HomeMy WebLinkAboutBoard of Health Appeal Hearing - SWG Letters / Memos - 8/25/1994 'MASON COUNTY BOARD OF HEALTH
APPEAL HEARING
AUGUST 25, 1994
An Appeal Hearing of the Board of Health was called to order at 2:00 p.m. by I r. Mark E.
Trucksess, Health Officer.
Those in attendance: Dr. Trucksess, Health Officer
Pam Denton, Environmental Health Specialist
Richard Scroggs, Appellant
Russell A. Austin, Jr., Appellant's Attorney
APPEAL HEARING - SCROGGS
Dr. Trucksess explained the appeal hearing procedure. He stated that Ms. Denton would present
the Health Department's report and then the Appellants would be given opportunity t state their
position. He noted that the Appellants had the ability to appeal to the Board of Health, and on
to the State Board of Health if they deemed it necessary.
Ms. Denton began a chronological history of the application made by Mr. and Mrs. Scroggs to
rebuild a home located at E 6631 Highway 106 in Union which had been destroyed b fire. Mr.
Austin asked if those giving testimony would be placed under oath. Dr. Trucksess responded that
they would not be placed under oath, as was the normal procedure during this informal hearing.
He asked Mr. Austin if he wished to have the parties sworn in. Mr. Austin replied that he did
not if it was not the usual procedure. Ms. Denton told those in attendance to make comments
during her report, if they so wished.
Ms. Denton reported that a letter from Tony Godat, the Scroggs' Engineer, had ben received
on February 25, 1994, stating that the Scroggs' four bedroom house had burned a few months
earlier and that they wanted to rebuild. The number of bedrooms nor the square footage were
to be increased, and the Scroggs wished to use the existing drainfield. Three days later a file
search was completed and it was discovered that a 1970 sewage permit for a fie bedroom
residence had been taken out but had never been signed off for final approval and there was no
as-built. On March 2, a letter was sent to Mr. Godat stating the requirements set forth in the
Environmental Health Building Permit Review Requirements Policies. These policies would
require that both septic tanks be pumped, and that a scaled plot plan signed by a designer or
engineer showing the system layout in detail and an area for a non-conforming reserve area be
submitted. The letter further stated that an environmental health review may be required if the
Department was unable to determine if the system was functioning properly. Ms. Denton stated
that two months later her office received an as-built which showed the two septi tanks, the
foundation location, parking, etc., and showed the reserve area as being where the pickle ball
court was located, which she assumed was under a concrete pad. On May 20th a letti r was sent
MASON COUNTY BOARD OF HEALTH
APPEAL HEARING - AUGUST 25, 1994
PAGE 2 of 7
to Mr. Scroggs stating that the tanks needed to be pumped and inspected, and tha additional
items may be required pursuant to the pumper's report. The letter noted that a vari ce would
be necessary to allow the reserve area to be underneath the pickle ball court. Ms. Denton
commented that this letter erroneously stated that the original home was only 1,833 3quare feet.
On the same day this letter was mailed to Mr. Scroggs, a fax had been received from Mr. Godat.
Mr. Scroggs and Mr. Austin questioned having received a letter dated May 20th. Ms. Denton
responded that the May 20th letter looked similar to the June 1st letter. Mr. Austin stated he and
Mr. Scroggs had not seen the May 20th letter. Dr. Trucksess stated that copie would be
provided. Ms. Denton stated that she realized the square footage was in error and prepared a new
letter on June 1st which had the corrected footage included. Mr. Scroggs commen ed that the
May 20th letter probably went to the address where the home had burned. He had been advised
of the error in square footage by someone receiving a copy of the letter. Mr. Austin asked why
Ms. Denton's June 1st letter had asked for the pumping report when it had already been received.
Ms. Denton responded that she had merely sent out the same letter as sent on May 2 th with the
corrected square footage. Mr. Austin asked about the date the fax had been receive , stating he
believed it was May 9th. Ms. Denton explained that on May 9th the fax had been received by
the County, but not by her department. The date she actually received the fax in het office was
May 20th.
Dr. Trucksess commented that a lot of attention was being paid to dates and wondered if this was
important. Ms. Denton replied that the dates were not important to the overall pictur , however,
one of Mr. Scoggs' contentions was the amount of time taken during the process.
Ms. Denton stated that the actual square footage of the old house was 4,168 and the new home
was 164 feet larger. Dr. Trucksess asked if the number of bedrooms was the same. Mr. Austin
replied that they remained at five.
Ms. Denton reported that on June 20th Mr. Scroggs requested a variance to place the reserve
drainfield in the area of the pickle ball court. On June 26th, she and Brad Banner, the Health
Services Director, reviewed the variance request. Their concerns were that the lot was small and
encumbered by concrete pads, and that the drain field was possibly undersized anc might not
adequately treat and dispose of effluent properly. The variance was not approved and an
environmental health review of the existing drainfield was requested to determine additional
information regarding the drainfield. Staff person Jim Tobey inspected the site but was not
familiar with the history of the site and did not have the records available to him. Therefore,
Mr. Tobey was briefed and returned a week later to dig test holes. His second sitE inspection
revealed a very shallow restrictive layer at ten inches below grade. Ms. Denton decid d to verify
Mr. Tobey's results so she met with Mr. Scroggs and Mr. Godat on site on July 26t . At that
time, Mr. Tobey's results were verified that the soil was very restrictive with only 10' of useable
soil over a very compacted to cemented till-like layer. One test hole was dug into the drain field
lateral. The bottom of the drain rock was at 34" below grade where there was stan ling water.
August 25, 1994
To: File
From: Pam Denton
Re: Dick & Ann Scroggs, parcel # - 32232-50-10903
Feb. 25, 1994, - Letter from Tony Godat requesting information on the drainfield.
The letter states the Scroggs four bedroom house had burned a few months ago.
The Scroggs wanted to rebuild, not increasing the number of bedrooms or the
square footage and wanted to use the existing drainfield.
Feb. 28, 1994, - A file search was done and it was discovered that a sewage
permit for a five bedroom residence had been taken out in 1970. The permit had
never been signed off for final approval and there was no as-built.
March 2, 1994, - A letter was sent to Tony Godat which included the requirements
set forth in the Environmental Health Building Permit Review Requirements policy.
the letter stated that both septic tanks need to be pumped, a scaled plot plan
signed by a designer or engineer showing the system layout in detail and showing
area for a non-conforming reserve area was needed. An environmental health
review MAY be required if the department was unable to determine if thE system
was functioning properly.
May 9, 1994, - The as-built was received by the department. A file search was
done and the as-built was attached to the older un-signed permit and filed in
legal.
May 17, 1994, - A record search was done and they were given to Pam Denton.
Mays"20, 1994, - A letter was sent to Mr. Scroggs which required the following,
Tanks pumped and inspected, a variance was needed to put the reserve area
underneath the pickleball court, and it stated that additional items may be
required based on the pumpers report. The letter erroneously stated that the
original home was only 1833 square feet.
May 20, 1994, - Received pumpers reports via FAX.
June 1, 1994, - Many telephone conversations with the architect, Bob elenas,
Tony Godat and I believe, Mr. Scroggs. It was then determined that the original
home was 4168 square feet and according to the conversations, was a five bedroom
home. A letter was sent to Mr. Scroggs regarding the correct square footage
requirements. The letter stated that a variance would be needed to place the
reserve drainfield in the area of the pickleball court. A notarized statement
would need to be attached to the property d®ed stating that the pickleball court
would need to be removed if the reserve drainfield was needed. The letter also
stated that additional requirements may be required based on the pumpers report.
June 20, 1994, - A letter was received by Mr. Scroggs requesting a var ance to
place the reserve drainfield in the area of the pickleball court. The variance
was reviewed by staff and by Brad Banner, the Director of Health Servic s. Our
concerns were that the existing drainfield might not adequately treat and dispose
of effluent and the lot was small and encumbered with concrete. The variance was
put on hold until an environmental health review was done, and test holes
reviewed to determine the compliance of the septic system. The variance stated
that if it was determined that the existing drainfield was grossly undersized,
and likely to fail, an upgrade would be required.
July 6, 1994, - An application was received for an environmental health review.
July 13, 1994, - Site was inspected by Jim Tobey. Due to new staff aad re-
origination , Mr. Tobey was not familiar with the case. The records were not
attached to the application. A second inspection was required. No additional
fees, of coarse.
July 19, 1994, - The second site inspection revealed a very shallow restrictive
layer at ten inches below grade. Mr. Tobey was only with the department for
about a month. Pam Denton wanted to verify the results because they mere so
restrictive.
July 26, 1994, - The re-inspection was done and it was determined that the soil
was very restrictive, with only 10" of useable soil over a very compacted to
cemented till-like layer. One test hole was dug into the drainfield later 1. The
bottom of the drainrock was at 34" below grade. There was standing water in the
same test hole at 34" below grade. in other words, the drainfield was at the
interface of the water table and was directly discharging into the water table.
(see re-inspection for actual soil logs) Mr. Scroggs and Howard Godat were
present at the re-inspection.
July 27, 1994, - Results were discussed with Brad Banner and it was determined
that because the drainfield was so far out of compliance, It would need to be
brought up to current code.
July 27, 1994, - Both Mr. Scroggs and Howard Godat were contacted via telephone
and given the determination.
August 1, 1994, - A letter was sent to Mr. Scroggs stating the findi gs and
results.
August 4, 1994, - The results were appealed to the Health Officer, Dr. Trucksess
August 5, 1994, - Received application to appeal to the Board of Health. It was
determined that policy requires a formal hearing in front of the Health Officer
prior to the Board of Health.
August 15, 1994, - Received a letter from Russel Austin, Mr. Scroggs attorney,
which stated that the drainfield should be "grandfathered" . He reference Mason
County Shoreline Master Plan, 7.13 .020 entitled Applicability to Non-Conforming
Development which reconstruction of a structure within two years after a Eire or
other accident. The Shoreline Master program should not prevent reconstruction.
FINDINGS, CONCLUSIONS AND ORDER
BOARD OF HEALTH APPEAL
RICHARD & ANNE SCROGGS
On September 1, 1994 the Mason County Board of Health heard an appeal of a Health Office denial of
Application for Variance/Appeal for Richard (Dick) and Anne Scroggs. The Health Officer de ision was
made on August 25, 1994.
Documents entered into the record as evidence were:
1) Scroggs residence septic system design for upgrade.
2) Memorandum of Authorities submitted on behalf of Dick and Anne Scroggs by Russell Austin, Jr.
3) Staff summary submitted by Pam Denton, Environmental Health Specialist, Mason County Health
Services Department.
4) File copies of two applications for Variance/Appeal with determinations by Brad BannE r, Director
of Health Services and Dr. Mark Trucksess, Health Officer.
5) A copy of soil logs from the site in question.
FINDINGS
Dick and Anne Scroggs' property in question is located on the South Shore of Hood Canal at E. 6631
Highway 106 Union, WA 98592. On December 28, 1993 their house on the above property burned to the
ground. The on-site system is a marine shoreline system greater than 50 feet from the ordinary high water
mark of the Canal Mr and Mrs Scroggs are intending to build a five bedroom home to replaCE the home
which they lost. Tne proposed replacement home and original home were/are both approximately 4,000
square feet with the footprint only slightly reconfigured for the replacement home.
Mr. and Mrs. Scroggs installed the septic system presently on the site about 1970 after the previous system
failed. That failure was apparent because soap suds were seen on the beach in front of the ho e. Since
that time the Scroggs have seen no visually apparent indication of system failure.
In May of 1994 the Department of Health Services received as-built drawings from Howard 3odat and
Associates (agent for Mr and Mrs Scroggs). These drawings indicated two 1200 gallon septic tanks, and
50 to 55 lineal feet of drainfield with unspecified width are present on the site at this time. Given the possible
trench widths, the Department determined that there may be between 100 and 155 square feet of drainfield
on the site.
Ms. Denton testified on behalf of Mason County Health Services Department that according to WAC
246.272.160 this is enough drainfield for a two bedroom residence at the most.
On June 1, 1994 the Health Department sent a letter to Mr. and Mrs Scroggs stating that their pickle ball
court area was a problem and the site would require a variance. Another letter was sent from s. Denton
stating that the as-built drawings of the system do not indicate that the system is adequate for five
bedrooms. Pam communicated with Mr and Mrs Scroggs by telephone at the time of the fir3t variance
request to notify Mr and Mrs Scroggs that test holes must be dug to determine if the system is n or out of
compliance.
On July 13, 1994 inspection of test holes by staff Jim Tobey occurred. On July 26, 1994 reinspe tion of the
same holes occurred. The second inspection was done by a more experienced staffs Pam D nton. The
second inspection found:
FINDINGS, CONCLUSIONS AND ORDER
BOARD OF HEALTH APPEAL
Page 3
TABLE 7 - 2
RECOMMENDED RATES OF WASTEWATER APPLICATION
FOR TRENCH AND BED BOTTOM AREAS (4) (11) (12)a
Percolation Application
Soil Texture Rate Rate°
min/in. gpd/ft2
Gravel, coarse sand <1 Not suitable`
Coarse to medium sand 1 - 5 12
Fine sand, loamy sand 6 - 15 0.8
Sandy loam, loam 16 - 30 0.6
Loam, porous silt loam 31 - 60 0.45
Silty clay loam, clay loam° 61 - 120 0.28
a May be suitable estimates for sidewall infiltration rates.
° Rates based on septic tank effluent from a domestic waste source. A factor of safety may be
desirable for wastes of significantly different character.
Soils with percoluation rates <1 min/in. can be used If the soil is replaced with a s itably thick
(>2ft) layer of loamy sand or sand.
Soils without expandable clays.
e These soils may be easily damaged during construction.
WAC 246.272 definitions #13 states: "Marine Failure" means a marine shoreline on ite system.
Threatening the public health by falling to adequately treat the sewage and/or by creating a potential for
the public coming in direct contact with sewage. Examples include, but are not limited to:
a) sewage contaminating surface or ground water . . . "
Two basic disputes were presented by both the Scroggs and the Health Department staff. The first was
whether the existing on site system is failing and therefore requires repair or system replace ent prior to
hook-up. The second is whether the area presently cemented over as a pickle ball court must be uncovered
for repair of the system.
Mr. & Mrs. Scroggs further state in a letter to the Health Services Director dated August 3, 1 E94 that they
"contend the need for treatment standard#1"and"contest the restriction on the number of bedrooms based
upon the absorption area that is available.
HOWARD GODAT & ASSOCIATES, INC.
CONSULTING ENGINEERS
2708 WESTMOOR COURT OLYMPIA, WASHINGTON 98502 PHONE (206)943-1599 FA K (206)357.6299
February 24, 1994
Mason County Environmental Health Department -
426 West Cedar Street FEB
Shelton, WA 98584
Attn: Ms. Pam Denton ° 'T(�`-1 J.!- ` _wICES'
RE: E. 6631 Highway 106, Union, Washington 98592
TP #322325010903, Dick and Ann Scroggs Residence
Dear Pam:
We have an unusual situation that requires the Health Department's
comment and position.
A few months ago the Scroggs residence (addressed above) burned
down. They are now in the process of rebuilding the 4 bedroom
house. Since this site is on a marine shoreline (Hood Canal) , the
architect called our office for an opinion. It has been suggested
to connect into the exiting system since they have never h d any
problems with it.
According to some documents that I have received, installation of
the existing system was done in 1970. Installation included 2 -
1,000 gallon tanks and possibly 175 lineal feet of 2 . 5-footwide
trench (see attached documents) .
According to documents provided by the Planning Department, under
7. 13. 020 "Applicability to Non-Conforming Development, Paragraph
III. " "This program shall not restrict reconstruction within two
years of the date of damage of any existing single family residence
which is damaged or destroyed by fire, accident or the elements,
provided that non-conformance with the standards and regulations of
this program will not be increased by such reconstruction" . (see
attached document) . The owner does not intend to increa a the
building area nor the number of bedrooms. At this time we are
requesting to connect into the existing septic system for the
reconstruction of the house.
Because of insurance claims pending on this project, your earliest
response and comment would be greatly appreciated. If you have any
questions, please do not hesitate to call me.
Sincerely,
rG
DAT OCIATES, INC.
T
cc: Dick and Ann Scroggs / Bob Slenes, The BJSS Group
STUDY REPORT DESIGN I WATER SEWER STREETS
MASON COUNTY
DEPARTMENT of HEALTH SERVICES
Shelton,Washington 98584
(206)427-9670. Belfalr.275-4467
ENVIRONMENTAL HEALTH PERSONAL HEALTH WATER QUALITY
P.O. BOX 1666 303 N. FOURTH P.O. BOX 1666
March 2, 1994
Tony Godat
2708 Westmoor Court
Olympia, Wa. 98502
Re: E. 6631 Highway 106, Union, Wa. , 98592
Parcel # 32232-50-10903, Dick and Ann Scroggs
Dear Mr. Godat,
This letter is in response to our telephone conversation which toot place
yesterday. You indicated that the above mentioned residence recently burned down
and their intent is to replace the home. if there is no increase in the number
of bedrooms or square footage than current policy requires the following:
* The septic system consists of a septic tank and drainfield whic is not
failing.
* The septic tank needs to be pumped and inspected. Submit a copy of the
pumper's report.
* Have a scaled plot plan signed by a certified engineer or desig er that
shows the system layout in detail, depth of drainpipef from original grade
and area for /� a non-conforming reserve area.
* An Environmental Health Review ( $40.00) may be required if the health
department is unable to determine whether the septic sy tem is
functioning /— adequately after the review of the records and receipt
of the certified pumper's � report.
If you have any questions regarding this matter feel free to contact at 4 7-9670
from 8:00 to 9:30 Monday through Friday.
Pam Denton, R.S.
Environmental Health Specialist
HOWARD GODAT & ASSOCIATES, INC.
CONSULTING ENGINEERS
2708 WESTMOOR COURT OLYMPIA, WASHINGTON 98502 PHONE (206)9431599 F1 X (206) 357.6299
March 10, 1994
Dick and Ann Scroggs
500 W. 8th
Aberdeen, WA 98520
RE: TP #322325010903
E. 6631 Highway 106
Union, WA 98592
Dear Mr. & Mrs. Scroggs:
On Tuesday, March 8, 1994, I met with Ron of Ron's Septic Service onsite to pump he septic
tanks and dig out the drainfield for field location and inspection. The first tank out of the house
is an 1,000 gallon tank. It was pumped and inspection. The inlet and outlet baffles are in good
shape with no reason to replace them. The second tank is also a 1,000 gallon tank. It was
pumped and inspected. The inlet and outlet baffles are in good shape with no reason to replace
them. Outside of that is a D-Box that was also cleaned out, it has two outlet pipes for drainfield
Both lateral pipes were dug up for inspection and field tie.
The third tank which is located just in front of the old car port, in the patio, was also pumped.
It is pretty hard to tell what kind or how big this tank is. It also appears that this taink has an
outfall onto the beach. This tank will have to be die tested and if it does dump onto t e beach,
it will have to be abandoned.
I have received a bill from Ron's Septic Service along with a pumpers report. I don t know if
you would like us to pay it, and reimburse us, or if you want to pay it directly. If we run it
through our books, a 10% charge will be applied. Please let me know how you will be handling
this matter as Ron's Septic Service is waiting payment.
The next step is to wait for the surveyor to field locate all the drainfield appurtenances and
create a drawing. From that, I will be able to do an as-built drawing of the system and sent it
into the Mason County Health Department for comment.
If you have any questions, please do not hesitate to call our office.
Sincerely,
/H��Al2D GODA y SSOCIATES, INC.
'1
Tony�(',odat
cc: Bob lenes, The BJSS Group / File #3292 / encl. Ron's Septic Billing
NMIBI a- —_
STUDY REPORT DESIGN I WATER SEWER STREETS
HOWARD GODAT & ASSOCIATES, INC.
CONSULTING ENGINEERS
2708 WESTMOOR COURT • OLYMPIA, WASHINGTON 98502 PHONE (206)943-1599 • FAX (206) 357-6299
May 5, 1994
Mason County Department of Health ServicesMEMMOWND)
P. O. Box 1666
Shelton, WA 98584
MAY 0619
Attn: Pam Denton
RE: E. 6631 Highway 106, Union, WA 98592 HEALTH SERVICES
Parcel #32232-50-10903
Dick and Ann Scroggs
Dear Pam:
The first part of March of this year you sent me a letter regarding
the above referenced project. In response to this letter is the
enclosed certified as-built drawing and pumper report.
As such, we are awaiting comment and approval from your Department
so a building permit can be obtained.
If you have any questions or comments, please give me a call.
Sincerely,
OWARD GODAT & ASSOCIATES, INC.
To� Go
Y at
File #A92
cc. OICKS At3n1 SCRO<G5
Bob SL-E�5 BJ55
STUDY REPORT DESIGN I WATER SEWER STREETS
MASON COUNTY
r DEPARTMENT of HEALTH SERVICES
Shelton,Washington 98584
(206)427-9670• Belfalr:275-4467
ENVIRONMENTAL HEALTH PERSONAL HEALTH WATER QUALITY
P.O. BOX 1666 303 N. FOURTH P.O.BOX 1666
May 20, 1994
Dick Scroggs
E. 6631 Hwy. 106,
Union, We. 98592
Re: Building permit requirements for parcel # 32232-50-10903
Dear Mr. Scroggs,
Our office has received the as-built drawing from Tony Godat. Masor. County
Environmental Health building permit requirements for a shoreline lot require the
following:
If there is an expansion of the number of bedrooms and/or greater than 200 square
feet, the drainfield and reserve area must be in compliance with all state and
local regulations. If you propose to expand than you will need to appl for an
on-site sewage system evaluation and disposal permit ($ 185.00) , have the site
inspected, contact a level 2 designer or professional engineer and have a design
submitted and approved.
If you do not plan to expand the following items will be required.
- Have the septic tank oumoed and inst)ected and submit a copy of the report
to our office.
- The assessor files indicate the former house had three bedrooms and was
1833 square feet. Your existing system will be considered adequate,
provided it is not failing, as long as the expansion is not over 033 ea.
ft. and more than three bedrooms .
- A variance will be required for the reserve area because it is in cumbered
by pickle ball court. There will be no guarantee that the variance will be
approved. It will be recommended that a notarized statement be attached
to the property deed stating, if the reserve area be needed, the court will
need to be removed.
Additional items may be required depending on the pumpers report.
If you have any questions please feel free to contact me at 427-9670 Monday
through Friday 8:00 to 9:30. I have attached a copy of the requirements.
Pam Denton, R.S.
Environmental Health Specialist
c. Tony Godat, - 2708 Westmoor Court, Olympia, Wa. 98502
Bob Slenes, - 320 Westbay Dr. , Olympia Wa. 98502
Ll Flecy�led
MASON COUNTY IF t l)N(G� I C_hjG � ti
DEPARTMENT of HEALTH SERVICES I-V k I S 546
Shelton,Washington 98584
(206)427-9670• Belfalr.275-4467
I
ENVIRONMENTAL HEALTH PERSONAL HEALTH WATER QUALITY
P.O. BOX 1666 303 N. FOURTH P.O. BOX 1666
JAne 1,1994
Dick Scroggs
E. 6631 Hwy. 106,
Union, Wa. 98592
Re: Building permit requirements for parcel # 32232-50-10903
Dear Mr. Scrogge,
It has cane to our departments attention that the original home that burned down
was 3968 square feet. According to our current policy the replacement residence
can be up to 4168 square feet and have no more than five bedrooms.
If you propose to expand greater than 4168 sq. ft. or more than five bedrooms
you will need to apply for an on-site sewage system evaluation and disposal
permit ($ 185.00) , have the site inspected, contact a level 2 designer or
professional engineer and have a design submitted and approved.
If your proposal is not an expansion the following items need to be submitted and
reviewed prior to Environmental Health release:
- The septic tanks pumped and inspected and submit a copy of the report to
our office.
- A variance will be required for the reserve area because it is in eyed
by pickle ball court. There will be no guarantee that the variance will be
approved. It will be recommended that a notarized statement be attached
to the property deed stating, if the reserve area be needed, the court will
need to be removed.
- Additional items may be required depending on the pumpers report
If you have any questions please feel free to contact me at 427-9670 Monday
through Friday 8:00 to 9:30. I have attached a copy of the requirements.
Pam Denton, R.S.
Environmental Health Specialist
c. Tony Godat, - 2708 Westmoor Court, Olympia, Wa. 98502
Bob Slenes, - 320 Westbay Dr., Olympia, Wa. 98502
Fa,�s..,r;Sr•)
{
Jli�V 0 1994
500 West Eighth Street
Aberdeen, Washington 98520
June 18, 1994
Pam Denton, R.S.
Environmental Health Specialist
Mason County Department of Health Services
Post Office Box 1666
Shelton, Washington 98584
RE: Building permit requirments for parcel no. 32232-50-10903
Dear Pam:
We have received your letter of June 1 , 1994 addressing conditions
relative to rebuilding our hood canal home.
In response to your request for a pumping report on the existing
septic system, we understand that our septic engineer has sent
you that information.
In response to your concern relative to a reserve area for the
existing septic system, we respectfully request a variance to
place that reserve area at the present location of our pickel-
ball court. If and when needed we have no problem with removing
the court to accomodate a reserve area. We agree to have a
notarized stament prepared stating that we or any future owners
agree to this.
Please let either us or our architect, Bob Selenes, know what
additional information is needed. We are proceeding with the
design work and anticipate applying for a building permit in
September so we would appreciate a response at your earliest
convenience.
Dick Scroggs
MASON COUNTY EXHIBIT V
DEPARTMENT of HEALTH SERVICES
Shelton,Washington 98584
(206)427-9670• Belfaic 275-4467
ENVIRONMENTAL HEALTH PERSONAL HEALTH WATER QUALITY
P.O. BOX 1666 303 N. FOURTH P.O. BOX 1666
August 1, 1994
Dick Scroggs
W. 500 Eighth Street,
Aberdeen, Wa. 98520
Re: Environmental health requirements for parcel # 32232-50-10903
Dear Mr. Scroggs,
On July 26, 1994, an inspection was done of three test holes on the above
mentioned parcel. The test holes were dug adjacent to the existing drainf iE ld and
are documented below.
Th#1 0-91, sandy loam fill
9-261, brightly mottled, very compacted
sandy loam fill
26-43" grey, compacted to cemented
sandy loam (till)
Th 2 0-9" sandy loam fill
9-24" mottled sand loam fill
24-34" exposed drainrock from existing drainfield
341, standing water
Th 3 0-341, medium sand with many gravels,
some cobbles,
some pockets of cemented sand and gravels
A review of the as-built submitted by Howard Godat and Associates indicates the
existing on-site septic system consists of two 1000 gallon septic tanks and 50
lineal feet of drainfield. If the trench is three feet wide the absorption area -
is 150 square feet. If the trench is two feet wide, the absorption area is 100
square feet. Current regulations for a five bedroom residence in a sandy loam
soil would require 1000 square feet of absorption area for the primary drainfield
and 1000 square feet for the reserve drainfield. This drainfield is 850 to 900
square feet smaller than is required under current regulations.
The test holes revealed a very shallow restrictive layer at nine inches below
existing grade. This does not meet the minimum soil depth requirement of twelve
inches.
There was standing water in test hole #2 at 34 inches below grade. Exposed
drainrock from the existingdrainfield indicates the existing trench bottom is
also 34 inches below grade. Therefore, the effluent (liquid sewage) is directly
discharging into the water table.
The goal of current on-site septic systems is to adequately treat and di s ose of
sewage. Treatment is the breakdown of harmful bacteria and viruses that exist in
human waste. Treatment occurs in natural, unsaturated soil which is supposed to
exist between the bottom of the drainfield and the restrictive layer. This soil
is referred to as vertical separation.
Current standards require 36 inches of vertical separation for a gravity
drainfield on shoreline. In other words, there is supposed to be 36 in hes of
soil between the bottom of the drainrock and the water table or restrictive
layer. The test holes inspection revealed that there is 0 inches of vertical
separation.
This on-site septic system does not meet the absorption area requirement, does
not have adequate vertical separation and is directly discharging untreated
effluent in the water table.
Mason County Department of Health Services has an obligation to stop direct
discharges. Our department cannot approve or allow permits to be issued en the
existing drainfield is this far out of compliance. The following items are
required prior to obtaining any building permits on this property.
1) A On-site Sewage System Site Evaluation And Disposal Permit ($ 85.00)
must be submitted.
2) A complete design must be submitted and reviewed. The design must 'nclude
a device which is capable of meeting treatment standard 1.
3) The drainfield (absorption area) needs to be kept in the top 6" and
pressure distribution must be utilized. The absorption area must meet
current size requirements for the number of bedrooms proposed. It is up to
your designer to determine how this will be accomplished. The reserve must
also meet current size requirements.
Our department will not approve a building permit that exceeds the number of
bedrooms the drainfield is sized for.
You have the right to appeal these requirements. If you wish to request an
appeal, complete the appropriate form and submit it to our department. If you
wish to expedite the appeal process you can contact me directly and I wi 1 fill
the form out and refer it to the Health Officer.
If you have any questions regarding this matter please feel free to contact me
a}t� 427-9670 ext. 554 .
Pam Denton, R.S.
Environmental Health Specialist
c. Howard Godat - 2708 Westmoor Court, Olympia, Wa. 98502
Bob Slenas - Westbay Dr. , Olympia, Wa. 98502
A U G 3 - 9 4 W E D 1 5 = 1 0 K A U F M A N - S C R O G G S P 0 3
500 West 8th S reet
Aberdeen, Wa. 8520
August 3, 1994
Director of Health Services
Mason County
Post Dffice Box 1665
Shelt n, Washington 98584
Gentl men:
This letter is being sent as an addendum to my application for a
heari g regarding conditions presented in your Ietter of August 2,
stati g requirments for a septic system on our property on Hood
Canal It is being sent at the request of Pam Denton who informed
me th s morning that we need to state the specific conditions upon
which we take issue.
First we contend the need or the authority to require a device that
meets treatment standard #1 .
Secon ly, we contest the restriction on the number of bedrooms base
upon he absorption area that is available.
We wo Id appreciate hearing from you as soon as a date for this
heari g has been established.
S' ,
a roggs
p
)tli
tl
/y
1
Y
i
Law Office of -wd 7 Y
RUSSELL A. AUSTIN, JR.
Member of Wasbington State and Distria of Columbia Ban • Admitted to United States Supreme Court
Factoria East, Suite 201 ♦ 12826 S.E. 40th Lane
Bellevue, Washington 98006
(206) 562-7000 0 FAX (206) 562-7030
August 15, 1994
Mr. Brad Banner
Director of Health Services
Mason County Environmental Health Department
426 West Cedar Street - Building 3
Shelton, WA 98584
Re: Richard and Ann Scroggs, T.P. 32232 - 50 - 10903
E6631 Highway 106
Union, WA 98592
Dear Mr. Banner:
I have been retained by Mr. & Mrs. Richard Scroggs to assist them in obtaining
the necessary building permit to rebuild their home which burned to the ground
last winter. They had scheduled construction of the home to commen e
September 1, 1994, a goal which seemed quite feasible when they first applied
for a building permit until they found issuance of that permit blocked by year
department over concerns about the septic system on site.
At this juncture I would much prefer to have the permit issued immediately then
to review all of the exchanges between your department and the Scroggs' and/or
their engineer, Howard Godat & Associates, Inc.
You required that the existing system be pumped and inspected. This was done
on March 8, 1994. There are two (2) 1,000 gallon tanks which were pumped and
inspected and a determination was made that the baffles were in good shape with
no need to replace them. The D-Box was also cleaned and the two pipes of tie
drainfield were dug up for inspection and field tie. Each of these inspectioris
reflected a system in good and safe working condition.
Mr. Brad Banner
August 15, 1994 Law ice of Russell A.Austin, r.
Page 2
It should also be noted that this system was installed pursuant to Permit M-42 9
issued October 5, 1970, and at no time since then has there been any problem
with the safe and healthful operation of the system.
This is confirmed by the shellfish analysis carried out seven (7) times on the
Scroggs' beach between June 28, 1987 and June 20, 1993. These tests,
performed during the "State of the Oyster Study" coordinated by Judy Likkel with
the analysis through the Lauck Testing Lab which consistently reflected fecal
coliform bacteria count well into the lower range of acceptable results on the
Scroggs' beach. I'm sure you have all of those studies.
In short, 24 years of experience with this septic system compels the factual
conclusion that the system is properly designed and adequately functioning for a
house the size that burned down.
Mr. & Mrs. Scroggs had their architect design another home with the same
square footage and with the same number of bedrooms.
It appears to me that your department is improperly considering this as a new
application for a septic system and you are imposing conditions on them that are
not supported in the law. The Scroggs' are entitled by law to rebuild their house.
Even if you felt the septic tank was not consistent with the new standards you
appear to have established, you would still not be permitted to apply those
standards to the Scroggs' residence. I call your attention to Mason County Code
7.13.020 entitled "Applicability to Non-Conforming Development", from which
I quote only the following determinative paragraph:
This program shall not restrict the reconstruction within two years
of the date of damage of any existing single-family residence
which is damaged or destroyed by fire, accident or the elements,
PROVIDED that nonconformance with the standards and
regulations of this program shall not be increased by such
reconstruction. Reconstruction of any development other than
single-family residences and their appurtenant structures shall be
done in accordance with the requirements for new development.
Mr. Brad Banner
August 15, 1994 Law Office of Russell A.Austin, It.
Page 3
I am at a loss to understand why your department seems bent on violating not
only the Mason County ordinance but damaging and frustrating two very fi le
people who lost their long-time Mason County home through a tragic fire, now
only to be faced with this type of difficulty.
With the rubber-stamping by Dr. Trucksses on August 4th of your recommended
denial of June 24th (why did that step have to take 41 days?), we deem ourselves
to have exhausted our administrative r medics Other than appeal to the Mason
County Board of Health, whose next meeting I understand to be at 10:00 a.m. on
Thursday, September 1, 1994. I wish the Scroggs' appeal of your departmen 's
decision, unless you change it before that date, to be on the agenda, and I wish
to have not less than one (1) hour set aside for that hearing.
(Since dictating the foregoing I am advised by Pam Denton that the Board of
Health (a.k.a. County Commissioners) insists on a formal hearing before t.e
Health Officer. Since he has already favored us with his opinion I can only
conclude that this extra step is for harassment purposes. That "hearing" is set t or
sometime on August 25th, and does not alter our request for a hearing before tie
Health Board on September lst.)
Let me make it clear, however, that we would much prefer a call saying that your
Department has reconsidered its position, in light of the Mason County Code, and
that the septic permit will be issued without further delay.
Otherwise, I am prepared to commence suit against Mason County on
approximately September 2, 1994. The suit will be filed in Pierce County
pursuant to RCW 36.01.050 and will seek a writ of mandate directed to your
department. In addition, it will seek damages from the County for the delay and
additional expense you will unnecessarily and improperly put Mr. and Mrs.
Scroggs to. It will also include a claim against the County pursuant to 42 U.S.C.
1983 for monetary damages as well as equitable and declaratory relief. At this
juncture we have not yet decided to include yourself and Pam Denton as
individual defendants to seek monetary and punitive damages under the same
federal statute. We would also seek our attorney fees under 42 U.S.C. 1988 lor
the necessity of bringing the action.
Mr. Brad Banner
August 15, 1994 Law Office of Russell A.Austin, r.
Page 4
I do not threaten litigation lightly. However, the total unfairness of this event
heaped on the loss of their home has quite outraged my clients and myself. May
I urge that you reconsider your position on this application and take whatever
steps are necessary to promptly issue the septic permit so that Mr. & Mrs.
Scroggs will not totally miss their construction window.
Ve ly yours,
Russell A. Austin, Jr
RAA/ls
cc: Mr. & Mrs. Richard Scruggs
Mason County Commissioners
Pam Denton
N:\CLIENTS\99\99999\002\BANNER.LT
MASON COUNTY BOARD OF HEALTH
APPEAL HEARING - AUGUST 25, 1994
PAGE 3 of 7
Ms. Denton stated that the drain field was discharging directly into the water table. After talking
with Brad Banner, it was determined that the drainfield would need to be brought up to current
code because it was so far out of compliance and size and was discharging into the water table.
Ms. Denton had informed Mr. Scroggs and Mr. Godat of this determination and thenFollowed-up
with a letter. An appeal application relating to this determination was then received. Mr. Austin,
Mr. Scroggs' attorney, wrote a letter stating that the drainfield should be "grandfather d." He had
referenced the Mason County Shoreline Master Plan regarding reconstruction of a structure within
two years after a fire.
Upon Mr. Austin's request, Dr. Trucksess read aloud the written comments he had made on the
appeal application. The word in question was "remedial" measures.
Mr. Austin asked Dr. Trucksess if he understood that the Scroggs' application was riot to put in
a septic tank but was an application for a building permit. Dr. Trucksess was aware of this and
stated that if a septic system was out of compliance, the Health Department could hold up a
building permit application until the system was put into compliance.
Mr. Austin stated there was no reason to believe that the system had potential for failure because
it had 24 years of past good experience. He believed the county was negating the gr dfathering
portion of the plan, and that the Scroggs had a constitutional right under due proces to rebuild.
He stated they should be allowed to rebuild by hooking up to and monitoring the existing system.
If there were problems, the problems would be dealt with. Dr. Trucksess asked if the system had
been tested during the time it was functioning. Mr. Austin replied that seven tests had been
completed in 1993 under the shellfish project, and the fecal coliform bacteria count m as well into
the lower ranges of acceptable results on the Scroggs' beach. Dr. Trucksess asked i there were
records of this testing. Mr. Austin believed the Health Department should have c pies of the
testing. Ms. Denton stated that the drainfield on the neighboring property had failed. Mr. Austin
stated he was aware of this fact, but they should not be penalized for that. Ids. Denton
commented that the Health Department did not rely solely on these shellfish tests, and used
additional testing processes. Mr. Austin stated that the Health Department carries these test
results with them, and that he believed this testing was the basis for the decision to close down
the system on the property next to the Scroggs' property. Ms. Denton stated that the testing was
an indicator only.
Dr. Trucksess asked if the Scroggs would feel better putting in a viable, functionin drainfield
before they built their new home rather than finding out afterwards through testing that the
system had failed and therefore, the need to put in a new system. He stated that if the work was
done now, they would know before construction whether they could install a viable drain field.
Mr. Scroggs stated that they have tried all along to comply with the Department's requests. He
commented that Ms. Denton had left some things out of her report. For instance, while in the
MASON COUNTY BOARD OF HEALTH
APPEAL HEARING - AUGUST 25, 1994
PAGE 4 of 7
field, she had told Mr. Godat and himself that they would require testing on the exis ing system.
However, he had not received a letter regarding this, but rather a letter wi h different
requirements. Ms. Denton differed with Mr. Scroggs' comment, stating she had been very frank
with him and that, at the very minimum, would require a treatment device. She stated there were
many different ways to mitigate this, but had not given them a determination until sh had talked
with the Health Services Director. Mr. Scroggs stated that they have tried to comply, and that
Ms. Denton had recommended something that was overturned by the Health Services Director.
Ms. Denton stated she had misunderstood what Mr. Banner was requiring after their c nversation,
but after he saw the letter written by her to the Scroggs, Mr. Banner informed her that the system
had to meet current codes, so she rewrote the letter and mailed it.
Dr. Trucksess asked what had been done to comply with the requirements. Mr. Scroggs replied
that there was no treatment device installed, however, they had complied with covering additional
grassy areas and declaring the pickle ball court as a reserve.
Dr. Trucksess asked about the treatment device. Ms. Denton informed that it could b something
like a bio-max, which wouldn't take up a lot of area so that a larger area could be sed for the
drainfield. Mr. Austin commented that a bio-max costs approximately $8,000 and was about
the size of a septic tank. Dr. Trucksess asked if it would be more cost effective to put in a
treatment device and have testing performed to verify the system was working or to ut in a new
system. Mr. Austin remarked there are two good operating tanks now. Dr. Trucksess responded
that the Scroggs would be able to utilize the same tanks. Dr. Trucksess viewed a diagram of the
Scroggs' property. Ms. Denton stated that there was one area more suitable for a drainfield. Mr.
Scroggs stated that they, at least, have their system in back of the house rather than closer to the
water like so many other homes.
Dr. Trucksess asked about putting in a new drainfield, maximizing the area, and using the
existing septic tanks. Ms. Denton stated that if that was done a bio max would not be required,
but they would need to pump more frequently. She noted that design questions would need to
be resolved, however. Dr. Trucksess wondered about digging a few more test holes in the area
closer to the property line and having the drainfield relocated. Mr. Austin stated that they would
consider this proposal, but at this time it was their desire to utilize the existing system which
for 24 years had no evidence of less than safe performance. And, if at a later date it was found
not to be working, the Scroggs would be the first ones who would not want to pollute the canal
and would rectify the problem. He stated they do not want to jump through $10,000 hoops until
there was evidence it was needed. Mr. Austin stated the Health Department should pprove the
building permit and allow the Scroggs to hook up to the existing system with testing as a
condition. Dr. Trucksess asked about the possibility of testing. Ms. Denton replied that there
was a dye test which could determine if discharge was reaching the bulkhead; however, the
system was not currently being used because there was no house there.
MASON COUNTY BOARD OF HEALTH
APPEAL HEARING - AUGUST 25, 1994
PAGE 5 of 7
Ms. Denton commented on the fact that the Department has no as-built or fina inspection
approval of the system. Mr. Austin disagreed, stating the Health Officer had signe off on the
permit and even though the Health Department had not signed off, whose fault w that? The
permit was in the possession of the Health Department, and the Scroggs believed they had
approval. Dr. Trucksess stated the initial permit was not an issue.
Mr. Austin remarked that the system had not had a problem for 24 years and that the shell fish
tests indicate it was a good system. Dr. Trucksess stated that they now know the system was
discharging into the water table and that there was standing water in a test hole in July. Mr.
Scroggs stated he believed the water in the test hole was from watering. Ms. Denton commented
the water was tidally influenced.
Mr. Austin stated they were attempting to put back the house at an allowable size, not increasing
the number of bedrooms or applying for a new septic tank permit. He referred to Mason County
Code 7.13.020 which gives certain rights, one of which to rebuild within 2 years. H stated that
they were not asking for a variance, but had been told they needed to apply for one. This was
a single-family dwelling with no previous record of its system failing, and that it m as a purely
constitutional and practical matter to rebuild.
Mr. Austin commented that the Scroggs were responsible citizens who feel a propr ety interest
in the water and who believe in constitutional rights, and that the Health Departmeni should not
be above certain rights and ordinances. And, although he would not encou ge testing
requirements, the Scroggs would be willing to be subjected to the same testing as all the other
systems. And, if it was decided that a bio max was necessary, one would be ins ailed. Mr.
Scroggs agreed. Mr. Austin stated they would be ahead of the game to play by thp rules, and
the rules allow the Scroggs to rebuild their home. He commented that litigation wits not good
for anyone, and he did not want to impose the burden of litigation, noting it would cost more
than the cost to buy the bio max. Mr. Austin commented that they did not see he need to
purchase a bio max because the system may fail or because there was water in a to t hole.
Dr. Trucksess stated the water in the test hole was one of many aspects of the drain field which
did not meet current regulations. He commented that the Scroggs have the opportunity to make
correction at minimal cost, that it would be more expensive at a later date. He hoped they would
be less rigid and work with the Department towards a viable system ensured to wok properly.
Mr. Austin replied that they had been working with the Health Department since l t February
and were receiving mixed signals. He stated that no one had said a bio max would be a solution,
and that they were frustrated by the mixed signals. He remarked that if Dr. Trucksess would not
approve their permit to hook up to the existing system, but instead required a bio max, that
requirement would give them trouble, and they would remain rigid.
MASON COUNTY BOARD OF HEALTH
APPEAL HEARING - AUGUST 25, 1994
PAGE 6 of 7
Dr. Trucksess asked if the solution would be in a new design. Ms. Denton replied that her most
recent correspondence to the Scroggs indicated they needed a newly designed system, but such
a design had not been received. She noted that a design would need to be received ar.d reviewed
before a determination on its acceptance could be made.
Ms. Denton commented that there were many things wrong with the existing system; ne concern
being the discharge. Another was seeing the standing water in the test hole, and the fact that the
size of the drainfield did not meet standards in the best of soil for a two bedroom lome. She
stated the design needed to show treatment and disposal.
Mr. Austin stated they were reluctant to invest additional money toward a new design when other
suggestions had been vetoed by Mr. Banner. Mr. Austin asked that Dr. Trucksess tell them what
would be acceptable. Dr. Trucksess replied that just because a designer designs a System it did
not always mean it would comply with regulations. The Health Department has to see the design
in order to make a determination. He stated that it appeared that the property could meet
standards, but there were no guarantees until the Department has an idea where th drainfield
would be located and what kind of treatment was being proposed. Dr. Trucksess corrunented that
submitting a new design was a reasonable solution. Mr. Austin stated that this was t e problem;
they were led to believe that if they did something it would solve the problem, but it had been
overruled by Mr. Banner. He stated that Ms. Denton appeared to be a buffer between Mr.
Banner and himself. Ms. Denton responded that her position was lead on-site coordinator, and
as such handled cases. Mr. Banner was the Director of Health Services. She was paid to make
determinations on systems and that the primary goal was to ensure that contamination did not
occur in the canal. Mr. Scroggs stated that, for that reason, they had installed a ne system in
1970. Ms. Denton stated she was not questioning their integrity. The Department had strong
concerns substantiated by test holes and water tables that the system did not meet s andards on
treatment and disposal. She did not see how they could allow the use of this system when there
were so many concerns.
Mr. Austin asked the Department to offer an alternative. Dr. Trucksess responded stating the
Scroggs could have a designer look at the system and redesign it. He noted that it may be a
simple solution, or it may not. Mr. Austin responded that it had not been simple during the past
seven months. Ms. Denton commented that at the end of February, the Department had asked
for an as-built, and it had not been'received until May. Mr. Scroggs remarked that they had
supplied a topographical survey because certain references had been wanted. Ms. Denton stated
they wanted a plot map, that a topographical map was helpful but not necessary and not typical
of what was usually received.
Mr. Austin asked if Dr. Trucksess' decisions were made on sanitary/health ground;, a limited
authority. Dr. Trucksess replied that his decisions were based on health issues. Mr. Austin
remarked that if Dr. Trucksess did not feel comfortable granting their variance on constitutional
MASON COUNTY BOARD OF HEALTH
APPEAL HEARING - AUGUST 25, 1994
PAGE 7 of 7
grounds, would he please render an oral confirmation of his opinion so that they could proceed
immediately to the Board of Health.
Dr. Trucksess stated he would not approve the existing system.
Mr. Austin asked that this matter be placed on the Board of Health meeting agenda for
September 1st, 1994. Ms. Denton stated she would inform the Appellants of the hearing time
when it was determined.
Appeal hearing adjourned at 3:00 p.m.
Dr. Mark E. Trucksess, Health Officer
Respectfully .Submitted,
Q
Lorraine Coots
1
2
September 1, 1994, 10:00 a.m.
3 Shell on, Washington
4
5
6 BEFORE THE MASON COUNTY BOARD OF HEALTH
7
8 IN RE: DICK SCROGGS and ANNE
9 SCROGGS, husband and wife, APPLICANTS' MEMORANDUM OF
AUTHORITIES
10 Applicants.
11
BACKGROUND
12
Both Mr. & Mrs. Scroggs have summered on Hood Canal since 1940 and hav owned property
13
on the South Shore since the 1960's. On December 28, 1993, their house burned tc the ground. As
14
soon as the immediate shock of the loss subsided they determined to rebuild a substantially similar home
15
(e.g., five bedrooms, approximately 4,000 sf.). They retained Bob Slenes of Olymr is as an architect
16
with substantial Mason County and Hood Canal building experience. At Mr. Slenes' recommendation
17
they also retained Howard Godat & Associates, Inc., consulting engineers, to do the engineering.
18
In order to facilitate the permit process, Mr. Godat contacted the Mason County Health
19
Department on February 24th to alert that department that a building permit application would be
20
forthcoming, citing that department into the Mason County Shoreline Master Program, and particularly
21
MCC 7.13.020 dealing with the reconstruction of a single family residence destroyed by fire. Chapter
22
7.13 of the Code deals specifically (MCC 7.13.050) in the permitting process and deals with septic
23
tanks and state and local health regulations. (MCC 7.13.050(1)(k)).
24
UNDISPUTED FACTS
25 ,
The following facts relative to the Scroggs' property are not disputed:
26
■ The Scroggs voluntarily installed an upgraded septic system in
27 1970 (Permit M-4299, 10/5/70).
28
APPLICANTS' MEMORANDUM OF LA OFFICE OF
(�
A USSE A.AvsltN,Ja.
AUTHORITIES - Page I FA=R1 EASE,5 TE N. • I}B36 5 E.IQIH LANE
BELLEVII WASHINGTON%ph
N:\CLIENTS\0\000900)1\SCR0GGS-9Rr 8/31/94 Az Qm�sbzamo
1 There has been no problem with the septic system in 24 years of
use.
2
■ Shellfish from the Scruggs' beach tested good in seven tests
3 between 1987 and 1993.'
4 ■ The two 1,000 gallon tanks on the Scroggs' property exceed the
tank volume requirements for Mason County, were tested,
5 inspected, and are in good working order.2
6 ■ The Scroggs' house that burned was 3,968 sf. with five 5)
bedrooms.
7
■ Mason County guidelines allow the owner to replace a bur d
8 home up to ten percent (10%) over the burned square footage or
9 in this case up to 4,168 sf.
■ The new home as designed is 4,132 sf (164 sf. under allowance),
10 also with five (5) bedrooms.
11 ■ There is no application pending for a new septic system.
12 The matter of a building permit for the Scroggs' home is being handled, p ocedurally, as a
13 request for a variance from the current drainfield requirements imposed by the Health Department.
14 The Department and the Health Officer based their rejection of a variance on finding that one
15 of three test holes drilled for pecolation inspection appeared to be below the water table. On the other
16 side of this rather subjective finding is the very objective finding of twenty-four ears' successful
17 operation of the septic system, and the fact that for a number of recent years the Scroggs' beach and
18 shellfish have routinely and regularly tested good, while neighbors in the area were Failing.
19 ARGUMENT AND AUTHORITY
20 Within the general field of law dealing with "land use" is the concept of a 11gr indfather clause"
21 or property being "grand fathered". The procedure chapter under the Mason County Master Shoreline
22 Program contains such a grandfather clause (MCC 7.13.020):
23
24
25 t The Scroggs' voluntarily and at their own expense participated in the "State of the Oyster Study" eo rdinatedby
Judy Like] with laboratory testing and analysis through the Lauck Testing Lab. A copy of the test results for the period
26 is attached hereto as Exhibit 1.
27 2 A copy of Mr. Godat's letter to the applicants dated March 10, 1994, is attached hereto as Exhibit 2. Upon
further request of the county Godat has prepared an as-built drawing of the system which is in the file.
28
APPLICANTS' MEMORANDUM OF LA OFFICE OF
ftUSSELL A.AUStaN,JR.
AUTHORITIES - Page 2 FACTOXIA FA5T SU E 201 • 12826 SE 50TH LANE
SELLEVUE.WASHINGTON 9BM6
(M)561-2 •FAX INA)5621030
I This program shall not restrict the reconstruction within two years of the
date of damage of any existing single-family residence which is damag d
2 or destroyed by fire, accident or the elements, PROVIDED that
nonconformance with the standards and regulations of this program shall
3 not be increased by such reconstruction. Reconstruction of any
development other than single-family residences and their appurtenant
4 structures shall be done in accordance with the requirements for new
development.
5
6 Grandfather clauses are usually applied to nonconforming property uses (see Andrew v. King
7 County, 21 Wn. App. 566, 570, 586 P.2d 509 (1978). A nonconforming use was defined by the court
8 in Jefferson County v. Seattle Yacht Club, 73 Wn. App. 576, _ P.2d _ (1994), as follows:
A nonconforming use is a use which lawfully existed prior to the
9 enactment of a zoning ordinance or resolution, which is maintained after
the effective date of the ordinance or resolution, although it does not
10 comply with the use restrictions applicable to the area in which it is
situated.
11
12 In fact, all aspects of the Scroggs' home, both before the fire and as proposed for reconstruction,
13 are conforming uses except for the suspicion of the Health Department and its election to impose a
14 standard on the Scroggs' application that would be imposed on a new home and septic system
application, even though facially contrary to MCC 7.13.020.
15
16 There are clear constitutional overtones to the rejection of any grandfathered property use,
17 particularly a claim that the local governments actions are confiscatory in the total or I artial prohibition
18 of use. In this case, Mr. Scroggs has expressed a strong preference to finding a solution rather than
litigation.
19
20 The unfortunate part is that the applicant receives little or no indication from the Health
21 Department as to what would be a satisfactory solution. He is told, whether rightly or wrongly, that
22 what he has is not acceptable. That is not helpful. It is not helpful to be told "keep having your
23 engineers design systems and when we see one we think will work we'll let you kno v." This is very
24 much like the definition of pornography the Supreme Court wrestled with so many yeas and concluded:
"We can't define it but we know it when we see it. Under the Mason County Granc father Provision,
25
the Scroggs are clearly entitled to better than this!
26
27
28
APPLICANTS' MEMORANDUM OF LA OFFICE OF
T (� RUssEu A.AUSnN,1R.
AUTHORITIES - Page 3 FACTORIA EAST,SUITE 201 • 12926 S.E.M H LANE
BELLEVUE WASHINGTON%0.V
(2%)562 •FAX(IW)56I10M
I CONCLUSION
2 Rather than be delayed in the reconstruction of their home, which is contrary to Mason County
3 law, we ask this Board to grant the variance applied for and let construction go forward during this
4 good weather.
5 If the county Health Department is correct that the Scroggs' system had a life expectancy of 24
6 years at which point it would magically go bad, then there are all the remedies normally available and
7 used against other failed septic systems.
8 The Scroggs' are responsible people. They demonstrated this in 1970 whe they voluntarily
9 rebuilt and enlarged their septic system. They proved it again between 1987 and 1993 when they
10 participated in the various shellfish tests of their beach.
11 They now ask your reciprocal good faith in carrying out the Mason County ordinance that allows
12 them to rebuild their home without further unnecessary delay.
13 DATED this 1st day of Septem"ssell
14 s
By
15 n, Jr.
16
17
18
19
20
21
22
23
24
25
26
27
28
APPLICANTS' MEMORANDUM OF IBz EcEdL LnEV1,aU UE, O.WI CE GI zIOaTSeBF
S O)$
N6 AUTHORITIES - Page 4 FACT00.1A .ST , E10' . S.E
. TH LANE
ASHINN I.EA% _W
MASON COUNTY
DEPARTMENT of HEALTH SERVICES
Shelton,Washington 98584
(206)427-9670• Belfair:275-4467
ENVIRONMENTAL HEALTH PERSONAL HEALTH WATER QUALITY
P.O. BOX 1666 303 N. FOURTH P.O. BOX 1666
Date: September 2, 1994
To: Howard Godat
From: Pam Denton. R.S.
Re: Dick & Ann Scroggs proposal
Our Department has reviewed your proposal and have determined the following:
* A $ 30.00 septic repair permit will be required.
* The repair system will need to meet treatment standard 2. The B o-max
aerobic treatment device is capable of meeting this standard w thout
disinfection.
* The pickleball court will need to be removed in order to increase
disposal area. Another option would be to obtain property nearby and place
the drainfield there.
* A statement must be recorded on the property deed stating the -site
septic system is a non-conforming repair. The system will be non-conforming
because it will not have the required vertical separation.
c. Mr. and Mrs. Scroggs
500 W. Eight Street
Aberdeen, Wa. 98520 .
HOWARD GODAT & ASSOCIATES, INC.
CONSULTING ENGINEERS
2708 WESTMOOR COURT OLYMPIA, WASHINGTON 98502 PHONE (206)943-1599 FAX (206)357-6299
September 8, 1994
Mason County Environmental Health RE
P. O. Box 1666 CEO EO
Shelton, Washington 98584 Sep 1
94
Attn: Mr. Brad Banner NtACI'y SER
Ms Pam Denton ��ES
RE: Dick and Ann Scroggs Residence
Upgraded Wastewater Disposal System
Dear Brad and Pam:
I have reviewed the latest correspondence from the Mason County Environmental Health
Department regarding the position of Mason County for rebuilding of the Scroggs residence.
As you are probably aware, the Scroggs' have a very deep desire to retain the pickle tall court
since it was constructed as a family project and it still provides recreational opportunit es to the
family. We would like to propose an alternative to removal of the pickle ball court.
Attached is a conceptual layout showing an effluent disposal bed measuring 6' in width by 70'
in length. This would provide 420 square feet of bottom area for effluent disposal. We are
proposing the use of "infiltrators" to enhance the absorption rate. Mason County has experience
with infiltrators and it is our understanding that a 40% reduction is provided where infiltrators
are used in lieu of a gravel bed. Thus, the proposal would provide for the following design:
Number of Bedrooms - 4
Daily wastewater generation = 120 gal/bedroom/day
Total Daily Wastewater Generation = 480 Gallon/Day
Assuming a Type III soils condition, the application rate = 0.8 Gal/Sq.Ft./Da
Required Drainfield Area for Type III soil = 480 _ 0.8 = 600 Sq.Ft.
Assuming a 40% reduction in drainfield area, bottom area required = 360 Sq Ft.
Assuming a soil Type IV application rate = 0.6 Gal/Sq.Ft./Day
Required Drainfield Area for Type IV soil = 480 _ 0.6 = 800 Sq.Ft./Day
Assuming a 40% reduction the required drainfield area is 480 Square Feet.
Based on the above design criteria, the proposed disposal area is more than satisfact ry for a
Type III soil and very closely meets the requirement for a Type IV soil.
STUDY REPORT DESIGN I WATER SEWER STREETS
Scroggs Septic System Repair
September 8, 1994 Page 2
In behalf of Mr. and Mrs. Scroggs, we would propose the following resolution:
1. The existing two-compartment septic tank would remain
2. The existing drainfield would be abandoned
3. A Biomax treatment facility would be installed and designed for a 4 edroom
residence.
4. A 6' x 70' effluent disposal bed would be installed with the use of infii rators to
maximize bottom area absorption rates.
5. The treated effluent from the Biomax facility would be pumped and pressure
distribution utilized in the infiltrator system.
6. The existing pickle ball court would be designated as the secondary disposal area
7. A minimum of 75' separation from the drainfield area to Hood Canal will be
provided.
Based on the above conditions, it is our expressed opinion that a nonconforming repa r system
is not appropriate. We hereby request, in behalf of the owners, that the system be approved as
a Treatment 2 installation.
Any questions may be directed to this office.
Sincerely,
HOWA7 GODAT & ASSOCIATES, INC.
Howard N. Godat, P. .K�President, _
cc: Mr. and Mrs. Dick Scroggs
Russell Austin, Jr.
File #3292
HOWARD GODAT & ASSOCIATES, INC.
2708 Westmoor Court S.W. • Olympia, Washington 98502
MASON COUNTY
DEPARTMENT of HEALTH SERVICES
Shelton,Washington 98584
(206)427-9670. Belfolr:275-4467
ENVIRONMENTAL HEALTH PERSONAL HEALTH WATER QUALITY
P.O. BOX 1666 303 N. FOURTH P.O. BOX 1666
September 21, 1994
Howard Godat
2708 Westmoor Court
Olympia, Wa. 98502
Re: Dick and Ann Scroggs design
parcel # 32232-50-10903
Our department has reviewed your latest design proposal for the Scroggs septic
system upgrade. There are issues that need to be addressed.
Your proposal includes the use of infiltrators, a gravelless chamber. The State
Department of Health (DOH) allows a reduction in absorption area only when there
is 36" of vertical separation and only if there is available area for 100%. of the
drainfield. Your proposal does not address vertical separation and does n t have
area for 100%- of the drainfield.
The DOH technical advisors have recently informed us that the Bio-max does not
meet treatment standard 1 or 2 without disinfection. Treatment stands d 2 is
required because the drainfield location is greater than 50 feet to shoreline and
there is less than 1 foot of vertical separation with pressure distribution. (WAC
246-272-160)
Another issue is the soil type and application rate. There are three test: holes
dug on the property. Our department inspected the site in July and found the site
to be extremely variable. One test hole had sandy loam soil over a Cemented
restrictive layer at 10" . On September 15, there was standing water in the bottom
of this test hole. Another test hole had medium sand and gravel to approximately
34" below grade. The sand and gravel varied in compaction and was cemented in
pockets. The third test hole was gravelly sandy loam with the existing drainfield
at 34" . Standing water was also at 34" .
Due to the extreme variability in soil type, compaction of soil, and a variable
restrictive layer it is difficult to determine the overall application rate and
restrictive layer. Therefore further evaluation needs to be done.
0 Recycled
Our department recommends that you hire a certified soil scientist, specializing
in agronomy, crops, and soils to evaluate the site. The application rate and
depth to the restrictive layer, throughout the proposed drainfield area,
including under the pickleball court must be determined. The scientist must
determine and make recommendations as to application rate, location and vertical
separation. A final copy of the report must be� forwarded to our department for
review. Our department may require addition inspections depending on the
findings.
If you want our department to evaluate the site instead of the certifie soil
scientist, the following will be required: 1) A trench must be dug across the
property between the foundation and the pickleball court, from property line to
property line. The trench must extend throughout the entire proposed drainfield
area. 2) Dig a test hole at each end of the pickleball court to help determine
soil type and depth of soil under the pickleball court. 3) Apply f r an
environmental health review. The fees will be billed out at $37.50 dollars per
hour. Additional items may be required depending on the findings. Typical y our
department errors on the side of caution and uses the most restrictive soi type
and restrictive layer.
In summary, further evaluation will be required to determine soil type and
restrictive layer throughout the proposed drainfield area. Another treatment
device will be required that meets treatment standard 2, unless you include
disinfection with the Bio-max. It still appears that the pickleball court needs
to be removed in order to maximize drainfield area. A reduction in absorption
area when using Infiltrators is only allowed when 100?& percent of the area is
available.
If you have any questions regarding this matter, feel free to contact me at
427-9670 ext. 554.
Pam Denton, R.S.
Environmental Health Specialist
Our department recommends that you hire a certified soil scientist, specializing
in agronomy; crops, and soils to evaluate the site. The application rate and
depth to the restrictive layer, througlout the proposed drainfield area,
including under the pickleball court must be determined. The scientist must
determine and make recommendations as to appl.ic�tion rate, location and vertical
separation. A final copy of the report must be, forwarded to our department for
review. Our department may require addition inspections depending n the
findings.
If you want our department to evaluate the site instead of the certified soil
scientist, the following will be required: 1) A trench must be dug across the
property between the foundation and the pickleball court, from property line to
property line. The trench must extend throughout the entire proposed drainfield
area. 2) Dig a test hole at each end of the pickleball court to help determine
soil type and depth of soil under the pickleball court. 3) Apply for an
environmental health review, The fees will be billed out at $37 ,50 dollars per
hour. Additional items may be required depending on the findings. Typically our
department errors on the side of caution and uses the most restrictive soil type
and restrictive layer.
In summary, further evaluation will be required to determine soil t e and
restrictive layer throughout the proposed drainfield area. Another treatment
device will be required that meets treatment standard 2, unless you include
disinfection with the Sio-max. it still appears that the pickleball court needs
to be removed in order to maximize drainfield area. A reduction in absorption
area when using Infiltrators is only allowed when 100% percent of the area is
available.
If you have Any questions regarding this matter, feel free to contact no at
427-9670 ext. 554 .
Pam Denton, R.S.
Environmental Health Specialist
VA - A
C w E5 . S�f�99S'
000 Mot Eighth Stretult
Parcel No. 522 32501000::;
Dear No . Denton !
29, 1794 have ban" rewownd Inv aJ ! departments except Energy
and EnvironmenFa ! leallh. An you are also aware. we have not
resolved the weplin s�- luw design . We have, however, begun
incurring delays
It is our undwr� knndi"q from our rchikwclt s conversation
with you that yup will olLow us I � continue with fh(n:
assurance thot — will nblall A 7nintir system that will nePt
have been djacun ad willayl
" A desig -s !-Qm ^ property without use of
the pickleba] ] cour ' For a d i fi ld
7. A designed sysLam including the i hl b ll court as pErt
of the primary dra ' nField or imserve.,
Assuming then thah all depart monk- l it
the exception of Gnzh -/.mp"Yal VALPh and fh�h one of the
three above alternakives FUR l before the
house, we request titat y�u all to Continuewith
cunbircctinn by signinq below , without immediate ieso1 t on
of the septic system
Sincerely,
Accepted : Environmental Health
Dick g,�; �� ��������������������� ���� ����
�aLe
cc ; Robert Slenco . Bjn�:�
MASON COUNTY
DEPARTMENT of HEALTH SERVICES
Shelton,Washington 98584
(206)427-9670• Belfair:275-4467
ENVIRONMENTAL HEALTH PERSONAL HEALTH WATER QUALITY
P.O. BOX 1666 303 N. FOURTH P.O. BOX 1666
October 14, 1994
Dick Scroggs
500 W. 8th. St .
Aberdeen, Wa. 98520
Re: Building permit for the Scroggs residence
Parcel # 32232-50-10903
Dear Mr. & Mrs . Scroggs,
Your building permit is currently on hold in Environmental Health
pending an approved on-site septic design. It' s our understanding
that you don' t want to invest further time and money on designs
until the Board of Health has determined what will be required.
Our department is willing to issue the building permit prior to
design approval with the following conditions :
1 . Have the system designed according to the Board of H lth' s
determination. The system must be designed and installed prior to
occupancy.
2 . The septic system design and installation must meet our
departments approval using available property.
3 . The applicant understands that without finding a location for
off-site disposal, they will need further evaluation and design of
a system maximizing available area. This may include likely
removal of the pickleball court and recording the system on your
deed as non-conforming, if full compliance to the marine system
requirments cannot be met.
The building permit will only be issued if the above mentioned
requirements are agreed to and signed by you, the property owners.
The building department will not give final occupancy until these
items have been completed.
0 Recycled
Please feel free to contact me if you have any questions req rding
this matter at 427-9670 ext. 554 . The best time to reach me is
between the hours of 8 : 00AM to 9 : 30AM on Friday.
Thank You,
Pam Denton, R.S .
Environmental Health Specialist
K
u -`~
RECEIVED
1=9 ~~`,` S~~ ,,,°E$ Actoher 16 , 1
Ms. Pam Denton
Post Office Box 101053
Shelton , Washington 9PA94
Dear Ms. Denton ::
Unfortunately, 1 -u re, ' ky do not offer us any meaningful
You say, in uffmch th , � " , must ju it your uny or our
--,---- ---n for a - '^ -d ng ,^ ~^ ~^^ ^ ~^ ^^r ^ ~n hold " .
Our experience t--dAbr in that If— requiremenks the
Department of FkAlh i -"ku to iwp"ye on us arm far in excros
of what should !w r—quirpd of a ! none adA weptir system IhQ
selected us fur KhT ln-il disupini "al-ory imposition of:
u/,, eabu/,aulia and o:rcn7mo , e:e "u,/ Lm You even want uF to
proceed as if our sysium had failed and to burden title
our propErty for all time with a restrictive covenant
exemplifying such a hyi�oLketical failure.
,
We feel that we should be allowed to rebuild our home in
accordance with the Mason County ordinance applicable
home destroyed ;y fire . RealisLically we should be all0WEd
to hook the new home 1" the exisiing inspected and
serviceable sepLic In -he Spirit of coOperation e
havc had professic:ally designed , two waatv dispcsa\ syst rs
which would , at a substAntial additional cost I must say,
improve on the elready serviceable system. Our engineers
tell us this would be a safe and sani+iary septic system a d
even the professionals fait to understand the intractable
position taken by your nepartmenl ,
^
Your responne is "� ra: thzI yr'/ il MA our building per it
hostage if we An t ag~ee r On .'/'4tever you say , whateve
that might be. Uur e,I ri nce rith yeur Department to-date ,
gives us abmolu!oly nc` conKdenre vn the f"irness or
in tog rity of the Mnson /lunty Dr [.arFmpnt of MOM Servic s .
Without a buildmg per OF our on-` ' / actor nWst leave the j b
at the end of this week anJ Lry o fino otler work " When "e
ultimately obtaun the huilding pe' mit, as I am confident e
will , we must thon go out and find a contractor to build c ur
home" The cost Will 1e increaseJ , The loss of u5e of the
home will be extended . But in shurL , one thing will not
happen . No more "Ur . yQce Guy . " You will not impose
arbitrary, discriminalory , and u/'reasonable conditions un my
[ao/ily without 0 ' Wh :
'
Law Office of
RUSSELL A. AUSTIN, JR.
Member of Washington State and Distria of Columbia Bars • Admitted to United States Supreme Coun
Factoria East, Suite 201 ♦ 12826 S.E. 40th Lane
Bellevue, Washington 98006
(206) 562-7000 ♦ FAX (206) 562-7030
October 20, 1994
Honorable William O. Hunter, Chairman RECEI EQ
Mason County Board of Health OCT 3 J
c/o Board of Commissioners H�ACT
Mason County Courthouse, Building N1 H _$ER CES
411 North 5th
Shelton, WA 98584
Re: Appeal of Dick and Ann Scroggs
Dear Commissioner Hunter:
On September 1, 1994, you and Commissioner Porter, sitting as members of e
Board of Health, heard the appeal of Mr. & Mrs. Scroggs from the decision of
the Mason County Health Department denying a variance request to utilize their
existing septic system in connection with the rebuilding of their home.
At the conclusion of the hearing both you and Commissioner Porter agreed that
you would try to expedite your decision since you recognized it was impact ng
on the Scroggs' ability to commence reconstruction of their home. When I
pressed you on how quickly we might expect your prompt decision you indicated
that it usually took about six weeks, but you would try to get this one out in fur
weeks.
It has now been seven weeks and despite Mr. Scroggs' best efforts to reach a
compromise solution with the Health Department following that hearing, he ias
been unable to do so. Enclosed are letters reflecting these further efforts over the
past seven weeks for your information. Because the Health Department has a
"hold" on his building permit, he has lost his contractor as well as the abilit3 to
take advantage of any further fall construction time. This has increased his
expenses, and will continue to increase them although if we were to obtai a
Honorable William O. Hunter, Chairman
October 20, 1994 Law Office of Russell A.Austin Jr.
Page 2
favorable decision in the Scroggs' appeal, Mr. Scroggs still might be able to go
back and rehire his contractor and proceed.
Accordingly, your prompt decision would certainly be appreciated.
Very truly yours,
0IL
Aa
r.
Russell A. Austin,
RAA/ls
Enclosures: (1) Memorandum to Howard Godat from Pam Denton da ed
September 2, 1994
(2) Letter to Brad Banner/Pam Denton from Howard Go at
dated September 8, 1994
(3) Letter to Howard Godat from Pam Denton dated
September 21, 1994
(4) Letter to Pam Denton from Dick Scroggs dated
October 11, 1994
(5) Letter to Dick Scroggs from Pam Denton dated
October 14, 1994
(6) Letter to Pam Denton from Dick Scroggs dated
October 16, 1994
cc: Mr. & Mrs. Dick Scroggs
Ms. Pam Denton, Health Department
N:\CLIFNTS\0\00090\001\HUNTER.LT
i
i
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� � v
MASON COUNTY p
q��
h HOv
BOARD OF COMMISSIONERS /y "rf'
MASON 4111 NORTH IFTH (20M 4'O-9F E EXT�19u I v'l co
SHELTON,WASHINGTON 98584
October 27, 1994
Russell A. Austin, Jr.
Factoria East, Suite 201
12826 SE 40th Lane
Bellevue, WA 98006
Dear Mr. Austin:
Re: Variance Appeal by Mr. & Mrs. Scruggs
Your letter dated October 20, 1994 inquiring about the determination on the above mentioned item was just
received in our office. The Board of Health did come to a decision on October 3, 1994 and it waste Board's
intent for the Findings, Conclusions and Order to have been sent to you. Please accept our apologies and find
enclosed a copy for your records.
If we can assist any further, please contact our office.
Sincerely,
BOARD OF MASON COUNTY COMMISSIONERS
Rebecca S. Rogers
Admin. Supervisor/Clerk of the Board
Enclosure
c: Mr. & Mrs.Scro, s
Ilcalth Services
1st District 2nd District 3rd Dist ict
M.L.FAUGHENDER WILLIANI O.HUNTER LAURA E.PORTER
Law Office of
RUSSELL A. AUSTIN, JR.
Member of Washington State and District of Columbia Bart • Admitted to United Stata Supreme Court
Factoria East, Suite 201 ♦ 12826 S.E. 40th Lane
Bellevue, Washington 98006
(206) 562-7000 ♦ FAX (206) 562-7030
November 7, 1994
Mason County Building Department fq0 V 81 4
Mason County Building III
426 West Cedar 1ENERAtLSER ICES
P.O. Box 186
Shelton, WA 98584
Gentlemen:
I represent Mr. & Mrs. Richard Scroggs who applied for and on October 9,
1994, were issued building permit #94-1336 for reconstruction of their ho ne
destroyed by fire on Parcel No. 32232 50 10903. Construction is proceeding
under the permit. However, Mr. & Mrs. Scroggs do not agree or stipulate to he
conditions set forth under Paragraph 11 of "Conditions" to the issuance of tiat
permit. We ask that you make a notation of that absence of agreement. The f ict
that they proceed with construction under the permit is solely for the purpose of
mitigating the damages of one party or the other to this dispute.
It is the Scroggs' intention to plumb their sanitary disposal system to the existing
on-site septic system, which has not failed or caused any problem in the
preceding 24 years. We will not expect any denial of the Certificate of
Occupancy based on the failure to agree to the coercive conditions implied un er
Paragraph 11 of "Conditions".
However, to resolve this matter finally, it is the intention of the plaintiffs to
litigate this dispute and seek a declaratory judgment by a court of competent
jurisdiction. In that proceeding the Building Department and/or the Health
Department will have an opportunity to explain to the court the heretofore
arbitrary and capricious conduct of Mason County in withholding the permit and
thereafter granting it subject to conditions.
VAV4
Russell A. Austin, Jr.
RAA/ls
cc: Mr. & Mrs. Dick Scroggs
N:\CLIENTS\0\00090\001\MASONCO.LT
c: ✓Prosecutor
Health Services
L lil
2
MHSON COUNTY
3 COMMISSIONERS
4 C .
5
6 SUPERIOR COURT OF WASHINGTON FOR GRAYS HARBOR CO NTY
7
8 RICHARD E. SCROGGS and ANN
SCROGGS, husband and wife,
q NO. `3`f - Z 3 .�
Plaintiffs, Q 44" ��
10 ORDE�GRANTING AINTIFFS'
V. MOTION FOR EXPED TED
11 HEARING
MASON COUNTY,
12 (Clerk's action require )
Defendant.
13
14 THE PLAINTIFFS having moved for an expedited hearing, and having sho n good cause for
15 moving the matter ahead of other cases awaiting trial, NOW, THEREFORE
16 It is hereby ORDERED that this matter is assigned to The Honorable
17 in Department of this court with direction that said Judge conference by telephone with the
18 attorneys for both parties and assign the matter for a one (1) day trial in the month of January, 1995.
19 DONE IN OPEN COURT this day of November, 1994.
20
21 PRESIDING JUDGE
I
22
23 Pres ted by:
•
24
_Bv
at
25 Fussell A. Austin, JT.
WSBA #459 Cj
26 Attorney for Plaintiffs
27
28
ORDER GRANTING PLAINTIFFS' MOTION FOR L 'OFFICE OF
EXPEDITED HEARING - Page I I A,1,11i Ft"T.i 'I
`�-TF ID, i)61,.fF .CTll LANE
_- RFi fvU. ,IllI TOy I..
N: CLIENTSIO\(MNPhI\(X)I\EXPEDITL.ORD 11/7/w 1a)�>- • Fn )::r.i.u.ae
Prosecutor
Health Services ......
2
Nino,
3 CCMMISSICNERS
4
6 SUPERIOR COURT OF WASHINGTON FOR GRAYS HARBOR COUNTY
7
8 RICHARD E. SCROGGS and ANN
SCROGGS, husband and wife, o
9 NO. q4 _ 2- - C�1 3 3 —a
Plaintiffs, j
10 SUMMONS (20 DAY)
V.
11 MASON COUNTY,
12
Defendant.
13 j
14 TO: Defendant Mason County, above-named:
15 A lawsuit has been started against you in the above-entitled Court by Richa d E. Scroggs and
16 Ann Scroggs, husband and wife, plaintiffs. Plaintiffs claims are stated in a written complaint, a copy
17 of which is served upon you with this summons.
18 In order to defend against this lawsuit, you must respond to the complaint by stiting your defense
19 in writing, and serve a copy upon the undersigned attorney for the plaintiffs within twenty (20) days
20 after the service of this summons, excluding the day of service, or a default judgmc nt may be entered
21 against you without notice. A default judgment is one where the plaintiffs are entitled to what they ask
22 for because you have not responded. If you serve a notice of appearance on the un ersigned attorney,
23 you are entitled to notice before a default judgment may be entered.
24 You may demand that the plaintiffs file this lawsuit with the Court. If you do so, the demand must
25 be in writing and must be served upon the plaintiffs. Within fourteen (14) days after you serve the
26 demand, the plaintiffs must file this lawsuit with the Court, or the service on you of this summons and
27 complaint will be void.
281
W OM OF
_ �J _ _—_ Russ A.AumN,JR.
SU-'1MONS (20 DAY) - Page I FACTORI E , 'ME201 IH365E OHLANE
BELLE E.WA SHINOTON ri006
N:\C" ,r�M%)ShN%11\CA('TION II/'/96 "--- 2�1 Su-. •FA%trwl wxrma
I If you wish to seek the advice of an attorney in this matter, you should do so promptly so that your
2 written response, if any, may be served on time.
3 This summons is issued pursuant to Rule 4 of the Superior Court Civil Rules of the State of
4 Washington.
5 DATED this 7th day of November, 1994.
6
7 ell A. Austin, Jr.
WSBA #459 Lj
8 Attorney for Plaintiff
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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Ln OFFICE OF
RUSSELL �. ALIMN,JR.
SUMMONS (20 DAY) - Page 2 FACfORIA $T.sI 201 • 128265 E.IMI LANE
BELLF.I UE. 'ABIIINGTON 98006
(3IX.1 SeHON 1 FAX(1CN KIJ010
c: Prosecutor
—4+ealth Services - - -
2
3 IIJ�
IVI:4 '.-
COMMISSOiVcH;;
5
SUPERIOR COURT OF WASHINGTON FOR GRAYS HARBOR COI NTY
6
7 RICHARD E. SCROGGS and ANN
g
SCROGGS, husband and wife, N0. _ OL ,3- a
9 `� — Z
Plaintiffs,
9 COMPLAINT FOR DECLARATORY
V. JUDGMENT AND DAMAGES
10 MASON COUNTY,
11
Defendant.
12
13 PLAINTIFFS ALLEGE as follows:
14 1. Venue. Venue for this action lies in Grays Harbor County pursuant to RCW
15 36.01.050.
16 2• Plaintiffs. Plaintiffs are the owners of property in Mason County ha ing an address of
17 E-6631 Highway 106, Union, Washington 98592 and being Mason County tax parcel 32232 50 10903.
18 Said real property is located on the south shore of Hood Canal, and is in an unincoiporated area.
19 3. Defendant. Mason County is the governing body for properties riot located in an
20 incorporated city in Mason County. The Mason County Building Department and tie Department of
21 Health Services are departments of Mason County. The Mason County Board of Commissioners is the
22 governing body of the county. The Commissioners also serve as the County Board of Health.
23 4. Fire. On December 28, 1993, the plaintiffs' home on the property described above was
24 totally destroyed by fire.
25 5. Grandfather Clause. Mason County Code 7.13.020 reads:
26 This program shall not restrict the reconstruction within two years of he
date of damage of any existing single-family residence which is damage,—'
27 or destroyed by fire, accident or the elements, PROVIDED tat
nonconformance with the standards and regulations of this programs all
28 �
COMPLAINT FOR DECLARATORY JUDGMENT AND -= ,- LA 'OFF CE OF
DAMAGES- Page 1 _ FACTORIAA LAST,SLUE 2011 *RUSSEiCi A. NA SL 40TH LANE
BELLEVUE LLASHILIGTON%Db
Rcsl sso-�
N:\CLIENTS\0\00090\001\MANDAMUS.PET 11/7/94 .FAX(2os)sez�mc
tom' -
1 not be increased by such reconstruction. Reconstruction of a y
development other than single-family residences and their appurtena t
2 structures shall be done in accordance with the requirements for n w
development.
3
6. Permit Application. Plaintiffs sought a building permit to reconstruct their home with
4
a home of substantially the same size, containing substantially the same number o bedrooms, and
5
utilizing the same septic system which had properly served the home for twenty-three (23) years. The
6
septic system was uncovered, pumped and inspected in 1994 and found to be in good working order.
7
Plaintiffs caused tests to be made of shellfish on their beach seven (7) times between 1987 and 1993,
8
which tests were designed to reflect any failure of a septic system through the fecal coliform. bacteria
9
count. Each test reflected beach shellfish well within the acceptable range for such laboratory tests.
10
The most recent test made was within six (6) months of the fire which destroyed laintiffs' home.
11
There has been absolutely no failure of the system.
12
7. County Violation of Law. Despite being expressly grandfathered to rebuild their home
13
the Mason County Health Department insisted on various actions and concessions as a condition of
14
approval of plaintiffs' application, most of which concessions plaintiffs felt were uncal ed for but which
15
were or would have been agreed to in order to expedite the issuance of the buildi ig permit so the
16
construction could proceed forward during the summer and fall of 1994.
17
8. Administrative Remedies Exhausted. On September 1, 1994, at its regular Monday
18
meeting, plaintiffs appealed the adverse decision of the Department of Health and the Health Officer
19
to the Mason County Board of Health which is in effect the Mason County Board of County
20
Commissioners. Said Commissioners voted to sustain the denial of a permit to the plaintiffs by decision
21
entered October 3, 1994, but not communicated to plaintiffs until October 27, 1994.
22
9. Open Public Meeting Law. The defendant Commissioners acted in violation of RCW ch.
23
42.30 in deliberating and deciding plaintiffs' appeal at other than a scheduled public meeting. For such
24
violation plaintiffs should be awarded the personal civil penalty of $100.00 against each participating
25
Commissioner pursuant to RCW 42.30.120 as well as judgment for their attorneys' ees and costs.
26
10. Issuance of Permit. On or about October 19, 1994, Mason County did c nditionally issue
27
a building permit to plaintiffs, which issuance was predicated on the plaintiffs meeting certain
28
COMPLAINT FOR DECLARATORY JUDGMENT AND
RUSSELL A. AI CIIN,JR.
DAMAGES- Page 2 1'A(10A;A EAST.F1 IF l_ :926SE.401N LANE
AEUEr L.e.ul lr]sFIN I M
pM�s6�-r Fm, :ai su.ro�o
1 requirements and complying with certain directives of the Mason County Health D partment, which
2 requirements are inapplicable, unnecessary, and totally unacceptable to plaintiffs.
3 11. Unlawful Acts. The actions of the Mason County Commissioners and the Department
4 of Health Services are arbitrary, capricious, and contrary to the law in Mason Coun y.
5 12. Unlawful Taking. The actions of Mason County in refusing plaintiffs a permit to rebuild
6 their home constitutes at least a temporary taking of the plaintiffs' property under col r of law without
7 compensation as prohibited by statute and the constitution of the state of Washington and the United
8 States.
9 13. Civil Rights Violation. The actions of the defendant constitutes a violation of plaintiffs'
in denial of due process and equal protecti n
10 civil rights, contrary to 42 U.S.C. 1983, et seq. of the law.
11 14. Damages. Mason County has violated RCW 64.40.020 through the it 'tial actions of its
12 Health Department, later confirmed by its Board of County Commissioners, in de ying plaintiffs a
13 permit, which denial is arbitrary, capricious, and unlawful, and has caused plaintiffs' ongoing economic
14 damage in an amount to be established at trial.
15 15. Attorneys' Fees. Plaintiffs are entitled to recovery of reasonable costs and attorneys' fees
16 pursuant to RCW 64.40.020(2) and 42 U.S.C. 1988.
17 16. Punitive Damages. Plaintiffs are entitled to recover actual damages ai well as punitive
18 damages against individual county employees who may be hereafter added to this suit as defendants for
19 trial.
20 17. DeclaratoryJudgment. This action is brought under the Uniform Declaratory Judgments
21 Act, codified as RCW ch. 7.24. A genuine dispute does exist between plaintiffs anc defendant which
22 is cognisable by this court under RCW 7.24.020. Plaintiffs ask this court to declare their rights to
23 reconstruct their home pursuant to Mason County Code 7.13.020 without additional requirements or
24 interference. A gusticiable controversy exists.
25 18. Expedited Hearing. Plaintiffs will seek by separate motion an expedi ed hearing in this
26 matter so as to not loose another year in the ultimate occupancy of their home.
27
28
COMPLAINT FOR DECLARATORY JUDGMENT AND L °E
RUSSEL A.A. AU OF
JR.
DAMAGES- Page 3 1ACTOAIA EAST.St ITE 201 . 12926 S E,OTH LANE
BELLES'Ll WASHINGTON 9M
(2W)562 7 • FAX(2W1561JUIU
I WHEREFORE, plaintiffs pray this court declare the law applicable under the facts of this case
2 and direct issuance by Mason County of a building permit without extraneous conditions and that
3 plaintiffs recover monetary damages and their attorney's fees and costs incurred herein.
4 DATED this 7th day of November,
5
By
6 ell A. Austin, J .
WSBA #459
7 Attorney for Plaintif
8
9 VERIFICATION OF PLAINTIFF
10
11 STATE OF WASHINGTON )
) ss.
12 COUNTY OF GRAYS HARBOR )
13 RICHARD E. SCROGGS, being first duly sworn, upon oath deposes and states as follows:
14 I am one of the plaintiffs herein. I have read the foregoing Petition for Writ of Mandamus and
Damages, know the contents thereof, and to the best of my knowledge believe the same to be true.
15
16
17 Richard E. Scruggs
18
SUBSCRIBED AND SWORN TO before me this _ day of November, 1994.
19
20
Prinwd nanic Russell A. Austin, Jr.
21 NOTARY PUBLIC in and for the State of Washington,
residing at Seattle
22 My commission expires: 2 2 97.
23
24
25
26
27
28
COMPLAINT FOR DECLARATORY JUDGMENT AND LA OFFICE OF
Russ A.AusnN,I&
DAMAGES- Page 4 FACTO AEA T,S 201 . 128365.E 60R1 LANE
BELLEVUE WASHINGTON H006
12%)M2.2 •FAX 12%)WMO
c: Prosecutor -. -
Health Services -
2
3 COMNilabl nl_ r_
4
5
6 SUPERIOR COURT OF WASHINGTON FOR GRAYS HARBOR COL NTY
7
8 RICHARD E. SCROGGS and ANN
SCROGGS, husband and wife,q NO. —
Plaintiffs,
10 MOTION FOR EXPEDITED
V. HEARING
11 MASON COUNTY,
(Without Oral Argume t)
12
Defendant. (Clerk's action Required)
13
14 COME NOW the plaintiffs and respectfully move this court for an order gra ting an expedited
15 hearing of the matters complained of in the plaintiffs' Complaint for Declaratory Judgn tent and Damages
16 Filed contemporaneous herewith. Plaintiffs ask the court to preassign and set this matter down for
17 hearing before a judge of this court during the month of January, 1995. This motion is based on the
18 Affidavit of Richard E. Scroggs subjoined hereto. A proposed order granting this ry otion is attached.
19 DATED this 7th day of November, 1994.
20 B
Y
21 Rkfssell A. Austin, Jr.
W*SBA #459
22 Attorney for Plaintiffs
23
24
25
26
27
28
MOTION FOR EXPEDITED HEARING (WITHOi3-T ORAL--,7. .� LA OFFICE OF
i - RU-S LL A.AUMN,JR.
ARGUMENT - Page I - - , FACTORIA EASST SU EN1 • 12826 S.E.4O HLANF
BELLEVUE 4'ASHINGTON 98PM
N:\CLIENTS\0\00090\001\EXPEDITE.MTN 11/7/94 - 11Ee1%11 . FAX(2a)W 7030
1 AFFIDAVIT OF RICHARD E. SCROGGS
2 STATE OF WASHINGTON )
) ss.
3 COUNTY OF GRAYS HARBOR )
4 RICHARD E. SCROGGS, being first duly sworn, upon oath deposes and says:
i
5 1. I am one of the plaintiffs in the above-entitled action and make this affidavit of my own
6 personal knowledge.
7 2. It has not been nearly one (1) year since our home on the south shore of Hood Canal was
8 destroyed by fire on December 28, 1993. We promptly commenced our efforts to rebuild, hiring first
9 an architect and then at his recommendation hiring a firm of consulting engineers, Howard Godat &
10 Associates, Inc., to inspect and analyze the existing septic system on the property before utilizing it
11 again for the new home. The Godat firm caused the two (2) 1,000 gallon septic tanks to be unburied,
12 pumped and inspected and the drainfield to be uncovered and inspected. The report was that the system
13 was in good shape and acceptable for continued use. The Mason County Environmental Health
14 Department nonetheless required that additional holes be dug on the property from which they
15 concluded, based on the height of the water table, that our septic system would fai . Not that it had
16 failed, since it has been working perfectly for twenty-four years, but theoretically hat it would fail.
17 Accordingly, they imposed a variety of requirements on us, including particularly t1 at we tear up and
18 remove our pickleball court, and that we agree with their department that we had a se tic system failure
19 and that to rebuild our home would require an admission of such failure and inclus on in the form of
20 a covenant running with the land for all persons, prospective lenders and potential future purchasers to
21 be advised that the septic system, and accordingly our home, were built and/or installed pursuant to a
22 variance. Such admission and such amendment of the record title to our property wot Id impose a heavy
23 burden, making borrowing against or selling the property considerably more difficult.
24 3. Our consulting engineers offered the county Environmental Health Department several
25 alternative proposals, each of which would have been very expensive but in their professional judgment
26 would have removed any likelihood of a septic system failure, but each proposal was rejected.
27
28
MOTION FOR EXPEDITED HEARING (WITHOUT ORAL mOUSOF
ARGUMENT - Page 2 FACTO0.IA J,Jn.
EA A.
A Al siRSC SH. S.E.4BTH LANE
BELLE�'li .W 4'ASHINGTOTON HK6
(2m)3W. • FAN(Z[)WA 00
1 4. With all the rejections of our system we never did receive information as to what system
2 would be applicable other than it would be required to meet whatever conditions they mposed, and that
3 it would require a variance and a clouding of the title to our property.
4 5. We presently have a building permit which allows construction to go forward on our
5 home, but said permit was conditionally issued subject to conditions in paragraph I thereof which are
6 totally unacceptable to the plaintiffs. If this matter is not resolved promptly the necessary financing for
7 the home will be delayed, which will mean the construction will be delayed or terminated, which will
8 mean another extended period of time without replacement of the burned home.
9 6. I repeat that our existing septic system was deemed very adequate for the size home on
10 our property and that not only did we not have any failure of the system in twenty-f ur years, but the
11 shellfish on our beach were laboratory tested on seven (7) separate occasions between 1987 and 1993
12 and on each occasion the test results showed our property to be in the very acceptable range of fecal
13 coliform bacteria count, indicating that our septic system was fcoiiform b properly.
14
15 Richard E. Scroggs
16 SUBSCRIBED AND SWORN TO before me this _ day of November, 1994.
17
18 Russell A.Austin,Jr.
NOTARY PUBLIC in and for the State of Washington,
19 residing at Seattle.
20 My commission expires: 2/24/97.
21
22
23
24
25
26
27
28
MOTION FOR EXPEDITED HEARING (WITHOUT ORAL L OFFICE OF
RVSSE A. AlIMN,JR.
ARGUMENT - Page 3 FAC ORIA EAST.S ITE 201 • 12826 51 40'FH LANE
BELLEVU `YASHiNGTONI M
005)562-) • FAX uC6)MAm0
OFFICE OF THE
MASON COUNTY PROSECUTING ATTORNEY
GARY P.BURLESON 411 N.FIFTH STREET
PROSECUTING ATTORNEY SHELTON, WASHINGTON 98584
PHONE( 06)427-9670 ext.417
November 15, 1994
Alicia Johnson
Washington Counties Risk Pool
1110 Capitol Way South 1304
Olympia, WA 98501-2251
RE: RICHARD E. SCROGGS and ANN SCROGGS vs. MASON COUNTY
GRAYS HARBOR COUNTY CAUSE NO. 94-2-01433-8
Dear Alicia:
Enclosed is a copy of our file in the above captioned case.
Would you please assign this to an adjuster for Eurther
investigation and recommendation.
If you have any questions, please call.
Ve7 truly yours,
MIKE E. CLIFT
Chief Deputy Prosecuting Attorney
Claims Committee
Enclosure
THE SUPERIOR COURTOF WASHINGTON
GRAYS HARBOR COUNTY
n
GORDON L.GODFREY,JUDGE 1. P.O.BOX>t I
DAVID FOSCUE.JUDGE l� MONTES NO,YIAS,ING T ON 98:63
F.MARK M<CAULEY,JUDGE
(206)249-6363
BONNIE KINDLE.ADMINISTRATOR
(206)249 5311
February 21, 1995 I
t
Mr. Russ Austin
Attorney at Law
Factoria East, Suite 201
12826 S.E. 40th Lane
Bellevue, WA 98006 RECEIVE.,
,
Mr. Mark Johnson
Attorney at Law FEB 2 8 iog
1201 Third Avenue, Suite2900 IVASOiv 4 5 r
Seattle, WA 98101-3028 �Q
RE: .Scroggs v. Mason County
Grays Harbor County Cause No. 94-2-1433-8
Dear Counsel:
This matter comes before the court on a motion for summary judgment/cross motion for-
summary judgment by the parties regarding issues arising from a request by plaintiffs for the
issuance of a building permit from defendant Mason County. Plaintiffs Scroggs were seeking a
building permit from defendants pursuant to a Mason County Ordinance for the rebuilding of their
home destroyed by fire. Said permit was denied, then eventually conditionally granted, a result
of alleged Health Department decisions regarding septic tank matters.
Plaintiff places a veritable fiddle before the court by claiming violations of their
constitutional property rights as a result of the failure of the defendant to issue the requested
permits. Plaintiffs initially followed the appropriate appellate procedures after the denial of the
requested permit by the defendants. Plaintiffs at all times during the course of this admin strative
process had the fight to raise all constitutional property right issues. Plaintiffs recourse would
have been to continue to utilize the appropriate procedure of raising all issues at that stage of the
proceeding with ultimate review by the Superior Court in the event plaintiffs were unsatisfied with
the posture of their request at that time. Ironically, plaintiffs elected to abandon the procedure
available under RCW 7.16 et sec., and elected to file the present proceeding for trial in the same
Superior Court that would have reviewed all issues raised at the administrative process.
February 21, 1995
Page 2
The court need not, and cannot, broach the merits of the alleged constitutional vi lations
in this matter due to the posture of the prior proceedings. The position of the plaintiffs th it no
available and adequate remedy to resolve the issues surrounding the property rights and I lealth
Department matters are without merit. It is the position of the court that the plaintiffs he-ein
failed to exhaust their administrative remedies following the deniaUissuance of a conditio tal
building permit by defendants herein. Plaintiffs failed to exhaust their administrative remedies
through utilization of the appellate process pursuant to RCW 7.16 et sec, writ of certiorari to
Superior Court for a review of proceedings.
Therefore, summary judgment on behalf of defendants Mason County is hereby ganted.
Summary judgment requests on behalf of plaintiff Scroggs is hereby denied.
I will anticipate appropriate pleadings to be filed commensurate with this decision and
submitted to the court for entry.
Cordially,
Gordon L. Go ey
Superior Court Judge
GLG:It
cc: file
KARRnTUTTLE , CAMPBELL
A Pmfu...(S.C.T runbn
1201 Third Avenue,Suite 2900,Seattle,Washington 98101-3028
Telephone(206)223-1313.Far mile(206)682-91M
Portlead OBux
1105 Standard Plata.1100 S.W.Sixth Avenue.Porttevd,Oregon 972041085
Telephone(503)248-1330,Facsimile(50)222- 29
Please reply to Seattle Office
Mark R.Johnsen
February 24, 1995
Mike Clift F r-g 2 8199
Mason County Prosecutor's Office
411 NorthFi ? SCV ti,C
Shelto A 98584 FUSE C J T C�
RE: Scroggs v. Mason County
Dear 1GIikP f /
I am pleased to report that Grays Harbor County Superior Court Judge Gordon
Godfrey has granted Mason County's Motion for Summary Judgment in the case. I
have enclosed a copy of Judge Godfrey's Memorandum Decision for your file. I will be
presenting a formal order to Judge Godfrey shortly.
C While there is a chance that the plaintiffs might appeal, it is more likely that no appeal
will be pursued. I'll keep you advised of further developments. Please don't hesitate to call if
you have any questions or observations. Thank you.
Very truly yours,
lblw/' ��Itl��—Ip-,-;-
Mark R. Johnsen
MRJ/nlr
Enclosures
March 7 , 1995 �`raf� (� g
15
MEMORANDUM r
FROM: Tony Godat
TO: Pam Denton
Mason County Environmental Health Department
RE: Dick and Ann Scroggs
Parcel #32232-50-6903
Pam:
As per our phone conversation today I am proceeding on the repair
design septic system for the above referenced project. The
Scroggs' have elected to remove the pickle ball court to maximize
the drainfield disposal area. As such, I am proceeding with design
to treatment standard #2 as per your September 21, 1994 letter to
our office.
A revised design will follow in a week or so. When you receive it
your prompt attention would be greatly appreciated.
Thank you.
cc: Dick Scroggs
Bob Slenes, BJSS Group
File #3292
HOWARD GODAT & ASSOCIATES, INC.
2708 Westmoor Court S.W. • Olympia, Washington 98502
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