HomeMy WebLinkAboutVAR2002-00015 Hearing - VAR Letters / Memos - 8/13/2003 i1I-:�-i
MASON COUNTY eon (360) 427-9670
DEPARTMENT OF COMMUNITY DEVELOPMENT Belfair (360) 275-4467
Planning Elma (360) 482-5269
Mason County Bldg.1 411 N.5th
P.O.Box 279 Shelton,WA 98584
August 13, 2003
Notice of Decision
Case: VAR2002-00015
Applicant: Jerry Vermillion
Notice is hereby given that Jerry Vermillion, who is the applicant for the above-
referenced variance, has been denied the variance to expand the existing shoreline
cabin. Other portions of the variance request were approved with conditions. This
decision was made pursuant to the Mason County Resource Ordinance No. 77-93,
specifically for construction activities a shoreline and type 4 stream buffer and
building setback area. The proposal was exempt from SEPA review per WAC 197-
11-800 (1), (i).
Per the Mason County Hearing Examiner,Rules of Practice and Procedures,Section 3.13,a motion for
reconsideration by the Hearing Examiner may be granted. Motions for reconsideration must be filed within
10 days of the date of this letter.The fee for a motion of reconsideration would include Hearing Examiner
cost of$200.00. Please follow the procedures outlined in Section 3.13 to apply for a Motion of
Reconsideration.Application for a Motion for Reconsideration should be sent to Mason County
Community Development Department and payment should be made out to the Mason County Treasurer's
Office.
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 Scott Longanecker with the
Mason County Planning Dept. at(360)427-9670 ext. 286.
REC E IVEDI
AUG 13 2003
1
BEFORE THE HEARING EXAMINER FOR MASON COUN Y
2 MCCD - CANNING
Phil Olbrechts, Hearing Examiner
3
RE: Jerry Vermillion FINDINGS OF FACT, CONCLUSIONS
4 OF LAW AND FINAL DECISION.
5 MCC 17.01.150(E) Variance
6 INTRODUCTION
7
The applicant has applied for a variance from a 35' building buffer to Hood Canal, a
8 115' setback from a Type 4 stream and a 65' setback from a Category III wetland.
The Examiner finds that the Category III wetland is unregulated and no wetland
9 buffer applies. The Examiner grants the variance to the Type 4 stream in Hood Canal
10 to the extent necessary to install a two-car garage, two portable storage sheds and a
cedar fence. The Examiner denies the remainder of the requested variance.
11
12 ORAL TESTIMONY
13 See hearing transcript.
14
EXHIBITS
15
16 Exhibit 1: June 23, 2003, staff report.
17 Exhibit 2: Variance application materials:
18 Exhibit 2A: Variance application received by Mason County March 26,
2002.
19
20 Exhibit 2A1: Environmental permit application.
21 Exhibit 213: Vermillion site plan.
22 Exhibit 2C: Site plan.
23 Exhibit 21): Boundary line adjustment map.
24
Exhibit 2E: August 2002 Vermillion residence addition site plant,
25 attachment#2..
Exhibit 217: August 2002 site plan, attachment#1.
Vermillion Variance P. I Findings, Conclusions and Decision
{PA0550049.DOC;1/13009.900000/}
1 Exhibit 2G: April 16, 2003, variance application.
2 Exhibit 2H: Expanded site plan, attachment "B".
3
Exhibit 2I: April 2003 bulkhead rock removal and bee tree
4 rehabilitation.
5 Exhibit 2J: Environmental checklist for removal and retention of
6 existing rock bulkhead.
7 Exhibit 2K: February 25, 2003 variance application.
8 Exhibit 2L: October 1, 2002 variance application.
9 Exhibit 2M: August 5, 2002 variance application.
10 Exhibit 3: Staff photos.
11
Exhibit 4: Public notice.
12
Exhibit 5A: Habitat Management Plan received April 16, 2003 from
13 Lee Boad.
14
Exhibit 5B: Habitat Management Plan prepared by Agua Tierra,
15 received by Mason County August 28,2002.
16 Exhibit 6A: November 18, 2002 memo to Mason County Planning
17 Advisory Commission.
18 Exhibit 6B: Minutes of November 18, 2002 Planning Advisory
Commission meeting.
19
Exhibit 7: Correspondence and internal memorandum.
20
Exhibit 8: Letters of concern.
21
22 Exhibit 9: Letter received by Mason County on July 7, 2003 from Kay
Schmidt.
23
Exhibit 10: Vermillion's Hearing Memorandum in Support of Variance
24 Request.
25
Exhibit 11: Photo depicting property in 1932 submitted by Dennis
Reynolds.
Vermillion Variance p. 2 Findings, Conclusions and Decision
{PA05 50049.DOC;1/13009.900000/}
1 Exhibit 12:
2 Exhibit 13: July 11, 2000 County Commissioner minutes.
3
Exhibit 14: 1988 Sewage System Permit application.
4
Exhibit 15: Assessor records for Parcel 32234 44 00000.
5
6 Exhibit 16: July 2, 1998 shoreline inspection.
7 Exhibit 17: December 2, 2002 case activity listing.
8 Exhibit 18: Requirements for obtaining EH building permits approval.
9 Exhibit 19: November 25 information summary.
10 Exhibit 20: July 8, 2003 letter from John Diehl.
11
Exhibit 21: July 9, 2003 aerial photographs.
12
13 Exhibit 22: July 14, 2003 letter from John Diehl.
14 Exhibit 23: July 18, 2003 letter from Dennis Reynolds.
15 Exhibit 24: July 19, 2003 letter from Dennis Reynolds.
16 Exhibit 25: July 23, 2003 email from John Diehl.
17 FINDINGS OF FACT
18
Procedural:
19
20 1. Applicant. The applicant is Jerry Vermillion.
21 2. Hearing. The Hearing Examiner conducted a hearing on the application
on July 8, 2003, at 1:00 p.m., in the Mason County Board of Commissioners Meeting
22 Chambers. The record was held open for an additional three business days, through
July 11, 2003, for the appellant to submit photos regarding prior clearing and grading.
23 The public had three additional business days from that date, through July 16, 2003,
to submit a response to the photographs. The appellant was given through July 18,
24 2003, to reply to the response.
25
Substantive:
Vermillion Variance p. 3 Findings, Conclusions and Decision
(PA0550049.DOC;1/13009.900000/)
3. Site/Proposal Description. State Route 106 bisects the subject property
1 into shoreline and upland sections. The property is almost two acres in size, with the
2 majority on the landward side of SR 106. The shoreline section of the site is a
generally level, developed residential lot on the south shoreline of Hood Canal, with a
3 Type 4 stream flowing along a portion of its southeasterly edge, and flowing into
Hood Canal. The Category III wetland area immediately adjacent to the stream is
4 vegetated with native species such as cedar and willow saplings, wild rose, skunk
cabbage, and salmon berry and lady fern. The mouth of the stream, where it enters
5 the Hood Canal is natural and may provide juvenile salmon foraging and rearing
6 habitat at high tides. The subject property extends to the south side of SR 106 where
a level building pad has been created. This upland portion of the lot is also adjacent
7 to the Type 4 stream, where it runs through a maintained highway ditch. The staff
report provides that this site is outside of the shoreline and wetland buffer/setback
8 areas. However, Attachment A to Exhibit 2G clearly shows this within the 100'
buffer to the Type 4 stream and the Examiner finds it to be within this buffer area.
9 Steep slopes, over 40%, are directly adjacent to the upland portion of the property.
10 There is an existing cabin located on the shoreline of the lot with a footprint of
approximately 560 square feet. A concrete bulkhead fronts the shoreline on the
11 northeasterly two-thirds of the shoreline, the balance of the shoreline closer to the
stream has a rock bulkhead. There is a gentle slope down from SR 106. The majority
12 of the site if within either the stream and/or saltwater buffer. Native vegetation is not
proposed to be removed for the expansion. Buffer enhancements will be
13 implemented per the Habitat Management Plan and planting plan. There is an
14 existing, approve septic system with a capacity for this project, located on the upland
side of the highway. The Vermillion's purchased the subject property in 1998 with
15 the intent, unrefuted, of converting the cabin into a retirement home.
16 4. Characteristics of the Area. This is a salt water shoreline of the Hood
17 Canal, designated as a shoreline of statewide significant under the Washington State
Shoreline Management Act and local Shoreline Master Program. Development in the
18 shoreline area includes many family residences of various sizes, cabins and at least
one condominium. Generally, the shoreline west of the project is developed with
19 multiple single family dwellings, both conforming and existing non-conforming by
current standards. The shoreline immediately east of the project site is natural, due to
20 the narrowness of the upland area between the Hood Canal and SR 106. The area
21 immediately south of SR 106 is forest, with some residences. Steep slopes exist on
the south side of SR 106. The area is generally characterized as a landslide hazard
22 area under the Mason County Resource Ordinance due to slope angles exceeding
15%.
23
5. Size of Category III Wetland. The size of the Category III wetland on the
24 shoreline portion of the lot is critical to wetland buffer issues, as discussed in the
25 Conclusions of Law. Lee Boad, the wetlands biologist for the applicant, testified that
in his expert opinion there is no question that the Category III wetland is under 2,500
square feet and that no additional portion has been filled within the last few years.
Vermillion Variance p. 4 Findings, Conclusions and Decision
{PA05 50049.DOC;l/13009.900000/}
s
Mr. Boad based this conclusion on soil samples he took that evidenced no hydric soils
I beneath cleared areas around the wetland. Mr. Boad testified that, in his expert
2 opinion, the absence of hydric soils establishes that no wetland was present in the
cleared areas. In cross-examination, he testified that the addition of fill would not
3 change the character of any underlying hydric soils. There was no expert or other
scientific evidence presented to refute this expert opinion and, therefore, the
4 Examiner finds that by a preponderance of the evidence the Category III wetland in
question is, and has been prior to the adoption of the Mason County Resource
5 Ordinance, under 2,500 square feet.
6 6. Prior Clearing. Several allegations, mostly hearsay, were made that the
7 building site on the shoreline side of SR106 had been cleared in violation of Mason
County Resource Ordinance. The Martig investigation, the aerial photographs that he
8 submitted (Exhibit 21), and the eye testimony of Mr. Hungerford, establishes that the
Vermillions did not clear the area proposed for the expansion of the Vermillion
9 residence and addition of a parking garage.
10 7 Cumulative Effects As discussed at length during the hearing, it is
I 1 difficult to quantify the impacts of development along the shoreline and, therefore,
even more difficult to ascertain the cumulative effects of such development. As
12 indicated in the Cousins' decision issued by the Mason County Board of
Commissioners, the size of a home can be correlated to the number of inhabitants
13 and, therefore, the impacts on shoreline use. Consequently, any appreciable increase
14 in the size of an existing cabin can, if not presently, in the future be used to
accommodate more occupants and therefore increase shoreline impacts. Whether or
15 not this increase in shoreline use can be adequately offset by vegetation
recommended by Lee Boad is not entirely clear. However, if variance approval is
16 limited to the addition of a garage and storage areas, there is no correlation with an
increase in occupancy. The allowance of a garage simply avoids the hazards of
17 having to cross SR 106 if such a garage were actually allowed across SR 106, or
18 protects vehicles from exposure to the elements. The addition of a garage results in a
more permanent and impermeable surface than existing cleared areas at the site, but
19 the vegetation adequately offsets this addition proposed in the Habitat Management
Plan. The conversion of the cabin to a permanent residence certainly could have long
20 term cumulative impacts, but these impacts are not relevant to this variance analysis
21 because such a conversion would already be allowed as a matter right under MCC
17.01.110(F)(1). As noted by staff, the addition of the fence and shed on the
22 landward side of SR 106 creates no significant additional adverse impacts, and the
fence may even provide an environmental benefit. Any problems with the septic
23 system are addressed by the staff recommendation requiring an approved septic
system to serve the site. In short, limiting the variance to the addition of a garage,
24 storage shed and fence, coupled with the Boad and staff recommended mitigation,
25 sufficiently offsets any significant cumulative effects.
Vermillion Variance p. 5 Findings, Conclusions and Decision
{PA0550049.DOC;1/13009.900000/}
I CONCLUSIONS OF LAW
2 Procedural:
3 1. Authority of Hearing Examiner. MCC 15.03.050(I) provides the Examiner
4 with the authority to review and act upon variance applications.
5 2. Admission of Response and Reply to Aerial Photographs. Dennis
Reynolds objected to the response and John Diehl objected to the reply to the aerial
6 photographs (Exhibit 21). The Examiner finds that the comments made in both the
reply and response were within the scope of rebuttal and hence admissible.
7
g Substantive:
9 3. Zoning Designation. The zoning designation for the property is RR 5.
10 4. Category III Wetland. MCC 17.01.070(D)(2) provides that Category III
I I wetlands of less than 2,500 square feet are not subject to the Mason County Resource
Ordinance. As indicated in the Findings of Fact, the most compelling evidence in the
12 record establishes that the Category III wetland on the shoreline side of SR 106 is less
than 2,500 square feet and hence not subject to the buffer requirements of the Mason
13 County Resource Ordinance.
14 5. Review Criteria and Application. The applicant seeks a variance from a
15 35' and 115' setback from Hood Canal and a 115' setback from an adjoining Type 4
stream. The staff report does not identify how the 35' and 115' shoreline setbacks
16 from Hood Canal have been formulated. The Mason County Resource Ordinance
does allow a reduction of the 115' buffer when there are adjoining residences, but the
17 staff report doesn't identify where or how these adjoining residences are used to
18 reduce the set-back. As in several previous decisions, the Examiner respectfully
requests that staff provide this information so the Examiner can verify the accuracy of
19 the setbacks. In this case, since no one has objected or argued against the buffers
identified by staff for Hood Canal, the Examiner will accept them as accurate buffer
20 widths. The variance from the Hood Canal and Type 4 stream buffers can acquired if
the applicant meets the review criteria of MCC 17.01.150(E). Those review
21 standards are laid out below with applicable conclusions of law.
22 MCC 17.01.150(E)(1): The granting of the variance shall be consistent with the
23 purpose and intent of this Chapter and conditions shall be imposed to insure
compatibility with surrounding conforming uses.
24
6. As noted in the staff report, the relevant purpose of the Mason County
25 Resource Ordinance is to protect critical areas and to establish uniform processes to
review land use/development proposals in critical areas. As a counter to the general
Vermillion Variance p. 6 Findings, Conclusions and Decision
{PA0550049.DOC;1/13009.900000/)
purpose of the resource ordinance, the purpose of the variance section, MCC
1 17.01.150, is to allow Mason County to consider a request to vary or adapt certain
2 numerical standards of the Resource Ordinance where the strict application of the
standards would deprive property owners a reasonable use of their property.
3 Synthesizing the need to provide property owners with a reasonable use of their
property while at the same time protecting critical areas, variances should only be
4 allowed when they are the minimum necessary to provide reasonable use while
providing maximum protection to the critical areas and resource areas. This standard
5 is indeed incorporated into MCC 17.01.150(E)(3), which provides that the variance
6 granted be the "minimum variance" necessary for the reasonable use of property.
7 Case law and reasonable use, at least in the constitutional context, generally provides
for at least one-single family home per parcel that conforms with the minimum lot
8 size requirements. Minimum reasonable uses may also include recreational uses, if
factors such as investment backed expectations, historical uses, surrounding uses and
9 parcel size are consistent with a recreational use limitation. See Buechel v.
10 Washington State Department of Ecology, 125 Wn.2d 196 (1994), for a good
description of the factors used in a "reasonable use analysis", as the term is used in
11 the Mason County shoreline variance criteria.
12 In this case, the subject parcel is surrounded by a mixture of residential and
recreational (i.e., cabin) uses. It is unrefuted that the Vermillions purchased the
13 subject with the intent of making it their permanent retirement home. However, Mr.
14 Vermillion did refuse to answer questions relating to his knowledge of environmental
limitations at the time of purchase, casting doubt on the legitimate extent of this
15 investment backed expectations. Size of the parcel is a significant factor in favor of
the Vermillion zoning request, since the parcel is almost two acres in size, which is a
16 relatively large undeveloped area to offset the modest impacts of a single family
home. The two acres is also certainly much more than what is necessary for a 560
17 square foot cabin.
18
Given the mix of reasonable use factors as they apply in this case and the fact that
19 conversions of recreational cabins to single family homes are permitted outright, a
reasonable use of the property is achieved by limiting the conversion to the currently
20 existing cabin footprint. A home limited to this relatively small size reflects the
21 recreational and natural features of the lot and vicinity, as well as the historical use
and investment-backed expectations. The relatively large size of the parcel merits
22 additional accessory uses, such as those proposed by the applicant. Further, as noted
in the Noye's Resource Ordinance variance decision, the concept of a single-family
23 home as a reasonable use includes a garage. As noted in the Findings of Fact above
on cumulative impacts, the allowance of a garage, storage sheds and the proposed
24 cedar fence do not increase adverse impacts, cumulative or otherwise, when mitigated
25 as recommended in the Habitat Management Plan. The allowance of the shed is also
consistent with the relatively large size of the lot and the relatively small size of the
cabin. Given that the garage will be constructed on a previously cleared area, the
Vermillion Variance p. 7 Findings, Conclusions and Decision
{PA0550049.DOC;1/13009.900000/)
impacts of the garage addition should be minimal. As noted by staff, the impacts of
I constructing sheds on the upland portion of the lot are also minimal.
2 Staff notes in their report that the Mason County Resource Ordinance does allow an
3 upward expansion of the currently existing cabin. MCC 17.01.110(F)(2) does allow
outright a "remodel, repair or change of use of an existing building within its existing
4 footprint". "Remodel" is not defined in the ordinance and it is unclear if this
necessarily encompasses an upward expansion. For clarification, the Examiner's
5 finding that the conversion of the existing cabin to a single family home in the
6 currently existing footprint is reasonable stands whether one or two stories is allowed
at the site. If indeed two stories is actually allowed for the site in the residential
7 conversion, the allowance of this expansion is already permitted as a policy choice
within the Resource Ordinance itself and does not add to or detract from a
8 justification for the garage, storage sheds and fence. A house of a little over a 1,000
square feet as opposed to 560 square feet is still relatively small and, given the large
9 size of the parcel, a storage shed would be still be necessary for a reasonable use of
10 the property.
11 In the context of only allowing a "minimum" variance, the two-car garage should be
the minimum necessary for sheltering two vehicles. These dimensions can be based
12 upon the dimensions required by Mason County for minimum parking stalls, and will
13 apply in this case to the same extent they applied in the Noyes Decision.
14 It should be noted that as a pre-requisite to even considering a variance from buffer
requirements, the first inquiry should always be whether there is anywhere on a lot
15 that a single family residence can be constructed without encroaching into Resource
Ordinance buffers. Unless the case can be made that building outside a buffer as
16 opposed to within will create more damage to critical areas protected by the Resource
Ordinance, the construction of a home outside the buffer should be given first
17 priority. In this case it is not 100% clear that the uplands portion of the parcel is
18 covered in Resource Ordinance buffers. The staff provide at page 2 of their report
that "almost" the entire property is within a 100' vegetative buffer. There is no
19 vicinity map in the record that shows how much of the property is indeed covered in
buffers. In point of fact, Exhibit 2B shows the Type 4 stream veering away from the
20 parcel as it heads south and there is no indication that any other stream extends into
21 the southern extreme of the lot. There are steep slopes located halfway through the
upland portion of the lot, but there is no indication that these slopes would render
22 passage impractical or impossible to the southern end of the lot, where the topography
does even out. Given the unrefuted staff conclusion that "almost" the entire parcel is
23 within a Resource Ordinance buffer and the lack of any objection, argument or
evidence pointing to developable areas in the southern portion of the lot, the
24 Examiner does find that there is no lace that a single family home can be constructed
p g Y
25 or expanded without violating the Resource Ordinance. However, as requested in
past decisions, the Examiner does request that staff in future variance applications to
make a determination and provide information, whether through the applicant or
Vermillion Variance p. 8 Findings, Conclusions and Decision
(PAO550049.DOC;1/13009.900000/)
l
directly themselves, that there is no other place to build other than within a Resource
I Ordinance buffer.
2 In summary, the purpose of the Resource Ordinance is served by allowing the
3 variance as limited above, because the applicant is granted a minimum reasonable use
of the property while critical areas are fully protected from adverse impact.
4
MCC 17.01.150(E)(2): The granting of the variance shall not permit the
5 establishment of any use which is prohibited by this Chapter.
6 7. Single family homes are allowed in the RR5 zoning district.
7
MCC 17.01.150(E)(3): The granting of the variance must be necessary for the
8 reasonable use of the land or building and the variance as granted by the County is
the minimum variance that shall accomplish this purpose. The findings shall fully set
9 forth the circumstances by which this Chapter would deprive the applicant of a
10 reasonable use of his land. Mere loss in value shall not justify a variation.
11 8. Since, as discussed in Conclusion of Law No. 6, a single-family residence
within the building footprint of the cabin is a reasonable use of the property, the
12 granting of the variance as requested by the applicant for an expansion is not
"necessary for the reasonable use of the land". Further, a variance allowing such an
13 expansion would not be the "minimum variance" to provide a reasonable use as
14 required above. The minimum variance necessary for a reasonable use is identified
and justified in Conclusion of Law No. 6 and incorporated within this paragraph as if
15 set forth in full.
16 MCC 17.01.150(E)(4): The granting of the variance shall not impair or
17 substantially diminish property values of surrounding neighborhood properties.
9. Given that a conversion from a cabin to a single family home is already
18 g Y Y
permitted outright, the structures and uses allowed by this variance are relatively
19 innocuous and should have no impact on property values.
20 MCC 17.01.150(E)(5): The granting of the variance shall not confer on the
21 applicant any special privileges denied by this Chapter to other lands or buildings in
the same designation.
22
10. As noted in the staff report, there are many properties in the vicinity that
23 have single family homes as well as storage sheds.
24 DECISION
25 The Hearing Examiner denies the requested expansion of the single family home and
limits its conversion to a single family residence within the building footprint plus a
Vermillion Variance P. 9 Findings, Conclusions and Decision
{PA0550049.DOC;1/13009.900000/)
10% expansion as permitted outright by MCC 17.01.110(F)(1), in addition to any
1 other outright expansions allowed by the Resource Ordinance. The request for an
2 attached two car garage is approved, but limited to the dimensions specified in the
Noyes Variance Decision and also limited to the proposed locations for the garage
3 and/or house expansion proposed by the applicant. The proposed storage sheds and
cedar fence are also approved at the locations proposed by the applicant. The
4 conditions of approval recommended by staff at pages 8 and 9 of the staff report are
also adopted and imposed by this Decision.
5
6 �"l`
Dated this � day of August, 2003.
7
8
9 Phil Olbrechts
Mason County Hearing Examiner
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Vermillion Variance P. 10 Findings, Conclusions and Decision
{PA0550049.DOC;1/13009.900000/}