to meet all Mason County requirements 27 for wetland setbacks, and to avoid any requirement for filling 28 APPLICANT'S PRE-HEARING BRIEF - 9 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 wetlands. The project as proposed meets all critical area 3 requirements. See Mason County Resource Ordinance, Chapter 7.01 . 4 Mr. Pastore never even addresses the controlling Resource Ordinance, 5 much less establish that the County's action under the Ordinance is 6 clearly erroneous. Accordingly, the Applicant is entitled to his permit. 7 8 Mission Springs Inc. v. City of Spokane, supra, 134 Wn.2d at 960- 9 961 . 10 Throughout his appeal materials, Mr. Pastore attempts to raise 11 the "straw man" assertion that Mr. Jurges at some point in the past 12 improperly filled wetlands. Appellant also has made its desire to 13 challenge an earlier alleged grading effort on the Applicant's property 14 apparent in this appeal. While this issue is not directly relevant to the 15 16 matters before the Hearing Examiner, the Applicant wishes to clarify 17 this issue so there is no suggestion he is acting irresponsibly.' 18 At the time Mr. Jurges obtained title by to the real property at 19 issue, the prior owner had conducted land development activities 20 inconsistent with Mason County ordinances. As a result of this prior 21 activity, Mason County placed a "stop work" order on the property in 22 23 ' Mr. Pastore also raises an access issue across the platted Atwater Avenue. While 24 not relevant to the issues before the Hearing Examiner, it can be addressed summarily. Atwater has never been vacated by Mason County, and Mr. Jurges 25 acquired his property by reference to the plat. See Deed, Exhibit E. Accordingly, he holds a private right-of-way or easement for access across Atwater. Brown v. 26 Olmstead, 49 Wn. 2d 210, 214, 299 P.2d 564 (1956). Mr. Pastore has 27 acknowledged the presence of this easement. See, E-mail from Robert Pastore to Glen Jurges dated January 31 , 2002, attached hereto as Exhibit C. 28 APPLICANT'S PRE-HEARING BRIEF - 10 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 October, 1998. See, Letter from Glen Jurges to Mason County dated 3 January 28, 2001 (attached hereto as Exhibit D). 4 After purchasing the property by deed in lieu of foreclosure on 5 May 17, 1999, Mr. Jurges worked with Mason County officials to 6 address the Code violations of his predecessor-in-interest. See Quit 7 8 Claim Deed attached hereto as Exhibit E. For example, working with 9 County representatives, he established a 25,000-square-foot 10 mitigation wetland on a portion of his property. See Letter, supra, 11 Exhibit D. Following his efforts, the County lifted all stop work orders 12 on his property. See, Letter from Mason County to Glen Jurges dated 13 February 21 , 2001 (attached hereto as Exhibit F). The Applicant 14 addressed the wetland violations of the prior owner and enhanced 15 16 wetlands in the area of his proposal. It is disingenuous for the 17 Appellant to attempt to taint Mr. Jurges with the sins of his 18 predecessor. 19 Mr. Pastore also attempts to vilify Mr. Jurges for grading 20 activities in 2001 . These activities were not illegal and were 21 completed in accordance with the Mason County Code. Chapter 33 to 22 the Mason County Grading Permit Standards effective in December, 23 1996, exempted grading and excavation work which did not exceed 24 25 200 cubic yards lot. See Mason County Permit Standards, Section 26 3306.2 (4) (grading permit standards in effect in 2001 and 2002, 27 relevant portion attached hereto as Exhibit G). At the time of the work 28 APPLICANT'S PRE-HEARING BRIEF - 11 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 complained of in Mr. Pastore's appeal, Mr. Jurges was performing 3 work on 40 of his lots, and accordingly was exempt from the 4 requirement for a grading permit for up to 8,000 cubic yards of 5 grading work. No grading permit was required, and no violation of any 6 law or standard occurred. See E-mail from Glen Jurges to Allan 7 8 Borden (Mason County) dated June 21 , 2001 (confirming that no 9 permit was required for grading activities, attached as Exhibit H). 10 The record establishes that the "illegal activities" Mr. Pastore 11 wishes to attribute to Mr. Jurges are misplaced. Further, the appeal 12 effectively asserts that Mason County is required to explore and 13 evaluate the impacts from past development activities in granting the 14 MEP. Washington law, however, only requires that the impacts of the 15 current proposal be evaluated not the impacts of past activities. WAC 16 17 1 97-1 1 -330. For example, under SEPA, a proposal is defined as a 18 "proposed action." WAC 197-1 1-784. 19 Mr. Pastore also complains about the septic system proposed. 20 Under the proposal, septic systems have been placed in a community 21 septic area a distance from the wetlands. The system has been 22 reviewed by the Environmental Health Specialists at Mason County 23 Public Health in accordance with WAC Chapter 246-272A. The 24 25 County defers to the expertise of the Mason County Public Health to 26 review and regulate the design, location, and management of a septic 27 system. And, notably, the Mason Environmental Permit does not 28 APPLICANT'S PRE-HEARING BRIEF - 12 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 address design, location or management requirements of septic 3 systems. Accordingly, this basis for appeal is not properly before the 4 Hearing Examiner. 5 C. Mason County has Properly Conditioned the Proposal. 6 Mr. Pastore's appeal at "reasons" three and four argues that, in 7 8 addition to "density" issues, the County must address and condition 9 the proposal for "global warming" impacts. Here, relying primarily 10 upon general arguments not tied to any study, review or evidence, the 11 Appellant demands the imposition of conditions that would address 12 the global warming impact of any future development on the 13 environment including "carbon sinks", specific building standards and 14 property set asides for new forests. 15 Richard Settle, in his work on the State Environmental Policy 16 17 Act, notes the impropriety of the strained approach to proposal review 18 urged by the Appellant: 19 Opponents, at times, challenge an MDNS, not because required mitigation would fail to bring impacts below the threshold of 20 significance but because the required mitigation does not go further and avoid even nonsignificant impacts where it would 21 have been feasible to do so. Such a challenge is not proper in 22 an administrative MDNS appeal because it does not address the validity of the agency's determination that the proposal, as 23 mitigated, would not have significant adverse environmental impacts. 24 R. Settle, The Washington State Environmental Policy Act, Section 25 26 13.01 (4)(f). Mr. Pastore would ask the Hearing Examiner to strip Mr. 27 Jurges of his vested property rights in his building lots and require 28 APPLICANT'S PRE-HEARING BRIEF - 13 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 what can only be interpreted as draconian and overreaching measures 3 to effectively block future development. 4 VII. CONCLUSION 5 6 Mr. Pastore's appeals with regard to the boundary line adjustment and SEPA 7 MDNS are untimely. Accordingly, the Hearing Examiner has no jurisdiction over 8 these appeals and they must be dismissed. Further, the Appellant has failed to 9 establish that the issuance of the Mason Environmental Permit and associated 10 conditions were clearly erroneous. Accordingly, the Hearing Examiner is asked to 11 12 deny this appeal. 13 RESPECTFULLY SUBMITTED this day of August, 2008. 14 LAW FFICE OF CH D B. SHATTUCK 15 16 RICHAR6 B. SHATTUCK, WS A #15588 17 Attorney for Applicant 18 19 20 21 22 23 24 25 26 27 28 APPLICANT'S PRE-HEARING BRIEF - 14 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 EXHIBIT A Page 1 Glen Jur es From: 'Rebecca Hersha" <RebeccH@co.mason.wa.us> To: "Glen Jurges"<gfjurges@prodi t> Sent: Wednesday, July 16, 2008 10:48 AM Attach: Notice to Retain DNS_1.doc Subject: Notice to Retain MDNS Attached is my final determination for the SEPA that you have submitted. Sincerely, Rebecca Hersha, Planner II Mason County Department of Community Development (360) 427-9670, Ext. 593 NOTICE TO RETAIN MDNS SEP2008-00088 July 16`h, 2008 This is notice that the County is retaining the SEPA Threshold Mitigated Determination of Non- Significance (MDNS) for SEP2008-00088 issued on June 18, 2008 by Mason County Planning Department. The proposed grading for future residential development nearby a jurisdictional stream and jurisdictional wetlands does not pose a significant environmental impact warranting a Determination of Significance (DS)and a subsequent Environmental Impact Statement(EIS). The proposal involves 146 lots that were platted in 1890 at a very high density. Despite the lot sizes not conforming to current zoning requirements, each of the original platted lots were allowed one dwelling unit(per Mason County Development Regulations 17.03.032 B. 2). However, Mr. Jurges,through a Boundary line Adjustment(BLA), has combined 146 of these lots into 20 home sites and has submitted an engineered stormwater plan for the project. Although his proposal does involve encroachment into the wetland buffers for road improvements and well access, it is arguably less than the impact that would have resulted had he sold each lot individually. Mr. Jurges has submitted a Habitat Management Plan to mitigate for the proposed impacts to the wetlands and their buffers. He has also obtained an approved Eagle Management Plan from the Washington Department of Fish and Wildlife. The drainfields for the 20 homes are located together on two lots that are not within the wetland or stream buffers. The Environmental Health Department has reviewed and approved the drainfield designs and locations. The Planning Department concludes that this proposal does not pose significant environmental impacts. Because this SEPA is accompanied with a Mason Environmental Permit(MEP), all conditions will be attached to the MEP at the time the MEP is issued. Commentors receiving notice: Bob Pastore P.O. Box 5 Grapeview, WA 98546 Richard Settle, Attorney Foster Pepper LLC 1111 Third Ave., Suite 3400 Seattle, WA 98101-3299 Steve Clark Steve.clark(a?,purbond.com John and Judy Ringle Rin leic a,engr.orst.edu Steven Winter Winterhydro d email.com Michael Fogde P.O. Box 108 Grapeview, Wa 98546 cc: Squaxin Tribe Commissioner Lynda Ring Erickson Glen Jurges,Applicant EXHIBIT B 19 @ ig 0 W Ry JUL 3 1 ;2008 MASON COUNTY BEFORE THE MASON COUNTY HEARING EBOMP APPEAL OF FINAL MITIGATED DETERMINATION OF NONSIGNIFICANCE ISSUED BY MASON COUNTY SEPA RESPONSIBLE OFFICIAL REBECCA HERSHA, JULY 16, 2008 ON SEP2008-00088 STATEMENT OF APPEAL PURSUANT TO MCC 15.11.020 1. THE DECISIONS BEING APPEALED: A. The final Mitigated Determination of NonSignficance Issued by Mason County SEPA Responsible Official Rebecca Hersha,July 16, 2007, on SEP2008-00088. B. The approval of the boundary line adjustment and environmental (critical area) permit, discovered by Appellant on July 28, 2008. 2. THE NAME AND ADDRESS OF THE APPELLANT AND HIS INTERESTS IN THE MATTER: Robert A. Pastore P.O. Box 5 5294 Grapeview Loop Road Grapeview, WA 98546 Appellant owns approximately 15 acres of land surrounding a portion of the proposed project. Appellant's land also was divided into many small lots in an 1890 plat. Unlike the Applicant ]urges, Appellant Pastore has no plans to develop any of these lots. However, if Appellant were to sell this land, any development which is permitted on the Jurges land would be precedent for similar development on Appellant's land. Much of the Appellant's and proposed project property is wetlands as established by various governmental agencies. A stream traversing the proposed project flows into Case Inlet on Puget Sound. The density of the development is many times higher than allowed by current Washington State Growth Management Act goals and policies and the Mason County comprehensive plan and development regulation Ordinances, and the accompanying septic systems, which have been grouped on two specific Lots, will be dangerously close to the stream and within its watershed. The predecessor to the current project developer was cited by the U.S. Army Corp of Engineers and subsequently required to restore the stream and wetlands after removing timber without the required permits from the DNR. The current project developer has filled in, without the required permitting, almost two acres of wetlands on which he now proposes to construct six homes. 1 EXHIBIT C Page 1 of 1 Glen Jurges From: 'Robert A. Pastore" <BobPastore@compuserve.com> To: "Glen Jurges" <gf u rges@prodigy.net> Sent: Thursday, January 31, 2002 9:11 AM Subject: Re: Vacating Roads >>In a few days I will start the process of requesting the County vacate their right of way interest to me including Atwater from Grapeveiw Loop Road. As we have discussed, it would be to both of our interest to work together. I would appreciate knowing your interest or no interest before I submit my request. << I have interest and I have been in contact with my attorney who recommended that I call you. Please pass on your phone number. From him I understand that you have an easement across Atwater between Grapeview Road and your property. In addition, I have an easement across your roads. I will be in touch when I get your number. Bob 8/13/2008 EXHIBIT D "...;",.A 1�........t'_'.j-.j;..,:t'.-..j--%­.­­jr)1 - - -.)-.,........&---- - .. ..... 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"... . ........... .... ...... .a......w_.,u.sruur,.u.-..,r - • - t__ ,..s..,�,«:...nw EXHIBIT E . I Illili HMI frNll Ilihl NII fill{�nl NI IIIiI NII Ihl n'9B,�o' �6Tp MpSON COUNTY TITLE INS CO OCO 12.Oa Mason , AFF, ,IQAV Nt r/N.MM UTATI noel TAX EXEMPT When Recorded Return Ta JUN 081999 WHEATON WAY ESCROW 4388 TOTEM PLACE N.E.P.O.BOX 2174(98310) D U R E N b K A L BREMERTON,WA 98311 Trees Mason County Escrow No.6399 LPB-12 -I �1 QUIT CLAIM DEED Reference d (if applicable): EXHIBIT A Grantor(s): RICHARD P. SCOTT AND CRAIG R, ELDRIDGE Additional on page: Grantee(s): "RGES ENTERPRISES INC, Additional on page: Legal Description (abbreviated): _ Full legal on page: 2 Assessor's Tax Parcel ED#: SEE ATTACHED THE GRANTOR RICHARD P. sCOTl, A SINGLE max AND CRAIG R. ELDRIDGE, A SINGLE MAN for and in consideration of DEED IN LIEU OF FORECLOSURE OF DEED OF TRUST conveys and quit claims to JURGES ENTERPRISES INC, the following described real estate, situated in the County of MASON, state of Washington, together with all after acquired title of the grantor(s) therein: SEE ATTACHED LEGAL DESCRIPTION WHICH SEREST BECOMES A PART OF THIS DOCUMENT AS EXHIBIT A 12)05 '�)) L,4 -- W BL-A CM -,�A Asseaeor's Tax Parcel ID #: SEE ATT DA ay ,1999 CHARD P. SC C R. RIDGE State of Washington County of Kitsap } •• I certify that I know or have satisfactory evidence that RICEARD P. SCOTT AND CRAIG R. ELDRIDGE is/are the person(s) who appeared before me, and said person(s) acknowledged that THEY signed this instrument and acknowledged it to be THEIR free and voluntary act for the uses and purposes mentioned in this instrument. Dated 1-Z - -0"Ct 1 .1�,t 0r,�n+-J Jat M. TURNER Notary Public in and for the state of Washington, residing at Qoy�S�O Hy appointment expires: Jti3iE M.nTURNER ATTENDANCE ROSTER u� a 0 (Date) 14 E )(, L NAME (Please Print) F MPLETE MAILING ADDRESS PHONE DO YOU WISH TO TESTIFY? z 2 �� 1�6 ✓ 4 3 fS 3 5 l G-✓� \J t`� ��j �I ��" s� ���I� �/v� �^ ?r�{1 ©&t,, �/T 2S3&6 _ 70 I F- Zd 10 2�- 0 ass 3� T•\T:hATAQVDnQTT:TJ A-,. ATTENDANCE ROSTER (Date) [NIAME (Please Print) COMPLETE MAILING ADDRESS PHONE DO YOU WISH TO TESTIFY? 1a � rsox 2 �� c 3 4 5 6 7 8 9 10 T•\Fn'DX4Q\DC)Qrr ? 1— Interested Parties for Pastore Appeal of Jurges development. Bob Pastore P.O. Box 5 Grapeview,WA 98546 Richard Settle,Attorney Foster Pepper LLC 1111 Third Ave., Suite 3400 Seattle, WA 98101-3299 Michael Fogde P.O. Box 108 Grapeview,Wa 98546 John Ringle 2630 N.W. Linnan Circle Corvallis, OR 97330 Steve Clark Steve.clark2c purbond.com Steven Winter W interhydroOgmail.com Laura Howard P.O. Box 324 Grapeview, WA 98546 COMMITMENT FOR TITLE INSURANCE EXHIBIT "A" IN MASON COUNTY, WASHINGTON Order No. 77671 PARCEL : Lots four (4) to seven (7), both inclusive, Block thirteen ((13)), Lots four (4) to seven (7), both inclusive, Block fourteen (14); Lots four (4) to seven (7)) both inclusive, Block fifteen (15); Lots one (1) to five (5) both inclusive, Bock twentytwo (22); lots sixteen (16) to twenty (20), both inclusive, Block twentytwo (22); jots one (1) to twenty (20}, both inclusive, Block twentythree (23); Lots one 1 to twenty Ti, both inclusive, Block twentyfour (24); Lots one (1) to twenty (20), both nclusive, Block twentyfive (25 , Lots one 1)) to twenty (2t�), both inclusive, Block twentysix (26); Lots one 1) to twenty tb), both inclusive, Block twentyseven (27); Lots one (1) to twenty 20), both inc usive Block twentyeight (28 ; Lots eleven (11) to twenty (20), both inclusive, lock fiftysix (56); Lots one �1) to twenty (20), both inclusive, Block fiftyseven (57); tots one (1) to twenty (20), both inclusive, Block fiftyeight (58); Lots one (12 to twenty (20)), both inclusive Block fiftynine (59) all in the Plat of Detroit No. 2, Volume 1 of Plats, page h, records of Mason County, Washington. Parcel Nos. 12105 51 13004 I210S 51 14004, 12105 51 15D04 12105 51 22001 12105 51 Z2016, 12105 51 23001, (2IO5 51 23006, 12105 51 23016, 12105 51 24001, 12105 51 25001, 12105 51 26001, 12105 51 27001, 12105 51 28001, 12105. 51 56011, 12105 51 57001, 12105 51 58001 and 12105 51 59001. PARCEL 2: Lots one (1) to twenty (20), both inclusive, Block fiftyfour (44); Lots one (1) to twenty (20), both Inclusive, Block fortyfive (45); and Lots one (1) to twenty (20), both inclusive Block fortysix (46), all in the plat of Detroit No. 2, Volume 1 of Plats, page 21, records of Mason County, Washington. TOGETHER WJTH all that portion of vacated 7th Street adjoining said Blocks fortyfive (45) and fortysix (46) and lying between the South line of Atwater Avenue on the North and the North line of Congress Avenue on the South. Parcel Nos. 12105 51 44001, 12105 51 45001 and 12105 51 46001 PARCEL 3: Lots one (1), two (2), three (3), the North ten (10) feet of lot four (4), the North ten (l0) feet of Lot seventeen (17) and all of Lots eigghteen (18), nineteen S19) and twenty (20), Block fiftyfour (54), Plat of Detroit No. 2, Volume 1 of Plats, page 23, records of Mason County, Washington. 1691891 Peen; 2 or 5 fII,1,Ili l,II.,7 66/N/IRN 03:57P 60N COUNTY TITLE I�Y6 Co eco 12.00 Mason Co, WA Satd•land being also known and described as the resulting single lot Parcel i of Boundary line Adjustment No. 94-35, recorded May 10, 1994, Auditor's File No. 58745b. Parcel No. 12105 51 54001. PA 4: The South twenty (20) feet of Lot four (4), all of lots five (5) and six (6), the North twenty (20) feet of lot seven (7 he North twenty (20) feet of Lot fourteen (14), all of Lots fifteen (15; and sixteen (16� and the South twenty 20) feet of lot seventeen (17), Block fiftyfour (54) fat of Detroit No. 2, olume 1 of Plats, page 23, records of Mason County, Washington. Said land beingg also known and described as the resultingg single lot Parcel 2 of Boundary Line Ad,)ustment No. 94-35, recorded May 10, 1994, Auditor's File No. 587455. Parcel No. 12105 51 54004. PARCEL 5: The South ten (10) feet of Lot seven (7), all of Lots eight (8), nine (9), ten (10), eleven (11), twelve (12) and thirteen (13) and the South ten (10) feet of Lot fourteen (14), Block fiftyfour (54), Plat of Detroit No. 2, Volume 1 of Plats, page 23, records of Mason County, Washington. Said land being also known and described as the resultingy single lot Parcel 3 of Boundary Line Adjustment No. 94-35, recorded May 10, 1994, Auditor's File No. 587455. Parcel No. 12105 51 54008. PARCEL 6: Lots one (1), two (2), three (3), the North ten (10) feet of Lot four (4), the North ten (10) feet of Lot seventeen (17 and all of Lots eighteen (18 , nineteen (19), and twenty (20), Block fiftyfive (15), Plat of Detroit No. 2, VN ume 1 of Plats, page 23, records of Mason County, Washington. Said land being also known and described as the resulting single lot Parcel 1 (if Boundary Line Ad,iustment No. 94-34, recorded May I0, 199 Auditor's File No. 587454. Parcel No. 12105 51 55001. RC Lots four (4), five (5 six (6), the North twenty,120) feet of Lot seven (7), the North twenty (20 eet of Lot fourteen (14), all of Lots fifteen (15) and sixteen (16 and the South twenty (20) feet of Lot seventeen (17), Block fiftyfive ( 5), Plat of Detroit No. 2, Volume 1 of Plats, page 231 records of Mason County, Washington; excepting the North ten (10) feet of said Lot four (4). ��I��I II II,III I�IIII „1 HI�I„IIII I�I Pose ea/Yol a ee 03:57P MASON COUNTY TITLE INS C0 CCD 12.00 Moen CD, WA Said land being ilso known and described as the resultingg single lot Parcel 2 of Bounddary Line Adjustment No. 94-34, recorded May 10, 1994, Auditor's File No. 587454. Parcel No. 12105 51 55004, PARCEL The South tan (I0) feet of lot seven `7), all of Lots eight (8) nine (9), ten {10) eleven (11j, twelve (12) and thirteen (13) and the South i0 feet of Lot ourieen (14), B ock fiftyfive (55), Plat of Detroit No. 2, volume 1 of Plats, page 23, records of Mason County, Washington. Said land being also known and described as the resulting single lot Parcel 3 of Boundary Line dJustment No. 94-34, recorded May 10, 1994, Auditor's File No. 587454. Parcel No. 12105 51 55008, PARCEL 9: Lots one (1) to ten (10), both inclusive, Block fiftysix (56), Plat of Detroit No. 2, Volume I of Plats, page 23, records of Mason County, Washington. Parcel No. 12105 51 56001. III t��Vll� l6Yee69ng 0 a MVP co cco 12.eo ma an Cc, 11n hgSWl COUNTY TITLE INS - TOTPL P.e4 ETOPPEL CZRTIPICATE FORM OF INDIVIDUAL GIVING DEED TN LIEU OP PORBCLOSURB Slate of Washington County orKilsap both single men Richard P. Scott and Craig R. Eldridge 1rorth single m, � irrdiyiduSlly, bring Goat defy swim,each for himsalf and herself, deposes and says: that they arc the identical parties who me executed,Bing and delivered that cetnafn deed to Jurges Enterprises Inc doted fire 12th of June 19 J conveyit;t the followin6 described property,to wit: ThAr AfflenlS now are,and At all times herein mentioned,wcmyAWAH d)W4 WFlLtX both single men That the aforesaid deed wag intended to be and was an absolute conveyance of the tills to said premises to the grantee nrmcd therein,and was not and is not now intended as a mortgage,trust CGQvtyatice,or ateutity or any kind;that it was the intention Of affiants At grantors in said deed to xrwey,and by Said deed these affiants did convey to the&runtce therein all their tight, title,and interest absolutely in and to said premises;that possession of aid pttmisca has been surrendered to the grantee; '"At in the execution and delivery of said deed affiantx were tat acting under any misapprchcndon as to the effect thereof,and acted frcelyand voluntarily and wete not acting under coercion or dureu; That aforesaid deed was not given as a preference&Xuinat any other creditors of the deponents or either of theaai that a:the time it was given there was no other person or pemoms,Gant or corponations,other lion the grantee therein named inlere.tted, either directly or Indirectly is said premises,that these deponents are solvent and hove no other creditor whose rights would be prejudiced by such convtyance,and that deponents are not obligated upon any bond or other Mortgage whereby any lien has been ernated or exists against the prcmisa described in said deed. That the consideration for said deed was and is payment to affrants of the sum of S 250,000.WNntee and the full cancetlarinn Qf al deb ,P" 'SCiOLL C� sad charges secured by that ccrtaia mortgago herelofore ettisting on said prorerly eaccutcd b is ar Y Ste; R=R]Flridae mortgage[,to Jurges Enterprises Inc. sw mOtl i ee dated the 12th day ofJune ,1997,and recorded in Book'of 0lftetal Records,Pa e � 6 f t and the release of record of said mort d �P County,Stara be icyc that the gage;and that at the tome of making said deed afFisnts believed and now believe that the aforesaid consideration therefor represents the Aft market value of the ptopenyso deeded; This affidavit is made for lhe'pmtectios and benefit of the grantee In said deed,hit SucceLQom and assigns,and all other ptu-ties hereafter dealing with oT who may acquire an interest in the propcny herein desenbed. The affrants,and oft m,will testify,declare,depose,or certify before any earnpclent trihunaf,officer,or person,in any case now pen w may Merea[ker tituttd,to the truth of the psTticuW facts hercinabove set forth Grantor chard P. c t 4ranlor C ai R ldr• qe Uraalte r es rprises Inc. 1IFFICIALGFAL �iQt�Ti;�X1 JAI:IE M.TURNER s e�lqPutlic-StataolWashintton lifant66 ti :."i:yicnErplru6.9-Op I STATIC OF Wj1L!Q 1GTON, ) }s• 0Ounty of KAUP O tS On this �'% 1999 hhe� se�attt 1-k[[ wday or ,A_D.1997.before me,the u darcigned,a Notary Public in and for t G1esl�es b2fRhingtoa, pcnoaally appearal Richard P. Scott an� to druTl to me known to be the ra yps En erprises In�R the person(R) who execu the foregoing instrument, and acknowledged the said utslrument to be the fret and voluntary act Snd deed,for the uses and purposes therein mentioned,and on oath stated that the is authorircd to execute the said instTyntenf. WITNCSS fay hand and official Seal hereto affixed the day and year in this certificate above written. r'iQmrY Public in and for the State of Washington. Residing at Poulsho My commission ercpires - - {a,lll■,�I NHS�1,111 IIII I'fll�l �II��I II I� of 5 Dolaae gNG 03 57P t1A60I COUNTY TITLE INS CO am 12.00 Mason Cc, L1A EXHIBIT F MASON COUNTY DEPARTMENT OF COMMUNITY DEVELOPMENT Planning Mason County Bldg.1 411 N.5th P.O.Box 279 Shelton,WA 98584 (360) 427-9670 Belfair (360) 275-4467 Elma (360) 482-5269 Seattle (206) 464-6968 February 21, 2001 Glen Jurges Jurges Enterprises 2020 Enatai Beach Bremerton WA 98310 RE: STOP WORK posted at your property located in Detroit Township #2. Affected parcels are as follows: #12105-51-13004, 12105-51-14004, 12105-51-15004, 12105-51- 22001, 12105-51-22016, 12105-51-23001, 12105-51-23006, 12105-51-23016, 12105-51- 24001, 12105-51-25001, 12105-51-26001, 12105-51-27001, 12105-51-28001, 12105-51- 44001, 12105-51-45001, 12105-51-46001, 12105-51-54001, 12105-51-54004, 12105-51- 54008, 12105-51-55001, 12105-51-55004, 12105-51-55008, 12105-51-56001, 12105-51- 56011, 12105-51-57001, 12105-51-58001, 12105-51-59001. Dear Mr. Jurges: Mason County Department of Community Development has received your January 28, 2001 letter concerning the stop work order ENF98-0125 on the above listed parcels. Your letter requests that the subject stop work order be rescinded due to the actions undertaken by you to address past activities that violated Mason County regulations. In reviewing your letter, this Department does acknowledge that you and your contractors have mapped critical area boundaries (stream and wetlands), accomplished the replanting of damaged stream and wetland buffers in the southern portion of your property near Atwater and Griswold Avenues, and analyzed and implemented the proposed wetland mitigation in the northern portion of your property near Randolph Avenue and Oak Street. This work has been verified through the as-built and monitoring plans (January 2001) and construction drawings (November 2000) submitted to Mason County. These actions resolve the concerns of the Department of Community Development that prompted the posting of the stop work on these properties. Based upon this conclusion, the stop work order is hereby rescinded and the parcel flagging in Mason County permit tracking system shall be removed. Proposals to develop these properties shall comply with Mason County codes and development standards, such as you were informed in the pre-application review meeting in August 2000. If you have additional questions on this matter or development standards, please contact me in the Department of Community Development at (360) 427-9670 ext. 365. Sincerely, Allan Borden Long Range Planner EXHIBIT G CHAPTER 33 EXCAVATION AND GRADING Purpo Sec. 3304. The purpose of this.code is to safeguard life, limb, property, and the public welfare by regulating grading on private property within Mason County. Scope Sec. 3305. This code sets forth rules and regulations to control excavation, grading and earthwork construction, including fills and embankments; establishes the administrative procedure for issuance of permits; provides for approval of plans and inspection of grading construction; and provide coordination of the efforts of the Department of Community Development,Building Department, and Department of Public Works in permitting development in the county. Permits Requireded Sec. 330 Permits Required. Except as specified in Subsection (.2) of this section, no person shall do any grading without first having obtained a grading permit firm the Official. A grading permit shall be required for a project involving excavation or fill that totals 200 or more cubic yards of graded material and is not exempted below. Grading activities not requiring a grading permit shall comply with the standards listed in Sec. 3312 through 3316. 3306.2 Exempted W Ji A grading permit is not required for the following : 1. When approved by the Official, grading in an isolated, self-contained area if there is no danger or hazard to adjacent private / public property or other improvements. 2. An excavation below finished grade for basements and footings of a building,retaining wall or other,structure authorized by a valid building permit. 'Phis shall not exempt any fill made with the material from such excavation or exempt any excavation having an unsupported height greater than 5 feet after the completion of such structure. 3. An excavation which (a) is less than 2 feet in depth, or (b) which does not create a t slope greater than 5 feet in height and steeper than 1 1/2 horizontal to 1 vertical. 4 A fill less than 1 foot in depth and placed on natural terrain with a slope flatter than 5 horizontal to 1 vertical, or less than 3 feet in depth, not intended to support structures, which does not exceed 200 cubic cyards on any one lot and does not obstruct a drainage course. 5. Cemetery graves. 6. Refuse disposal sites controlled by other regulations. 7. Excavations for wells or tunnels or utilities. 8. Mining, quarrying, excavating, processing, stockpiling of rock, and, gravel, aggregate or clay where established and provided for by law, provided such operations do not affect the lateral support or increase the stresses in or pressure upon any adjacent or contiguous property. MASON COUNTY GRADING PERMIT STANDARDS (DECEl13E3t 1996- ) 1 EXHIBIT H Page 1 of 1 Glen Jurges From: Glen Jurges<gfjurges@prodigy.net> To: Allan Borden <AHB@Co.Mason.WA.US> Cc: Tami Griffey<tlg@co.mason.wa.us>; Craig Baldwin <wse@ix.netcom.com> Sent: Thursday, June 21, 2001 11:44 PM Subject: RV Park Site Prep Allan, I just wanted to make an official record of our conversation yesterday regarding the site preparation for the RV Park, if approved in the future by Mason County. I realize the final decision depends on a lot of factors but I am willing to gamble that everything will eventually work out. It appears next spring I could be starting the actual development work. As you know some springs can be pretty wet so I asked if I could do some site preparation and surface water stabilization now. The main work will be removing the scotch broom and approximately three dozen small fir and hemlock trees. After the stumps are removed I will contour Blocks 45 and 46 and that portion of Blocks 54 and 55 outside the wetland buffer as shown on the preliminary drawings submitted last month with the RV Park Application. The existing roads will be graded to elevation and slope. Because the ground has been mostly cleared and close to the proper elevation I will grade 7th Street between Blocks 45 and 46. 1 will ditch where necessary and install three or four culverts to make sure the surface water is directed as shown on the preliminary drawings. Ditches will be seeded and silt fences installed any place water has the potential to be discharged. After all the surface work is done it will be covered with straw and/or tailings from stump grinding if I cannot burn and seeded. Because of the number of lots involved a grading permit is not required. You have a Mason Environmental Permit I submitted several months ago for the entire project. I also have discussed my current work plan with Tami Griffey several weeks ago and again yesterday. It seems like a lot of work will be done but a minimum of soil will be moved because of the work done by the previous owners. My understanding from our conversation on 6/20/2001 that you are in agreement that I can proceed with the work, at my risk, as we discussed and outlined above. If you have any concerns please let me know as soon as possible. I will keep you appraised as the work progresses. 1 2 3 4 5 6 BEFORE THE HEARING EXAMINER FOR MASON COUNTY 7 8 ) 9 ) NO. HEX2008-00035 RE: JURGES APPLICATION ) 10 ) AFFIDAVIT OF MAILING 1 11 1 12 13 STATE OF WASHINGTON ) ss. 14 County of Kitsap ) 15 DIANE SHROPSHIRE, being first duly sworn, on oath deposes and says: That on the ��day of August, 2008, 1 caused to be deposited in the first-class mails of 16 the United States of America in an envelope with postage fully prepaid and 17 addressed to: 18 Bob Pastore P.O. Box 5 19 Grapeview, Washington 98546 20 the following documents in reference to the above-captioned matter: 21 1 . Applicant's Pre-Hearing Brief 22 23 r �12 l ''L--� 24 DIANE SHROPSHI 25 26 27 2 8 AFFIDAVIT OF MAILING - 1 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 3 4 SUBSCRIBED AND SWORN to before e this ,1day of August, 2008. 5 � pnu�aap, , Q.•• ��.� ,�•.sy NOTARY PUBLIC in and for the 7 >, �' �p Stat of W shington, residing Zs at 8 •� -1g My commission expires: � 0 12, 9 foe too ,440 �.+ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AFFIDAVIT OF MAILING - 2 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 / I 1 2 - - Lam- x15 M1�n i 4 °''° Open Record Appeal Hearing August 26, 2008 5 1:00 P.M. 6 BEFORE THE HEARING EXAMINER 7 FOR MASON COUNTY 8 9 ) RE: JURGES APPLICATION ) NO. HEX2008-00035 10 ) APPLICANT'S PRE-HEARING 11 ) BRIEF 12 ) 13 I. INTRODUCTION 14 The Applicant is the owner of nine blocks of real property in the Plat of 15 16 Detroit No. 2, located near Grapeview in Mason County, Washington. At the time 17 he came into title, the property contained 146 vested "legacy" lots. A boundary 18 line adjustment completed in January, 2008, consolidated these lots into the 20 19 vested lots at issue in this appeal. The Applicant sought, and was granted, a 20 Mason Environmental Permit ("MEP") to address the wetland and habitat critical 21 areas on the site. 22 The proposal is the subject of studies, including wetlands and streams, 23 habitat management, and drainage. The project will provide significant open areas 24 25 to protect the wetland and habitat resources identified on-site. The County's 26 decisions at issue here are supported by a substantial record and there is no basis 27 on which to grant the opponent's appeal. 28 APPLICANT'S PRE-HEARING BRIEF - 1 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale,Washington 98383 (360) 698-5560 1 2 3 II. PROCEDURAL HISTORY 4 In 2007 Mr. Jurges applied for a boundary line adjustment for his Grapeview 5 property. The filing with Mason County provided for consolidation of the 146 lots 6 7 into 20 building lots and associated supporting tracts. The ministerial application 8 was processed under Mason County Code ("MCC") Chapter 16.40, and approved 9 by Mason County in accordance with the Code on January 30, 2008. The 10 boundary line adjustment was recorded with the Mason County Auditor on January 11 31, 2008. No timely appeal was taken to this approval. 12 In accordance with the Mason County Resource Ordinance, an application for 13 a Mason Environmental Permit was filed with Mason County on June 12, 2008. As 14 provided under the Ordinance, the permit application was accompanied with a 15 16 SEPA checklist. The purpose of the permit is to allow land development, 17 stormwater improvements, road improvements, and associated grading of the 18 Grapeview property. 19 Reviewing the checklist against the existing regulatory backdrop, Mason 20 County carefully evaluated this application as required by the State Environmental 21 Policy Act. Having completed its review, a mitigated determination of non- 22 significance ("MDNS") was issued, a practice favorably regarded by Washington 23 courts and the Department of Ecology. See Anderson v. Pierce County, 86 24 25 Wn.App. 290, 303, 936 P.2d 432 (1997)(MDNS process is "eminently sensible"). 26 The MDNS imposed a number of conditions to mitigate potential environmental 27 impacts. 28 APPLICANT'S PRE-HEARING BRIEF - 2 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 3 The SEPA MDNS issued by Mason County was transmitted to all interested 4 parties on July 16, 2008. See E-mail from Rebecca Hersha to Glen Jurges dated 5 July 16, 2008, with associated attachment (attached hereto as Exhibit A), see also 6 7 Pastore Appeal (acknowledging issuance of SEPA determination on July 16, 2008). 8 On July 31 , 2008, 15 days after the determination was transmitted to all parties, 9 Mr. Pastore filed his appeal of the SEPA MDNS. See Pastore Appeal (reflecting 10 date stamp of July 31 , 2008, attached hereto as Exhibit B). No other appeal was 11 filed with regard to SEPA. 12 Mason County issued its Environmental Permit on July 22, 2008. In addition 13 to the conditions imposed by the SEPA MDNS, additional conditions were imposed 14 on Mr. Jurges. Mr. Pastore also filed his appeal with regard to the Mason 15 16 Environmental Permit on July 31 , 2008. The SEPA and MEP appeals have been 17 consolidated by Mason County. 18 III. APPELLANT'S APPEALS OF THE BOUNDARY LINE ADJUSTMENT AND SEPA DETERMINATION ARE TIME BARRED. 19 Timely filing is a condition precedent to providing the Hearing Examiner with 20 21 authority to hear an appeal. Failure to comply with time limitations requires the 22 dismissal of the appeal. A good example of the application of this rule is found in 23 Graham Thrift Group, Inc. v. Pierce County, 75 Wn.App. 263, 877 P.2d 228. In 24 Graham Thrift, an appellant failed to pay an appeal fee within ten days as required 25 by the Pierce County Code. The Court held that neither the Court nor the Pierce 26 County Council, which was acting in a quasi-judicial capacity, had jurisdiction to 27 28 APPLICANT'S PRE-HEARING BRIEF - 3 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road II Silverdale, Washington 98383 (360) 698-5560 1 2 decide the appeal given the untimely payment of the appeal fee. Id. 75 Wn.App. at 3 267. 4 The policy reasons for the application of this rule to land use actions was 5 outlined by the Supreme Court in Chelan County v. Nykreim, 146 Wn.2d 904, 931- 6 32, 52 P.3d 1 (2002): 7 8 Applying LUPA and following this court's decision in Wenatchee Sportsmen in this case is consistent with this court's stringent 9 adherence to statutory time limits. This court has also recognized a strong public policy supporting administrative 10 finality in land use decisions. In fact, this court has stated that "[i]f there were not finality [in land use decisions], no owner of 11 land would ever be safe in proceeding with development of his 12 property.... To make an exception ... would completely defeat the purpose and policy of the law in making a definite time 13 limit." 14 In Nykreim, the Court dismissed an untimely appeal of a boundary line adjustment 15 decision after it had been approved by the Chelan County Planning Director and 16 recorded. Id. 17 In the case before the Hearing Examiner, the Appellant failed to file timely 18 appeals for both the boundary line adjustment and SEPA matters. Boundary line 19 20 adjustments are processed under Mason County Ordinance 16.40.040-045. Under 21 the Mason County Code, determinations on boundary line adjustments are a Type 1 22 ministerial decisions. SEPA decisions are Type II administrative determinations. 23 MCC 15.15.010. 24 25 26 27 28 APPLICANT'S PRE-HEARING BRIEF - 4 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 The Mason County Code places strict time limits on filing appeals: 3 15.1 1 .020 Appeal to the hearing examiner. 4 (a) Filing. Every appeal to the hearing examiner shall be filed 5 with the clerk of the board within fourteen days after the date of the decision being appealed. 6 Here, it is uncontroverted that no appeal to the Hearing Examiner was taken 7 8 with regard to the boundary line adjustment until more than six months after it was 9 approved by Mason County and recorded with the Mason County Auditor. 10 Additionally, no Land Use Petition Act appeal was filed with the superior court 11 within 21 days of the decision. Accordingly, the Pastore appeal was not timely 12 filed, and the Hearing Examiner has no jurisdiction to consider the boundary line 13 adjustment matter. 14 Similarly, the SEPA appeal in this action was not timely filed. The record 15 16 establishes that Mason County transmitted its threshold determination on July 16, 17 2008. See, Exhibit A. The appeal by Mr. Pastore was not filed with the County 18 until July 31 , 2008, beyond the 14-day time period for filing an appeal. Having not 19 filed his appeal during the period provided by the Mason County Code, the Hearing 20 Examiner has no jurisdiction to decide Mr. Pastore's SEPA appeal. Thus, as set 21 forth in Graham Thrift, and Nykreim, the Hearing Examiner should summarily 22 dismiss these appeals. 23 IV. STANDARD OF REVIEW 24 25 An agency's administrative determinations are accorded substantial weight. 26 Hayden v. City of Port Townsend, 93 Wn.2d 870, 880, 613 P.2d 1164 (1980); 27 Wenatchee Sportsman Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 28 APPLICANT'S PRE-HEARING BRIEF - 5 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road II Silverdale, Washington 98383 (360) 698-5560 1 2 (2000) (standard of review in appeal of MDNS); Indian Trail Prop. Owner's Ass'n v. 3 City of Spokane, 76 Wn.App. 430, 442, 886 P.2d 209 (1994); RCW 43.21 C.090. 4 Mason County's determinations here are presumptively valid, and are reviewed 5 under the "clearly erroneous" standard. See Ass'n of Rural Residents v. Kitsap 6 County, 141 Wn.2d 185, 195-96, 4 P.3d 115 (2000); RCW 36.70C.1300 )(d). "A 7 8 decision is clearly erroneous when there is evidence to support it, but the reviewing 9 body is 'left with the definite and firm conviction that a mistake has been 10 committed."' Rural Residents, 141 Wn.2d at 196. Upon reviewing the entire 11 record and the evidence, the Hearing Examiner must affirm unless it finds the 12 determination to be "clearly erroneous." Norway Hill Pres. & Prot. Ass'n v. King 13 County Council, 87 Wn.2d 267, 274-76, 552 P.2d 674 (1976). 14 15 V. MASON COUNTY HAS APPROPRIATELY REVIEWED AND CONDITIONED THE 16 APPLICANT'S PROPOSAL 17 It is not disputed that this proposal requires a Mason Environmental Permit. 18 Mason County has carefully reviewed Mr. Jurges' permit application and 19 conditioned his project to ensure protection of critical areas. Prior to issuing its 20 21 determination, Mason County required the applicant to prepare a Mason 22 Environmental Permit Map that outlined the wetland boundaries and buffers 23 associated with this application. See Staff Report, at Exhibit 10. Additional 24 engineering documentation included a grading plan, drainage plan, and road detail 25 documentation. Id. at Exhibits 13 through 15. Mason County also required a 26 habitat management plan to be prepared, with associated studies. Id. at Exhibit 11 . 27 28 APPLICANT'S PRE-HEARING BRIEF - 6 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 The Mason Environmental Permit issued by the County specifically 3 incorporated the engineering, wetlands and habitat management reports as 4 requirements for this proposal. The record reflects that Mason County carefully 5 considered environmental factors and issued its Mason Environmental Permit in full 6 compliance with Mason County's Resource Ordinance. Here, the critical 7 8 environmental resources associated with the permit application, wetlands and 9 habitat areas, have been studied and the MEP conditioned to provide environmental 10 protection. 11 If the permit meets the Code requirements for a Mason Environmental Permit, 12 the Hearing Examiner must uphold the issuance of the permit. See Mission Springs 13 Inc. v. City of Spokane, 134 Wn.2d 947, 960-961 , 954 P.2d 250 (1998) (stating 14 that if an applicant meets criteria a permit must be issued). In this case, the 15 16 proposal has met all requirements contained in the Mason County Resource 17 Ordinance, and the Appellant has failed to identify anything to the contrary. Thus, 18 the County's decision to approve the MEP should be affirmed. 19 VI. ISSUES RAISED IN THE PASTORE APPEAL DO NOT ESTABLISH "CLEARLY ERRONEOUS" ACTIONS BY MASON COUNTY 20 21 The Pastore appeal is a litany of issues that have limited or no relevance to 22 the decisions made by Mason County. The appeal at pages three through eight, 23 lists four asserted reasons for this appeal. None of these "reasons" constitutes a 24 basis for a "clearly erroneous" finding by the Hearing Examiner. 25 26 27 28 APPLICANT'S PRE-HEARING BRIEF - 7 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road II Silverdale, Washington 98383 I (360) 698-5560 1 2 A. The Applicant's Proposal is Vested and Complies with the Growth 3 Management Act. 4 The first reason raised by the Appellant for invalidating Mason 5 County's decisions is an assertion that the density of the Applicant's 6 proposal violates the Growth Management Act, and Mason County's 7 8 Comprehensive Plan and Development Regulations. This is simply 9 incorrect. 10 Mason County has adopted development regulations, plat 11 regulations and zoning regulations to comply with the mandates of 12 Growth Management Act. Mason County's Code, in conformance with 13 State law regarding vesting and the Growth Management Act, includes 14 a provision that protects property owners' vested rights in "legacy" lots. 15 16 MCC 17.03.032(b)(2); see Viking Props., Inc. v. Holm, 155 Wn.2d 17 112, 128, 118 P.3d 322 (2005) (Growth Management Act includes 18 important goal of "protecting private property rights"). The Code also 19 contemplates allowing boundary line adjustments between vested lots 20 provided no additional lots are created. MCC 16.40.040 - 045. As 21 conceded by Mr. Pastore in his appeal, these portions of the Code were 22 not the subject of an appeal to the Growth Management Hearings Board 23 at the time the Comprehensive Plan and implementing development 24 25 regulations were adopted. Pastore Appeal at page 4. 26 Here, the Applicant held vested rights in 146 building lots. 27 After the boundary line adjustment, the Applicant now holds 20 vested 28 APPLICANT'S PRE-HEARING BRIEF - 8 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 building lots. Appellant would have the Hearing Examiner find that 3 Mason County violated the Growth Management Act by approving an 4 application that significantly reduced the number of building lots within 5 the zone, and brought the property more nearly into compliance with its 6 rural residential zoning. 7 8 Further, the provisions of the Growth Management Act guide 9 future land use planning; they do not apply to a site-specific permit. 10 See Viking Props. supra, 155 Wn.2d at 125-126 (concluding that local 11 development regulations constrain a landowner's use of property, not 12 the GMA or comprehensive plans). In this case, the County Code 13 expressly permits higher density development than would be considered 14 "rural" under the GMA by allowing historic lots of record to be 15 16 developed with single family dwellings and their accessory uses. While 17 the Appellant obviously takes issue with the County's allowance of 18 substandard lots, this is not the appropriate forum in which to pursue a 19 challenge of the County's underlying zoning ordinances. 20 B. Mason County has Properly Considered Critical Areas. 21 Mr. Pastore next argues, at pages 5 and 6 of his briefing, that 22 the Applicant's proposal would result in illegal impacts on wetlands, a 23 creek and associated buffers. This is simply untrue. 24 25 As provided in the MEP map submitted to Mason County with 26 this application, care has taken to meet all Mason County requirements 27 for wetland setbacks, and to avoid any requirement for filling 28 APPLICANT'S PRE-HEARING BRIEF - 9 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road II Silverdale, Washington 98383 I (360) 698-5560 1 2 wetlands. The project as proposed meets all critical area 3 requirements. See Mason County Resource Ordinance, Chapter 7.01 . 4 Mr. Pastore never even addresses the controlling Resource Ordinance, 5 much less establish that the County's action under the Ordinance is 6 clearly erroneous. Accordingly, the Applicant is entitled to his permit. 7 8 Mission Springs Inc. v. City of Spokane, supra, 134 Wn.2d at 960- 9 961 . 10 Throughout his appeal materials, Mr. Pastore attempts to raise 11 the "straw man" assertion that Mr. Jurges at some point in the past 12 improperly filled wetlands. Appellant also has made its desire to 13 challenge an earlier alleged grading effort on the Applicant's property 14 apparent in this appeal. While this issue is not directly relevant to the 15 16 matters before the Hearing Examiner, the Applicant wishes to clarify 17 this issue so there is no suggestion he is acting irresponsibly.' 18 At the time Mr. Jurges obtained title by to the real property at 19 issue, the prior owner had conducted land development activities 20 inconsistent with Mason County ordinances. As a result of this prior 21 activity, Mason County placed a "stop work" order on the property in 22 23 ' Mr. Pastore also raises an access issue across the platted Atwater Avenue. While 24 not relevant to the issues before the Hearing Examiner, it can be addressed summarily. Atwater has never been vacated by Mason County, and Mr. Jurges 25 acquired his property by reference to the plat. See Deed, Exhibit E. Accordingly, he holds a private right-of-way or easement for access across Atwater. Brown v. 26 Olmstead, 49 Wn. 2d 210, 214, 299 P.2d 564 (1956). Mr. Pastore has 27 acknowledged the presence of this easement. See, E-mail from Robert Pastore to Glen Jurges dated January 31 , 2002, attached hereto as Exhibit C. 28 APPLICANT'S PRE-HEARING BRIEF - 10 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 October, 1998. See, Letter from Glen Jurges to Mason County dated 3 January 28, 2001 (attached hereto as Exhibit D). 4 After purchasing the property by deed in lieu of foreclosure on 5 May 17, 1999, Mr. Jurges worked with Mason County officials to 6 address the Code violations of his predecessor-in-interest. See Quit 7 8 Claim Deed attached hereto as Exhibit E. For example, working with 9 County representatives, he established a 25,000-square-foot 10 mitigation wetland on a portion of his property. See Letter, supra, 11 Exhibit D. Following his efforts, the County lifted all stop work orders 12 on his property. See, Letter from Mason County to Glen Jurges dated 13 February 21 , 2001 (attached hereto as Exhibit F). The Applicant 14 addressed the wetland violations of the prior owner and enhanced 15 16 wetlands in the area of his proposal. It is disingenuous for the 17 Appellant to attempt to taint Mr. Jurges with the sins of his 18 predecessor. 19 Mr. Pastore also attempts to vilify Mr. Jurges for grading 20 activities in 2001 . These activities were not illegal and were 21 completed in accordance with the Mason County Code. Chapter 33 to 22 the Mason County Grading Permit Standards effective in December, 23 1996, exempted grading and excavation work which did not exceed 24 25 200 cubic yards lot. See Mason County Permit Standards, Section 26 3306.2 (4) (grading permit standards in effect in 2001 and 2002, 27 relevant portion attached hereto as Exhibit G). At the time of the work 28 APPLICANT'S PRE-HEARING BRIEF - 11 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale,Washington 98383 (360) 698-5560 1 2 complained of in Mr. Pastore's appeal, Mr. Jurges was performing 3 work on 40 of his lots, and accordingly was exempt from the 4 requirement for a grading permit for up to 8,000 cubic yards of 5 grading work. No grading permit was required, and no violation of any 6 law or standard occurred. See E-mail from Glen Jurges to Allan 7 8 Borden (Mason County) dated June 21 , 2001 (confirming that no 9 permit was required for grading activities, attached as Exhibit H). 10 The record establishes that the "illegal activities" Mr. Pastore 11 wishes to attribute to Mr. Jurges are misplaced. Further, the appeal 12 effectively asserts that Mason County is required to explore and 13 evaluate the impacts from past development activities in granting the 14 MEP. Washington law, however, only requires that the impacts of the 15 current proposal be evaluated not the impacts of past activities. WAC 16 17 197-1 1-330. For example, under SEPA, a proposal is defined as a 18 "proposed action." WAC 197-11-784. 19 Mr. Pastore also complains about the septic system proposed. 20 Under the proposal, septic systems have been placed in a community 21 septic area a distance from the wetlands. The system has been 22 reviewed by the Environmental Health Specialists at Mason County 23 Public Health in accordance with WAC Chapter 246-272A. The 24 25 County defers to the expertise of the Mason County Public Health to 26 review and regulate the design, location, and management of a septic 27 system. And, notably, the Mason Environmental Permit does not 28 APPLICANT'S PRE-HEARING BRIEF - 12 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 address design, location or management requirements of septic 3 systems. Accordingly, this basis for appeal is not properly before the 4 Hearing Examiner. 5 C. Mason County has Properly Conditioned the Proposal. 6 Mr. Pastore's appeal at "reasons" three and four argues that, in 7 8 addition to "density" issues, the County must address and condition 9 the proposal for "global warming" impacts. Here, relying primarily 10 upon general arguments not tied to any study, review or evidence, the 11 Appellant demands the imposition of conditions that would address 12 the global warming impact of any future development on the 13 environment including "carbon sinks", specific building standards and 14 property set asides for new forests. 15 Richard Settle, in his work on the State Environmental Policy 16 17 Act, notes the impropriety of the strained approach to proposal review 18 urged by the Appellant: 19 Opponents, at times, challenge an MDNS, not because required mitigation would fail to bring impacts below the threshold of 20 significance but because the required mitigation does not go further and avoid even nonsignificant impacts where it would 21 have been feasible to do so. Such a challenge is not proper in 22 an administrative MDNS appeal because it does not address the validity of the agency's determination that the proposal, as 23 mitigated, would not have significant adverse environmental impacts. 24 R. Settle, The Washington State Environmental Policy Act, Section 25 26 13.01 (4)(f). Mr. Pastore would ask the Hearing Examiner to strip Mr. 27 Jurges of his vested property rights in his building lots and require 28 APPLICANT'S PRE-HEARING BRIEF - 13 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 what can only be interpreted as draconian and overreaching measures 3 to effectively block future development. 4 VII. CONCLUSION 5 6 Mr. Pastore's appeals with regard to the boundary line adjustment and SEPA 7 MDNS are untimely. Accordingly, the Hearing Examiner has no jurisdiction over 8 these appeals and they must be dismissed. Further, the Appellant has failed to 9 establish that the issuance of the Mason Environmental Permit and associated 10 conditions were clearly erroneous. Accordingly, the Hearing Examiner is asked to 11 12 deny this appeal. 13 RESPECTFULLY SUBMITTED this O�� day of August, 2008. 14 LAW FFICE OF CH D B. SHATTUCK 15 16 RICHAR15 B. SHATTUCK, WS A #15588 17 Attorney for Applicant 18 19 20 21 22 23 24 25 26 27 28 APPLICANT'S PRE-HEARING BRIEF - 14 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 EXHIBIT A Page 1. Glen Jur es From: 'Rebecca Hersha"<RebeccH@co.mason.wa.us> To: "Glen Jurges"<gqurges@prodigy.net> Sent: Wednesday, July 16, 200810:48 AM Attach: Notice to Retain DNS_1.doc MD Subject: Notice to Retain NS Attached is my final determination for the SEPA that you have submitted. Sincerely, Rebecca Hersha, Planner II Mason County Department of Community Development (360) 427-9670, Ext. 593 NOTICE TO RETAIN MDNS SEP2008-00088 July 16'', 2008 This is notice that the County is retaining the SEPA Threshold Mitigated Determination of Non- Significance (MDNS) for SEP2008-00088 issued on June 18, 2008 by Mason County Planning Department. The proposed grading for future residential development nearby a jurisdictional stream and jurisdictional wetlands does not pose a significant environmental impact warranting a Determination of Significance (DS) and a subsequent Environmental Impact Statement(EIS). The proposal involves 146 lots that were platted in 1890 at a very high density. Despite the lot sizes not conforming to current zoning requirements, each of the original platted lots were allowed one dwelling unit(per Mason County Development Regulations 17.03.032 B. 2). However, Mr. Jurges,through a Boundary line Adjustment(BLA), has combined 146 of these lots into 20 home sites and has submitted an engineered stormwater plan for the project. Although his proposal does involve encroachment into the wetland buffers for road improvements and well access, it is arguably less than the impact that would have resulted had he sold each lot individually. Mr. Jurges has submitted a Habitat Management Plan to mitigate for the proposed impacts to the wetlands and their buffers. He has also obtained an approved Eagle Management Plan from the Washington Department of Fish and Wildlife. The drainfields for the 20 homes are located together on two lots that are not within the wetland or stream buffers. The Environmental Health Department has reviewed and approved the drainfield designs and locations. The Planning Department concludes that this proposal does not pose significant environmental impacts. Because this SEPA is accompanied with a Mason Environmental Permit(MEP),all conditions will be attached to the MEP at the time the MEP is issued. Commentors receiving notice: Bob Pastore P.O. Box 5 Grapeview, WA 98546 Richard Settle, Attorney Foster Pepper LLC 1111 Third Ave., Suite 3400 Seattle, WA 98101-3299 Steve Clark Steve.clark@purbond.com John and Judy Ringle Ringleic(ir?,engr.orst.edu Steven Winter Winterhydro@email.com Michael Fogde P.O. Box 108 Grapeview, Wa 98546 cc: Squaxin Tribe Commissioner Lynda Ring Erickson Glen Jurges, Applicant EXHIBIT B - JUL 3 1:2008 MASON COUNTY BEFORE THE MASON COUNTY HEARING EWWft9s APPEAL OF FINAL MITIGATED DETERMINATION OF NONSIGNIFICANCE ISSUED BY MASON COUNTY SEPA RESPONSIBLE OFFICIAL REBECCA HERSHA, JULY 16, 2008 ON SEP2008-00088 STATEMENT OF APPEAL PURSUANT TO MCC 15.11.020 1. THE DECISIONS BEING APPEALED: A. The final Mitigated Determination of NonSignficance Issued by Mason County SEPA Responsible Official Rebecca Hersha,July 16, 2007, on SEP2008-00088. B. The approval of the boundary line adjustment and environmental (critical area) permit, discovered by Appellant on July 28, 2008. 2. THE NAME AND ADDRESS OF THE APPELLANT AND HIS INTERESTS IN THE MATTER: Robert A. Pastore P.O. Box 5 5294 Grapeview Loop Road Grapeview, WA 98546 Appellant owns approximately 15 acres of land surrounding a portion of the proposed project. Appellant's land also was divided into many small lots in an 1890 plat. Unlike the Applicant ]urges, Appellant Pastore has no plans to develop any of these lots. However, if Appellant were to sell this land, any development which is permitted on the Jurges land would be precedent for similar development on Appellant's land. Much of the Appellant's and proposed project property is wetlands as established by various governmental agencies. A stream traversing the proposed project flows into Case Inlet on Puget Sound. The density of the development is many times higher than allowed by current Washington State Growth Management Act goals and policies and the Mason County comprehensive plan and development regulation Ordinances, and the accompanying septic systems, which have been grouped on two specific Lots, will be dangerously close to the stream and within its watershed. The predecessor to the current project developer was cited by the U.S. Army Corp of Engineers and subsequently required to restore the stream and wetlands after removing timber without the required permits from the DNR. The current project developer has filled in, without the required permitting, almost two acres of wetlands on which he now proposes to construct six homes. 1 EXHIBIT C ra�;c i vi i Glen Jurges From: "Robert A. Pastore"<BobPastore@compuserve.com> To: "Glen Jurges"<gJurges@prodigy.net> Sent: Thursday, January 31, 2002 9:11 AM Subject: Re: Vacating Roads >>In a few days I will start the process of requesting the County vacate their right of way interest to me including Atwater from Grapeveiw Loop Road. As we have discussed, it would be to both of our interest to work together. I would appreciate knowing your interest or no interest before I submit my request. << I have interest and I have been in contact with my attorney who recommended that I call you. Please pass on your phone number. From him I understand that you have an easement across Atwater between Grapeview Road and your property. In addition, I have an easement across your roads. I will be in touch when I get your number. Bob 8/13/2008 EXHIBIT D ::,..,:- ,..i.... :,: .. „ :,<:... ` t }.; I :.r.. 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Glen q% %jur a I to Y it Qllli 1- n jv! Conn T STPA T X&A ry SAT:' KIM% So own rp I WAis 0 TI K MIT ivy h[Th TWA,,RIST? 1 �1 MEMO ­WW! V�Q an STAR 001 AMR UK, ­�1151141 RANA! 10 SRI —00 IS 1 TO Vol, RW 1 Av� A Tt J :d A "RYON F w. -atilt 1, ills! WN on 011 1 PAW- A TAN 10A Qw? 14 A -A Of F?jji !j ni -woA.S.6 a MAIN; ijbd jUgh-We A TOP -c ryeorie at 111w FINN. -1 ed INTO o:. V no, W S Wt. ASK.ISS 011.now .1 S7 1 AFT 1; ASIA W: qfy. oil KA Q!: EXHIBIT E Pass: 1 of E illli IIN I1111 HIII I11 Iil Ilnll II N11 u m 6076611::�:sT" MASON COUNTY TITLE INS 00 so 12.00 Mason Cc, YA AFFI AVIT Nt. Wtt MAC"TATc Excist TAX EXEMPT When Recorded Return To: JUN 0 81999 WHEATON WAY ESCROW 4388 TOTEM PLACE N.E.P.O.BOX 2174(98310) DO R k N t K A c BREMERTON,WA 98311 Task.MWn COUDLY Escrow No.M9 LPB•12 QUIT CLAIM DEED Referenced' (if applicable): EZEIEIT A Grantor(s): RICKARD P. SCOTT AND CRAIG R. ELDRIDGE Additional on pages Grantee(s): JunGXS ®TRRPRISRB INC. Additional on page s Legal Description (abbreviated)s _ Full legal on pages 2 Assessor's Tax Parcel]D#: SEE ATTACHED THE GRANTOR RICHARD P. SCOTT, A SINGLE MAN AND CRAIG R. ELDRIDGE, A SINGLE MAN for and in consideration of DEED IN LIEU OF FORECLOSURE OF DEED OF TRUST conveys and quit claims to JURGES ENTERPRISES INC. the following described real estate, situated in the County of MASON, State of Washington, together with all after acquired title of the grantor(o) therein: SEE ATTACHED LEGAL DESCRIPTION WHICH HERESY BECOMES A PART OF THIS DOL'EUUW AS EXHIBIT A i 2t 01�-) 0) 5roo0+ LA -`L-Q F)L4 c14 -6+ Assessor's Tax Parcel ID {: SEE A DA yvl) 99 G� /� CHARD P. C R. RIDGE State of Washington County of Biteap } •• I certify that I know or have satisfactory evidence that RICHARD P. SCOTT AND CRAIG R. ELDRIDGE is/are the person(s) who appeared before me, and said person(.) acknowledged that THEY signed this instrument and acknowledged it to be THEIR free and voluntary act for the uses and purposes mentioned in this instrument. Dated - t -°fat czn,w,� a 1�� J�I�MTURNER Notary Public in and for the state of Washington, residing at eOVLSe-,O KY appointment expires s 7JAN;E ICIAL SeAI. M.TURNER } E:irfYPj1 is-5tac ci Y;dil.intfcn COMMITMENT FOR TITLE INSURANCE EXHIBIT "A" IN MASON COUNTY, WASHINGTO14 Order No. 77671 PARUL : Lots four (4) to seven (7), both inclusive, Block thirteen ((13)); Lots four (4) to seven (7), both inclusive Block fourteen (14); Lots four (d) to seven (7)) bnth inclusive, Block fifteen 115); Lots one (1) to five (5) both inclusive, Bock twentytwo (22); Lots sixteen ((16)) to twenty (20), both Inclusive, Block twentytwo (22); Lots one (1) to twenty (20), both inclusive, Block twentythree (23); Lots one (1) to twenty 20), both 1lncllusive, Block twentyfour (24); Lots one (2) to twenty (20), both nclusive, Block twentyfive (25 , Lots one 1)) to twenty {20), bath inclusive, Block twentysix (26); Lots one 1; o twenty 26), bath inclusive, Block twentyseven (27); Lots one (1) to twenty �20)t, bothinclusive Block twentyeight (28 ; Lots eleven 11) to twenty (2 ), both inclusive, lock fiftysix (56); Lots one �1) to twenty (i01, both inclusive, Block fiftyseven (57); Lots one 1 to twenty (7D), both ifncllusive, Block fiftyeight (58); Lots one 1) to twen y)(20�, both inclusive Block fiftynine (59) all in the Plat of Detroit No. 2, Vollume of Plats, page K records of Mason County, Washington. Parcel Nos. 12105 51 13004 1210S 51 14004, 12105 51 15004 12105 51 22001 12105 51 22016, 12105 51 23001, (2105 51 23006, 12105 51 23016, 12105 51 24001, 12105 51 25001, 12105 51 26001, 12105 51 27001, 12105 51 28001, 12105. 51 56011, 12105 51 57001, 12105 51 58001 and 12105 51 59001. PARCEL 2! Lots one (1) to twenty (20), both inclusive, Block fortyfour (44); Lots one (1) to twenty (20), both inclusive, Block fortyfive (45); and Lots one (1) to twenty (20), both inclusive Block fortysix (46� all in the plat of Detroit No. 2, Volume I of Plats, page 21, records of Mason ou,nty, Washington. TOGETHER WITH all that portion of vacated 7th Street adjoining said Blocks fortyfive (45) and fortysix (46) and lying between the South line of Atwater Avenue on the North and the North line of Congress Avenue on the South. Parcel Nos. 12105 51 44001, 121D5 51 45001 and 12105 51 46001 PARCEL 3: Lots one (1), two (2) three (3), the North ten (10) feet of Lot four (4), tha North ten (10) feet of Lot seventeen (17) and all of Lots eighteen (18 , nineteen (19) and twenty (20), Block foftyfour (54), Plat of Detroit No. 2, Volume 1 of Plats, page 23, records of Mason County, ashington. Pow 2 al 5 I�I III„111 I„I 06/0e/lM 07:67P MAM COUNTY TITLE INS CO OW 12.00 Mason Co, VA Said-land being also known and described as the resulting single lot Parcel 1 of Boundary Line adjustment No. 94-35, recorded May 10, 1994, Auditor's File No. 58745b: Parcel No. 12105 51 54001. PARCEL 4! The South twenty (20) feet of Lot four (4), all of Lots five (5) and six (6), the North twenty (20) feet of Lot seven (7), tthe North twenty (20) feet of Lot fourteen (14), all of lots fifteen (15) and sixteen (16l and the South twenty (20) feet of lot seventeen (17), Block fiftyfour (54), iiat of Detroit No. 2, Volume 1 of Plats, page 23, records of Mason County, Washington. Said land being also known and described as the resultingg single lot Parcel 2 of Boundary Line Adjustment No. 94-35, recorded May 10, 1994, Auditor's File No, 587455. Parcel No. 12105 51 54004. PARCEL 5, The South ten (10J feet of Lot seven (7) all of Lots eight (8), nine (9), ten (10), eleven 11 twelve (12) and thirteen (13) and the South ten (10) feet of Lot fourteen �14�, Block fiftyfour (54), Plat of Detroit No. 2, Volume 1 of Plats, page 23, records of Mason County, Washington. Said land being also known and described as the resulting single lot Parcel 3 of Boundary Line Adjustment No, 94-35, recorded May 10, 1994, Auditor's File No, 587455. Parcel No. 12105 51 54008. PARCEL 6: Lots one (1), two (2), three (3), the North ten (10) feet of Lot four (4), the North ten (10) feet of Lot seventeen (17) and all of Lots eighteen (18 , nineteen (19), and twenty (20), Block fiftyfive (55), Plat of Detroit No. 2, VN ume 1 of Plats, page 23, records of Mason County, Washington, Said land being also known and described as the resultingg single lot Parcel 1 of Boundary Line Adjustment No. 94-34, recorded May 10, 199A, Auditor's File No. 587454. Parcel No. 12105 51 55001. RC Lots four (4), five (5 six (6), the North twenty (20 feet of Lot seven (7), the North twenty (20 eet of Lot fourteen (14), all o Lots fifteen (15) and sixteen (16) and the South twenty (20) feet of Lot seventeen (17j. Block fiftyfive (55), Plat of Detroit No. 2, Volume 1 of Plats, page 2 r records of Mason County, Washington; excepting the North ten (10) feet of said Lot four (4). l ea• a>rool ree ma:eta FMON GM*TY TITLE 1N5 CO OW 12.00 MNOM Co, MA Said land being also known and described as the resultingy single lot Parcel 2 of Bounddary Line d3ustraent No. 94-34, recorded Hay 10, 1994, Auditor's File No. 587454. Parcel No. 12105 51 55004. PARCEL The South tan (10) feat of Lot seven (7), all of Lots eight (8) nine (9), ten (10) eleven , HI twelve (12) and thirteen (13) and the South f0 feet of Lot ouriaan (14), B ock fiftyfive (55), Plat of Detroit No. 2, volume 1 of Plats, page 23, records of Mason County, Washington. Said land beingg also known and described as the resulting single lot Parcel 3 of Boundary Line Adjustment No. 94-34, recorded May 10, 1994, Auditor's File No. 587454. Parcel No. 12105 51 55008, PA : Lots one (1) to ten (10), both inclusive, Block fiftysix (56), Plat of Detroit No. 2, Volume I of Plats, page 23, records of Mason County, Washington, Parcel No. 12105 51 $6001. 92 of 5 go/Soling e3:67P I INS CO YCG 12.ee IU�On Co. UP M,&ON COUNTY TITLE TOTPL P.04 ESTOPPEL MKI- ICAIS PoRM OFINDMDUAL GIVING DEED iN LIEU OP PORECLOSURB Sate of WAshin�loa county OrKilsap both single men Richard P. Scott and Craig R. Eldridge hyli% i1X&Wlfft, or Individually, being Citrrt dsly svnwm, each for himself and herself, deposes and say►: that they are the identical parties who maclyt�exccumd, and dctivcrcd that certain deed to JurcTes Enterprises Inc dated the 12th of June IV-,Convtytfl; the following described property,to wit: T'hilt A"all now are,and At all times herein mentioned,wcrCR S*1yt}�t7lQex both sinqle men That the aforesaid deed wAs intended to be and was An absolute conveyance of the title to said premises to the grantee ru,mcd therein,and was not and is not now intended as a mortgage,trust oorivcyance,or security o:any kind;(hot it was the Iotcation of affianu as grantors in said deed to convey,and by said deed these sfQonts did convey to the Vantce therein all their tight, title,and interest absolutely in and to said premises;that possession of raid prtmira has been surrendered to the granter, That in the execution and delivery of said deed affiants Were not acting under any misapprchcnsion ns to the effect thereof,and acted freely and voluntarily and were trot acting under coert.Kon or dureu; 'Mat aforessid deed was not given as a preference sprinst any other creditors of the deponents or either of them; that a the time it was given there was no other person or perxorg,firms or corponNons,other(tan the prantee therein named interettcd, either directly or Indirectly is Said prcmisa;than there deponents are solvent and have no other creditor.whose righa would be prcjudiud by such conveyance,and that deponents are not obl;jated upon Any bond or other mortgage whereby any lien hag been created or trials against the prcmisw described in said deed. Thst the cont:ideralion for said deed was and is payment to affiants of the tum or S 250,000.�p�ntee, and the full ancellatkrn al�deb$,$blt�at��tZ c,Rr and charges secured by that ccttala maitpgo heretofvrc existing op said profcvy executed b is ar YrxT1 r rz F1drid4e mortgagor,to Jurgen Enterprises Inc. ,y,mortgagee,dated the 12th day olJune ,199 and recorded in Book Of Official Records,Pane`,Kilsap County,State of Washington, se and the relea of record of aid mortgage;and that Of d1e time of making said deed afri4nta believed and now believe that the aforesaid consideration thcnfor represents the fait market value of the propertyso deeded; This affidavit is made for the'prtltectioa and benefit of the Lrantee In said deed,his sume"ors and Assigns,and aU other pe,.-ties hcreafier dealing With oT who may acquire an interest in the property herein described. The afftants,and of t m,will testify,declare,depose,or certify before any competent tribunal,officer,or person,In any case now pen w ' mey AeraaRet 016tituted,to the truth of the particular facts heminabove get forth Grantor chard P. c t Grantor C 15 R 1dr' qe Grantee rges ��s Inc. 7JARIE L SEAL �f7 TURNERateOWuhin{tanGrante6 •9-00 STATt OF WARiIYNGTON, ) ~ county of Kitaap O+io on this �► day of °'j"• 1999 ,A D.1997.before me,the undersigned,a NolaryPublic In And for (Glenl Jilrc��s �'�Ishington, pctttoaally appeared Richard P. Sc?tt an >>r s F.nr_Qrpr1Ses In�R the Fr R 81d an to me known to be the Lam- person(g) who eaectr the foreeoneg trutrumeat, and ackno iddged the said uWrument to be the free and voluntary act and deed,for the uses and purposes therein mealloned,and on oath stated that Idle is authors d to execute the said instrvmsnt WITNESS my hand and official seal hereto afftxed the day and yeAf in this certificate above written. Magary Public in and for the State of Washington. Residingat Poulsbo My commission expires - - �IN VMIII 1„NII ,''u,,Ipl'M'II IHI II''�'„II 1e9iea of 5 i ��I„IN 11 ul�I.rr�l •■1N■'�1■•' a H/66/19nse e3:67P tEKO I COUNTY TITLE IN{ 00 GOD 12.H Mason cc, tin MASON COUNTY DEPARTMENT OF COMMUNITY DEVELOPMENT Planning Mason County Bldg.1 411 N.5th P.O.Box 279 Shelton,WA 98584 (360) 427-9670 Belfair(360) 275-4467 Elma (360) 482-5269 Seattle (206) 464-6968 February 21, 2001 Glen Jurges Jurges Enterprises 2020 Enatai Beach Bremerton WA 98310 RE: STOP WORK posted at your property located in Detroit Township /#2. Affected parcels are as follows: f#12105-51-13004, 12105-51-14004, 12105-51-15004, 12105-51- 22001, 12105-51-22016, 12105-51-23001, 12105-51-23006, 12105-51-23016, 12105-51- 24001, 12105-51-25001, 12105-51-26001, 12105-51-27001, 12105-51-28001, 12105-51- 44001, 12105-51-45001, 12105-51-46001, 12105-51-54001, 12105-51-54004, 12105-51- 54008, 12105-51-55001, 12105-51-55004, 12105-51-55008, 12105-51-56001, 12105-51- 56011, 12105-51-57001, 12105-51-58001, 12105-51-59001. Dear Mr. Jurges: Mason County Department of Community Development has received your January 28, 2001 letter concerning the stop work order ENF98-0125 on the above listed parcels. Your letter requests that the subject stop work order be rescinded due to the actions undertaken by you to address past activities that violated Mason County regulations. 1h'revtewing your letter, this Department does.acknowledge that,you and your contractors have- mapped'critical area boundaries(stream and wetlands), accomplished the replanting of damaged stream and wetland buffers in the southern portion of.your property near Atwater and Griswold Avenues, and analyzed and implemented the proposed wetland mitigation in the northern portion of your property near Randolph Avenue and Oak Street. This,work has been verified through the as-built and monitoring plans (January 2001) and construction drawings (November 2000)submitted to Mason County. These actions resolve the concerns of the Department of Community Development that prompted the posting of the stop work on these properties. Based upon this conclusion, the stop work order is hereby rescinded and the parcel flagging?in Mason County permit tracking system shall be removed. Proposals to develop these properties shall comply with Mason County codes and development standards, such as you were informed in the pre-application review meeting in August 2000. If you have additional questions on this matter or development standards, please contact me in the Department of Community Development at (360) 427-9670 ext. 365. Sincerely, Allan Borden Long Range Planner EXHIBIT G CHAPTER 33 EXCAVATION AND GRADING Purpose limb, property, and the public Sec. 3304. The purpose of this.code is to safeguard life, welfare by regulating grading on private property within Mason County. Scope andSec. 3305. This code sets forth rules and regulations to control excavation, grading earthwork construction, including fills and embankments; establishes the administrative procedure for issuance of permits; provides for approval of plans and inspection of grading construction; and provide coordination of the efforts of the Department of Community Development,Building Department, and Department of Public Works in permitting development in the county. Permits Required Sec. 3306.1 Permits Required. Except as specified in Subsection (.2) of this section, no person shall do any grading without first having obtained a grading permit from the Official. A grading permit shall be required for a project involving excavation or fill that totals 200 or more cubic yards of graded material and is not exempted below. Grading activities not requiring a grading permit shall comply with the standards listed in Sec. 3312 through 3316. 3306.2 Exempted Work. A grading permit is not required for the following 1. When approved by the Official, grading in an isolated, self-contained area if there is no danger or hazard to adjacent private / public property or other improvements. 2. An excavation below finished grade for basements and footings of a building,retaining wall or other structure authorized by a valid building permit. This shall not exempt any fill made with the material from such excavation or exempt any excavation having an unsupported height greater than 5 feet after the completion of such structure. 3. An excavation which (a) is less than 2 feet in depth, or (b) which does not create a t slope greater than 5 feet in height and steeper than 1 1/2 horizontal to 1 vertical- 4 A fill less than 1 foot in depth and placed on natural terrain with a slope flatter than 5 horizontal to 1 vertical, or less than 3 feet in depth, not intended to supper structures,Lures, which does not exceed 200 cubivards on any one lot and does not obstruct a drainaze course. 5. Cemetery graves. 6. Refuse disposal sites controlled by other regulations. 7. Excavations for wells or tunnels or utilities. 8. Mining, quarrying, excavating, processing, stockpiling of rock, sand, gravel, aggregate or clay where established and provided for by law, provided such operations do not affect the lateral support or increase the stresses in or pressure upon any adjacent or contiguous property. MASON COUNTY GRADING PERMIT STANDARDS (DE,CEM BER 19%-REVISED) i EXHIBIT H Page 1 of 1 Glen Jurges From: Glen Jurges <gfjurges@ prodigy.net> To: Allan Borden <AHB@Co.Mason.WA.US> Cc: Tami Griffey<tlg@co.mason.wa.us>; Craig Baldwin <wse@ix.netcom.com> Sent: Thursday, June 21, 2001 11:44 PM Subject: RV Park Site Prep Allan, I just wanted to make an official record of our conversation yesterday regarding the site preparation for the RV Park, if approved in the future by Mason County. I realize the final decision depends on a lot of factors but I am willing to gamble that everything will eventually work out. It appears next spring I could be starting the actual development work. As you know some springs can be pretty wet so I asked if I could do some site preparation and surface water stabilization now. The main work will be removing the scotch broom and approximately three dozen small fir and hemlock trees. After the stumps are removed I will contour Blocks 45 and 46 and that portion of Blocks 54 and 55 outside the wetland buffer as shown on the preliminary drawings submitted last month with the RV Park Application. The existing roads will be graded to elevation and slope. Because the ground has been mostly cleared and close to the proper elevation I will grade 7th Street between Blocks 45 and 46. 1 will ditch where necessary and install three or four culverts to make sure the surface water is directed as shown on the preliminary drawings. Ditches will be seeded and silt fences installed any place water has the potential to be discharged. After all the surface work is done it will be covered with straw and/or tailings from stump grinding if I cannot burn and seeded. Because of the number of lots involved a grading permit is not required. You have a Mason Environmental Permit I submitted several months ago for the entire project. I also have discussed my current work plan with Tami Griffey several weeks ago and again yesterday. It seems like a lot of work will be done but a minimum of soil will be moved because of the work done by the previous owners. My understanding from our conversation on 6/20/2001 that you are in agreement that I can proceed with the work, at my risk, as we discussed and outlined above. If you have any concerns please let me know as soon as possible. I will keep you appraised as the work progresses. 6/21/01 1 2 3 4 5 6 BEFORE THE HEARING EXAMINER FOR MASON COUNTY 7 8 ) 9 ) NO. HEX2008-00035 RE: JURGES APPLICATION ) 10 ) AFFIDAVIT OF MAILING 1 11 ► 12 13 STATE OF WASHINGTON ) ► ss. 14 County of Kitsap ) 15 DIANE SHROPSHIRE, being first duly sworn, on oath deposes and says: That on the day of August, 2008, 1 caused to be deposited in the first-class mails of 16 the United States of America in an envelope with postage fully prepaid and 17 addressed to: 18 Bob Pastore P.O. Box 5 19 Grapeview, Washington 98546 20 the following documents in reference to the above-captioned matter: 21 1 . Applicant's Pre-Hearing Brief 22 23 24 DIANE SHROPSHIIFt 25 26 27 28 AFFIDAVIT OF MAILING - 1 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 3 4 SUBSCRIBED AND SWORN to before e this day of August, 2008. �µSOly '��,, 1 6 •�Q0 Soo ••••• •, Q'.•• ��,� % NOTARY PUBLIC in and for the }�7 . �p Stat of W shington, residing � ti • 8 U Q . "3, ' s at :•• ��' '•;�= My commission expir es. wo1z' v 9 ATE 0 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AFFIDAVIT OF MAILING - 2 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 REC ERW 2 3 ("E? n 3 2003 MASON COUN i Y 4 COMMISSIONERS 5 6 BEFORE THE HEARING EXAMINER FOR MASON COUNTY 7 8 ► RE: JURGES APPLICATION ► NO. HEX2008-00035 9 ) APPLICANT'S POST-HEARING 10 ) BRIEF 11 12 INTRODUCTION 13 As was the case regarding his appeal of the Applicant's Boundary Line 14 Adjustment, the Appellant's SEPA appeal is barred because the appeal was not 15 timely presented to the correct County official. Alternatively, the Appellant has 16 17 failed to establish that the County's decisions were "clearly erroneous". 18 Accordingly, his appeals should be denied. This brief summarizes these issues for 19 the Hearing Examiner. Since the Applicant filed an extensive Pre-Hearing Brief, he 20 will limit this Post-Hearing Brief to specific issues raised at the hearing. 21 APPELLANT'S SEPA APPEAL IS BARRED 22 At hearing, the Hearing Examiner requested Mason County staff to clarify 23 when and with whom the Appellant's appeal was filed. The information provided 24 25 by staff confirms that the Hearing Examiner has no jurisdiction to hear the SEPA 26 appeal because it was not presented to the correct official within the time period 27 provided by the Mason County Code. 28 APPLICANT'S POST-HEARING BRIEF - 1 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 911383 ORIGINAL (360) 698-5560 1 2 3 According to staff, Mr. Pastore left his appeal paperwork with the Permit 4 Center desk of the Mason County Department of Community Development. This 5 filing, however, simply does not meet the clear mandate of Mason County's Code. 6 Under the Code, le]very appeal to the Hearing Examiner shall be filed with the 7 8 Clerk of the Board..." Mason County Code, Section 15.11 .020. The information 9 from staff confirms that no documentation was provided to the Clerk of the Board 10 until July 31 — after the 14-day period provided for filing appeals. 11 This is not a case of jurisdictional "horseshoes" in which the Appellant's 12 filing was "close enough". The Appellant must strictly meet the requirements of 13 the Code to provide the Hearing Examiner with jurisdiction. The Mason County 14 Code is clear its face. Appeals "shall" be filed with the Clerk of the Board. The 15 failure to file with the Clerk of the Board denies the Hearing Examiner of jurisdiction 16 17 to consider the appeal. 18 A situation similar to that presented here is found in the case of Burnett v. 19 Tacoma City Light, 124 Wn.App. 550, 104 P.3d 677 (2004). In Burnett, the City 20 of Tacoma had adopted a claim-filing ordinance that required claims to be "filed 21 with the City Clerk." Instead of filing the claim as required with the City Clerk, the 22 claim was filed with the Tacoma City Attorney's Office and the Tacoma Public 23 Utilities Department. Id., 124 Wn.App. at 558. The Court of Appeals dismissed 24 25 arguments that (1 ) the City's actual knowledge of the claim met the requirements 26 of the ordinance, (2) filing a claim with the City Attorney and Public Utilities 27 Department constituted "constructive" receipt, and (3) filing with the City Clerk 28 APPLICANT'S POST-HEARING BRIEF - 2 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 would have been an exercise in futility. Id. at 558-560. The Court held that 3 "failure to comply strictly with statutory and ordinance requirements for filing" was 4 an absolute bar to any claim against the City, and upheld the trial court's summary 5 dismissal of their claim. Id. 6 This holding is fully consistent with interpretation given to SEPA 7 8 administrative appeals. See Graham Thrift Group v. Pierce County, 75 Wn.App. 9 263, 268 — 69, 877 P.2d 228 (1994) (holding that Court could not impose its 10 "liberalized jurisdictional rules" upon appeal procedural "legislation enacted by 11 Pierce County"); see also World Wide Video of Washington v. City of Spokane, 12 125 Wn.App. 289, 312, 103 P.3d 1265 (2005) (barring untimely SEPA appeal); 13 Harberd v. City of Kettle Falls, 120 Wn.App. 498, 512 — 513, 84 P.3d 1241 14 (2004) (claim dismissed for failure to file with proper city official); Waterford Place 15 Condominium Ass'n v. City of Seattle, 58 Wn.App. 39, 49 — 50, 791 P.2d 908 16 17 (1990) (dismissing SEPA action for failure to timely file in accordance with City 18 ordinance). 19 Here, the record reflects that the Appellant did not file his appeal with the 20 Clerk of the Board as required by Mason County Code. The appeal, having not met 21 the requirements of the Code, is barred. 22 APPELLANT'S SEPA CLAIMS ARE NOT SUPPORTED BY THE RECORD 23 Even assuming that this appeal was not barred by the Mason County Code, 24 25 the appeal itself is without merit. In the main, the presentation at the hearing was 26 a series of conclusory statements by Mr. Pastore regarding his opinions on the 27 Jurges submittal and how it might effect the environment. During the course of 28 APPLICANT'S POST-HEARING BRIEF - 3 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 the hearing, the Hearing Examiner specifically noted the absence of any record 3 supporting the Appellant's assertions. 4 A. The Appellant's "Growth Management" Issues are Without Merit. The 5 first issue raised by Mr. Pastore in his appeal was a density/growth management 6 concern. See Exhibit 19. These issues are addressed in the Applicant's Pre- 7 8 Hearing Brief at 8-9. Nothing presented by Mr. Pastore at hearing changes this 9 analysis. As noted by the Hearing Examiner and conceded by Mr. Settle there is no 10 direct evidence in this record of environmental impacts associated with the density 11 issue in this appeal. 12 Instead of presenting evidence on this issue, Mr. Pastore argued that the 13 1976 case of Swift v. Island County, 87 Wn.2d 348, 552 P.2d 175 (1976) 14 requires an EIS to be issued in this case. As acknowledged by Mr. Settle, however, 15 16 the validity of Swift is questionable. The Environmental Impact Statement 17 approach outlined in Swift is no longer the prevailing approach to SEPA cases. 18 Instead, an MDNS is the preferred approach for addressing SEPA issues. See 19 Hayden v. City of Port Townsend, 93 Wn.2d 870, 880 — 81 , 613 P.2d 1 164 20 (1980) (mitigation is "eminently sensible"); Anderson v. Pierce County, 86 21 Wn.App. 290, 303, 936 P.2d 432 (1997); WAC 197-11-350. This is precisely 22 what Mason County has done. 23 There can certainly be no challenge to the consistency of the County historic 24 25 lot provisions with the GMA. These zoning provisions are part of the Mason 26 County Code, and the Applicant is vested in his "legacy" lots. MCC 27 17.03.032(b)(2). The only avenue for challenging regulatory decisions such as this 28 APPLICANT'S POST-HEARING BRIEF - 4 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 is the Growth Management Hearings Board. This vesting cannot be stripped from 3 the Applicant by his SEPA appeal. 4 B. The Appellant's Demand to Address Global Warming is not Supported in 5 Law or Fact. Mr. Pastore next asserts that the County's decisions were clearly 6 erroneous because they did not address the potential impacts of this project on 7 8 global warming. Mr. Settle, in his presentation to the Hearing Examiner, quite 9 rightly conceded that there "is not much legal support for this position." In his 10 presentation, Mr. Settle discussed current efforts underway to amend the SEPA 11 checklist to address global warming issues, his activities with CTED to develop 12 future approaches to addressing global warming concerns, and the efforts he is 13 presently making with the City of Seattle as it works toward adopting a new 14 "global warming" ordinance. While these activities are laudable, they are not the 15 law in this case. There is no record establishing that twenty, one-acre lots in 16 17 Mason County will have a significant environmental impact on the global climate. 18 There was no demonstration that the County's action in this regard was "clearly 19 erroneous". 20 C. Appellant's Positions were not Supported by Expert Testimony. Mr. 21 Pastore had numerous opinions and objections to this proposal. In the main, 22 however, these were not supported by any expert testimony. For example, Mr. 23 Pastore argued that the drainage way on the plat map had been improperly located. 24 25 He relied not on a survey, but on an aerial photograph with a GIS critical areas 26 overlay to support his position. Staff explained that the critical areas overlay was 27 unlikely to be accurate. In contrast, the proposal put forward by the Applicant was 28 APPLICANT'S POST-HEARING BRIEF - 5 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 supported by a field survey team based upon scientific and engineering studies. 3 Mr. Pastore also raised issues regarding the drainage plan for the 4 development. His assertions, again, were without engineering or expert support. 5 Alan Biggs, the licensed engineer for the Applicant, testified that the proposal 6 included stormwater detention systems that fully met the applicable stormwater 7 8 manual, and provided protection for the critical areas. There was no demonstration 9 by any expert that the drainage proposal would have a significant adverse 10 environmental impact. 11 The only testimony offered by the Appellant supported by an expert was a 12 discussion of the septic system. Mr. Harper, the expert called in this regard, 13 however, only offered testimony that 200-foot setbacks are required for this 14 development. He offered no discussion of any field examination or review of this 15 site, and no basis was given for his opinion. 16 17 In any event, Mr. Harper's testimony was simply incorrect. At the request of 18 the Hearing Examiner, Mason County Public Health has confirmed that the 19 regulation for setbacks of this drainfield is 100 feet, not the 200 feet urged by Mr. 20 Pastore. State regulations set the health requirements for this project and those 21 regulations are binding. WAC 246-272A-0210 (Table IV) regulates septic location. 22 The table specifically provides for a horizontal separation of 100 feet from surface 23 water. Mason County Public Health has approved this system, including its 24 location, and that matter is not one that must or can be decided in this appeal 25 26 process. 27 28 APPLICANT'S POST-HEARING BRIEF - 6 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 Further, the direct testimony of the only soil scientist to appear at the 3 hearing, Mr. A.J. Bredberg, clarified that the setback and buffers surrounding the 4 development are such that no significant environmental impact is to be anticipated. 5 The clear weight of the expert testimony was that the on-site septic proposal 6 would not result in significant environmental impact, and accordingly the staff's 7 8 decision is not clearly erroneous. 9 In an aside, Mr. Pastore also addressed the access to the site off of 10 "Atwater". Mr. Bredberg testified to soils sampling he had performed at the 11 location of Atwater and his findings that the Atwater location was not a wetland. 12 He also testified that his sampling showed that Atwater had been opened as a road. 13 Mr. Pastore in his response conceded that Atwater had been opened by a prior 14 owner of the Jurges property. He testified that "Mr. McGuire" had opened up 15 Atwater and improved it with gravel to obtain access to Block 46 — one of the 16 17 blocks that make up the Applicant's proposal. See Exhibit 21 (map offered by Mr. 18 Pastore). 19 D. The Applicant's Proposal is Sound and Should be Allowed to Move 20 Forward. The County staff, Rebecca Hersha, testified to the extraordinary extent 21 to which the Applicant has worked to make this an environmentally-sound 22 development. She noted that Mr. Jurges could have developed his 146 legacy lots 23 in a way that did not address the environmental issues of concern to Mr. Pastore. 24 25 Rather than simply move forward with his 146 legacy lots, Mr. Jurges has 26 consolidated lots, and provided environmental protections and setbacks that would 27 otherwise not be required. 28 APPLICANT'S POST-HEARING BRIEF - 7 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 3 In addition, Mason County was provided with studies, information and 4 analysis used in generating the MDNS determination. While not required, these 5 studies helped establish the responsible nature of this development. Among other 6 studies and engineering, his proposal is supported by: 7 8 • Wetland mapping establishing boundaries and buffers; 9 • A habitat management plan, including an eagle management plan; 10 • A grading and TESC plan; 11 • A drainage plan; 12 A wetland categorization report; and 13 • A stormwater report. 14 This is a sound development proposal, supported by scientific and 15 16 engineering expertise. This fact was confirmed by the testimony of Rebecca 17 Hersha. Further, Mr. Settle in his discussion conceded that undoubtedly this is a 18 good traditional proposal. What the Appellant is demanding in this appeal, 19 however, is that the Hearing Examiner not base a decision on whether the County 20 staff was "clearly erroneous". Instead, the Appellant would impose a new standard 21 of environmental review that is not "business as usual". The "new" standard urged 22 by the Appellant simply has no basis in law and certainly this new standard is not 23 supported in this case or by this record with its absence of support by scientific 24 25 and engineering expertise. 26 27 28 APPLICANT'S POST-HEARING BRIEF - 8 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 E. The Threshold Determination, as Conditioned by Staff, was not "Clearly 3 Erroneous". The Appellant's final argument is that the conditions imposed by staff 4 are not adequate to address environmental impacts. There is no record by 5 Appellant establishing such impacts or establishing that the mitigation measures 6 imposed by Mason County fail to address any such impacts. No expert testified to 7 8 the existence of significant adverse environmental impacts from this project or to 9 staff's failure to adequately address any such impacts. As the Hearing Examiner is 10 aware, SEPA's substantive authority requires such proof. WAC 197-1 1-660(1 ). 11 While the Appellant believes the conditions, as outlined by staff are adequate to 12 address the issues relating to this proposal, he agrees to additional conditions as 13 generally outlined by the Hearing Examiner and staff. These conditions are as 14 follows: 15 CONDITIONS OF DETERMINATION 16 17 1 . Residential development on shorelines and wetlands should be planned with minimum adverse environmental and visual impact. 18 Structures should be designed and located to not significantly block views of adjacent residences. 19 2. Landfill for residential development which results in the creation of 20 new dry land waterward of OHWM or in biological wetlands is 21 prohibited. 22 3. Grading is subject to the Grading and TESC Plan prepared by WestSound Engineering, dated June 11 , 2008, and subsequent 23 amendments approved by Mason County. Removal of vegetation should be minimized and any areas disturbed should be restored to 24 prevent erosion and other environmental impacts. 25 4. Water qualify shall be controlled using Best Management Practices 26 (BMP) as defined in the 1992 Stormwater Management Manual for the Puget Sound Basin, the standard Mason County Stormwater 27 Manual. If, in the judgment of the Mason County Engineer, the 28 APPLICANT'S POST-HEARING BRIEF - 9 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 aquatic environment is in need of further protection, additional 3 controls may be required. 4 5. Development is subject to the Storm Drainage Report prepared by WestSound Engineering, dated May 23, 2008, and the Drainage 5 Plan prepared by WestSound Engineering, dated June 11 , 2008, and subsequent amendments approved by Mason County. 6 6. If any items of potential archeological importance are found, all 7 work must stop and the Department of Archeology and Historic 8 Preservation shall be contacted immediately. 9 7. Soils in stockpiles must be stabilized or protected with sediment- trapping measures to prevent soil loss. All exposed areas of final 10 grade or areas that are not scheduled for work, whether at final grade or otherwise, shall not remain exposed and unworked for 11 more than two days, between October 1 and April 30. Between 12 May 1 and September 30, no soils shall remain exposed and unworked for more than 7 days. 13 8. Clearing limits and buffers shall be identified and clearly marked in 14 the field. 15 9. A National Pollutant Discharge Elimination System and State Waste Discharge General Permit for Stormwater Discharges Associated 16 with Construction Activities may be required by the Washington 17 Department of Ecology. 18 10. Permanent vegetative cover should be established on denuded areas at final grade if they are not otherwise permanently 19 stabilized. 20 1 1 . During construction and grading, dust must be controlled (water 21 spraying exposed soils, wheel washing to prevent tracking onto paved roads) to prevent offsite impacts. 22 In addition, as agreed at hearing, the Applicant would agree to an additional 23 condition that requires the de tention pond system to have an "operation and 24 25 maintenance (O&M) manual" prepared and that the homeowners association is to 26 have responsibility for maintaining the pond system unless and until it is accepted 27 by Mason County. 28 APPLICANT'S POST-HEARING BRIEF - 10 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 3 THE MASON ENVIRONMENTAL PERMIT SHOULD BE UPHELD 4 The burden of proof also is on the Appellant to convince the Hearing 5 Examiner that Mason County erred when it approved the Mason Environmental 6 Permit. Staff review included detailed engineering reports, wetland and biological 7 8 assessments, and habitat reports. As set forth in the testimony of Rebecca Hersha, 9 the submittal by the Applicant was far more comprehensive than would ordinarily 10 be presented for such a project. No contrary expert documentation was provided. 11 In fact, no testimony by the Appellant directly addressed this Permit. There is no 12 record showing clearly erroneous issuance of this permit. 13 CONCLUSION 14 The Appellant's SEPA appeal was untimely and accordingly must be 15 dismissed as a matter of law. Even if it were not barred, here the record includes a 16 17 number of different engineering and scientific reports establishing that 18 environmental concerns were addressed by Mason County in making its threshold 19 determination. This conclusion was borne out by testimony at the hearing, and 20 there was no compelling expert testimony to the contrary. Appellant has not 21 established that Mason County's decisions were clearly erroneous. Accordingly, for 22 the reasons set forth herein and in the Applicant's Pre-Hearing Brief, the Hearing 23 Examiner is asked to deny the appeals. 24 25 26 27 28 APPLICANT'S POST-HEARING BRIEF - 11 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 3 RESPECTFULLY SUBMITTED this �day of September, 2008. 4 LAW OFFICE RICHARD B. SHATTUCK 5 6 RICH RD . SHATTUCK, WSBA #15588 7 Attorney for Applicant 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPLICANT'S POST-HEARING BRIEF - 12 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 ec f I „ 9- BEFORE THE HEARING EXAMINER FOR MASON COUNTY RE: JURGES ENVIRONMENTAL PERMIT AND ) No. HEX2008-00035 MDNS ) APPELLANT'S POST HEARING BRIEF AND SUBMISSIONS I. INTRODUCTION AND SUMMARY OF ARGUMENT Appellant properly appealed the MDNS on the Applicant's proposed Environmental Permit and Grading Permit. Applicant's arguments that Appellant's appeal was not timely are groundless in fact or law. Appellant filed his appeal and paid the appeal fee of$2405.00 on July 29, 2008, as is irrefutably established by the County's acknowledgment and receipt, attached as Exhibit A. The case law cited by Applicant does not support his argument that the appeal was not timely. None of those cases involved the filing of an appeal and payment of the appeal fee to an official who appeared to be and purported to be authorized to accept filing of the appeal and fee from the Appellant. Appellant Robert Pastore and attorney Richard Settle, who has assisted Appellant at times in registering concerns about potential development of Applicant's property, both requested the County to notify Mr. Pastore and /or Mr. Settle if any applications for any land use permits or approvals were filed with the County regarding Applicant's property. See Exhibit B. The County explicitly assured Mr. Settle that they would be personally notified of any such applications or requests for any land use permits or approvals. See Exhibit C. Notwithstanding these assurances, the County failed to provide any personal notification to Mr. Pastore or Mr. Settle when the Applicant filed requests and applications for land use approvals with the County many months ago. As a result of the County's failure to fulfill its notification Summary of Pleading - 1 assurances, Appellant did not discover that any applications or requests had been filed until June 27, 2008. See correspondence between Mr. Pastore and the County requesting extension of the period for commenting on the County's proposed MDNS. Mr. Pastore was severely prejudiced by the County's failure to notify him of the filing of requests and applications for a major reconfiguration of lot boundary lines, grading permit, environmental permit, and State Environmental Policy Act (SEPA) Environmental Checklist, when they were submitted many months ago. Mr. Pastore has major out-of-state commitments in New Jersey, caring for his very aged and incapacitated mother, and in St. Louis, playing a major role in class action litigation involving a pilots union related to his career as an airline pilot, from which he is recently retired. These commitments have required Mr. Pastore to spend major amounts of time in New Jersey and St. Louis during the relatively brief period of time since he discovered that the Applicant had indeed filed with the County, and the County had been actively processing, multiple applications, requests, and submissions for many months before Mr. Pastore belatedly discovered on his own, with no notification by the County, in late June. See Declaration of Robert A. Pastore, attached as Exhibit D. Moreover, Mr. Pastore, as a concerned citizen and pro se Appellant has had to rely primarily on volunteers to provide expertise so that he could participate effectively in the limited time he has had to respond to and formally challenge the proposed land use actions on the Applicant's property. Obtaining such voluntary assistance in the short time available, because of the County's failure to fulfill its notification assurances, during the prime summer vacation period has proved to be extremely difficult and has severely limited his ability to participate effectively in available comment and appeal processes. See Declaration of Robert A. Pastore, Exhibit D. The Applicant's proposed development encompassing interrelated requests for complex lot boundary line adjustments, grading permits, environmental permits, septic system approvals, and stormwater management system approvals, threatens to cause the kinds of degradation of an especially vulnerable part of Puget Sound that now threaten the very survival of Puget Sound, as habitat for salmonids and other listed and highly valued species and as one of the most important ecosystems and Summary of Pleading- 2 i recreational resources in the State of Washington. The insufficiency of"business-as-usual" land use and environmental regulation to prevent or even retard the degradation of Puget Sound is reflected by a series of investigative articles published several months ago in the Seattle Times, attached as Exhibit E, and the Legislature's recent creation, as an urgent priority, of the Puget Sound Partnership. RCW Ch .90.71. In RCW 90.71.200 the legislature found that: (a) Puget Sound, including Hood Canal, and the waters that flow to it are a national treasure and a unique resource. Residents enjoy a way of life centered around these waters that depends upon clean and healthy marine and freshwater resources. (b) Puget Sound is in serious decline, and Hood Canal is in a serious crisis. This decline is indicated by loss of and damage to critical habit, rapid decline in species populations, increases in aquatic nuisance species, numerous toxics contaminated sites, urbanization and attendant storm water drainage, closure of beaches to shellfish harvest due to disease risks, low-dissolved oxygen levels causing death of marine life, and other phenomena. If left unchecked, these conditions will worsen. In short, "business as usual" regulation is not working. Appellant does not question the good faith of County staff in processing the interrelated requests and applications for permits, approvals, and SEPA compliance for the proposed development. But the County's regulatory requirements and SEPA processing have been, at most, "business as usual." During the appeal hearing before the Examiner, which was Appellant's first and only opportunity to be heard regarding the proposed development and related SEPA processes, Ms. Hersha was asked whether any of the County's regulatory requirements applicable to the proposal were stricter and more protective of the environment because of the extreme proximity of the proposed development to Puget Sound than they would have been if the development had not been proximate to Puget Sound. She could not identify any regulatory requirements for the proposed development that were more demanding than normal because of the development's proximity and potential threat to the water quality of Puget Sound. SEPA is a unique law that is the antithesis of"business as usual." SEPA imposes requirements of environmental review and substantive authority to mitigate or deny proposals that are over and above, and in addition to, "business as usual" zoning and other land use and environmental regulatory requirements. SEPA was designed to protect the environment from the inevitable gaps and loopholes in Summary of Pleading - 3 zoning and other regulatory systems and the lack of omniscience of the drafters of the business-as usual land use regulatory requirements. SEPA is designed to provide a safety net to protect the environment from threats to the environment that would not be avoided by existing, ordinary regulatory requirements. Thus, in SEPA, the Legislature expressly recognized that"man depends on his biological and physical surroundings, ... "the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high- density urbanization.....and "the critical importance of restoring and maintaining environmental quality,... " and on these bases, the Legislature required state government and all units of local government"to use all practicable means and measures...to create and maintain conditions under which man and nature can exist in productive harmony... ." RCW 43.21C.020. Most importantly, the Legislature concluded that "each person has a fundamental and inalienable right to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment." RCW 43.21 C.020(3). Even though SEPA is the antithesis of"business as usual,"even though Puget Sound is threatened to an unprecedented extent by the cumulative adverse impacts of"business as usual" development and regulation, and even though the proposed development would introduce urban-density development in an area where zoning allows only one unit per 5 acres, the proposed development would utilize on-site septic systems, with no fail-safe features and drainfields set-back only the minimum 100 feet from adjacent wetlands and a creek flowing immediately into an especially vulnerable closed-end, salmon-bearing inlet of Puget Sound, the County, as reflected in its MDNS and Staff Report, regards the proposed development as "business as usual." In the appeal hearing, Ms. Hersha acknowledged that nothing more is being required of this development than would be required if it were far-removed from Puget Sound. Given the perilous state of Puget Sound, this proposed development's significant threats to the water quality of Puget Sound, and SEPA's requirements that supersede existing regulatory requirements, Summary of Pleading - 4 SEPA review must be required in this case that will ascertain in detail the nature and extent of the adverse impacts to Puget Sound that would be caused by this development and the range of potential mitigation measures that could be imposed to avoid the adverse impacts. The SEPA review that has occurred in this case has been minimal. The SEPA Checklist did not even acknowledge any potential threat of the proposed development on the water quality of the adjacent wetland, creek, and Case Inlet of Puget Sound. The mitigation measures included in the Mitigated Determination of Nonsignificance (MDNS) do not ensure, as they must, that there will not be probable significant adverse environmental impacts. The County could have imposed mitigation measures in the MDNS that would have ensured that probable adverse environmental impacts would have been avoided. For example, the County could have required, among other additional mitigation measures: that road access to the proposed development be in the Griswold right-of-way where no invasion of wetlands or wetland buffers would have been necessary, rather than the designated Atwater location; that the number of lots be reduced from 20 to 5 so that they would be rural in nature and septic drainfields and stormwater systems could be much farther removed, than the minimum 100 feet, from the designated wetlands and creek; and that the septic systems and stormwater systems and facilities include fail-safe features and redundant water- cleansing systems to ensure that the water entering the adjacent wetland and Puget Sound would be equal in quality to the water presently flowing from the site. The mitigation measures included in the MDNS are essentially meaningless in nature either because they are merely recommended ("should") or fail to include any meaningful standards or performance standards that must be attained. SEPA imposes environmental review requirements on Mason County and all other governmental entities in the state, as the Supreme Court recognized in its first SEPA case, that must be performed to the fullest extent possible to insure realization of the "attempt by the people to shape their future environment by deliberation, not default," Stempel v. Dept of Water Resources, 82 Wn.2d 109, 118, 508 P.2d 166, 172 (1973). A citizen challenging SEPA compliance is not required to provide the environmental analysis that the County has failed to perform. The Appellant may demonstrate that the Summary of Pleading - 5 County's threshold determination (MDNS) was clearly erroneous by showing either (1) that the SEPA Checklist failed to include sufficient analysis to make the determination of whether the proposal's impacts would be likely to have significant adverse environmental impacts or (2) that the proposal is likely to hav significant adverse impacts have significant adverse environmental impacts or both. If the Examiner concludes that the threshold environmental review in the SEPA Checklist was deficient, the appropriate remedy would be to invalidate the MDNS and direct the County to prepare a sufficient Checklist and mak a new threshold determination, while the Examiner would retain jurisdiction to review the new threshold determination, without requiring Appellant to file a new appeal. If the Examiner concludes that the proposal is likely to have significant adverse impacts and that the mitigation measures included in the MDNS are not sufficient to ensure that significant adverse impacts would be avoided, the Examiner should invalidate the MDNS and remand for either issuance of a determination of significance (DS) and preparation of an environmental impact statement (EIS) or, with applicant's consent, the issuance of a new MDNS that includes imposition additional mitigation measures sufficient to ensure the avoidance of significant adverse impacts. If the County issues a new MDNS, Appellant requests that the Examiner retain jurisdiction to review the new MDNS without necessitating a new appeal. In 1976, at a time when Puget Sound was much healthier, and in a much less vulnerable area of Puget Sound, the Supreme Court required preparation of an EIS for proposed consolidation of tiny lots through revision of ancient plats on Whidbey Island. Swift v. Island County, 87 Wn.2d 348, 552 P.2d 175 (1976). In 2008, when it is widely recognized that Puget Sound is so imperiled that its survival, as habitat for the creatures the Sound has supported since time immemorial is gravely in doubt, it is even more urgent and in keeping with SEPA's mission that an EIS be required for Applicant's proposed development unless "bullet-proof," "fail-safe," mitigation measures are in place to ensure that the proposed development along with other foreseeable development, in the context of existing perilous environmental conditions, will not have cumulative adverse impacts on the water quality and ecosystem functions of this especially vulnerable inlet of Puget Sound. Summary of Pleading- 6 Appellant, in addition to appealing the County's MDNS, also appeals the County's approval of the Mason Environmental Permit (MEP) that would allow the construction of an access road for the development through a high quality wetland and/or immediately next to the wetland in the wetland buffer. The MEP must be invalidated for several independently sufficient reasons. First, because the MDNS was invalid for either or both of the reasons explained above, the County's approval of the underlying action, the proposed MEP, also must be invalidated, as it was not supported by legally sufficient SEPA compliance. Second, the MEP must be invalidated because part of the proposed road improvements through wetlands and wetland buffers is on land owned not by the Applicant but by the Appellant, Robert Pastore. Under Mason County Code § 15.05.010, all permit applications "shall be acknowledged by the property owner or their agent." Neither Appellant Mr. Pastore nor any agent of Mr. Pastore acknowledged the application. It is well-established under Washington law that where consent o a landowner is a prerequisite to a permit application, and an owner of any part of the land subject to the application does not consent, the permit may not be granted and, if granted, is invalid. II. ARGUMENT, AUTHORITIES, AND EVIDENCE A. Appellantl Appeal Was Timely Applicant's argument that Appellant Pastore did not file this appeal within 14 days of the County's July 16, 2008 MDNS decision is without basis in fact or law. As Appellant testified, he personally filed the appeal for HEX 2008-00035 and paid the filing fees, totaling $2,405.00 on July 29, 2008. Attached is a copy of the County's receipt confirming that the appeal was filed on July 29, 2008 at 1:24:46 PM, attached as Exhibit A. The appeal was submitted to a person in a clerical position who purported to be the appropriate person to accept such submissions and to receive payment of the filing fee. Most of the case law cited by Applicant on this issue are not relevant and all of the cases are distinguishable. Graham Thrift is not relevant because there the appellant failed to pay the filing fee Summary of Pleading - 7 within the limitation period. Waterford Place Condominium Assn and World Wide Video are not relevant because both simply held that SEPA appeals, administrative and judicial, are barred if not filed within the applicable limitation period; neither case involved whether the filing on a date within the limitation period was properly performed. Harberd involved filing with the Mayor rather than the Clerk's office, but the Mayor did not purport to be the appropriate person to receive the appeal and did not accept payment of a filing fee and did not acknowledge receipt of the appeal and filing fee. Moreover, the appellant's arguments that the filing on the Mayor was sufficient were not entitled to be considered because they were raised for the first time before the appellate court. Burnett is generally relevant, but is factually distinguishable. First, that case involved a statutory requirement that claims against a governmental entity be filed with the City Clerk before a lawsuit for damages may be brought against the governmental entity. In that case, the governmental entity entitled to the notice of claim and subject to the damage action asserted that the notice of claim was improperly filed, Here Mason County is not asserting that the appeal was improperly filed. Rather a permit applicant is asserting this claim. The County accepted the filing of the administrative land use appeal, collected the filing fee, and provided a receipt for accepting the filing and fee on a date within the limitation period. Under these circumstances, the County has waived any specific filing requirement. Moreover, the Examiner has authority to interpret the County's ordinances governing appeals to the Examiner, including Mason County Code § 15.11.020, and the Examiner's interpretation is entitled to great weight. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 813-814, 828 P.2d 801 (1992). Thus, the Examiner has authority to interpret the requirement of filing with the County Clerk as filing with a person who has or appears to have authority to accept filings for the Clerk. In a small County with very limited personnel, a person in a clerical position who purports to receive submissions for a variety of County officials and who, by her conduct, indicates that she has such authority, determines the applicable filing fee, receives the filing of the appeal and the filing fee and issues an official dated receipt for the filing, should be deemed to have apparent authority to receive appeals on behalf of the Clerk. Finally, under Washington's appearance of fairness Summary of Pleading - 8 doctrine a person whose personal or property interests would be affected by a county action are entitled to a hearing that is actually fair and appears to reasonable fair-minded person to be fair. Quasi judicial hearing processes are governed by the appearance of fairness doctrine. Chrobuck v. Snohomish County,78 Wn.2d 858, 480 P.2d 489 (1971). This appeal was Appellant's only opportunity to be heard regarding the County actions appealed. Under the circumstances of this case, if Appellant were denied the opportunity to be heard, even though he had reasonably submitted his filing to a clerical person who purported to the proper person to receive the appeal, determined the amount of the filing fee, accepted payment, and issued a receipt, an objective, disinterested, fair-minded person in the community, we submit, would conclude that Appellant had been unfairly denied an opportunity to be heard. B. The MDNS Was Legally Deficient Because (1) It Was Not Preceded By Adequate Threshold Environmental Review in the SEPA Checklist and (2) the Mitigation Measures in the MDNS Were Not Sufficient to Ensure that Significant Adverse Environmental Impacts Would be Avoided. The MDNS was legally deficient for two independently sufficient reasons. First, the MDNS was not based on sufficient threshold environmental review in the SEPA Checklist. The Checklist did not even mention potential adverse impacts on the water quality of the creek and wetlands on the site and adjacent Case Inlet of Puget Sound. Nor did the Checklist mention adverse impacts on the County's Comprehensive Plan which generally calls for density no greater than one unit per five acres in rural areas. The proposed density, which is five times greater than the general minimum for rural areas and which would have a precedential effect for a major part of the County's rural area, regardless of whether it is allowed by a zoning "grandfather clause," would have significant adverse impacts on the goals of the Comprehensive Plan. Nor did the Checklist even mention the adverse climate change impacts of such rural sprawl. See Washington Department of Ecology website (http://www.ecy.wa.gov/) Summary of Pleading - 9 for extensive materials on the state Climate Action Team SEPA Implementation Working Group, including statements by Department of Ecology Director, Jay Manning, that existing SEPA law requires analysis of climate change impacts because"air" and "climate" are elements of the environment. WAC 197-11-444. The County's position that it may ignore climate change impacts in SEPA Checklists also makes the threshold analysis deficient. As is the case with preventing further degradation of Puget Sound, potentially irreversible and catastrophic climate change impacts will not be reduced if SEPA compliance is conducted on a "business as usual" basis. Because the Checklist ignored significant adverse environmental impacts, the threshold environmental review was legally deficient and the MDNS based on this deficient analysis is invalid. Second, the MDNS is legally deficient because the eleven mitigation conditions included in the MDNS do not even come close to ensuring that the proposed development would not have significant adverse environmental impacts. Because these mitigation measures are deficient, the MDNS i legally invalid. In determining whether the MDNS is deficient, the Examiner is not barred from considering the boundary line adjustment (BLA), as well as the proposed grading permit and Mason Environmental Permit (MEP). It is well established in SEPA law that the whole proposal, including all of its interrelated parts must be included in environmental review. WAC 197-11-060(3). Moreover, even if appeal of the BLA were barred by the passage of time, (which as we submitted in the hearing, we think would violate procedural due process and the appearance of fairness doctrine since we had no actual or constructive notice of the BLA until July 16, 2008) environmental review of the proposed grading permit and MEP would have to take into account the whole proposal, under WAC 197-11-060(3), and, even if the BLA were not deemed part of the proposal, would have to analyze the cumulative impacts of the proposal which include the impacts of the BLA. WAC 197-11-060(4)(e). Summary of Pleading - 10 1. The SEPA Checklist Was Legally Deficient It is well-established in SEPA case law that a threshold determination may be challenged not only because it erroneously concluded that the proposed action was not significant but also because the environmental review process prior to making the threshold determination and on which the threshold determination was based was legally deficient. E.g., Norway Hill Preservation &Protection Assn v. King County Council, 87 Wn.2d 267, 275, 552 P.2d 674 (1976)("The SEPA policies of full disclosure and consideration of environmental values require actual consideration of environmental factors before a determination of no environmental significance can be made.") Gardner v.Pierce County, 27 Wn.App.241,245, 617 P.2d 743 (1980)("The County had an affirmative duty to demonstrate its justification for a negative declaration under SEPA"). As argued above and in the hearing, the County ignored impacts on the water quality of wetlands, a creek, and adjacent Case Inlet of Puget Sound, as well as adverse impacts on the County's land use plan and adverse climate change impacts of sprawling, automobile-dependent development in rural areas outside of urban growth areas. A fundamental error in the County's threshold SEPA review was the invalid assumption that the impacts of the proposal should be considered only if they are greater than the impacts that would have occurred if development of a much greater number of the existing lots had been proposed. See, for example, Notice To Retain MDNS, paragraphs 3 and 4. This assumption is fundamentally erroneous. SEPA review analyzes the impacts of a proposal in comparison to the status quo, not in comparison to some other set of impacts that would occur if something else had been proposed. The MDNS is invalid on the basis of the clearly deficient threshold environmental review and must, at the very least, be remanded to the County's SEPA Responsible Official to prepare a new SEPA Checklist and make a new threshold determination. The Examiner is requested to retain jurisdiction during the remand so that the new threshold determination will be subject to review by the Examiner without the necessity of filing a new appeal. Summary of Pleading - 11 2. The MDNS Is Invalid Because the Mitigation Measures Do Not Ensure the Avoidance of Significant Adverse Impacts. The MDNS included eleven mitigation measures(MM). Most of them do not qualify as mitigation measures, at all, because they are voluntary, merely require compliance with other existing regulatory requirements, or are so general that they do not ensure the avoidance of significant adverse environmental impacts. They do not in any meaningful way address the impacts of the proposed development on the water quality of affected wetlands, creek, and Case Inlet of Puget Sound. the County's Comprehensive Plan provisions for rural development, and climate change impacts. MM 1 is not applicable because it pertains only to development within the shorelines. MM 2 prohibits only a very narrow category of adverse impact to wetlands—new dry land in biological wetlands—without explaining what is meant by "biological"wetlands and whether the designated wetlands on the site are biological wetlands. MM 3 is voluntary ("should"). MM 4 contains no meaningful standards of water quality degradation or any limitations on conduct that may degrade water quality. MM 5 requires compliance with the Applicant's storm drainage report, but the Applicant's expert admitted at hearing that the storm drainage plan did not capture major amounts of the stormwater runoff that will occur, such as runoff from roofs and also admitted that the stormwater facilities were designed to control only the quantity of runoff and not the water quality of runoff. MM 6 does not relate to any of the areas of impact at issue. MM 7 relates only to construction practices and not the continuing water quality degradation impacts as a result of septic systems and stormwater. MM 8 says clearing limits and buffers shall be identified and marked in the field, but provides no mitigation for the impacts on water quality of the increased runoff that will result from the huge increase in impermeable surfaces as a result of the proposed development. MM 9 is not a mitigation measure but merely notification that an NPDES permit may be required by the state Department of Ecology. MM 10 is merely voluntary, suggesting that "denuded areas" "should" be covered with permanent vegetation if they are not otherwise permanently Summary of Pleading- 12 stabilized, i.e., paved or built-upon. MM 11 pertains only to construction period requiring control of dust by very general provisions for water-spraying and wheel washing. F As Ms. Hersha and Applicant's experts acknowledged at hearing, none of the mitigation measures is specifically designed to avoid degradation of water quality in adjacent Case Inlet of Puget Sound and none of the mitigation measures is any different than would be imposed upon development that is not adjacent to Puget Sound. Given the urgency of avoiding further degradation of Puget Sound and the especially vulnerable area of Puget Sound threatened by the proposed development, the mitigation measures are woefully inadequate to ensure that significant adverse impacts on Puget Sound water quality will be avoided. As previously explained in Appellant's Statement of Appeal, the impacts of the proposed development would be significant on the basis of numerous elements of the significance standard set- forth in WAC 197-11-330. Because the impacts of the development would be significant, the mitigation measures must be sufficient to ensure that the significant adverse impacts would be avoided. Because the mitigation measures included in the MDNS are insufficient to avoid significant adverse impacts, the MDNS is legally deficient and invalid. Since the MDNS is invalid, the proposal must be remanded to the SEPA Responsible Official to either issue a DS and commence preparation of an EIS or make a new threshold determination with additional mitigation measures that would ensure the avoidance of significant adverse impacts on water quality, the County Comprehensive Plan provisions for development in rural areas, and climate change impacts. In the Introduction and Summary of Argument, above, Appellant has proposed three additional mitigation measures that would avoid significant adverse impacts: (1)That road access to the proposed development be in the Griswold right-of-way where no invasion of wetlands or wetland buffers would be necessary, rather than the designated Atwater location where invasion of wetlands and runoff into wetlands is inevitable and significant; (2) that the number of lots be reduced from 20 to 5 so that they would be rural in nature, avoiding significant adverse impacts to the County's Comprehensive Plan policies, so that septic drainfields and stormwater facilities could be Summary of Pleading - 13 much farther removed, than the minimum 100 feet, from the wetlands and creek, and so that a much greater proportion of the site would remain vegetated, reducing runoff from impermeable surfaces; and (3) that the septic system drainfields and stormwater facilities employ fail-safe design features, stormwater facilities that ensure the protection of water quality rather than merely regulating the quantity and rate of runoff, and that the septic system drainfields be setback at least 300 feet from the wetlands and creek to provide a margin of safety to reduce the likelihood of degradation of the water quality of adjacent Case Inlet of Puget Sound. The Supreme Court held that an EIS was required for a very similar proposal on Whidbey Island in a 1976 decision. Swift v. Island County, supra. At a time when Puget Sound is much more degraded and imperiled than it was in 1976 and at a place, closed-end and shallow Case Inlet, where Puget Sound is much more vulnerable than the waters of Admiralty Inlet adjacent to Whidbey Island, the case for EIS preparation is much stronger. Appellant requests that the Examiner invalidate the MDNS and remand the proposal to the SEPA Responsible Official to either issue a DS and commence preparation of an EIS or to issue, if the Applicant agrees, a new MDNS that includes the three mitigation measures set-forth above, along with any additional mitigation measures deemed necessary by the Examiner to ensure the avoidance of significant adverse impacts. If Applicant does not agree to such mitigation measures, an EIS must be prepared. C. The Mason Environmental Permit was Invalid for Failure to Comply with MCC ❑ 15.05.010(b). The Mason Environmental Permit was invalid because the MDNS was legally deficient. An action that is taken in violation of SEPA is invalid. E.g., Citizens v. Kiickitat County, 122 Wn.2d 619, 626-29, 632, 860 P.2d 390 (1993), op.revised, 122 Wn 2d 244, 256 n.12 (1993). In addition, the MEP was invalid for violation of a non-SEPA requirement of the County Land Use Code, MCC §15.05.010(b), Summary of Pleading- 14 requiring that all owners of land included in a permit application, or their agent"acknowledge", i.e., consent to, the application. Since neither the Appellant or his agent acknowledged the MEP application, it was legally deficient, and the County erred by granting the permit. The Washington courts have strict) applied such landowner consent requirements. See, e.g., Halverson v. Bellevue, 41 Wn. App. 457, P.2d_(1985). III. CONCLUSION Applicant Jurges has proposed a high density development, 5 times the density of otherwise applicable zoning, in a rural area of the County. He has proposed an access road through a wetland area that inevitably will send runoff into the wetland, creek, and adjacent Case Inlet. He has proposed the minimum setbacks for septic system drainfields and stormwater facilities that do not even capture much of the runoff from impermeable surfaces, as Applicant's expert admitted at hearing and that are designed to manage only the quantity and rate of runoff and not the water quality of stormwater runoff. While Applicant is free to propose whatever he wishes, when his proposal would have unmitigated significant adverse environmental impacts, an EIS must be prepared so that other agencies and the public will be informed of exactly what the impacts of the proposed development will be and so that the whole range of potential mitigation measures can be determined and described in detail. Armed with the detailed information provided by the EIS, the County will be able to responsibly exercise its abundant substantive SEPA authority under RCW 43.21 C.060 to protect the water quality of Puget Sound and the County's policy for development in rural areas. The MEP is invalid because of the invalid MDNS. However, there is also a non-SEPA legal deficiency in the MEP that also requires invalidation of the MEP. MCC § 15.05.010 requires all owners of land subject to a permit application to consent to the application. Appellant is an owner of a major portion of the land at the former Atwater right of way where Applicant proposes an access road Summary of Pleading - 15 through an environmentally critical area. Since Appellant or his agent did not consent to the application, the MEP was invalid. Respectfully submitted this 16`h day of September, 2008. Robert A. Pastore, Appellant Summary of Pleading - 16 1 2 3 4 5 6 BEFORE THE HEARING EXAMINER 7 FOR MASON COUNTY 8 1 9 RE: JURGES APPLICATION 1 NO. HEX2008-00035 1 10 1 APPLICANT'S SECOND MOTION TO STRIKE 11 ) 12 Once again Mr. Pastore has attempted to circumvent the Hearing Examiner's 13 direction and submit "testimony" and other "factual" information that was not 14 provided to the Hearing Examiner during the course of the open record hearing. 15 16 This information not only is improperly submitted, it is wholly taken out of context. 17 The information relates to septic systems installed during World War II, not the 18 modern systems proposed by Mr. Jurges. 19 Under the Mason County Hearing Examiner Rules of Practice and Procedure, 20 Section 2.1 8(b), such information submitted after the close of the record "shall not 21 be included in the hearing record or considered by the Examiner making the decision 22 or recommendation." Accordingly, the Applicant moves that this new testimony be 23 stricken from the record and not considered by the Hearing Examiner. 24 25 26 27 28 APPLICANT'S SECOND MOTION TO STRIKE - 1 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 3 4 RESPECTFULLY SUBMITTED this 131h day of October, 2008. 5 6 LA #�OFFICE\OF HARD B. SHATTUCK 8 RICHARD B. SHATTUCK, WSBA #15588 9 Attorney for Applicant 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 APPLICANT'S SECOND MOTION TO STRIKE - 2 RICHARD B. SHATTUCK 2 8 Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 BEFORE THE HEARING EXAMINER FOR MASON COUNTY RE: JURGES ENVIRONMENTAL PERMIT AND No. HEX2008-00035 MNDS ) APPELLANT'S ADDENDUM TO POST HEARING BRIEF AND SUBMISSION STATEMENT OF APPELLANT I have, since the submission of the Post Hearing Brief, continued to try and understand the dynamics of the continued destruction of Puget Sound, particularly Case Inlet and most particularly, the North Bay section of that Inlet, by human and other waste products. I have visited with the Squaxin Indian Tribe and Taylor Shellfish, who has a very large commercial operation in these waters. I have visited websites for the Puget Sound Partnership, Cascade Land Conservancy, Army Corps of Engineers, Washington State Department of Ecology, Mason County Health Department and others, too numerous to specify here. What I have found is that there is a genuine thought process by all parties in protecting Puget Sound. Meetings are held, volumes of written material presented and more graphs offered than one can consume in a lifetime. Yet a lifetime is short and what we have here is the probable reversal of billions o years of natural evolution by man-made events. All too often man gets caught up in the concentric circles of concern but is left without the continuum of responsibility. 1 Take for instance the County Planner's statement to the Hearing Examiner at the hearing —"without Mr. Jurges, it would be a real mess out there." That"mess"bas been a habitat for millions of years. It will take man to change it. At the hearing, Mr. Jurges'experts—all paid consultants, none of them based in Mason County, including Mr. Jurges—gave their opinions as to the impact of the septic drainfields. These same gentlemen's opinions have been submitted to Mason County in Jurges'quest for approval. Yet it is unclear as to the required setback of a drainfield — 100 feet or 200 feet? Nor is the setback proven to be adequate for 20 drainfields. It is interesting that Mr. Jurges himself, trying to protect Puget Sound in the Bremerton area in which he lives, stated : Enetai Creek the distinction of being one of the most polluted streams in K/tsap County. The major cause of the pollution is failing septic systems from upstream residential developments. This problem will not be solved until there is a sewer main along Trenton Avenue and property owners with failing septic systems are forced to connect. (Proposed Kitsap County 150-Foot Saltwater Shoreline Buffer- http://206.53.161.128/text2html.php?doc=KAPO-070109-Glen%207urges-testimony-shoreline.txt) From the Mason County Commissioner minutes of December 11, 2007, from a discussion of a proposal to adopt the Mason County On-Site Septic Plan — "Debbie Riley[Mason County Health Department]stated that currently the setback is 100 feet. The 200 foot setback came about because of discussion with citizens and the Oakland Bay Committee and On-Site Committee. She pointed out that we are seeing degradation along the shorelines and gravity systems are difficult to diagnose. There was much deliberation on this issue and in some areas the Planning setbacks are greater. This is to add the additional protection to MRAs[Marine Recovery Areas]. Underline emphasis mine. Mr. Jurges claims that his development's drainfields will be as close as 100 feet to the stream which flows to Puget Sound. 2 From the same minutes: Cmmr. Ring Erickson expressed frustration with the process. Since she was first elected, she has wanted an inspection at the time property is sold. She stated that in reviewing the comments the Plan has met the minimal amount of the law. She would like the Plan to be an action plan. She will vote for the Plan but noted it remains a work in process. She wants a local task force developed to work through an action agenda. Underline emphasis mine. I must commend Commissioner Ring-Erickson for advancing that County Plans meet the minimal amount of law. It is interesting to note that almost all references in Mason County's On-Site Plan are made from the approach of installing a single drainfield. What Mr. Jurges proposes is 20 drainfields —all in extremely close proximity to each other and untested propinquity to a fresh-water stream flowing into Case Inlet. In Conclusion: If we are, as short-term occupants of this watershed, to be entrusted with the protecting the fragility of Puget Sound, then firm action must be taken when presented with unknowns. In Swift v. Island County, 87 Wn.2d 348, 552 P.2d 175 (1976), the Court rightly identified the need for Environmental Impact Review under almost identical circumstances as the instant case. No less must be ordered here. Respectfully submitted this loth day of October, 2008. Robert A. Pastore, Appellant U o L 1 o CC� RDMCp 2 18 2008 ��� MASON COUNTY 3 COMMISSIONERS 4 5 6 BEFORE THE HEARING EXAMINER 7 FOR MASON COUNTY 8 ) 9 RE: JURGES APPLICATION ) NO. HEX2008-00035 1 10 ) APPLICANT'S MOTION TO STRIKE 11 ) 12 The open record hearing regarding this matter was conducted on August 26, 13 2008. At the conclusion of the hearing, the Hearing Examiner closed the record 14 with the exception of (1 ) documentation from the Department of Community 15 16 Development on drainfield setbacks, (2) documentation from the Department of 1.7 Community Development regarding the filing of Mr. Pastore's appeal, and (3) 18 documentation on the qualifications of the experts called at the time of hearing. 19 The post-hearing submittal by the Appellant includes numerous exhibits that 20 were not provided to the Hearing Examiner during the course of the open record 21 hearing. Under the Mason County Hearing Examiner Rules of Practice and 22 Procedure, Section 2.18(b), such information submitted after the close of the 23 record "shall not be included in the hearing record or considered by the Examiner 24 25 making the decision or recommendation." Accordingly, the Applicant moves that 26 these exhibits be stricken from the record and not considered by the Hearing 27 Examiner. ' 28 APPLICANT'S MOTION TO STRIKE - 1 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road ORIGI NAL Silverdale, Washington 98383 L (360) 698-5560 1 2 3 RESPECTFULLY SUBMITTED this 18 day of September, 2008. 4 5 LAW OFFIC OF RICHARD B. SHATTUCK 6 7 RICHARD B. SHATTUCK, WSBA #15588 8 Attorney for Applicant 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPLICANT'S MOTION TO STRIKE - 2 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 3 4 5 BEFORE THE HEARING EXAMINER 6 FOR MASON COUNTY 7 8 ) NO. HEX2008-00035 9 RE: JURGES APPLICATION ) ► AFFIDAVIT OF MAILING 10 ) 11 12 STATE OF WASHINGTON 1 13 1 ss. County of Kitsap 1 14 DIANE SHROPSHIRE, being first duly sworn, on oath deposes and says: That 15 on the /,43 day of September, 2008, 1 caused to be deposited in the first-class mails of the United States of America in envelopes with postage fully prepaid and 16 addressed to: 17 Bob Pastore 18 P.O. Box 5 Grapeview, Washington 98546 19 Richard Settle 20 Foster, Pepper & Shefelman, PLLC 21 1 1 1 1 3`d Avenue #3400 Seattle, Washington 98101 22 the following documents in reference to the above-captioned matter: 23 1 . Applicant's Motion to Strike 24 25 26 DIANE SHROPSHI E 27 28 AFFIDAVIT OF MAILING - 1 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road r RIGINASilverdale, Washington 98383 (360) 698-5560 1 2 3 4 SUBSCRIBED AND SWORN to before me this I day of September, 2008. 5 6 �41 � NOTARY PUBLIC in ,a_o for the 7 State of Washington, residing at Port Orchard. 8 My commission expires: 10/1/09 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AFFIDAVIT OF MAILING - 2 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 2 REnVIVLED� 4 MASON CO 'JN COMMISSIONER... 5 BEFORE THE HEARING EXAMINER FOR MASON COUNTY 6 7 ) 8 ► NO. HEX2008-00035 RE: JURGES APPLICATION 1 9 ) AFFIDAVIT OF MAILING ) 10 ) 11 STATE OF WASHINGTON ) 12 ) ss. 13 County of Kitsap ) 14 DIANE SHROPSHIRE, being first duly sworn, on oath deposes and says: That on the day of September, 2008, 1 caused to be deposited in the first-class 15 mails of the United States of America in an envelope with postage fully prepaid and addressed to: 16 17 Bob Pastore P.O. Box 5 18 Grapeview, Washington 98546 19 Richard Settle Foster, Pepper & Shefelman, PLLC 20 1 1 1 1 3'd Avenue #3400 21 Seattle, Washington 98101 22 the following documents in reference to the above-captioned matter: 23 1 . Applicant's Post-Hearing Brief 24 25 26 DIANE SHROPSHI E 27 28 AFFIDAVIT OF MAILING - 1 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road IGINAL Silverdale, Washington 98383 (360) 698-5560 1 2 L 3 SUBSCRIBED AND SWORN to before me this rday of September, 2008. 4 5 6 NOTARY PUBLIC in 4dfor the State f Was in tonng 7 atPMy commission expi —� 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AFFIDAVIT OF MAILING - 2 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 T 1 2 3 4 5 BEFORE THE HEARING EXAMINER 6 FOR MASON COUNTY 7 8 ) NO. HEX2008-00035 9 RE: JURGES APPLICATION ) AFFIDAVIT OF MAILING 10 ) 11 12 STATE OF WASHINGTON ) 13 ) ss. County of Kitsap ) 14 DIANE SHROPSHIRE, being first duly sworn, on oath deposes and says: That 15 on the 1 day of September, 2008, 1 caused to be deposited in the first-class mails of the United States of America in envelopes with postage fully prepaid and 16 addressed to: 17 Bob Pastore 18 P.O. Box 5 Grapeview, Washington 98546 19 Richard Settle 20 Foster, Pepper & Shefelman, PLLC 21 1 1 1 1 3`d Avenue #3400 Seattle, Washington 98101 22 the following documents in reference to the above-captioned matter: 23 1 . Applicant's Motion to Strike 24 25 26 Zai DIANE SHROPSHI E 27 28 AFFIDAVIT OF MAILING - 1 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road =� Silverdale, Washington 98383 (360) 698-5560 ` 1 2 3 i , 4 SUBSCRIBED AND SWORN to before me this C6 day of September, 2008. 5 6 NOTARY PUBLIC in& for the 7 State of Washington, residing at Port Orchard. 8 My commission expires: 10/1/09 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AFFIDAVIT OF MAILING - 2 RICHARD B. SHATTUCK Attorney at Law 4102 NW Anderson Hill Road Silverdale, Washington 98383 (360) 698-5560 1 BEFORE THE HEARING EXAMINER FOR MASON COUNTY 2 3 4 RE: Robert Pastore No. HEX2008-00035 5 DECLARATION OF MAILING An Appeal of Administrative Decisions. 6 7 8 I, Rebecca Hersha, declare and state as follows: 9 On October 21St, 2008, 1 deposited in the U.S. Mail, postage properly prepaid, the 10 documents related to the above cited Hearing Examiner Decision and to which this 11 declaration is attached to: 12 Bob Pastore Tim and Donna Doda 13 5294 Grapeview Loop Rd. 71 NE Hill Rd. 14 Grapeview, WA 98546 Belfair, WA 98528 15 Richard Settle, Attorney Patrick Loudin Foster Pepper LLC P.O. Box 1191 16 P.O. Box 1691 Belfair, WA 98528 Allyn, WA 98524 17 Thomas Hamilton Michael Fogde P.O. Box 1106 18 P.O. Box 108 Allyn, WA 98524 Grapeview, WA 98546 19 Mel[ and Lynn Coffman John Ringle 170 NE Riverhill Dr. 20 2630 N.W. Linnan Circle Belfair, WA 98528 21 Corvallis, OR 97330 Joe and Mattie Maggi 22 Laura Howard P.O. Box 728 P.O. Box 324 Belfair, WA 98528 23 Grapeview, WA 98546 Glen Jurges 24 Alan Biggs 2020 Enetai Beach 217 SW Wilkins Dr. Bremerton, WA 98310 25 Port Orchard, WA 98366 DECLARATION OF MAILING MASON COUNTY MASON COUNTY COMMUNITY DEVELOPMENT 411 N. 5T" AVE. P.O. BOX 279 SHELTON,WA 360-427-9670 TEL. 360-427-8425 FAX i 1 2 Richard Shattuck, Attorney 3 4102 NW Anderson Hill Rd. Silverdale, WA 98383 4 1 declare under penalty of perjury of the laws of the State of Washington the 5 foregoing information is true and correct. 6 Dated this 21St of October, 2008 at Shelton, Washington. 7 8 9 Rebecca Hersha, Planner 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DECLARATION OF MAILING MASON COUNTY MASON COUNTY COMMUNITY DEVELOPMENT 411 N. 5T" AVE. P.O. BOX 279 SHELTON, WA 360-427-9670 TEL. 360-427-8425 FAX 6 P60N coati MASON COUNTY � rp Shelton (360) 427-9670 DEPARTMENT OF COMMUNITY DEVELOPMENT Belfair (360) 275-4467 Planning Elma (360) 482-5269 _ Mason County Bldg. 1 411 N.5th P.O.Box 279 Shelton,WA 98584 1854 October 20, 2008 Notice of Decision — Appeal Dismissed Case: HEX2008-00035 An appeal of a Final Determination of Non-Significance made by Mason County staff in reference to the State Environmental Policy Act (SEPA) Checklist, the approval of a Boundary Line Adjustment (BLA), and the approval of a Mason Environmental Permit (MEP). The applicant for these permits is Glen Jurges. Appellant: Robert Pastore Robert Pastore's appeal has been dismissed for failing to file the appeal to the Clerk of the Board within 14 days of the Final Administrative Decision. This is a final County decision. No further appeals to the County are available. Appeal may be made to Superior Court or the appropriate administrative agency as regulations apply. It is the appellant's responsibility to meet all legal requirements of any appeal process. If you have questions or require clarification on these issues please contact Rebecca Hersha, Planner with Mason County at 360-427-9670 x593. 1 BEFORE THE HEARING EXAMINER FOR MASON COUNTY 2 3 RE: Glen Jurges 4 FINDINGS OF FACT, CONCLUSIONS HEX2008-00035 OF LAW AND FINAL DECISION 5 Administrative Appeal 6 7 INTRODUCTION 8 The appellant appeals decisions by Mason County staff approving a boundary line 9 adjustment ("BLA"), a determination of nonsignificance issued under the State Environmental Policy Act ("SEPA"), and the issuance of an environmental permit. 10 The BLA and SEPA appeals are dismissed as untimely. The decision of Mason County to issue the environmental permit is sustained. 11 ORAL TESTIMONY 12 13 The summarized testimony is limited to procedural matters, since those were the only issues relevant to resolution of this appeal. 14 Richard Settle, attorney for the appellant, testified that he believed the Examiner 15 should hear the BLA appeal since his client received no notice of the appeal and also because SEPA does not allow the fragmentation of environmental review. Mr. Settle 16 pointed out that the absence of notice violated Mr. Pastore's due process rights and 17 deprived him of a meaningful opportunity to appeal. 18 The appellant, Robert Pastore, testified that the posting of the property for SEPA review was hidden from view and he was not aware of the sign until the appeal period 19 had expired or almost expired. Rebecca Hersha testified that in response to Mr. Pastore's concerns she reported the property at a more visible site and recommenced 20 the appeal period from the beginning. 21 Richard Shattuck, attorney for the applicant, testified that the Examiner has no 22 jurisdiction to consider due process issues and that the Mason County Code and state law do not require any notice for BLA decisions. 23 24 25 Glen Jurges P. 1 Findings, Conclusions and Decision 1 PA0708296.DOC;1/13009.900000/) I EXHIBITS 2 Exhibit List 3 1. Notice of Hearing for Administrative Appeal 2. Appeal Submitted by Robert Pastore (17 pages) 4 3. Aerial Photo 5 4. Site Plan 5. SEPA Checklist(15 pages) 6 6. SEPA Mitigated Determination of Non-Significance (3rd page conditions added after receiving comments) 7 7. SEPA Comments Received(12 pages) 8. Notice to Retain DNS (2 pages) 8 9. Mason Environmental Permit Application(2 pages) 9 10. MEP Map with Wetland Boundaries and Buffers 11. Habitat Management Plan, with Eagle Management Plan (37 pages) 10 12. Mason Environmental Permit with Conditions (2 pages) 13. Grading and TESC Plan with Notes and Details (2 pages) 11 14. Drainage Plan, Notes, and Details (3 pages) 12 15. Road Details (4 pages) 16. Maps from Boundary Line Adjustment#07-82 (2 pages) 13 17. Email from County Prosecutor 18. Letter from Robert Pastore to Ryan Crater, Mason County Community 14 Development Planner 19. Written Statement of Robert Pastore 15 20. Copy of Plat Map 16 21. Second Copy of Plat Map 22. Vacation Order 4326 17 23. Survey 24. Army Corps of Engineers Letter and Map, 1998 18 25. Deed of Trust 26. Cascade Land Conservatory Document 19 27. Amplification of Exhibit 3 20 28. Jurges's Site Plan 29. Swift v. Island County, 87 Wn.2d 348 (1976) 21 30. Applicant's Pre-Hearing Brief 31. West Sound Engineering Map 22 32. Army Corps of Engineers Letter, April 27, 1999 33. Letter From Harley Somers 23 34. Email from Amanda Reynolds 24 35. Letter from Mason County Department of Public Works 36. Case Activity Log for HEX2008-00035 25 37. Appellants Post Hearing Brief 38. Applicant's Motion to Strike 39. Staff Report Glen Jurges p. 2 Findings, Conclusions and Decision 1 PA0708296.DOC;1/13009.900000/) 40. CV of Anthony Bredberg 1 41. CV of James DeShazo 2 42. CV of Alan Biggs 43. Applicant's Post-Hearing Brief 3 44. Appellant's Response to Applicant's Motion to Strike 45. Email from Rebecca Hersha to Phil Olbrechts dated August 26, 2008 regarding 4 filing dates of Pastore appeal.. 46. Email from Rebecca Hersha to Phil Olbrechts dated August 27, 2008 regarding 5 drain field setbacks. 6 47 Two Emails dated 10/7/08 from Phil Olbrechts to all parties providing Mr. Pastore an opportunity to respond to staff information and 10/07/08 response 7 from Mr. Pastore.. 48 Appellant's Addendum to Post-Hearing Brief and Submission 8 49 Applicant's Second Motion to Strike 9 FINDINGS OF FACT 10 Procedural: 11 1. Appellant. The appellant is Glen Jurges. His appeal is dated July 29, 12 2008. 13 2• Hearin . The hearing on this matter was held on August 26, 2008. The hearing was left open for Mason County staff to provide information on the basis for 14 the setback requirements for septic systems from surface waters and the filing of the appellant's appeal. Mason County was to provide this information by September 2, 15 2008. A written closing and response to the information provided by staff was due 16 from the applicant by September 9, 2008. A written closing and response to the information provided by staff was due from the appellant by September 16, 2008. On 17 October 7, 2008 the Examiner gave Mr. Pastore until October 10, 2008 to respond to the information provided by staff since he was not given that information until 18 October 7, 2008. The Examiner also went on a site visit with Mr. Pastore and Mr. Jurges on September 8, 2008. All parties waived objection to the site visit and the 19 fact it was not to be recorded. 20 Substantive: 21 3. Project Description. The proposed project is a residential development 22 with twenty home sites located in Rural Residential 5 zoning. The subdivision is 23 located on fifteen acres and was originally platted in 1890 for 146 lots. The project involved a request for a boundary line adjustment (discussed in more detail below) to 24 25 Glen Jurges p. 3 Findings, Conclusions and Decision (PA0708296.DOC;1/13009.900000/) reduce the number of lots to 23 lots'. State Environmental Policy Act, Chapter 1 43.21C RCW ("SEPA'), review was conducted by the County after approving the 2 boundary line adjustment upon the application for a grading permit. The applicant acquired approval of a Mason County environmental permit on July 22, 2008, for 3 work within wetland buffers. The appellants appeals the SEPA review, BLA decision, and the environmental permit. 4 4. Boundary Line Adjustment Decision: In 2007 Glen Jurges applied for a 5 BLA for the property concerned with this appeal. The BLA was processed and 6 approved by Mason County staff on January 30, 2008, and recorded with the Mason County Auditor on January 31, 2008. No public notice was provided for the review 7 and approval of the BLA. 8 5. SEPA Review: Following the BLA approval, Mr. Jurges applied for a Mason County environmental permit (MEP2008-00047), which was accompanied by 9 a SEPA checklist. The Mason County Staff issued a SEPA Mitigated Determination 10 of Non-Significance ("MDNS") for the project on June 18, 2008. Near the end of the 14-day comment period for this determination, adjoining property owners complained 11 that the posting of the property for this SEPA review (SEP2008-00088) was hidden from sight. Rebecca Hersha agreed to repost the SEPA notice in a more visible 12 location. Ms. Hersha reissued the MDNS and posted the property on July 1, 2008. The reissued MDNS (Exhibit 6)provided that the comment period would end on July 13 15, 2008, and that appeals would have to be filed within 14 days of this appeal period 14 as required in Chapter 15.11 MCC. Mr. Pastore filed his appeal on July 29, 2008, at the Mason County Permit Assistance center (Exhibit 45). The appeal was forwarded 15 to Ms. Hersha, who filed with the Clerk of the County Commissioners on July 31, 2008. 16 6. Environmental Permit. The staff report asserts that an environmental 1 permit (Exhibit 9) was issued for the project on July 22, 2008. There is no contrary is evidence or assertion for another issuance date in the record. The Examiner finds the permit was issued on July 22,2008. 19 7. Timing of Appeal. Robert Pastore filed an appeal of the SEPA threshold 20 determination, Mason County environmental permit, and BLA decision for the 21 subject project on July 29, 2008. He filed his appeal with the Mason County Permit Review Center along with the required appeal fees. The appeal was forwarded to 22 Mason County Planner Rebecca Hersha. Ms. Hersha filed the decision with the Clerk of the Board of Commissioners on July 31, 2008, consistent with the date stamp on 23 that document. See Exhibit Nos. 2 and 45. 24 25 ' The staff report appears to be inconsistent in describing the project as accommodating 20 lots while identifying the BLA as creating 23 lots. Whether the project contains 20 or 23 lots is not of significance to this decision. Glen Jurges p. 4 Findings, Conclusions and Decision {PA0708296.DOC;1/13009.900000/) 8. Basis of Appeal. In his written appeal (Exhibit 2), Mr. Pastore primarily l objects to the placement of high density development in the rural area proposed by 2 the applicant. He believes the proposed densities to be inconsistent with the Growth Management Act and harmful to wetlands, streams, and the Puget Sound. He finds 3 the SEPA review to be inadequate, both in terms of analysis and mitigation, and requests a determination of significance. He asserts that the SEPA review should 4 address climate change. He contends that the BLA was not subject to SEPA review and should have been and that the environmental permit was issued before SEPA 5 review was completed. All of the appeal arguments related to environmental impacts 6 in the appeal are limited to the adequacy of SEPA review. The environmental permit is not challenged on the basis that it fails to adequately protect critical areas and is 7 only challenged on grounds that it was issued prior to the completion of SEPA review. 8 9 CONCLUSIONS OF LAW 10 Procedural: 11 1. Authority of Hearing Examiner. MCC 15.03.050(7) provides the 12 Examiner with the authority to review and issue a final decision upon all appeals of administrative decisions. 13 2. Motion to Strike. Applicant made two motions to strike the post-hearing 14 submittals of the Appellant (Exhibit Nos. 38 and 49), which included exhibits that were not submitted during the course of the open hearing. The Examiner at the 15 closing of the August 26 hearing specifically left the record open for information 16 regarding 1) the parties closing statements, 2) documentation from the Health Department regarding surface water setbacks for septic drainfields, 3) documentation 17 from Mason County regarding the timeliness of Mr. Pastore's appeal documents, and 4)the CV's of the expert witnesses. Since this involved new information, the parties, 18 including Mr. Pastore, had a right of rebuttal with new information. Mason County Hearing Examiner Rule of Procedure 2.18(a) specifically authorizes the Examiner to 19 leave the record open for additional evidence provided that parties are given the 20 opportunity to provide rebuttal evidence. In response to questions from Mr. Settle about responding to information about the timeliness of filing, the Examiner 21 specifically stated that new evidence on that issue would be allowed in the written closing arguments of the parties. Similarly, new information on the setbacks would 22 also have to be allowed. 23 Of course, rebuttal evidence must be limited to the evidence presented after the close 24 of the hearing, in this case the wetland setbacks and the timing of the filing of the appeal. In this regard Exhibits A-D of Mr. Pastore's September 16, 2008 Post 25 Hearing Brief(Ex. 37) are admitted since they address the timeliness and filing of the appeal. Exhibit E is not admitted since it is not germane to the timing and filing of the appeal or the wetland setbacks. Mr. Pastore's Addendum to Post Hearing Brief Glen Jurges p. 5 Findings, Conclusions and Decision {PA0708296.DOC;1/13009.900000/} (Ex. 48) is also admitted since it addresses surface water setbacks to septic drainage I fields. 2 3. Timeliness of BLA Appeal. Mason County issued the BLA decision on 3 January 30, 2008. Mr. Pastore filed an appeal to this decision with the Mason County Permit Review Center on July 29, 2008, almost six months after the issuance of the 4 decision. MCC 15.11.020(a) requires appeals to the Examiner to be filed 5 ...within fourteen days after the date of the decision being appealed. 6 The date of the decision and the date from which appeal periods shall be calculated shall be the date on which the written action was either 7 mailed or transmitted by hand, whichever is done and whichever is earliest, to all parties for which transmittal is required for the action. 8 MCC 15.15.010 classifies BLAs as Type II permit applications. MCC 15.03.015(d) 9 provides that no notice of decision is required for Type II decisions, so the only party 10 entitled to a copy of the decision would be the applicant.2 The record does not identify when the BLA decision was sent to the applicant. However, it was recorded on 11 January 31, 2008, and this could not have occurred without the consent of the applicant. Consequently, at the latest the applicant received the decision on 12 January 31, 2008, and the 14 day appeal had long expired by the time the appellant 13 filed his appeal on July 29,2008. 14 The appellant essentially asserts that the Examiner should extend the 14-day appeal period imposed by MCC 15.11.020(a) because the appellant received no notice of the 15 BLA decision and imposing the 14-day appeal period would violate his due process rights. The case law is clear that Hearing Examiners do not have the authority to rule 16 on constitutional issues. Exendine v. City of Sammamish 127 Wn. App. 574, 113 P.3d 494 (2005); Prisk v. Poulsbo 46 Wn. App. 793,732 P.2d 1013 (1987). Exendine 17 found that a city council does not have the power to enforce, interpret, or rule on 18 constitutional issues and therefore is not able to delegate such power to the hearing examiner. Exendine at 586-88. In addition, Prisk held that city councils do not have 19 the authority to rule on the constitutionality of their ordinances. Prisk at 798. 20 The appellant's appeal regarding the BLA approval is dismissed as untimely. 21 4. Timeliness of SEPA Appeal: It is uncontested that the Clerk of the Board 22 of Commissioners received the complaint more than 14 days after issuance of the SEPA decision. However, it is also uncontested that Mr. Pastore filed his appeal with 23 24 2 The MCC does not appear to even require transmittal of a final decision to the applicant. Taken literally, this would mean that no party is entitled to a copy of the 25 decision and the appeal period would necessarily have to run from the date the County makes a final decision. In either case, the 14-day appeal period has long expired. Glen Jurges p. 6 Findings, Conclusions and Decision {P A0708296.DOC;1/13009.900000/} the Mason County Permit Center on July 29, 2008, within the 14-day appeal period. I The legal question is whether filing with the Mason County Permit Center satisfies 2 the MCC 15.11.020(a) requirement (quoted in Conclusion 3 above) that appellants file their appeals with the Clerk of the Board of Commissioners. Although the case 3 law is somewhat divided on this issue, the most legally defensible interpretation requires filing with the Clerk of the Board of Commissioners. 4 A couple of significant State Supreme Court cases provide conflicting opinions on 5 whether substantial compliance is sufficient for serving specified parties in 6 jurisdictional laws such as MCC 15.11.020(a). In Nitardy v. Snohomish County, 105 Wn.2d 133 (1986), the Court was faced with the interpretation of RCW 4.28.080, 7 which requires service on a county to be filed with the county auditor. The plaintiff of that case served process on the secretary to the county executive. The Court 8 concluded service was insufficient, as follows: 9 The legislature has named a specific person who is to be served who is 10 to be served when the defendant is a governmental body. See RCW 4.28.080(1), (2), (3). The applicable statutory clause is clear in its 11 mandate. Service on anyone other than the Auditor is insufficient. 12 105 Wn.2d at 598. 13 The Court allowed substantial compliance under similar circumstances in another 14 case,Black v. Dept. of Labor and Industries, 131 Wn.2d 547 (1997). Black involved the interpretation of RCW 52.51.110, which provides that failure to file the appeal 15 within 30 days of a final decision of the Board of Industrial Appeals renders the Board decision final. RCW 52.51.110 went onto provide that "such appeal shall be 16 perfected" by filing a copy of the notice of appeal upon the director of the Board of Industrial Appeals. The plaintiff of that case filed his notice of appeal upon an 17 Assistant Attorney General assigned to represent the Department of Labor and 18 Industries. The Court determined service on the Assistant Attorney General was sufficient, since it was reasonably calculated to give notice to the interested party. 19 131 Wn.2d at 557. 20 In the case law analysis of MCC 15.11.020(a), the most analogous service 21 requirements are in RCW 36.70C.040, the service statute for the Land Use Petition Act ("LUPA"), Chapter 36.70C RCW. As concluded by one court in reviewing the 22 numerous appellate court cases interpreting RCW 36.70C.040, "filing deadlines and service on the proper parties are jurisdictional requirements." Keep Watson Cutoff 23 Rural v. Kittitas County, 145 Wn. App. 31, 37 (2008). In this regard, all LUPA cases construing service requirements have dismissed LUPA appeals where petitioners 24 failed to serve the proper party or failed to serve the party within LUPA service 25 deadlines. The most applicable case in this regard is Overhulse Neighborhood Association v. Thurston County, 94 Wn. App. 593 (1999). RCW 36.70C.040 identifies several parties who must be served with a LUPA petition, including the Glen Jurges p. 7 Findings, Conclusions and Decision {PA0708296.DOC;1/13009.900000/} county auditor for lawsuits against a county. Instead of serving the county auditor, 1 the Overhulse plaintiff served the Board of Commissioners by serving an employee at 2 the office of the Board. The plaintiffs attorney even asked the employee, "Is this the right place to leave this?" and the employee accepted the petition without responding 3 and thanked the attorney. The Overhulse court concluded that the superior court correctly dismissed the case for failure to serve the proper party, due to the 4 unequivocal directives of LUPA. 145 Wn. App. at 599. 5 It must be noted that although MCC 15.11.020(a) is analogous to the service 6 requirements of RCW 36.70C.040, there are differences. RCW 36.70C.040 does use stronger language in its service requirements, i.e., "a land use petition is barred, and 7 the court may not grant review, unless the petition is timely filed...on the following persons...." However, no similar language is present in the service statute in the 8 Nitardy decision, which simply identified the county auditor as a person who must be served in actions against counties. The primary conclusion in both Nitardy and the 9 LUPA service cases is that the service statutes are clear and unequivocal as to who 10 must be served, as is the case for MCC 15.11.020(a). In contrast, the service statute in Black differentiated between the deadline for service, which it identified as 11 necessary for jurisdiction, and the parties for service, which it only identified as necessary to "perfect" the appeal. Further, as noted in Overhulse, Black limited its 12 holding to the facts of the case. Overhulse, 94 Wn.2d at FN 2. 13 Of course, the LUPA jurisdictional cases deal with state statutes and judicial 14 Jurisdiction and the law at issue in this case is a local ordinance. However, as demonstrated by the cases cited in the Applicant's Post-Hearing Brief, the courts are 15 just as strict in construing municipal ordinances that govern appeal procedures. See, e.g., Burnett v. Tacoma City Light, 124 Wn. App. 550 (2004); Graham Thrift Group 16 v. Pierce County, 75 Wn. App. 263 (1994). Adherence to strict construction of jurisdictional requirements is particularly important in land use ordinances due to the 17 strong public policy supporting administrative finality in land use decisions. See, 18 Nykreim v. Chelan County, 146 Wn.2d 904, 931 (2002). If substantial compliance is allowed for local service requirements, it will never be entirely clear whether serving 19 one public official as opposed to another is "close enough" to local requirements to validate an appeal. Years of litigation inevitably follow as parties dispute the validity 20 of a local decision-maker's subjective determination on whether service was 21 adequate. Strict construction of local land use jurisdictional requirements ensures both equal treatment in the appeals process and finality. 22 Mr. Pastore raises the legitimate issue that the County accepted his appeal fee and 23 appeal in the Permit Assistance Center. He is essentially arguing a form of promissory or equitable estoppel,where he relied to his detriment upon the actions of 24 the County in implying that service was adequate upon the Permit Assistance Center. 25 As previously discussed, in the Overhulse case the petitioner's attorney expressly inquired whether he was serving the right person for his LUPA action, and the County employee still accepted the petition and made no effort to direct the petitioner Glen Jurges p. 8 Findings, Conclusions and Decision {PA0708296.DOC;1/13 00 9.9000001} to the right person. Moreover, to the extent that Mr. Pastore is arguing equitable or I promissory estoppel, the Examiner has no authority to consider those doctrines. See, 2 Chaussee v. Snohomish County Council, 38 Wn. App. 630 (1984). 3 Mr. Pastore did not serve his SEPA appeal upon the Board of Commissioners within the timeframe required by MCC 15.11.020(a). His SEPA appeal is dismissed as 4 untimely. 5 Substantive: 6 5. Environmental Permit Compliance with SEPA. As noted in Finding of Fact 7 No. 5, Mr. Pastore does not challenge the adequacy of critical area protection for the environmental permit. His challenge on the environmental permit is limited to the 8 assertion that the environmental permit was issued prior to the completion of SEPA 9 review, as required by WAC 197-11-070. The environmental permit was issued on July 22, 2008, after the issuance of the final MDNS and expiration of the 14-day 10 comment period as required by WAC 197-11-070. The environmental permit is sustained. 11 DECISION 12 13 The SEPA and BLA appeals are dismissed as untimely. Issuance of the environmental permit is sustained. 14 Dated this 16th day of October, 2008. 15 16 Phil Olbrechts 17 Mason County Hearing Examiner 18 19 20 21 22 23 24 25 Glen Jurges P. 9 Findings, Conclusions and Decision (PA0708296.DOC;1/13009.900000/) am ` S �ve�� ATTENDANCE ROSTER u g' 14 NAME (Please Print) COMPLETE MAILING ADDRESS PHONE DO YOU WISH TO TESTIFY? S 2Qq C Zw )�u) Loo C ROB 2 • 4 q( O 5 t G-✓\ \ ✓ t S Lu 'V ,,9, -0""t/G ©, uJA- 2$366 7© r C pFF71r'l4-x) Le-L )/1 k44 3 T•\F(1TJTRC\Al1CTFA i7nn ATTENDANCE ROSTER (Date) NAME (Please Print) COMPLETE MAILING ADDRESS PHONE DO YOU WISH TO TESTIFY? 4 5 6 7 8 9 10 T•\Ff1ATi(Q\A(1CTFA rinn tit ElVeL OCT 2120 BEFORE THE ARING EXAMINER FOR MASON COUNTY 2 3 RE: Glen Jurges 4 FINDINGS OF FACT, CONCLUSIONS HEX2008-00035 OF LAW AND FINAL DECISION 5 Administrative Appeal 6 7 INTRODUCTION 8 The appellant appeals decisions by Mason County staff approving a boundary line 9 adjustment ("BLA"), a determination of nonsignificance issued under the State Environmental Policy Act ("SEPA"), and the issuance of an environmental permit. 10 The BLA and SEPA appeals are dismissed as untimely. The decision of Mason County to issue the environmental permit is sustained. Il ORAL TESTIMONY 12 13 The summarized testimony is limited to procedural matters, since those were the only issues relevant to resolution of this appeal. 14 { Richard Settle, attorney for the appellant, testified that he believed the Examiner 15 should hear the BLA appeal since his client received no notice of the appeal and also because SEPA does not allow the fragmentation of environmental review. Mr. Settle 16 pointed out that the absence of notice violated Mr. Pastore's due process rights and 17 deprived him of a meaningful opportunity to appeal. IS The appellant, Robert Pastore, testified that the posting of the property for SEPA review was hidden from view and he was not aware of the sign until the appeal period 19 had expired or almost expired. Rebecca Hersha testified that in response to Mr. Pastore's concerns she reposted the property at a more visible site and recommenced �0 the appeal period from the beginning. 21 Richard Shattuck, attorney for the applicant, testified that the Examiner has no 22 jurisdiction to consider due process issues and that the Mason County Code and state law do not require any notice for BLA decisions. 23 24 25 Glen Jurges P. 1 Findings, Conclusions and Decision {PA0708296.DOC;1/13009.9000001) I EXHIBITS 2 Exhibit List 3 1. Notice of Hearing for Administrative Appeal 2. Appeal Submitted by Robert Pastore (17 pages) 4 3. Aerial Photo 5 4. Site Plan 5. SEPA Checklist(15 pages) 6 6. SEPA Mitigated Determination of Non-Significance (3'd page conditions added after receiving comments) 7 7. SEPA Comments Received(12 pages) 8. Notice to Retain DNS (2 pages) 8 9. Mason Environmental Permit Application (2 pages) 9 10. MEP Map with Wetland Boundaries and Buffers 11. Habitat Management Plan,with Eagle Management Plan (37 pages) 10 12. Mason Environmental Permit with Conditions (2 pages) 13. Grading and TESC Plan with Notes and Details (2 pages) 11 14. Drainage Plan, Notes, and Details (3 pages) 12 15. Road Details (4 pages) 16. Maps from Boundary Line Adjustment#07-82 (2 pages) 13 17. Email from County Prosecutor 18. Letter from Robert Pastore to Ryan Crater,Mason County Community 14 Development Planner 19. Written Statement of Robert Pastore 15 20. Copy of Plat Map 16 21. Second Copy of Plat Map 22. Vacation Order#326 17 23. Survey 24. Army Corps of Engineers Letter and Map, 1998 18 25. Deed of Trust 26. Cascade Land Conservatory Document 19 27. Amplification of Exhibit 3 20 28. Jurges's Site Plan 29. Swift v. Island County, 87 Wn.2d 348 (1976) 21 30. Applicant's Pre-Hearing Brief 31. West Sound Engineering Map 22 32. Army Corps of Engineers Letter,April 27, 1999 33. Letter From Harley Somers 23 34. Email from Amanda Reynolds 24 35. Letter from Mason County Department of Public Works 36. Case Activity Log for BEX2008-00035 25 37. Appellants Post Hearing Brief 38. Applicant's Motion to Strike 39. Staff Report Glen Jurges p. 2 Findings, Conclusions and Decision (PA0708296.DOC;1/13009.900000/) 40. CV of Anthony Bredberg 1 41. CV of James DeShazo 2 42. CV of Alan Biggs 43. Applicant's Post-Hearing Brief 3 44. Appellant's Response to Applicant's Motion to Strike 45. Email from Rebecca Hersha to Phil Olbrechts dated August 26, 2008 regarding 4 filing dates of Pastore appeal.. 46. Email from Rebecca Hersha to Phil Olbrechts dated August 27, 2008 regarding 5 drain field setbacks. 6 47 Two Emails dated 10/7/08 from Phil Olbrechts to all parties providing Mr. Pastore an opportunity to respond to staff information and 10/07/08 response 7 from Mr. Pastore.. 48 Appellant's Addendum to Post-Hearing Brief and Submission 8 49 Applicant's Second Motion to Strike 9 FINDINGS OF FACT i o Procedural: 1 1 1. Appellant. The appellant is Glen Jurges. His appeal is dated July 29, 12 2008. 13 2• Hearing. The hearing on this matter was held on August 26, 2008. The hearing was left open for Mason County staff to provide information on the basis for 14 the setback requirements for septic systems from surface waters and the filing of the appellant's appeal. Mason County was to provide this information by September 2, 15 2008. A written closing and response to the information provided by staff was due 16 from the applicant by September 9, 2008. A written closing and response to the information provided by staff was due from the appellant by September 16, 2008. On 17 October 7, 2008 the Examiner gave Mr. Pastore until October 10, 2008 to respond to the information provided by staff since he was not given that information until 18 October 7, 2008. The Examiner also went on a site visit with Mr. Pastore and Mr. Jurges on September 8, 2008. All parties waived objection to the site visit and the 1 fact it was not to be recorded. 20 Substantive: 21 3. Project Description. The proposed project is a residential development 22 with twenty home sites located in Rural Residential 5 zoning. The subdivision is 23 located on fifteen acres and was originally platted in 1890 for 146 lots. The project involved a request for a boundary line adjustment (discussed in more detail below)to 24 25 Glen Jurges p. 3 Findings, Conclusions and Decision (PA0708296.DOC;1/13009.900000/) reduce the number of lots to 23 lots'. State Environmental Policy Act, Chapter 1 43.21C RCW ("SEPA"), review was conducted by the County after approving the 2 boundary line adjustment upon the application for a grading permit. The applicant acquired approval of a Mason County environmental permit on July 22, 2008, for 3 work within wetland buffers. The appellants appeals the SEPA review, BLA decision, and the environmental permit. 4 4. Boundary Line Adjustment Decision: In 2007 Glen Jurges applied for a 5 BLA for the property concerned with this appeal. The BLA was processed and 6 approved by Mason County staff on January 30, 2008, and recorded with the Mason County Auditor on January 31, 2008. No public notice was provided for the review 7 and approval of the BLA. 8 5. SEPA Review: Following the BLA approval, Mr. Jurges applied for a Mason County environmental permit (MEP2008-00047), which was accompanied by 9 a SEPA checklist. The Mason County Staff issued a SEPA Mitigated Determination 10 of Non-Significance ("MDNS") for the project on June 18, 2008. Near the end of the 14-day comment period for this determination, adjoining property owners complained 11 that the posting of the property for this SEPA review (SEP2008-00088) was hidden from sight. Rebecca Hersha agreed to repost the SEPA notice in a more visible 12 location. Ms. Hersha reissued the MDNS and posted the property on July 1, 2008. The reissued MDNS (Exhibit 6)provided that the comment period would end on July 13 15, 2008, and that appeals would have to be filed within 14 days of this appeal period 14 as required in Chapter 15.11 MCC. Mr. Pastore filed his appeal on July 29, 2008, at the Mason County Permit Assistance center (Exhibit 45). The appeal was forwarded 15 to Ms. Hersha, who filed with the Clerk of the County Commissioners on July 31, 2008. 16 6. Environmental Permit. The staff report asserts that an environmental 1 permit (Exhibit 9) was issued for the project on July 22, 2008. There is no contrary 18 evidence or assertion for another issuance date in the record. The Examiner finds the permit was issued on July 22, 2008. 19 7. Timing of Appeal. Robert Pastore filed an appeal of the SEPA threshold 20 determination, Mason County environmental permit, and BLA decision for the 1 subject project on July 29, 2008. He filed his appeal with the Mason County Permit Review Center along with the required appeal fees. The appeal was forwarded to Mason County Planner Rebecca Hersha. Ms. Hersha filed the decision with the Clerk JJ of the Board of Commissioners on July 31, 2008, consistent with the date stamp on 23 that document. See Exhibit Nos. 2 and 45. 24 25 ' The staff report appears to be inconsistent in describing the project as accommodating 20 lots while identifying the BLA as creating 23 lots. Whether the project contains 20 or 23 lots is not of significance to this decision. Glen Jurges p. 4 Findings, Conclusions and Decision (PA0708296.DOC;1/13009.900000/) 8. Basis of Appeal. In his written appeal (Exhibit 2), Mr. Pastore primarily 1 objects to the placement of high density development in the rural area proposed by the applicant. He believes the proposed densities to be inconsistent with the Growth Management Act and harmful to wetlands, streams, and the Puget Sound. He finds 3 the SEPA review to be inadequate, both in terms of analysis and mitigation, and requests a determination of significance. He asserts that the SEPA review should 4 address climate change. He contends that the BLA was not subject to SEPA review and should have been and that the environmental permit was issued before SEPA 5 review was completed. All of the appeal arguments related to environmental impacts 6 in the appeal are limited to the adequacy of SEPA review. The environmental permit is not challenged on the basis that it fails to adequately protect critical areas and is 7 only challenged on grounds that it was issued prior to the completion of SEPA review. 8 9 CONCLUSIONS OF LAW 10 Procedural: 11 1. Authority of Hearing Examiner. MCC 15.03.050(7) provides the 12 Examiner with the authority to review and issue a final decision upon all appeals of administrative decisions. 13 2. Motion to Strike. Applicant made two motions to strike the post-hearing 14 submittals of the Appellant (Exhibit Nos. 38 and 49), which included exhibits that were not submitted during the course of the open hearing. The Examiner at the 15 closing of the August 26 hearing specifically left the record open for information 16 regarding 1) the parties closing statements, 2) documentation from the Health Department regarding surface water setbacks for septic drainfields, 3) documentation 17 from Mason County regarding the timeliness of Mr. Pastore's appeal documents, and 4) the CV's of the expert witnesses. Since this involved new information, the parties, 18 including Mr. Pastore, had a right of rebuttal with new information. Mason County Hearing Examiner Rule of Procedure 2.18(a) specifically authorizes the Examiner to 19 leave the record open for additional evidence provided that parties are given the 20 opportunity to provide rebuttal evidence. In response to questions from Mr. Settle about responding to information about the timeliness of filing, the Examiner 21 specifically stated that new evidence on that issue would be allowed in the written closing arguments of the parties. Similarly, new information on the setbacks would 22 also have to be allowed. 23 Of course, rebuttal evidence must be limited to the evidence presented after the close 24 of the hearing, in this case the wetland setbacks and the timing of the filing of the appeal. In this regard Exhibits A-D of Mr. Pastore's September 16, 2008 Post 25 Hearing Brief(Ex. 37) are admitted since they address the timeliness and filing of the appeal. Exhibit E is not admitted since it is not germane to the timing and filing of the appeal or the wetland setbacks. Mr. Pastore's Addendum to Post Hearing Brief Glen Jurges p. 5 Findings, Conclusions and Decision {PA0708296.DOC;1/13009.900000/) (Ex. 48) is also admitted since it addresses surface water setbacks to septic drainage 1 fields. 2 3. Timeliness of BLA Appeal. Mason County issued the BLA decision on 3 January 30, 2008. Mr. Pastore filed an appeal to this decision with the Mason County Permit Review Center on July 29, 2008, almost six months after the issuance of the 4 decision. MCC 15.11.020(a)requires appeals to the Examiner to be filed 5 ...within fourteen days after the date of the decision being appealed. 6 The date of the decision and the date from which appeal periods shall be calculated shall be the date on which the written action was either 7 mailed or transmitted by hand, whichever is done and whichever is earliest, to all parties for which transmittal is required for the action. 8 MCC 15.15.010 classifies BLAs as Type II permit applications. MCC 15.03.015(d) 9 provides that no notice of decision is required for Type II decisions, so the only party 10 entitled to a copy of the decision would be the applicant.2 The record does not identify when the BLA decision was sent to the applicant. However, it was recorded on 11 January 31, 2008, and this could not have occurred without the consent of the applicant. Consequently, at the latest the applicant received the decision on 12 January 31, 2008, and the 14 day appeal had long expired by the time the appellant 13 filed his appeal on July 29,2008. 14 The appellant essentially asserts that the Examiner should extend the 14-day appeal period imposed by MCC 15.11.020(a) because the appellant received no notice of the 15 BLA decision and imposing the 14-day appeal period would violate his due process rights. The case law is clear that Hearing Examiners do not have the authority to rule 16 on constitutional issues. Exendine v. City of Sammamish 127 Wn. App. 574, 113 P.3d 494 (2005); Prisk v. Poulsbo 46 Wn. App. 793,732 P.2d 1013 (1987). Exendine 17 found that a city council does not have the power to enforce, interpret, or rule on 18 constitutional issues and therefore is not able to delegate such power to the hearing examiner. Exendine at 586-88. In addition, Prisk held that city councils do not have 19 the authority to rule on the constitutionality of their ordinances. Prisk at 798. 20 The appellant's appeal regarding the BLA approval is dismissed as untimely. 21 4. Timeliness of SEPA Appeal: It is uncontested that the Clerk of the Board 22 of Commissioners received the complaint more than 14 days after issuance of the SEPA decision. However,it is also uncontested that Mr. Pastore filed his appeal with 23 24 2 The MCC does not appear to even require transmittal of a final decision to the applicant. Taken literally, this would mean that no party is entitled to a copy of the 25 decision and the appeal period would necessarily have to run from the date the County makes a final decision. In either case, the 14-day appeal period has long expired. Glen Jurges p. 6 Findings, Conclusions and Decision (PA0708296.DOC;1/13009.900000/) the Mason County Permit Center on July 29, 2008, within the 14-day appeal period. 1 The legal question is whether filing with the Mason County Permit Center satisfies 2 the MCC 15.11.020(a) requirement (quoted in Conclusion 3 above) that appellants file their appeals with the Clerk of the Board of Commissioners. Although the case 3 law is somewhat divided on this issue, the most legally defensible interpretation requires filing with the Clerk of the Board of Commissioners. 4 A couple of significant State Supreme Court cases provide conflicting opinions on 5 whether substantial compliance is sufficient for serving specified parties in 6 jurisdictional laws such as MCC 15.11.020(a). In Nitardy v. Snohomish County, 105 Wn.2d 133 (1986), the Court was faced with the interpretation of RCW 4.28.080, 7 which requires service on a county to be filed with the county auditor. The plaintiff of that case served process on the secretary to the county executive. The Court 8 concluded service was insufficient, as follows: 9 The legislature has named a specific person who is to be served who is 10 to be served when the defendant is a governmental body. See RCW 4.28.080(1), (2), (3). The applicable statutory clause is clear in its 11 mandate. Service on anyone other than the Auditor is insufficient. 12 105 Wn.2d at 598. 13 The Court allowed substantial compliance under similar circumstances in another 14 case, Black v. Dept. of Labor and Industries, 131 Wn.2d 547 (1997). Black involved the interpretation of RCW 52.51.110, which provides that failure to file the appeal 15 within 30 days of a final decision of the Board of Industrial Appeals renders the Board decision final. RCW 52.51.110 went on to provide that "such appeal shall be 16 perfected" by filing a copy of the notice of appeal upon the director of the Board of Industrial Appeals. The plaintiff of that case filed his notice of appeal upon an 1 Assistant Attorney General assigned to represent the Department of Labor and is Industries. The Court determined service on the Assistant Attorney General was sufficient, since it was reasonably calculated to give notice to the interested party. 19 131 Wn.2d at 557. 20 In the case law analysis of MCC 15.11.020(a), the most analogous service 21 requirements are in RCW 36.70C.040, the service statute for the Land Use Petition Act ("LUPA"), Chapter 36.70C RCW. As concluded by one court in reviewing the 22 numerous appellate court cases interpreting RCW 36.70C.040, "filing deadlines and service on the proper parties are jurisdictional requirements." Keep Watson Cutoff 23 Rural v. Kittitas County, 145 Wn. App. 31, 37 (2008). In this regard, all LUPA cases construing service requirements have dismissed LUPA appeals where petitioners 24 failed to serve the proper party or failed to serve the party within LUPA service 225 deadlines. The most applicable case in this regard is Overhulse Neighborhood Association v. Thurston County, 94 Wn. App. 593 (1999). RCW 36.70C.040 identifies several parties who must be served with a LUPA petition, including the Glen Jurges p. 7 Findings, Conclusions and Decision {PA0708296.DOC;1/13009.900000/} county auditor for lawsuits against a county. Instead of serving the county auditor, I the Overhulse plaintiff served the Board of Commissioners by serving an employee at 2 the office of the Board. The plaintiff's attorney even asked the employee, "Is this the right place to leave this?" and the employee accepted the petition without responding 3 and thanked the attorney. The Overhulse court concluded that the superior court correctly dismissed the case for failure to serve the proper party, due to the 4 unequivocal directives of LUPA. 145 Wn. App. at 599. 5 It must be noted that although MCC 15.11.020(a) is analogous to the service 6 requirements of RCW 36.70C.040, there are differences. RCW 36.70C.040 does use stronger language in its service requirements, i.e., "a land use petition is barred, and 7 the court may not grant review, unless the petition is timely filed...on the following persons...." However, no similar language is present in the service statute in the 8 Nitardy decision, which simply identified the county auditor as a person who must be served in actions against counties. The primary conclusion in both Nitardy and the 9 LUPA service cases is that the service statutes are clear and unequivocal as to who 10 must be served, as is the case for MCC 15.11.020(a). In contrast, the service statute in Black differentiated between the deadline for service, which it identified as 1 I necessary for jurisdiction, and the parties for service, which it only identified as necessary to "perfect" the appeal. Further, as noted in Overhulse, Black limited its 12 holding to the facts of the case. Overhulse, 94 Wn.2d at FN 2. 13 Of course, the LUPA jurisdictional cases deal with state statutes and judicial 14 jurisdiction and the law at issue in this case is a local ordinance. However, as demonstrated by the cases cited in the Applicant's Post-Hearing Brief, the courts are 15 just as strict in construing municipal ordinances that govern appeal procedures. See, e.g., Burnett v. Tacoma City Light, 124 Wn. App. 550 (2004); Graham Thrift Group 16 v. Pierce County, 75 Wn. App. 263 (1994). Adherence to strict construction of jurisdictional requirements is particularly important in land use ordinances due to the 17 strong public policy supporting administrative finality in land use decisions. See, 18 Nykreim v. Chelan County, 146 Wn.2d 904, 931 (2002). If substantial compliance is allowed for local service requirements, it will never be entirely clear whether serving 19 one public official as opposed to another is "close enough" to local requirements to validate an appeal. Years of litigation inevitably follow as parties dispute the validity 20 of a local decision-maker's subjective determination on whether service was 21 adequate. Strict construction of local land use jurisdictional requirements ensures both equal treatment in the appeals process and finality. 22 Mr. Pastore raises the legitimate issue that the County accepted his appeal fee and 23 appeal in the Permit Assistance Center. He is essentially arguing a form of promissory or equitable estoppel, where he relied to his detriment upon the actions of 24 the County in implying that service was adequate upon the Permit Assistance Center. 25 As previously discussed, in the Overhulse case the petitioner's attorney expressly inquired whether he was serving the right person for his LUPA action, and the County employee still accepted the petition and made no effort to direct the petitioner Glen Jurges p. 8 Findings, Conclusions and Decision {PA0708296.DOC;1/13009.900000/I to the right person. Moreover, to the extent that Mr. Pastore is arguing equitable or 1 promissory estoppel, the Examiner has no authority to consider those doctrines. See, 2 Chaussee v. Snohomish County Council, 38 Wn. App. 630 (1984). 3 Mr. Pastore did not serve his SEPA appeal upon the Board of Commissioners within the timeframe required by MCC 15.11.020(a). His SEPA appeal is dismissed as 4 untimely. 5 Substantive: 6 5. Environmental Permit Compliance with SEPA. As noted in Finding of Fact 7 No. 5, Mr. Pastore does not challenge the adequacy of critical area protection for the environmental permit. His challenge on the environmental permit is limited to the 8 assertion that the environmental permit was issued prior to the completion of SEPA 9 review, as required by WAC 197-11-070. The environmental permit was issued on July 22, 2008, after the issuance of the final MDNS and expiration of the 14-day 10 comment period as required by WAC 197-11-070. The environmental permit is sustained. 11 DECISION 12 13 The SEPA and BLA appeals are dismissed as untimely. Issuance of the environmental permit is sustained. 14 Dated this 16th day of October, 2008. 15 16 hil Olbrechts 17 Mason County Hearing Examiner 18 19 20 21 23 24 2.5 Glen Jurges P. 9 Findings, Conclusions and Decision t PA0708296.DOC;1/13009.900000/} 5201 Grapeview Loop Road °'" `" �,�.+� `��""°k•.__. PO Box 5 -1-C-) AL - 0LYFIF' Grapeview, VVA 98543 A qj—M� POSTAL SFPVICF z 7005 1160 DOCJS 2520 1076 0000 .21 985 `` £s9 ^Or,�8750 03 ilr. REQUESTED Mr. Ryan Crater, Oanner mason County Community Devel%gfrenf P.O. Boy 2,79 Shelton, WA 98584 ��::r�a'f'r..}•.6.'-?� +IthIII fill IIIIII Ill III III III IItII)IIIIIIIIIIIIHIIIIIiItltll % 2 �y-fig :) �y<3� .; ( \( }����;\