HomeMy WebLinkAboutVAR2006-00002 Hearing Decision - VAR Letters / Memos - 4/19/2006 TO BE KEPT IN THE
PARCEL FILE
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April 19, 2006
Notice of Decision
Case: VAR2006-00002
Applicant: Nancy Joerns
Notice is hereby given that Nancy Joerns, who is the applicant for the above-
referenced Resource Ordinance Variance Request, has been granted the Variance.
The request was approved pursuant to the Mason County Resource Ordinance,
specifically for the construction of a 2,300 square foot single family residence
including an attached garage within a Type 1 shoreline buffer.
This is a final County decision. No further appeals to the County are available.
Appeal may be made to Superior Court or the appropriate administrative agency as
regulations apply. It is the appellant's responsibility to meet all legal requirements of
any appeal process.
If you have questions or require clarification on these issues please contact Kell
McAboy, Land-Use Planner with Mason County at 360-427-9670 x363.
RECEw � \
APR 18 2uc'
1
BEFORE THE HEARING EXAMINER FOR MASON W - PLAN.
2
Phil Olbrechts, Hearing Examiner
3
RE: Nancy Joerns FINDINGS OF FACT, CONCLUSIONS
4 OF LAW AND FINAL DECISION.
5 MCC 17.01.150(E) Resource
Ordinance Variance
6
INTRODUCTION
7
The applicant has applied for a variance to encroach 45 feet into a 1001-foot Resource
8 Ordinance buffer from Pickering Passage. The Examiner grants the variance subject
9 to the conditions recommended by staff.
10 ORAL TESTIMONY
11 Kell McAboy introduced the staff report.
12 Greg Schirato testified on behalf of the Washington State Department of Fish and
1 Wildlife. Mr. Schirato is a District Wildlife biologist who has served in that capacity
for 20 years. He has published several articles on wildlife issues and has a degree in
14 Wildlife Biology. Mr. Schirato testified that the relatively small portion of the
subject lot that is not encumbered by a Resource Ordinance buffer should be
15 protected from development because it is composed of old growth Douglas Fir trees
that are suitable for bald eagle habitat. Mr. Schirato commented that the proposed
16 development site within the buffer to Pickering Passage harbors trees that are much
1 7 smaller and younger and not suitable for bald eagle habitat. Mr. Schirato stated that
the proposed location for the single-family dwelling is the best location from the
18 standpoint of minimizing impacts to bald eagle habitat.
19 The applicant also testified, mainly rebutting comments supplied by John Diehl in
20 Exhibit 9.
21 EXHIBITS
22 See Case Index, attached to Staff Report,with the following additions:
23 Exhibit 7: March 28,2006 letter from Greg Schirato
24 Exhibit 8: Email from Lee Bode dated March 28, 2006
Exhibit 9: Statement of Opposition from John Diehl dated March 28, 2006
25 Exhibit 10: March 29, 2006 email from applicant, Nancy Joerns
1 In addition to the 100 foot shoreline buffer, there is a 15 foot building set back. The
approved variance waives the 15 foot setback as well.
Nancy Joerns
Resource Ordinance Variance P. 1 Findings, Conclusions and Decision
{PA0630185.DOC;1/13009.090000/)
Exhibit 11: March 29, 2006 email from Hearing Examiner regarding request
1 for additional comments from John Diehl
2 FINDINGS OF FACT
Procedural:
4
5 1. Applicant. The applicant is Nancy Joerns.
6 2. Hearin. The Hearing Examiner conducted a hearing on the application
on March 28, 2006 in a conference room adjoining the Mason County Board of
7 Commissioners meeting room. The Examiner left the record open through 5:00 p.m.,
March 29, 2006, to provide the applicant an opportunity to respond to comments
8 submitted by John Diehl (Exhibit 9). By email, Mr. Diehl requested an opportunity to
9 respond to an email provided by Ms. Joerns on March 29, 2006. The Examiner
denied this request by email dated March 29, 2006.
10
Substantive:
11
3. Site/Proposal Description. The applicant proposes to build a single-family
t dwelling with a total footprint of approximately 2,300 square feet within a 100 foot
1 Resource Ordinance buffer to Pickering Passage, a saltwater shoreline. The subject
lot is 0.84 acres in area, including approximately 80 feet of shoreline bluff. The lot
14 extends 460 feet north to south. A Type 4 stream is located on the adjacent property
to the west, encumbering approximately 40 percent of the subject property with its
1.5 buffer.
t 6 As depicted in Appendix A to the Habitat Management Plan (Exhibit 4), only a small
17 portion of the lot, on the northeastern side, is not encumbered by either the Type 4
stream buffer or the marine shoreline buffer. This area is only large enough to
18 accommodate a driveway and septic drain fields. In Exhibit 9, John Diehl asserts that
the unencumbered portions of the lot could accommodate both the drain field and the
19 proposed home. This is not refuted by staff or the applicant, and there does appear to
20 be merit to Mr. Diehl's analysis. For these reasons, the Examiner concludes that the
home and drain field could be located within the unencumbered portions of the
1 subject lot.
22 4. Bald Eagle Habitat. The Staff Report provides that the subject lot has
been "tagged" as eagle territory (see Paragraph V(B)). It is unclear what this means,
2' since the Habitat Management Plan provides at page 3 that there are no nests for
24 eagle habitat on the property. It is clear, however, that the old growth on the property
provides a potential for nesting and roosting, as concluded in the Habitat
25 Management Plan as well as by Greg Schirato on behalf of the Washington State
Department of Fish and Wildlife. It is also fairly clear from the record, as testified by
Mr. Schirato, that the unencumbered portions of the lot contain old growth suitable
for eagle nesting and roosting, while the proposed development site for the single-
family home does not. As testified by Mr. Schirato, the proposed development site
Nancy Joerns
Resource Ordinance Variance p. 2 Findings, Conclusions and Decision
{PA0630185.DOC;1/13009.090000/}
for the single-family home is the best location to minimize impact to bald eagle
I habitat.
5. Characteristics of the Area. The area is characterized by low density
3 single-family residential development in the Pirates Cove community. There is an
existing single-family residence approximately 165 feet to the east of the subject
4 property, located 40 feet from the shoreline bluff. Housing appears to be a mix of
permanent and recreational use.
6 6. Adverse Impacts. As mitigated, there are no adverse impacts discernable
from the record. The septic drain field is located outside of the Resource Ordinance
7 buffers and will have to be consistent with Department of Health regulations, which
contain setbacks to protect shorelines from harm. The proposed home will encroach
8 what appears to be up to 50 feet into the 100-foot marine shoreline buffer. Both staff
(in recommending approval) and Lee Bode, author of the HMP, have concluded that,
9 as mitigated, the encroachment will not adversely affect the marine shoreline. Given
10 these factors, the Examiner finds no significant adverse environmental impacts
created by the proposed development.
ll
CONCLUSIONS OF LAW
12
13
Procedural:
14 1. Authority of Hearing Examiner. MCC 15.03.050(I) provides the Examiner
w i th the authority to review and act upon variance applications.
15
16 Substantive:
17 2. Zoning Designation. The zoning designation for the property is RR 5.
18 3. Review Criteria and Application. The applicant seeks a variance from a
100-foot setback from an adjoining Type I saltwater shoreline (Pickering Passage).
19 This buffer is imposed through MCC 17.01.110, Table 3. MCC 17.01.150(E)
,0 provides that the general variance criteria of MCC 15.09.057 shall apply to Resource
Ordinance variances. Those review standards are laid out below with applicable
1 conclusions of law.
22 MCC 15.09.057(1): The strict application of the bulk, dimensional or performance
standards precludes or significantly interferes with the reasonable use of the property
23 not otherwise prohibited by county regulations.
24
4. Case law and reasonable use, at least in the constitutional context,
25 generally provides for at least one single family home per parcel that conforms with
the minimum lot size requirements. Reasonable use may also be limited to
recreational use, if factors such as investment backed expectations, historical uses,
surrounding uses and parcel size are consistent with a recreational use limitation. See
Buechel v. Washington State Dept. of Ecology, 125 Wn.2d 196 (1994), for a good
Nancy Joerns
Resource Ordinance Variance p. 3 Findings, Conclusions and Decision
1 PAO630185.DOC;1/13009.090000/1
description of the factors used in a "reasonable use analysis", as the terms used in the
I Mason County Shoreline Variance criteria.
2 A single-family home is certainly a reasonable use for the subject lot, given the
3 relatively large size of the lot (.84 acres) and the fact that it is in a residentially zoned
area surrounded with single-family dwellings. What is not as clear is whether the
4 Resource Ordinance interferes with the proposed reasonable use, since the proposed
home could be placed in an unencumbered portion of the lot. The unique issue
presented in this case is that the property owner is not claiming a burden by having to
6 construct in the unencumbered portions of the lot; rather, the property owner is
claiming a public detriment in developing the unencumbered portions of the lot, i.e.,
7 the destruction of eagle habitat. The question presented, therefore, is whether a
public detriment, unrecognized by County regulations, can be used to justify
8 development within a Resource Ordinance buffer.
9 In addition to Buechel, some assistance in assessing the relevance of public detriment
10 is provided at MCC 17.01.240, which defines a "reasonable use" as "a legal concept
that has been articulated by federal and State of Washington courts in regulatory
1 I takings cases." In a regulatory takings analysis, public purpose is a significant factor.
See Guimont v. Clark, 121 Wn.2d 586, 603-604 (1993). It goes without saying that if
12 a marginal (as opposed to significant) public benefit weighs in favor of compensation
in a takings case that any regulation that is actually detrimental to the public welfare,
13 if applied, is a strong factor favoring compensation. A regulation that both
14 significantly burdens a property owner and negatively impacts the public interest
would not fare well in a takings analysis.
15
Although it is clear in this case that destroying bald eagle habitat creates a public
16 detriment favoring the variance, it is not quite as clear how to weigh this adverse
impact against building with a shoreline buffer. In other words, what's worse?
I Building in an eagle habitat or a marine shoreline buffer? It is noteworthy that
is County regulations do not protect potential bald eagle habitat. In order for Resource
Ordinance restrictions to apply, there must be an eagle nest within a quarter mile of
19 the development site. See MCC 17.01.110(G). There is no evidence in the record
that a nest sight is within a quarter mile of the development site. However, as
20 evidenced by the testimony of Mr. Schirato, the Resource Ordinance does not prohibit
21 all development that could potentially adversely impact the threatened bald eagle. In
the case-by-case, detailed analysis of a reasonable use variance request,
environmental considerations need not and should not be limited to only those
✓y impacts expressly identified in the Resource Ordinance or other protective legislation.
3 The basis of the reasonable use waiver is to provide fairness to the property owner.
There is no fairness, and little logic, in imposing a significant burden upon a property
24 owner when the waiver of that regulation would create less environmental harm as
2; opposed to more. Consequently, it is appropriate and necessary to weigh all
environmental factors in a reasonable use analysis, even environmental harm that may
go beyond what is protected by Mason County regulations.
Nancy Joems
Resource Ordinance Variance p. 4 Findings, Conclusions and Decision
1 PA0630185.DOC;1/13009.090000/1
In weighing the harm of building within a marine shoreline buffer against the removal
I of eagle habitat, the Examiner must rely upon the expert testimony presented. All
2 three of the experts involved in the subject hearing (Schirato, staff, and Bode)
concluded that for eagle habitat, the least harmful location for the home is the
3 proposed location within the marine shoreline buffer. Mr. Schirato did not address
the environmental impacts of building within the shoreline buffer. However, staff
4 and Mr. Bode both concluded that overall, the proposed location of the home within
the shoreline buffer is preferable. It is also noteworthy that homes within the vicinity
5 have also been built relatively close to the Pickering Passage shoreline in order to
6 preserve old growth eagle habitat in the northern portions of the lots. Although not
commented upon by the experts of this case, it is likely that providing for continuity
7 in old growth forests by preserving them in sequential adjoining lots improves the
habitat value of that old growth. Given the significance of the bald eagle as a
8 "threatened" species and the other factors identified, the least overall environmentally
harmful location for the home is in the proposed location. Given this conclusion, the
9 Resource Ordinance would significantly interfere with the reasonable use of the
10 property if it required the home to be placed in a more environmentally harmful
location that is, at the same time, a greater burden to the property owner as well.
11 MCC 15.09.057(2)is satisfied by placement of the home in the proposed location.
12 MCC 15.09.057(2): The hardship which serves as the basis for the granting of the
variance is specifically related to the property of the applicant, and is the result of
13 unique conditions such as irregular lot shape, size, or natural features in the
14 application of the County Regulations, and not,for example,from deed restrictions or
the applicant's own action.
15
5. The need for the variance is created by the natural features on the property
16 and their corresponding development buffers.
17 MCC 15.09.057(3): The design of the project will be compatible with other
18 permitted activities in the area and will not cause adverse effects to adjacent
properties or the environment.
19
6. The proposed home is residential, a use which is consistent with the
20 zoning for the property as well as the residential character of surrounding uses.
21 MCC 15.09.057(4): The variance authorized does not constitute or grant special
22 privilege not enjoyed by the other properties in the area, and will be the minimum
necessary to afford relief.
23
7. The property is located in a Rural Residential-5 zoning district, which
24 permits single family homes outright. The applicant is only requesting the
25 opportunity to build a home, which is a right afforded to most other properties in the
vicinity. Consequently, the granting of a variance application would not constitute a
special privilege.
MCC 15.09.057(5): The public interest will suffer no substantial detrimental effect.
Nancy Joems
Resource Ordinance Variance p. 5 Findings, Conclusions and Decision
{PA0630185.DOC;1/13009.090000/}
1 8. As discussed in the Findings of Fact, there are no significant adverse
impacts associated with the proposed development and therefore the public interest
will suffer no substantial detrimental affect.
3
MCC 15.09.057(6): No variance shall be granted unless the owner otherwise lacks a
4 reasonable use of the land. Such variance shall be consistent with the Mason County
Comprehensive Plan, Development Regulations, Resource Ordinance and other
5 County ordinances, and with the Growth Management Act. Minor loss in value only
6 shall not justify a variance.
7 9. The purpose of the Resource Ordinance is to protect environmentally
sensitive areas from adverse impacts created by development. The Resource
8 Ordinance specifically provides for a variance and reasonable use waiver process so
that the goals of environmental protection do not place undue hardship upon property
9 owners, at least to the extent that their constitutional rights may be violated. The
10 granting of the variance in this particular case will not have any significant adverse
environmental impacts and will at the same time provide for a reasonable use of
1 1 property, thus satisfying the purpose of the Resource Ordinance. The Comprehensive
Plan and Zoning Code provide for residential development in the subject area. The
12 lot, which appears to be slightly less than an acre in size, is too small for residential
development in a rural area to be consistent with the policies of the Growth
1' Management Act as they pertain to discouraging urban sprawl and encouraging the
14 efficient use of public infrastructure. However, the Growth Management Act also
encourages the protection of private property rights. Authorizing the construction of
15 a garage on a grandfathered lot in the circumstances of this application does promote
the private property rights of the applicant. For these reasons, the granting of this
16 variance would also be considered consistent with the intent of the Growth
17 Management Act.
18 MCC 15.09.055(C): Required Review: The Hearing Examiner shall review a
proposed development according to the following criteria:
19
1. The development does not conflict with the Comprehensive Plan and meets
20 the requirements and intent of the Mason County Code, especially Title 6, 8 and 16.
21 2. The development does not impact the public health, safety and welfare and
?I) is in the public interest.
3 3. The development does not lower the level of the service of transportation
and/or neighborhood park facilities below the minimum standards established within
24 the Comprehensive Plan.
25 10. The applicant will be required to get a septic permit and building permit
for the home, which will ensure consistency with all development regulations. There
is no subdivision of land involved, so Title 16 does not apply. As noted above, the
project has no significant adverse impacts, so there is no impact to the public health,
Nancy Joerns
Resource Ordinance Variance p. 6 Findings, Conclusions and Decision
{PA0630185.DOC;1/13009.090000/
safety and welfare. In protecting eagle habitat, the variance is in the public interest.
1-1
I Nothing in the record indicates impacts on park or transportation facilities. However,
2 given that it is just a single-family home and staff found no issues with park and
transportation level of service, the Examiner finds consistency with those standards.
3
DECISION
4
The Hearing Examiner approves the requested variance subject to the conditions
5 recommended by Staff in the Staff Report.
6 Dated this day of April, 2006.
7
8 �
Phil Olbrechts
10 Mason County Hearing Examiner
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Nancy Joerns
Resource Ordinance Variance p. 7 Findings, Conclusions and Decision
{PA0630185.DOC;1/13009.090000/}
CASE INDEX
Joerns
VAR2006-00002
Exhibit# Date Description
1 March 15, 2006 Staff Report
2 February 9, 2006 Completed Variance Application
3 November 2005 Site plans
4 November 2005 Habitat Management Plan
5 February 23, 2006 Notice of Public Hearing for Variance App.
6 N/A Title Notification of HMP
-5
✓X�.il�� I
Mason County
Department of Planning
Building I * 411 N. 51h Street * P.O. Box 279
Shelton,Washington 98584 * (360) 427-9670
March 16, 2006
TO: Mason County Hearing Examiner
FROM: Planning Staff—Kell McAboy, 360.427.9670 ext. 363, kellm_,co.mason.wa.us
RE: Mason County Resource Ordinance Variance (VAR2006-00002).
STAFF REPORT
I. Introduction. This report evaluates a request for a variance from the Mason County
Resource Ordinance Number 77-93. Specifically chapter 17.01.110 D. Table 3. Type 1
Saltwater Shorelines. The request is to build a two-story, single family residence with an
attached garage (total footprint approximately 2,300 square feet)within the 100' marine
shoreline buffer of Pickering Passage. The applicant proposes to locate the residence 50'
from the top of the high bank bluff(see Habitat Management Plan for more details). This
proposal is consistent with the Mason County Shoreline Master Program by meeting the
minimum 15' setback and therefore does not require a Shoreline Variance. Staff is
recommending approval of this proposal with conditions.
II. Applicant: Nancy Joerns
III. Date of Complete Application: February 9, 2006.
IV. Site address and Project Location: Pirates Drive; Grapeview, WA. Lot 3 of Short Plat
571. Parcel#12118-75-90020
V. Evaluations.
A. Characteristics of the area. The area is characterized by low-density single-family
residential development in the Pirates Cove community. There is an existing single-
family residence approximately 165' to the east of the subject property, located 40'
from the shoreline bluff. Housing appears to be a mix of permanent and recreational
use.
B. Characteristic of the site. The property is comprised of.84 acres that include
approximately 80 feet of shoreline bluff. The lot extends 462 feet north to south and
80 feet east to west. A type 4 stream is located on the adjacent property to the west
encumbering approximately 40 percent of the property with its buffer. An additional
50 percent of the property is comprised of marine shoreline buffer. Topography is
relatively flat, gently sloping westerly to the stream. The shoreline bluff is located
400' south of the northern property line and consists of a vertical drop approximately
40' to the beach. The parcel has been tagged as eagle territory.
C. Comprehensive Plan Desi ation. The Mason County Comprehensive Plan
designation for the site is Rural.
D. Zoning. The parcel is zoned Rural Residential 5 (RR-5).
VI. SEPA Compliance and other public notice requirements. The proposal is exempt
from SEPA per WAC 197-11-800 (1)(b)(i). Notice of Public Hearing for the Application
for a Variance was posted in the Mason-Shelton Journal on 03/09/06, at the Shelton Post
Office on 03/07/06 and on-site on 03/07/06. In addition, the Notice of Application was
mailed to all property owners within 300' of the proposal on 02/23/06. A full application
packet was sent to the Washington State Department of Fish&Wildlife and the Squaxin
Island Tribe on 02/23/06. A 28-day comment period followed. A Habitat Management
Plan (HMP) (Exhibit 4) accompanies this Variance request.
VII. Other Permits. The proposal will require a Mason County Building Permit
accompanied by a Geotechnical Report, if the Variance is approved.
VIII. Analysis.
A Type 1 Saltwater Shoreline and a Type 4 Stream encumber this property. A marine
shoreline buffer and building setback of 100' is established per the Mason County
Resource Ordinance (MCRO) section 17.01.110 D. Table 3. Because there are no
existing structures within 150' on either side of the property,no common-line procedure
applies. A Type 4 Stream buffer of 100' plus building setback of 15' for a total of 115' is
established per the Mason County Resource Ordinance Section 17.01.110 Table 3.
This proposal meets the stream setback requirements for structures and on-site sewage.
This proposal does not meet the shoreline setback requirement for structures and is
therefore not permitted per the MCRO section 17.01.110 G.1.c.1. without an approved
variance.
Section 17.01.150 of the Mason County Resource Ordinance addresses Variances From
Standards, the purpose of which is set forth in Section 17.01.150 A. Applicability in
Section 17.01.150 B. 2. Review Standards Per Title 15, the Mason County Development
Code (15.09.057) Variances from the bulk and dimension requirements of the
Development Regulations may be allowed as follows. The County must document with
written findings compliance or noncompliance with the variance criteria.
Findings.
1. That the strict application of the bulk, dimensional or performance standards
precludes or significantly interferes with a reasonable use of the property not
otherwise prohibited by County regulations;
Applicant states:
"Due to the presence of critical areas in proximity to the property, the strict
application of buffer and setback requirements listed in the Mason County
Resource Ordinance would not allow adequate space to accommodate residential
use of the property".
2. That the hardship which serves as a basis for the granting of the variance is
specifically related to the property of the applicant, and is the result of unique
conditions such as irregular lot shape, size or natural features and the application of
the County regulations, and not, for example from deed restrictions or the applicant's
own actions;
Applicant states:
"The hardship is specifically related to the parcel due to the limited width and
presence of natural features. Buffers associated with the nearby stream and
shoreline nearly eliminate buildable portions of the property".
In addition, the priority to locate the on-site sewage system completely out of both
buffers diminishes the buildable area even more.
3. That the design of the project will be compatible with other permitted activities in the
area and will not cause adverse effects to adjacent properties or the environment;
Applicant states:
"A Habitat Management Plan has been prepared, which identifies measures
necessary to avoid, minimize, and compensate for negative effects to the
environment. The applicants are seeking compliance with the county regulations,
specifically, on-site sewage system requirements, and FWHCA standards. Similar
projects have been approved in Mason County while other residences have been
constructed along this shoreline. No view corridors will be obstructed or
modified. By avoiding disturbance to the old growth forested area within the
stream buffer, no impacts to the use of the site by threatened or endangered
species are expected to occur. All recommendations listed in the HMP will be
followed, which will preserve the remainder of the parcel and minimize potential
for environmental impacts".
4. That the variance authorized does not constitute a grant of special privilege not
enjoyed by the other properties in the area, and will be the minimum necessary to
afford relief;
Applicant states:
"The proposed footprint is designed to accommodate both a single family
residence and an attached garage. Residences in proximity to the project site and
along the shoreline of Pickering Passage and South Puget Sound are comprised
of similar or greater footprints."
5. That the public interest will suffer no substantial detrimental effect;
Applicant states:
"Increased traffic and noise will not be of a magnitude that would substantially
effect nearby residences. The application of standards listed in the Habitat
Management Plan will insure that the natural features associated with the project
site are preserved. There will be no detrimental effect to the public interest
resulting from the proposed project".
6. No variance shall be granted unless the owner otherwise lacks a reasonable use of the
land. Such variance shall be consistent with the Mason County Comprehensive Plan,
Development Regulations, Resource Ordinance and other county ordinances, and
with the Growth Management Act. Mere loss in value only shall not justify a
variance.
Applicant states:
"The property is zoned as rural residential 5. Residential development is allowed
under these regulations and policies. Areas within the property outside regulated
buffers will be occupied by an access road and an on-site sewage system. A
Habitat Management Plan has been prepared to meet the intent of the Mason
County Resource Ordinance".
With an approved Variance, the proposal will be consistent with all other Mason
County regulations, Comprehensive Plan and the Growth Management Act.
IX. Conclusion. Based upon the Variance criteria set forth above staff recommends
approval of the Variance with the following conditions:
1. Erosion control and best management practices must be incorporated during all
development for the residence.
2. All mitigation measures proposed in the HMP prepared by Lee Boad dated November
2005 shall be implemented during development of the residence.
3. The applicant shall have a Title Notification of Habitat Management Plan recorded
with the Deed in the Auditor's office. The Notification shall indicate that
development of the property is encumbered by conditions placed on it by Mason
County Department of Community Development under this Variance#VAR2006-
00002 and that the HMP prepared by Lee Boad dated November 2005 contains
required mitigation measures for future development.
4. An eagle management plan from Washington Department of Fish&Wildlife may be
necessary prior to issuance of a building permit for construction of the residence.
X. Choices of Action.
1. Approve the Variance request.
2. Approve with conditions the Variance request.
3. Deny the Variance request(reapplication or resubmittal is permitted).
4. Deny with prejudice (reapplication or resubmittal is not allowed for one year).
5. Remand for further proceedings and/or evidentiary hearing in accordance with Section
15.09.090 of Title 15.
VARIANCE APPLICATION
MASON COUNTY
DEPARTMENT OF COMMUNITY DEVELOPMENT
411 N. 5th Street/ P.O. Box 279, Shelton, WA 98584
Variance from Standards
As stated in Mason County Code Title 15, Section 15.09.057. VARIANCE CRITERIA,
variances from the bulk and dimension requirements of the Resource Ordinance or the
Development Regulations (zoning regulations) may be allowed as follows. The County
must document with written findings compliance or noncompliance with the variance
criteria. The burden is on the applicant to prove that each of the following criteria is
met.
Application for a variance does not guarantee approval. A variance is an application for a
special "exception to the rule". The proposal must undergo public review and must meet
the specific variance criteria listed below.
Applicant name: Nancy Joerns Telephone No. (253 15694593
Mailing address: 23313 100th AVE S.E., Kent, WA 98031
Site address: Lot 3 of Short Plat 571
Owner Name (if different than applicant): Gloria Dillev
Owner Address (If different than applicant): 10913 Moller Dr. NW Gig Harbor, WA 98332
Tax Parcel # 12118- 75-90020
Legal Description: Lot 3 of Short Plat 571
Type of Variance Requested: Mason County Resource Ordinance X
Mason County Development Regulations
Subdivisions and Plats
1. Describe the specific modification from the terms of the Chapter required.
Reduction in Type 1 Conservancy Shoreline building setback from I IS feet to 55
feet for the purpose of constructina a sinale family residence.
C:\Documents and settingsTeeNy DocumentsWariance Application 2005 Joems.doc
2. Describe the reasons for the variance.
Shoreline and stream setbacks encompass the majority of the ownership. The
portion of the property located outside reaulated stream and shoreline buffers
will be almost entirely occupied by an on-site sewaae system and aravel
driveway. The portion of the property within the stream buffer is comprised of
an old arowth forest which should not be disturbed as it lies within an eaale
manaaement zone.
3. No variance shall be granted unless the County makes findings of fact showing that
certain circumstances exist. Please address each of the following standards and how
the proposal pertains to these circumstances.
a. That the strict application of the bulk, dimensional or performance standards
precludes or significantly interferes with a reasonable use of the property not
otherwise prohibited by County regulations;
Due to the presence of critical areas in proximity to the property, the strict
application of buffer and setback requirements listed in the Mason County
Resource Ordinance would not allow adequate space to accommodate
residential use of the property.
b. That the hardship which serves as a basis for the granting of the variance is
specifically related to the property of the applicant, and is the result of unique
conditions such as irregular lot shape, size, or natural features and the application
of the County regulations, and not, for example, from deed restrictions or the
applicant's own actions,-
The hardship is specifically related to the the parcel due to the limited width
and presence of natural features. Buffers associated with the nearby stream
and shoreline nearly eliminate buildable portions of the property.
c. That the design of the project will be compatible with other permitted activities in
the area and will not cause adverse effects to adjacent properties or the
environment;
A Habitat Management Plan has been prepared which identifies measures
necessary to avoid, minimize, and compensate for negative effects to the
environment. The applicants are seekina compliance with county
regulations, specifically, on-site sewaae system requirements, and FWHCA,
standards. Similar projects have been approved in Mason County while
other residences have been constructed along this shoreline. No view
corridors will be obstructed or modified. By avoidina disturbance to the old
-growth forested area within the stream buffer, no impacts to the use of the
site by threatened or endangered species are expected to occur. All
recommendations listed in the HMP will be followed which will preserve the
remainder of the parcel and minimize potential for environmental impacts.
C:\Documents and Settings\Lee\My Documents\Variance Application 2005 Joems.doc
d. That the variance authorized does not constitute a grant of special privilege not
enjoyed by the other properties in the area, and will be the minimum necessary to
afford relief;
The proposed footprint is desianed to accommodate both a sinale family
residence and an attached -garage. Residences in proximity to the project
site and along the shoreline of Pickering Passaqe and South Puget Sound are
comprised of similar or areater footprints.
e. That the public interest will suffer no substantial detrimental effect;
Increased traffic and noise will not be of a magnitude that would substantially
effect nearby residences. The application of standards listed in the Habitat
Management Plan will insure that natural features associated with the proiect
site are preserved. There will be no detrimental effect to the public interest
resulting from the proposed proiect
f. No variance shall be granted unless the owner otherwise lacks a reasonable use of
the land. Such variance shall be consistent with the Mason County Comprehensive
Plan, Development Regulations, Resource Ordinance and other county ordinances,
and with the Growth Management Act. Mere loss in value only shall not justify a
variance.
The property is zoned as rural residential 5. Residential development is
allowed under these regulations and policies. Areas within the property
outside regulated buffers will be occupied by an access road and an on-site
sewage system. A Habitat Manaaement Plan has been prepared to meet the
intent of the Mason County Resource Ordinance.
IIA C)l��
AP llcant Signature( I I /O
P 1g Date
Own ignature Date
FEES:
Development Regulations Variance: $920.00 Hearings Examiner. $490.00
Subdivision and Plats Variance: $920.00 Hearings Examiner: $490,00
Resource Ordinance Variance:0�1,225.00) Hearings Examiner. $490.00
Habitat Management Plan (HMP), $360.00
NOTE: Applicant will also be billed for all advertising costs (See attached).
C:\DOCUME-1\ke11m\L0CALS--1\Temp\V#Aance application 2005-doc
C:\Documents and SettingsTLeeNy Documents\Variance Application 2005 Joems.doc
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Lee Poad Habitat Moment Plannin and Wetland 5mice5 Appendix A
Cl&b.- Nancy Joerns fax Parcel#12118-15-90020 5tte Map
19400108th Ave 5� #202 Mason Casty, WA
IZenta�, WA 98055
scale:)"-100'-0"
i
llrrr�amed Yype h Stream I
l2ecortwnended
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100' Puffer Proposed Pmeway
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Lee Boad Habitat Management Planning and Wetland Services '7
Wetland Delineation • Habitat Management Plans - Riparian Restoration • Mitigation • Biological Evaluation
Joerns Project
Habitat Management Plan
Parcel 12118-75-90020
Mason County, Washington
Prepared for:
Nancy Joerns
19400108t6 Ave SE#202
Renton,WA 98055
Prepared by:
Lee Boad
November,2005
PO Box 2854 Belfair,Washington 98528•Cell Phone 360-620-0618.Office Phone 360-372-2421•boad40@peoplepc.com
Table of Contents
1.0 Introduction......................................................1
2.0 Project Description.............................................1
3.0 Property Description...........................................1
4.0 Applicable Setbacks............................................3
5.0 Species Information...........................................3
6.0 Potential Development Impacts.............................4
7.0 Mitigation Measures..........................................5
8.0 Monitoring......................................................6
9.0 Conclusion......................................................6
Appendix A: Site Map
Appendix B: Vicinity Map
Appendix C: National Wetlands Inventory Map
Appendix D: WDFW PHS Map
Appendix E: DNR Stream Type Map
Recommended Citation:
Boad. L. M. November 2005. Joerns Project Habitat Management
Plan. Lee Boad Habitat Management Planning and Wetland Services.
Prepared for Nancy Joerns
Lee Boad Habitat Management Planning and Wetland Services
Wetland Delineation • Habitat Management Plans • Riparian Restoration • Mitigation • Biological Evaluation
LBHMPWS215
Pg 1 of 12
1.0 Introduction
At the request of Nancy Joerns, a Habitat Management Plan has been prepared for construction of a
single family residence within the regulated 100-foot buffer associated with the shoreline of Pickering
Passage in Grapeview, Washington. The site is mapped in Section 18 of Township 21 North, Range 1
West. The property is recorded by the Mason County Tax Assessor's Office as Lot 3 of Short Plat 571,
Tax Parcel 12118-75-90020. All observations in this report relate to this parcel unless otherwise stated.
2.0 Proiect Description
This report addresses the establishment of a single-family residence within the regulated 100-foot buffer
required for type 1 shorelines in Mason County. The house and covered parking construction zone will
encompass a footprint of approximately 2320 square feet and extend to a location 55 horizontal feet
from the shoreline at the nearest point. The proposed encroachment into the shoreline buffer is necessary
to avoid any disturbance to the Type 4 Stream buffer which is comprised of an old growth coniferous
forest within an area mapped as priority habitat for threatened species on the WDFW PHS Database.
The site is located within an eagle management zone. Areas within the ownership outside stream and
shoreline buffers will be occupied by the on-site sewage system and proposed access road.
Avoidance mitigation includes positioning the structure the furthest distance from the shoreline possible
while avoiding disturbance to the old growth forested area within the type 4 stream buffer.
Minimization has included a house and covered parking design that utilizes a 2320 square foot
construction footprint. Compensatory mitigation includes installation of habitat features within a portion
of the protected stream buffer.
3.0 Property Description
The ownership is comprised of.84 acres that includes approximately 80 feet of shoreline bluff. The lot
extends 462 feet north/south and 80 feet east/west. The type 4 stream is located on the adjacent
ownership to the west. The stream buffer captures approximately 40 percent of the subject property. An
additional 50 percent of the property is comprised of marine nearshore and the associated buffer.
Landscape topography consists of flat to gently rolling slopes trending downward towards the stream
located on the adjacent western lot. The southern property line is located within the marine innertidal
zone. The shoreline bluff is located 100-feet north of the southern property boundary and consists of a
vertical drop of approximately 40-feet to the beach. The site is documented as priority habitat for bald
eagle which is state listed as a threatened species. The majority of the property is comprised of an intact
forested area with old growth components. Dominant plant species identified include an over-story
dominated by Douglas fir(Pseudotsuga menziesii) with interspersed deciduous species pacific madrona
(Arbutus menziesii),red alder(Alnus rubra), and various willow species(Salix sp.) The understory is
dominated by vine maple (Acer circinatum), evergreen huckleberry(Vaccinium ovatum), sword fern
(Polystichum munitum), and saW (Gautheria shallon).
PO Box 2854 Belfair,Washington 98528•Cell Phone 360-620-0618.Office Phone 360-372-2421•boad40@peoplepc.com
Habitat Management Plan
Mason County,Washington
LBHMPWS 215
Page 2 of 12
The proposed house location is a naturally open area of less dense overstory structure in comparison to
other portions of the ownership.
-
R Ev E.,
Figure 1.No modifications to the shoreline bluff or nearshore is proposed.
k
`J 1
t
Figure 2.The majority of the building site is encompassed by small Douglas fir.
PO Box 2854,Belfair,WA 98528 cell:360-620-0618,Office:360-372-2421 e-mail:boad40@peoplepc.com
Habitat Management Plan
Mason County,Washington
LBHMPWS 215
Page 3 of 12
4.0 Applicable Setbacks
This majority of the property is captured by regulated stream and shoreline buffers. Ordinance
17.01.110 identifies Fish and Wildlife Habitat Conservation Areas adopted by Mason County.
Applicable FWHCA setbacks for this property are as follows:
Habitat Type Buffer Building Setback from buffer
Type 1 Conservancy Shoreline 100, 15'
Type 4 Stream 100, 15'
5.0 Species Information
Puget Sound Chinook(Oncorhynchus tshawytsha)-Threatened
Listed as threatened since March 24, 1999,adult Puget Sound Chinook spawn in several rivers and
streams flowing into Puget Sound. No significant spawning areas exist within or in proximity to the
project site. The portion of the property most significant to Chinook is the nearshore area as it represents
migration and foraging habitat. No shoreline modifications are recommended or proposed. No impacts
to Chinook or associated forage fish species are predicted to result from this project.
Bull Trout(Salvelinus confluentis)-Threatened
The Coastal-Puget Sound distinct population segment(DPS)of bull trout is the only anadromous (utilize
fresh and marine habitats)population of bull trout within the continental United States. Bull trout within
this DPS rear in natal streams then migrate to the saltwater environment to mature. Bull trout require
clean cold water associated with mountain streams and need an unobstructed passage both upstream and
downstream. These habitat requirements have made the bull trout very susceptible habitat change and
degradation. Bull Trout are not documented as occurring within or in proximity to the project site.
Given that Bull Trout are not present, no impacts to Bull Trout are predicted to result from this project.
Bald Eagle(Haliaeetus leucocWhalus)-Threatened
Habitat areas associated with Bald Eagle include uneven aged coniferous stands with some old-growth
components. Nests are typically constructed in larger trees with dead or broken tops providing an
unobstructed view of nearby water. Snags and trees with exposed lateral limbs, or dead tops are used as
perches and defense stations. This site is of importance to nesting and roosting habitat due to it's
proximity to marine foraging areas and presence of intact old growth habitat. Although no nests were
observed on the property,potential for nesting and roosting is present.
Given the importance of the subject property and surrounding area to bald eagles, measures have been
recommended to avoid substantial impact on eagle usage of the site. The house is located in an area that
avoids removal of old growth components although some removal of overstory species will occur.
Tactical construction timing is also recommended to avoid disturbance during critical breeding periods.
PO Box 2854,Belfair,WA 98528 cell:360-620-0618,Office:360-372-2421 e-mail:boad40@peoplepc.com
Habitat Management Plan
Mason County, Washington
LBHMPWS 215
Page 4 of 12
The critical breeding period for Washington's bald eagles begins with courtship in early January and
ends with juvenile dispersal in mid-to late-August.
The Washington Department of Fish and Wildlife should be consulted regarding additional measures
deemed necessary to protect bald eagles occurring within the surrounding area.
Marbled Murrelet(Brach yramphus marmoratus)-Threatened
Marbled Murrelets are typically associated with coastal habitats and nest in old-growth forests.
Murrelets may fly as far as 50 miles inland to nest,however the average distance is roughly 5-miles from
nest to sea. It is only during the summer breeding months that they are commonly found inland. During
non-nesting seasons they live at sea. Murrelets require tall mossy trees in coniferous old growth forests
with thick branches where they can construct a cup nest 20-40 meters above the forest floor.
Murreletts have been documented laying eggs on rocky ground habitats only when a sufficient forest is
unavailable.
There are no documented nesting sites surrounding or within the project site. Potential platform nesting
sites were observed on the day of the field investigation,none of which occur within the project area.
Given the lack of use of the site by marbled Murrelet and no proposed removal of habitat suitable for
nesting,this project will have no adverse impact. Potential habitat will be protected by leaving intact old
growth areas within the property.
Northern Spotted Owl (&L-r occidentalis caurina)-Threatened
Spotted owls require a large amount of land for their nesting and hunting grounds; pairs may occupy up
to 58 sq. km. They are territorial and do not migrate, but they may shift their ranges slightly in response
to seasonal changes
Suitable spotted owl habitat includes trees relatively large in diameter in the stand,multi-layered forest
canopy with a moderate to high canopy closure in overstory, midstory, and understory, large,tall, live
trees with cavities,broken tops,mistletoe, or platforms of branches capable of holding accumulated
organic matter suitable for use as a nest. Dead standing trees and fallen decayed trees supporting
abundant populations of prey species are critical to spotted owl populations. The old growth
characteristics of this site are representative of potential habitat for spotted owl although none are
documented within or in proximity to the site. Measures recommended for protection of potential eagle
habitat will also preserve habitat features important to spotted owl.
6.0 Potential Development Impacts
The entire project lies within the 150 foot buffer of the type 3 stream. Development scale in the
protected area is as follows:
Development Type Regulated area Construction Footprint
Single Family Residence Shoreline buffer 2320 square feet
PO Box 2854,Belfair,WA 98528 cell:360-620-0618,Office:360-372-2421 e-mail:boad40@peoplepc.com
Habitat Management Plan
Mason County, Washington
LBHMPWS 215
Page 5 of 12
Vegetation Disturbance
Overstory tree removal will include mostly small Douglas fir. Trees located within the construction
zone include 2 douglas fir(> 24"DBH), 11 douglas fir(< 8" DBH), and 7 Pacific madrona(> 6"DBH)
and one bitter cherry(> 12"DBH).
Noise Pollution
An increase in noise in anticipated during construction hours. Given the presence of threatened species
and associated critical habitat seasonal construction timing is recommended. The critical breeding
period for Washington's bald eagles begins with courtship in early January and ends with juvenile
dispersal in mid-to late-August.
Temporary Increase in Sediment and Turbidity
The proposed work has potential to temporarily increase turbidity and suspended sediment within the
project area. Such conditions can be harmful to aquatic organisms and minimize use of aquatic habitats
by fish and wildlife species. Best Management Practices are recommended to avoid this impact
Light and Glare
Light and glare commonly associated with residential housing will be added to the site. Given the
presence of forested cover surrounding the construction zone,this is not likely to substantially affect
existing wildlife use of the site. The surrounding area is comprised of small ownerships and residential
development. The intact forested area remaining around the proposed house will adequately screen light
and glare. Furthermore, species that utilize the area have likely become locally adapted to light and glare
associated with nearby residences.
7.0 Mitization Measures
7.1 Recommended Best Management Practices
Best Management Practices for this project are as follows:
• Perform excavation, landclearing,and site preparation work during dry weather.
• Install silt fencing around the work area to prevent erosion and additional siltation of both the
stream and shoreline.
• Minimize amount of erodible soils at any given time to the maximum extent feasible.
• Check all equipment daily for leaks. Refueling and lubrication of equipment should occur off
site. Don't store any fuel, lubricants, chemicals,or hazardous substances outside overnight
within the project area.
• Do not apply any chemicals when there is a possibility of rain.
7.2 Enhancement of Old Growth Habitat
Overstory trees removed from the construction zone should be placed within the old growth riparian area
to provide additional nurse log habitat. The logs should be segmented into 10-15 foot pieces to facilitate
easy maneuvering for transport and placement. It is recommended that these logs be placed randomly
throughout the buffer to mimic natural distribution. Heavy equipment should not be operated within the
buffer to accomplish this. An excavator positioned outside the protected area can reach in to place the
logs.
PO Box 2854,Belfair,WA 98528 cell:360-620-0618,Office: 360-372-2421 e-mail:boad40@peoplepc.com
Habitat Management Plan
Mason County, Washington
LBHMPWS 215
Page 6 of 12
7.3 Seasonal Consideration of Construction Activities
It is recommended that high noise level construction activities such as land clearing, foundation
construction, framing, and roofing not occur during the critical breeding period which is from January
15'h to August 15th.
7.4 Preservation of Old Growth Habitat
All old growth areas located outside the project area will be left undisturbed. Moderate thinning of
overstory trees between the shoreline and the house should be limited to trees under 5"diameter at breast
height to establish a view corridor.
Financial Guarantees
Financial guarantees for the installation and monitoring of the mitigation will be required in the form of
a performance bond. The first cost is associated with implementation of nurse log placmeent and the
second is associated with monitoring of the site. The cost of nurse log installation assumes$100 per hour
for operation of equipment to transport and place the logs. It is predicted that the 2 large trees removed
from the construction zone will be segmented into 6-10 nurse logs and require approximately 2 hours of
equipment time to place into the recommended zone. Therefore, the financial guarantee for nurse log
installation is $200.00. The monitoring estimate assumes three years of monitoring at$200 per visit and
reporting which will total $600 for the three years. This calls for a total performance bond of$800.00.
The applicant may with to acquire a cost estimate from another entity which may be different from this
estimate. As long as the bid is in writing and signed by a representative of the contractor submitting the
bid, it can be used as an alternate for determining the bond amount. The bond will be released to the
depositor on successful completion of the recommended mitigation and monitoring as applicable.
8.0 MonitorinE
Monitoring of the site will begin the first fall following project completion and maintained on a seasonal
basis. The information gathered will provide the following: 1)condition of introduced habitat
components; 2)the use of the site by wildlife species; 3)any disturbance caused by the project and its
effect on critical areas;4)any corrective measures that may be deemed necessary to provide desired
conditions. This monitoring will be in effect for the duration of three years. The information gathered
will be provided in an annual report and submitted to the Director of Mason County Department of
Community Development.
9.0 Conclusion
The project encompasses total footprint of approximately 2,320 square feet within the regulated
shoreline buffer. The proposal avoids displacement of regulated buffers to the maximum extent feasible
while maintaining project objectives. The majority of the property is encompassed by setbacks
associated with both Type 1 Waters of the State and type 4 stream setbacks. Areas outside regulated
setbacks will be utilized for access and on-site sewage. Best Management Practices are recommended to
insure no negative impacts to aquatic habitat. Tactical construction timing has been recommended to
avoid impacts to use of the site by listed species. Mitigation recommendations include enhancement of
old growth habitat through nurse log placement.
PO Box 2854,Belfair,WA 98528 cell:360-620-0618,Office:360-372-2421 e-mail:boad40@peoplepc.com
Habitat Management Plan
Mason County, Washington
LBHMPWS 215
Page 7 of 12
Mitigation Measures have been identified to avoid,minimize, and mitigate for impacts associated with
proposed construction.
I trust this information is sufficient for your needs at this time. Thank you for choosing me as your
environmental consultant. If you have any questions feel free to call.
Lee oad
Senior Ecologist
Attached: Appendix A: Site Map
Appendix B: Vicinity Map
Appendix C: National Wetlands Inventory
Appendix D: WDFW Priority Habitat and Species Map
Appendix E: DNR Stream Type Map
PO Box 2854,Belfair, WA 98528 cell:360-620-0618,Office:360-372-2421 e-mail:boad40@peoplepc.com
l.ee Poad Habitat Management PI&minq and Wetland Services Appendix A
Client, Nancy Joerns fax parcel#12118-15-90020 5t c Map
19900108th Ave 5� #202 Mason County, WA
Penton, WA 98055
scale;I IOO'-O"
i
Unnamed Type � Stream I
/A Kecommended
I Nurse Loq
I i placement Area
1 I
100 Buffer proposed l7rivewa4
nramfleld Local m
5korelme 61uff 100' Buffer
A A
Pickerinq Pa55age
A
Appendix B. Site Vicinity Map
ate Site Location
3 Grapeview-,
shington
03 ra Y
Ar
anon Lake I + ughn
South Puget Sound
ickering P+
Map oanter:47' 18"53'N. 122.*;51:24'
Project Name: Joerns Project Habitat Management Plan
Client: Nancy Joerns
Date: November 2005
Appendix C. National Wetlands Inventory Map
r:
6'.
{
Project Name: Joerns Project Habitat Management Plan
Client: Nancy Joerns
Date: November 2005
Note:No wetlands mapped in proximity to the site upslope of marine shoreline
[E] Estuarine - The Estuarine System describes deepwater tidal habitats and
adjacent tidal wetlands with low energy and variable salinity, influenced and
often semi-enclosed by land.
(2) Intertidal - This is defined as the area from extreme low water to extreme
high water and associated splash zone.
[US] Unconsolidated Shore - Includes all wetland habitats having three
characteristics: (1) unconsolidated substrates with less than 75% areal cover
of stones, boulders, or bedrock; (2) less than 30% areal cover of vegetation
other than pioneering plants; and 3) any of the following water regimes:
irregularly exposed, regularly flooded,irregularly flooded, seasonally flooded,
temporarily flooded, intermittently flooded, saturated, seasonal-tidal,
temporary-tidal,or artificially flooded. Intermittent or intertidal channels of
the Riverine System or intertidal channels of the Estuarine System are
classified as Streambed. Landforms such as beaches, bars, and flats are
included in the Unconsolidated Shore class.
[N] Regularly Flooded - Tidal water alternately floods and exposes land surface
at least once daily.
Appendix D: WDFW PHS Map
l�
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+ _..a. 1_�`. :a Pia. '•r�-"'t. _ _ .�•� !e' ataG:EAa"::s:.S{:x➢,..,.wY�.{`J� .aJiF�_ - '
Project Name: Joerns Project Habitat Management Plan
Client: Nancy Joerns
Date: November 2005
Note: Priority habitat for threatened species is present
Appendix E. DNR Water Type Map
MIN
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�lT,isy�}y;
51
t
Approximate Site location
Project Name: Joerns Project Habitat Management Plan
Client: Nancy Joerns
Date: November 2005
Note: Type 4 Stream is unidentified. County staff determined stream type during pre-
planning review.
March 29, 2006
Kell McAboy
Mason County Dept of Community Development
Shelton, WA
Dear Ms. McAboy:
I am writing to response to some of the comments made by John Diehl in his
fax of 3/28/06 to your department regarding the Joerns variance request.
In my conversations with the septic designer, Jim Henry, it was never the
primary aim to prioritize the view when selecting a site for the house. We
were concerned with staying out of the stream buffer and fitting a home site
on this 3/4 acre lot with a driveway & septic. Mr. Henry came recommended
by local professionals as a competent designer who also works in Mason
County. In fact Mr. Henry is on the advisory board for Mason County septic
designers.
In order to enhance the chances that we could make this work, I chose to
abandon the adjoining acre lot— Lot 2 of the same short plat as a building
site and placed the well site there.
It is evident that Mr. Diehl has not been to the site. He if had, he
would notice that the neighboring house was built 40' from the bluff so as
not to impact the eagle habitat. He would also notice that the trees are larger
to the rear of the lot and that the old growth eagle habitat lies in that
direction. By placing the home site to the front of the lot we are able to
lessen the impact on the stream buffer and the eagle habitat.
Thank you for the opportunity to respond.
Sincerely,
Nancy Joerns
�aE STAT£OF
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�y1 gene aov
State of Washington
DEPARTMENT OF FISH AND WILDLIFE
Mailing Address: 600 Capitol Way N•Olympia,WA 98501-1091 •(360)902-2200,TDD(360)902-2207
Main Office Location: Natural Resources Building• 1111 Washington Street SE•Olympia,WA
March 28, 2006
Kel McAboy
Mason County Dept of Community Development
PO Box 279
Shelton,WA 98584
�,Var Ms. McAboy:
I am writing to support the variance request of Nancy Joerns, Lot 3 of short plat 571. The
mitigation of placing homes closer to the bluff had been done as part of eagle plans on
adjacent properties in order to protect the bald eagle trees.
I would ask that the condition of not removing or destroying the Douglas fir trees(>than
24"dbh)at the north end of the property be made a condition of the permit. This site is
an active bald eagle territory and adjacent parcels are restricted as part of the bald eagle
nesting territory.
Thank you for the opportunity to review this variance request.
Sincerel ,
Greg Schirato
District Wildlife Biologist
March 28, 2006
Kel McAboy
Mason County Dept of Community Development
PO Box 279
Shelton,WA 98584
Dear Ms. McAboy:
I am writing to support the variance request of Nancy Joerns, Lot 3 of short plat 571. The
mitigation of placing homes closer to the bluff had been done as part of eagle plans on
adjacent properties in order to protect the bald eagle trees.
I would ask that the condition of not removing or destroying the Douglas fir trees(>than
24"dbh)at the north end of the property be made a condition of the permit. This site is
an active bald eagle territory and adjacent parcels are restricted as part of the bald eagle
nesting territory.
Thank you for the opportunity to review this variance request.
Sincerely,
Greg Schirato
District Wildlife Biologist
Kell McAboy-Joerns Page 1
From: Dewatto Boads <boad40@peoplepc.com>
To: <KeIIM@co.mason.wa.us>
Date: 3/28/2006 9:49:44 AM
Subject: Joerns
Kell, I will not be able to attend hearings today but would like to provide points of clarification regarding the
Joerns proposal. 1) Priority has been placed on keeping the septic drainfeild outside of buffer associated
with regulated waters, 2) Priority has also been placed on putting the house fthe furthest distance from the
old growth forested area as possible due to the presence of an eagle nesting site, 2) All areas of the
property outside the proposed building zone are in regulated stream and shoreline buffers and are
therefore no-touch zones. 3)WDFW prepared an Eagle Management Plan for the adjacent property
which recomended a similar building location with the focus being to keep the homes furthest from the old
growth forest area as possible. Such is the case with this proposal.
Hopefully this is Helpfull.
Lee Boad
PeoplePC Online
A better way to Internet
http://www.peoplepc.com
:)/20/2006 10.1C. AM rnOH. rocs TO. 9E7 7700 rACE. ooi or ooi
• 678 Portage Rd.
• Shelton WA 98584
To: Hearing Examiner c/o Kell McAboy
Fax number: 427-7798
From: John E. Diehl
Fax number: 360-426-3709 (call first)
Business phone:
Home phone: 360-426-3709
Date &Time: 3/28/2006 10:45:50 AM
Pages: 4
Re: RE: Joerns Variance Request
Ms. McAboy:
I am faxing comments on the Joerns variance request in two operations, first faxing from my
computer the first three pages, then faxing through my fax machine the last two pages, including a
map showing how the proposed house might be kept outside the marine shoreline buffer by
redesigning the sand filter and leach line system. Please put these materials in the hands of the
hearing examiner, and make a copy available to the applicant.
-- John Diehl
3/28/2006 12:19 PM FROM: Fax TO: 427-8425 PAGE: 002 OF 004
BEFORE THE HEARING EXAMINER FOR MASON COUNTY
RE: Nancy Joerns STATEMENT OF OPPOSITION
with DECLARATION
Variance Request VAR 2006-00002
1 Advocates for Responsible Development(ARD), a nonprofit charitable organization devoted
2 to securing compliance with laws providing for balanced economic development and environmental
3 protection,and John E. Diehl, individually and as representative of ARD, urge denial of the proposed
4 variance sought by Ms. Joerns.This opposition is based on the involvement for most of a decade by Mr.
5 Diehl and ARD in litigation before the Western Washington Growth Management Hearings Board to
6 ensure application of best available science to protection of critical areas, and specifically to fish and
7 wildlife habitat conservation areas established along marine shorelines. Mr. Diehl also has a personal
8 iIlterest iIl this particular lucaLlOIl,for Lhe developIncIll site is directly across PlckcriIlg Passage-froln his
9 home at Hartstene Pointe. and he enjoys kayaking and sailing in the vicinity of the subject property.
10 t1RD Is Gspccialiy conccf ncd about this L-rquest bccausc,f7r rcasons stawd bclOw,gralltlllg a variancc
11 undcl dir. facts and C;111:uiiiNtanL;uN of this Qppllcatlull Wuuld Na it plccGdcllt by Whll:ll lildliv if not
12 virtually all property owners might evade the requirements for protection of marine shorelines contained
13 in Mason County's Resource Ordinance, §17.01.110.
14 This variance request fails to meet the variance criteria contained in Title 15, §09.057:
15 1. Strict application of the bulk, dimensional or performance standards do not preclude or
16 significantly interfere with a reasonable use of the property not otherwise prohibited by County
17 regulations. Even if the stream buffer and marine shoreline buffer standards are strictly applied,there
18 is still room on the subject property for a house of the size proposed by the applicant, served by a
19 driveway and sand filter septic system. The applicant fails to show a need for a variance,provided the
20 driveway and septic system are placed so that the house may be located at least 100 feet from the
111 ...-..1:.-....-.,.1.:aL. --+,..- -1, ,.FD:,.1-,..-:...a D....a..
22 :Uthough the burden of proof is on the applicant,the accompanying map,marked"Exhibit!L,"
23 and based on (in fact, traced from) the map prepared in conjunction with a design by Jim Henry
24 proposed for the septic system and leach field, shows that if the sand filter field is placed farther north
OPPOSITION TO JOERNS VARIANCE WITH DECLARATION --1
�;moo;�ooc i�:io rac rnoa:: n..x mo: a�� na�c. rxac: nn� or one
I on the property (but still outside of the stream buffer) and leach lines of 30', 45', 75', and 50' are
2 installed parallel to the slope and a minimum distance of 10 feet from the sand filter field and the house,
3 the house may be sited outside the marine buffer while allowing adequate room for a sand filter and the
4 needed 200 feet of leach line, with adequate area between leach lines for a reserve field. The findings
5 in the staff report failed to consider the possibility that the designed sand filter and leach lines could be
6 redesigned to avoid forcing the house into the marine buffer. Given that there is no demonstrated need
7 to intrude into the marine buffer,the variance should be denied.
8 2. The alleged hardship serving as the basis for the variance request is not specifically related to
9 unique conditions characteristic of the applicant's lot,but results from the applicant's own actions.The
10 designer of the sand filter and leach line system acknowledged to Mr. Diehl that he was requested by
11 the applicant to design the fields to push forward the location ofthe house,to enhance the owner's water
12 view. See Declaration of John Diehl,appended. Mr. Henry,who works from Thurston County,was not
13 familiar with Mason County's Resource Ordinance and assumed that a 50'setback from the edge ofthe
14 bluff, which apparently satisfies Thurston County ordinances, would be adequate in Mason County.
15 Ibid. While the applicant would undeniably need to pay for redesigning,there is no reason to suppose
16 that the expense is unreasonable or that it might not have been avoided if the applicant had originally
17 requested a design that conformed with Mason County's ordinance.
18 3. Although it is rarely possible to identify serious adverse effects associated with development on
19 a particular lot, the ordinance reflects the fact, based on best available science, that continued
20 development along all the marine shorelines in Mason County,with houses typically sited within 100
21 feet of the water to take advantage of the water view, would cumulatively cause unacceptable adverse
22 effects on marine and terrestrial wildlife. If designing a septic system close enough to the marine buffer
23 to force the associated house into the buffer is enough of an excuse to warrant a variance,then we lose
24 essentially all habitat protection that the ordinance was designed to secure, for any applicant could
25 contrive to have a septic design located so as to create an excuse for a variance. (It is noteworthy that
26 while the design was approved by the Mason County Environmental Health Department, no
27 construction permit was approved.It appears that the County has established this two-phase process for
28 approval of septic systems to ensure that mere design approval does not result in construction of septic
29 systems where they should not be located, for reasons unrelated to whether they would function
30 effectively.)
OPPOSITION TO JOERNS VARIANCE WITH DECLARATION --2
3/28/2006 12:19 PM FROM: Fax TO: 427-8425 PAGE: 004 OF 004
1 4. The requested variance is not the minimum necessary to afford relief.As Hiscussed above,there
2 is prima facie evidence that no variance is required to construct the specified house and an appropriate
3 septic system. However,even if a redesign showed some small intrusion might be needed in the marine
4 buffer,there is no evidence that the design presented makes best use of the property to minimize any
5 intrusion into the marine buffer.As previously explained,the design was deliberately intended to compel
6 placing the house in the marine buffer, since the applicant desired a better water view than she would
7 obtain by honoring the setbacks required by the ordinance.
8 5. While no one would contend that development of any particular waterfront lot causes a
9 substantial detrimental effect to the public interest, the reason that variances must not be sold like
10 dispensations in medieval times is that the cumulative impact of such variances would be inescapably
11 detrimental to the public interest.This is not the place to reiterate the evidence for requiring a 100-foot
12 vegetative buffer to protect fish and wildlife habitat associated with marine shorelines. This
13 determination was made by a neutral, quasi-judicial body, the growth management hearings board,
14 which reviewed the evidence of best available science. Had any party disagreed,the decision of the
15 hearings board was subject to judicial review. Given that the buffers established in the ordinance were
16 chosen with the inclusion of science that was subject to the scrutiny of an adversarial system of
17 adjudication,they should be respected and enforced,except where an applicant clearly demonstrates a
18 hardship that is not of the applicant's making,and where the proposed variance is the least intrusive to
19 afford relief.
20 6. In the prescnt case,the owncr has a rcasonablc use of her land without ncrd for a variancc. It
21 appears that she can even have the size and design of house she prefers without need of a variance, so
22 long as the sand filter and leach field are redesigned to avoid forcing the house into the marine buffer.
23 Mitigation is not the answer in cases where a variance is not essential to allow a reasonable use;nor is
24 some added expense a reason to permit a variance.
25 For the reasons given, corresponding to the variance criteria in the ordinance, this variance
26 request should be denied.
27
28
29 Dated: March 28, 2006 Submitted by:
30 John E. Diehl pro se and as authorized
OPPOSITION TO JOERNS VARIANCE WITH DECLARATION --3
%r 060 426 3700 JOHN E. DIEHL P01
1
2 Dated: March 29, 2006 Submitted by: l ��
3 John E.Diehl pro se And as authorized
4 representative for ARD
S 679 r'oininn Dr_ W_
6 Shelton WA 98584
7 _ fW"2n__37(9
8
9
10 DECLARATION OF JOHN E. DIEHL
}I
13 1. 1 have personal knowledge of the matters staW hcrcin.
14 2. By phone,at about 3:00 p.m,Marsh 28,2006,I rvaachud Jim Henry,upez�tar of aep4ic
15 system design services. who had prepared a design for a sand filter system a*d
16 lowol+QVldn3eis uat�.�s.�sd:.a�e.o nroa forvmtioaoo applio�ut 2uaney
17 Joerns.
is 3. Mr. Henry told mu th"L thu dvx*i*U raw prvyasaVJ Cvs thw laws
19 instructions,positioned forward on the tot, bath to avoid 'intrusion into the suaaan
20 buffer and to push the house forward to improve the water view.
21 4. Mr. Henry acknowledged that he was unacquainted with the requu' =ents of the
22 Mason County Resource Ordinance, but had supposed that the rules applicable in
23 Thurston County would be applicable in Mason County.He apparently did not realize
24 that the design he produced would require a variance in Mason County.
25 5. Although he was not sure, without additional work, whether a sand filter septic
26 system could be accommodated on the lot if the house did not intrude at all intp the
27 100'marine buffer,Mr.Henry conceded that the sand filter and lewh lines were not
28 situated as far away from the shoreline as would be feasible, still keeping outside of
29 the stream buffer.He also pointed out that alternative septic systems are available that
30 do not require as large an area as a sand filter system.
31 Dated: March 29, 2006j/ --
32 John E. Diehl
OPPOSITION TO JOERNS VARIANCE WITH DECLARATION -4
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Notice of Application for a Variance from Affidavit of Publication
the Mason County Resource Ordinance
Notice of Public Hearing
Notice is hereby given that Nancy Joerns, STATE OF WASHINGTON I
SS.
who is the applicant for the following proposal, COUNTY OF MASON
has filed an application for a Variance.
The request for a Variance from the Julie G.Orme being first duly sworn
Mason County Resource Ordinance No. 77-
93 is for the construction of a 2,300 square
foot single-family dwelling unit with attached on oath deposes and says that she is the clerk
garage to be placed within an established of the SHELTON-MASON COUNTY JOURNAL, a weekly newspaper. That
Shoreline buffer. said newspaper is a legal newspaper and it is now and has been for more than six
Property location is at the south end of months prior to the date of the publication hereinafter referred to, published in
Winterwood Dr. (Lot 3 of Short Plat 571) the English language continuously as a weekly newspaper in SHELTON,Mason
Grapeview, Washington in Mason County. County,Washington,and it is now and during all of said time was printed in an
Parcel No.1 21 1 8-75-90020
office maintained at the aforesaid place of publication of said newspaper. That Date of complete application:February 9,
2006. the said SHELTON-MASON COUNTY JOURNAL was on the 9th day of
The proposed development is reviewed August, 1941, approved as a legal newspaper by the Superior Court of said
as a Variance under the Mason County Mason County.
Resource Ordinance No. 77-93, specifically
for not meeting Section 17.01.110D.2. a., That the annexed is a true copy of a Notice of Aoal.For Variance
Fish and Wildlife Habitat Conservation
Areas, which details saltwater shoreline And Notice of Public Hearing—Nancy Joerns
buffer requirements and Section 17.01.150,
Variances from Standards,which establishes
Variance procedures and criteria. The
proposal requires a Habitat Management as it was published in regular issues and not in supplement form of said
Plan and Hearing Examiner approval.
Any person desiring to express their view newspaper once each week for a period of one
or to be notified of the action taken on the consecutive weeks,commencing on the
application should notify in writing of their
interest by 1:00 p.m.March 28,2006:
KELL MCABOY 9th day of March 20 06 ,and ending on the
C/O MASON COUNTY DEPARTMENT OF
COMMUNITY DEVELOPMENT 9th day of March 20 06 ,both dates inclusive,
PO BOX 279 and that such newspaper was regularly distributed to its subscribers during all of
SHELTON,WA 98584 the said period.That the full amount of the fee charged for the
A PUBLIC HEARING will be held by the
Mason County Hearing Examiner on the foregoing publication is the sum of$ 50.63
proposed project onTuesday,March 28,2006 _
at 1:00 p.m. in the County Commissioners C.A hpL�
Chambers,Bldg.I,411 N.5th Street,Shelton,
WA.
Please contact Kell McAboy of the Subscribed and sworn to before me to 9th day of
Mason County Department of Community
Development at (360) 427-9670, ext. 363,with
de elopment quesantd variance.ions or omments on this March 20 06 ` � >rJ4�ss ON :r''����i�
A decision of this application for a varianceODd k.•_ T�•�;. �•�
will be made within 120 days of the date of No Public in and for the State of Washsn9t9i- t,0;AR y
the complete application. Residing at Shelton,Washington=
3/9 1t
My commission expires 40. SOU8L\"-
1
� F
AFFIDAVIT OF POSTING NOTICE
STATE OF WASHINGTON )
COUNTY OF MASON � ss.
1, �� l �-k C/'AL4POo do hereb
y by certify that I posted copies of
the attached Nb�/*P p4- A pQ(� '�' .6 \'kx��Ce-
on day of Nit rLlk 20 0(p in 3
public places as follows:
one at_ -Pos-�- ►ce
one at Coro.e r 0 pi v-&+e�S Dr i V¢, 01 �YP Q�la iro �.r�
one at Nor+Nn off- P60PeAAv�. Vl2tcr 1cces� roa d
In witness whereof, the party has signed this Affidavit of Posting Notice this _� day
of— �av ,� 20 �-[.F .
By:
Address: —t`� 1�1 . 5+� ��� C1ss8-I
STATE OF WASHINGTON )
COUNTY OF MASON ) ss.
Subscribed and sworn to me this day of 'MAI? _�/ 20LO-6
BONNIE_L CAP
0 NOTARY PUBLIC ' *aryblic he S ate Qof Washington
r STATE Or WASHINGTON I
' Residing at s�
My Commission Expires June 6,2006 0 g
- �----------------- p
Commission Expires G
Notice of Application for a Variance from the
Mason County Resource Ordinance
Notice of Public Hearing
Notice is hereby given that Nancy Joerns, who is the applicant for the following
proposal, has filed an application for a Variance.
The request for a Variance from the Mason County Resource Ordinance No. 77-93 is for
the construction of a 2,300 square foot single-family dwelling unit with attached garage
to be placed within an established Shoreline buffer.
Property location is at the south end of Winterwood Dr. (Lot 3 of Short Plat 571)
Grapeview, Washington in Mason County. Parcel No. 12118-75-90020
Date of complete application: February 9, 2006.
The proposed development is reviewed as a Variance under the Mason County Resource
Ordinance No. 77-93, specifically for not meeting Section 17.01.110 D. 2. a., Fish and
Wildlife Habitat Conservation Areas, which details saltwater shoreline buffer
requirements and Section 17.01.150, Variances from Standards, which establishes
Variance procedures and criteria. The proposal requires a Habitat Management Plan, and
Hearing Examiner approval.
Any person desiring to express their view or to be notified of the action taken on the
application should notify in writing of their interest by 1:00 p.m. March 28, 2006:
KELL MCABOY
C/O MASON COUNTY DEPARTMENT OF COMMUNITY DEVELOPMENT
PO BOX 279
SHELTON, WA 98584
A PUBLIC HEARING will be held by the Mason County Hearing Examiner on the
proposed project on Tuesday, March 28, 2006 at 1:00 p.m. in the County
Commissioners Chambers, Bldg. I, 411 N. 51h Street, Shelton, WA.
Please contact Kell McAboy of the Mason County Department of Community
Development at (360) 427-9670, ext. 363, with any questions or comments on this
development and variance.
A decision of this application for a variance will be made within 120 days of the date of
the complete application.
PERMIT NO.:` ," `"`� `F' " o
DATE RECEIVED: —
MASON COUNTY
DEPARTMENT OF COMMUNITY DEVELOPMENT
RESOURCE ORDINANCE (Chapter 17.01 MCC)
411 N. 5TH Street/P.O. Box 279, Shelton, WA 98584
ENVIRONMENTAL PERMIT APPLICATION
MASON ENVIRONMENTAL PERMIT ❑ CONDITIONAL USE ❑ VARIANCE 9,
The purpose of the Resource Ordinance is to protect Mason County's natural resource lands and critical
areas and is under the authority of Chapters 36.32, 36.70A, 39.34, 58.17, 76.09, 84.33, 84.34 and 90.58
RCW.
PLEASE PRINT
1 Owner Mailing Address:
Owner: a��v k a. `��,�,�.�.i g
1o9�3 rn����.� Ovr%V<, Nt,J
Site Address: _
\ o\ -2 o S�n�v �,c� S City: Ciro �\cw`o��r State:�_Zip:`� 7Z
City: GILV-4 *k4-W State_ W f _Zip: Lien/Title Holder
C_\%,i, �;if�eao
Phone: Daytime(as-� ) bS\"16G3,6
Address: 10'-1\3 VA4ta. bvtyc. NW
Fire District#:
City: Cti T av�O�r State:NNY& Zip:
Signature:
2. Parcel Number:12 MS - qsS -9 oO2,0 Legal description: LaA 3 o� SInoY�- i�1 -V 5-A I
Parcel Size:
3. Directions to site:
"CD vim.
w
State what sections require a permit: In-Holding Lands,Chapter 17.01.062 ❑
4. Long-Term Commercial Forest,Chapter 17.10.060 ❑ Wetlands,Chapter 17.01.070 ❑
Mineral Resource Lands,Chapter 17.01.066 ❑ Frequently Flooded Areas,Chapter 17.01.090 ❑
Aquifer Recharge Areas,Chapter 17.01.080 ❑ Landslide Hazard Areas,Chapter 17.01.100 ❑
Erosion Hazard Areas,Chapter 17.01.104 ❑ Seismic Hazard Areas,Chapter 17.01.102 ❑
Fish and Wildlife Habitat Conservation Areas,Chapter 17.01.110 X
5.
Identify current use of property with existing improvements:
r6�cr� 41 t sec -.111_
6.
Identify and describe the proposed project,including the type of materials to be used,construction methods,principle
dimensions 7d othe pertinent information(Attach additional sheets if
needed). c s r c4 a 09 1`7F .Y5 f' r c S )
7. Will there be an alteration of a wetland and/or wetland vegetation area? Yes ❑ No V
8. Any water on or adjacent to/property:
Saltwater E( Lake ❑ River V Pond ❑ Wetland ❑ Seasonal Runoff ❑
Other
9. If septic is located on project site, include records.
Connect to septic? ❑ Community Septic? ❑ Public Water Supply? ❑ Well? ❑
10.
Type of Job: New P1 Add ❑ Alt ❑ Repair ❑ Demolition ❑ Other
This permit is granted pursuant to the Resource Ordinance (Chapter 17.01 MCC) and nothing in this permit
shall excuse the applicant from compliance with any other federal, state, or local statutes, ordinances, or
regulations applicable to this project, but not inconsistent with the Resource Ordinance. The permit may be
rescinded pursuant to the event the permittee fails to comply with the conditions of this ordinance.
MASON ENVIRONMENTAL PERMIT: $510.00/$305.00(with another permit)
MASON CONDITIONAL USE ENVIR.PERMIT: $1,225.00
MASON RESOURCE ORDINANCE VARIANCE: $1,225,00
HEARINGS EXAMINER: $490.00
I:\PLANNING\R&GPAC\ENVIRONMENTAL REVISED OI-04-05
Show the following on the site plan
Lot Dimensions Flood Zones
Existing Structures Fences
Water Lines Driveways
Drainage Plans Shorelines
Septic System Topography Indicate Directional by(N,S,E,W,etc.)
Proposed Improvements Easements In relation to plot plan
Name if Flanking Street
APPLICANT TO DRAW SITE PLAN BELOW-
l 1
l 3J co
Q
T ,
APPLICANT TO DRAW TOPOGRAPHY BELOW-
n
J
MASON COUNTY RESOURCE ORDINANCE July 2003
Publication cost is the responsibility of the applicant. Final permit processing will not occur until
advertising fees have been paid to the newspaper by the applicant. The Shelton-Mason County Journal
will bill the applicant directly.
I /WE understand that I /WE must sign and date the attached acknowledgment indicating and that I /
WE understand that is MY/OUR responsibility. 1 /WE must submit the signed page as part of
application in order for i to be considered as complete.
DATE
O R
(X �
APPLICbPt