HomeMy WebLinkAboutSHB91-26 Woodshed Hearing - SHR Letters / Memos - 1/17/1991 1 0123J
BEFORE THE SHORELINES HEARINGS BOARD
2 STATE OF WASHINGTON
3 VERN GAMBRIELL, )
4 Appellant, ) SHB No. 91-26
5 V. )
SEPARATE OPINION
6 MASON COUNTY and State of )
Washington DEPARTMENT OF ECOLOGY, )
7 )
8 Respondents. )
9
10 I concur in the other opinion in all respects except for
11 Conclusion of Law VIII.
12 My colleagues unnecessarily resort to the dictionary when the law
13 is clear. Additional, there is hypothsizing about possible
14 alternative language for the Mason County Shoreline Master Program.
15 Such comment is inadvisable, and is, in judicial terms, dicta.
16 I
17 The Shoreline Management Act, Chapt. 90.58 RCW, its implementing
18 regulations, Chapt. 173-14 WAC, and the Mason County Shoreline Master
19 Program ("MCSMP) provide definitions germane to this case.) In
20 several instances the language is identical.
21
22
The MCSMP has been adopted by the State and has thus become
23 state regulation as well. For simplicity, however, in this opinion,
the term "state regulation" will only apply to Chapt. 173-14 RCW.
24
25
SEPARATE OPINION - BENDOR
26 SHB No. 91-26 (1)
27
i
1 The term "development" is defined in the Shoreline Management Act
2 at RCW 90.58. 030 (3) (d) as:
3 (d) [. . .] a use consisting of the construction or
exterior alteration of structures; dredging; drilling;
4 dumping; filling; removal of any sand, gravel, or
5 minerals, bulkheading; driving of piling; placing of
obstructions; or any project of a permanent or
temporary nature which interferes with the normal
6
public use of the surface of the waters overlying
7 lands subject to this chapter at any state of water
level;
8
9 "Nonconforming development" is defined in both the state
10 regulations at WAC 173-14-055 (1) , and the MCSMP at 7. 13 . 020 as:
11
. .a shoreline use or structure which was lawfully
12 constructed or established prior to the effective date
13 of the Act or the Master Program, or amendments
thereto, but which does not conform to present
14 regulations or standards of the Program or policies of
the Act.
I
15 I
16 How a particular development is nonconforming depends upon
17 whether it is inconsistent with a use (see WAC 173-14-150) , or with a
18 specific bulk, dimensional or performance standard (see WAC
19 173-14-140) . In this instance the nonconformity, the over-water deck,
20 is inconsistent with current bulk or dimensional requirements. It is
21 not inconsistent with a use.
22 The state regulations at WAC 173-14-055 (2) state:
23 Nonconforming development may be continued
provided that it is not enlarged, intensified,
24 increased, or altered in any way which
increases its nonconformity;
25
26 SEPARATE OPINION - BENDOR
SHB No. 91-26 (2)
27
I
1 The MCSMP at 7. 13 . 020 page 20 is the same, except for the added
2 proviso about adverse environmental impacts.
3 Mason County contends that if more people use this existing
4 lawful deck which is not going to be physically changed in any way,
5 that such human activity somehow enlarges, intensifies, or increases
6 the nonconformity. Given the above recited law, such contention
7 simply has no basis. The increased human activity in no way increases
8 the dimensional or bulk nonconformity.
9 There is no need to rely on a dictionary to reach this result.
10 Such reliance gives the erroneous impression there is a gap in the
11 law.
12
13
DONE this : "day of 1992. I
14
15 t2
16 J ITH A. ENDOR, Attorney Member
17
18
19
20
21
22
23
24
25
SEPARATE OPINION - BENDOR
26 SHB No. 91-26 (3)
27
�2c1r� 0 kp—
STATE OF WASHINGTON )
ss. AFFIDAVIT OF MAILING
COUNTY OF MASON )
MARGIE OLINGER being first duly sworn, on oath,
deposes and says:
That I deposited in the mails of the United
States of America postage prepaid, an envelope(s) addressed to the
person(s) listed below, containing a copy of the following doc-
ument(s) of which this affidavit is attached, to-wit:
RESPONDENT MASON COUNTY'S CLOSING ARGUMEr . VERN GAMBRIELL v. MASON COUNTY and
STATE OF WASHINGTON DEPARTMENT OF ECOLOGY, NO. 91-26
Alexander Mackie
Owens Davies Mackie
PO Box 187
Olympia, WA 98507
Allen T. Miller
Assistant Attorney General
Department of Ecology
Mail Stop: QA-44
Olympia, WA 98504
Cf
SUBSCRIBED AND SWORN to before me this /:z— day of
19 9�
• NOTARY PUELIG •'•inand ',for
the State :.of Wathin" gton,
residirg; aid
commission -expi�es`-. '
r
e ,
1
2 COPY
3
4
5 BEFORE THE SHORELINES HEARINGS BOARD
STATE OF WASHINGTON
6
VERN GAMBRIELL, )
7 )
Appellant, ) NO. 91-26
8 )
VS. ) RESPONDENT MASON COUNTY'S
9 ) CLOSING ARGUMENT
MASON COUNTY and STATE OF )
10 WASHINGTON DEPARIMWr OF ECOLOGY, )
11 Respondent. )
12
13 FACTS
14 Appellant owns a residence on Hood Canal, a shoreline of state-wide
15 significance. RCW 90.58.030(e)(ii)(c) and MCSMP 7.24.010(1) . The existing
16 house is considered a nonconforming develognent because it overhangs the
17 water and would not be permitted under the current MCSMP because it doesn't
18 meet shoreline setback requirements. (Ex. A-4, R11 pp. 48, 53) .
19 In 1987, appellant applied for a county building permit to construct
20 additions to the residence, including a 16' x 13' dining room to be built
21 above an existing deck. (Ex. A-2). While sane work was done under the 1987
22 permit, construction was not started on the dining room portion. On March
23 1, 1988 the county's current master program was adopted (Ex. A-1) . Appellant
24 then applied for a new building permit on June 6, 1990 to construct the
25 dining roan. While permit approval was pending appellant began to build
26 his dining roan without a building permit. (Ex. A-4) . The county posted
27
28 RESPONDENT'S CLOSING ARGUNE]T - 1
1 a Stop-Work Order for the dining roam and construction was halted.(Ex. A-4) .
2 The county has refused to grant an after-the-fact permit because use
3 regulations of the current master program prohibit this proposed expansion
4 of a non-conforming use. (E x. A-4)
5 On December 20, 1990, appellant applied for a shoreline variance (Ex.
6 A-5) which was denied first by the County Shoreline Advisory Board
7 (Ex. A-10) , and then unanimously by the Mason County Board of County
8 Commissioners. (Ex. R-9) .
9 Appellant did not appear personally before the County Shoreline Advisory
10 Board or the County Commission.
11 The commission found that appellanttIs proposed dining roan was an
12 expansion of a nonconforming use and would have expanded impervious site
13 coverage above the 60% limit. The variance request was denied because the
14 stated hardships did not meet any of the criteria necessary for a variance.
15 (Ex. R-9, R-13, R-14). At the county commission hearing Dan Gambriell,
16 representing appellant, stated "the applicant has a hard time getting up
17 and down the stairs. The proposal, if approved, would make it a lot easier
18 for him." (Ex. R-9, p. 3) . At the hearing before the Shorelines Hearings
19 Board, appellant testified that the only hardship he would suffer without
20 the proposed dining roan was that he wouldn't be able to accommodate his
21 family members during holiday "get-togethers."
22
ISSUES
23
1. Whether the requested use is an expansion of a non-conforming development,
24
requiring a variance.
25
2. Whether appellant has demonstrated a hardship justifying a variance.
26
27
28 RESPONDENT'S CLOSING ARGUMENT - 2
1 APSUMEN'T
2 1. THE PROPOSED ADDITION OF A DINING ROOM IS AN EXPANSSION OF A NONCONFORMING
DEVELOPMENT PROHIBITED BY THE COUNTY'S MASTER PROGRAM.
3
4 Appellant in his trial brief refers to MCSMP 7.13.020 and states:
5
"A nonconforming structure may be expanded or
6
enlarged so long as the extent of the nonconformity
7
is not increased. *** Therefore, no variance is required
8
to expand the house, so long as the nonconformity is
9
not increased." (Brief of Appellant p. 3)
10
11 This is not what Section 7.13.020 says! It is important to note that
12 MCSMP 7.13.020 refers to "nonconforming developments," not to the more limited
13 term "nonconforming structures."
14 This is an important distinction because MCSMP 7.13.020 states:
15
"Expansion of a nonconforming development is
16
prohibited.
17
Nonconforming development may be continued provided
18
that it is not enlarged, intensified or increased or
19
altered in any way which increases its nonconformity:
20
PROVIDED significant environmental damage does not result.
21
(Ex. R-10, p. 20) (Underlining supplied)
22
23 While it is true that a nonconforming development includes within its
24 definition nonconforming structures, it also includes nonconforming uses.
25 (Ex. R-16).
26 Appellant attempts to limit the impact of MCSMP 7.13.020 by narrowing
27
28 RESPONDENT'S CLOSING ARGUMENT - 3
1 the focus to nonconforming structures. By doing that he can argue that the
2 addition of a dining roan to the existing nonconforming structure does not
3 increase the nonconformity of the structure, and that, therefore, the addition
4 is consistent with the Master Program.
5 The addition, however, is not consistent with the Master Program because
6 appellant has located his residence over the water, making it a nonconforming
7 residential use. The addition of a dining roan does more than continue this
8 nonconforming use. It enlarges, intensifies, increases or alters the non-
9 conformity of the use because it facilitates increased use of the residence
10 by extended family.
11 Assuming for the sake of argument, however,, that the real issue here is
12 the existence of a nonconforming structure, instead of a nonconforming use,
13 appellant's argument that the dining roan will not increase the nonconformity
14 of the structure is not consistent with the regulatory language set out in
15 MCSMP 7.13.020. That section contains detailed provisions allowing for
16 "normal maintenance" and "normal repair" of nonconforming developments.
17 Those provisions would be unnecessary surplusage given appellant's argument.
18 If any enlargement or addition to a nonconforming structure was allowed under
19 the Master Program, so long as it did not increase the nonconforming part
20 of the structure, it would be unnecessary to have provisions in Section
21 7.13.020 dealing with normal maintenance and repair. It would be enough
22 that repair work was not increasing the actual nonconformity.
23 Aside from the issue of expanded nonconforming residential use from
24 the addition of the dining roan, there is the issue of site coverage. Site
25 coverage for a single family residence in an urban shoreline designation
26 cannot exceed 60%, including all impermeable surfaces. (Ex. R-11, p. 53).
27
28 RESPONDENT'S CLOSING ARGUMENT - 4
1 The County's Shoreline Planner, Sean Orr (Ex. R-15) testified that he measured
2 the impermeable surfaces at the site, and that the coverage with the addition
3 was 65%. (Ex. R-7). Evidence demonstrated that there was a wooden deck
4 located where the dining roan was being constructed. The deck allowed surface
5 water to flow through to the ground and was a permeable structure, not within
6 the 60% calculation. The nature of the deck was changed by addition of
7 foundation and flooring making it an impermeable structure within the 60%
8 calculation, increasing the nonconformity. Therefore, it is immaterial that
9 the dining roan is the same size as the deck, since the character of the
10 surface has been changed. The proposed addition is not permittable under
11 MCSMP 7.16.080 without a variance. (Ex. R-11, p. 53, R-14 MCSMP 7.28.020)
12
2. APPELLANT IS NC7r ENTITLED TO A VARIANCE.
13
MCSMP 7.28.020 places the burden on the appellant to prove he is entitled
14
to a variance. A variance may be authorized provided the applicant can
15
demonstrate all of the following:
16
"1. That the strict application of the bulk, dimensional or performance
17
standards *** precludes or significantly interferes with a reasonable use
18
of the property, not otherwise prohibited
19
"2. That the hardship which serves as a basis for the granting of the
20
variance is specifically related to the property *** and is the result of
21
unique conditions such as irregular lot shape, size or natural features and
22
the application of the Master Program
23
113. That the design of the project will be canpatible with other
24
permitted activities in the area
25
"4. That the variance authorized does not constitute a grant of special
26
privilege not enjoyed by the other properties in the area and will be the
27
28 RESPONDENT'S CLOSING ARGumENT - 5
1 minimum necessary to afford relief."
2 115. That the public interest will suffer no substantial detrimental
3 effect
4
"In the granting of all Variance Permits, Considera-
5
tion shall be given to the cumulative impact of additional
6
requests for like actions in the area, for example, if
7
variances were granted to other developments in the area
8
where similar circumstances exist the total of the
9
variances should also remain consistent with the policies
10
of RCW 90.58.020 and should not produce substantial
11
adverse effects to the shoreline environment." (Ex.
12
R-14, p. 94) . (Underlining supplied).
13
14 The State Department of Ecology's requirements for a variance are similar.
15 WAC 173-14-150. (Ex. R-13)
16
"The purpose of a Variance Permit is strictly limited
17
to granting relief to specific bulk, dimensional or
18
performance standards set forth in the Master Program,
19
where there are extraordinary or unique circumstances
20
relating to the property such that the strict implementa-
21
tion of the Master Program would impose unnecessary
22
hardships on the applicant or thwart the policies set
23
forth in RCW 90.58.020." (Ex. R-13, R-14) (Underlining
24
supplied).
25
26 Appellant cannot demonstrate that he meets the hardship conditions for
27
28 RESPONDENT'S CLOSING ARGUMENT - 6
1 a variance outlined in paragraphs #1, #2, #4 and #5 of MCSMP 7.28.020.
2 As to paragraph #1, supra, he has not shown that the application of
3 the MCSMP significantly interferes with a reasonable use of his property.
4 He already has an eating area in his- hcme.
5 As to paragraph #2, supra, he has not shown that he has a hardship
6 specifically related to the property itself, resulting from unique
7 conditions. On the contrary, the stated hardship of not being able to host
8 family "get-togethers" is not related to any unique condition of the
9 property-
10 As to paragraph #4, he has not shown that the requested variance will
11 be the minimum necessary to afford relief, i.e. He has not ruled out
12 mcdifying the existing kitchen or living roan to provide additional eating
13 space.
14 As to paragraph #5, he has not shown that the public interest will
15 suffer no substantial detrimental effect from granting of the variance.
16 As to this last condition, it should be noted that appellant's nonconforming
17 development is on a shoreline of steltewide significance. Preferences are
18 given to those uses which, among other considerations, preserve the natural
19 character of the shorelin% result in longtime public benefit over short term
20 benefit, and which protect the resources and ecology of the shoreline RCW
21 90.58.020.
"The public's opportunity to enjoy the physical and aesthetic qualities
23 of natural shorelines of the state shall be preserved to the greatest extent
24 feasible consistent with the overall best interest of the state and the
25 people generally." Ibid.
26 If this variance request is granted, based on what development has
27
28 RESPONDENT'S CLOSING ARGUMENT - 7
1 already occurred on Hood Canal, some of which was permitted and some not,
2 it would open up the area to the cumulative impact of additional requests
3 for like actions, impacting the public's right to enjoy the shoreline. MCSMP
4 7.28.020. (Ex. R-14, p. 94)
5
6 CONCLUSION
Appellant's proposed dining roan enlarges or increases a nonconforming
develognent because it intensifies its use. It also increases to 65% the
8
9 amount of impermeable site coverage on the lot. The proposed nonconformity
is prohibited under the County's Master Program and cannot be permitted
10
without a variance.
11
12 A variance is not justified in this case, however, because appellant
13 already has a reasonable use of his property without the proposed addition
of a dining roan. The residence already contains an eating area adjacent
14
15 to the kitchen. If additional eating space is desireable, there has been
no reason advanced why the existing living room cannot be modified to provide
16
it. Appellant has no need to enclose an existing deck to provide eating
17
18 :space, thus increasing the nonconformity of the nonconforming use. The only
hardship cited by the appellant during his testimony before this board was
19
20 that without the .proposed dining roan he would be unable to host family
"get-togethers".
21
22 DATED this 17th day of January, 1992.
23 Respectfully submitted
24 P. BURLESON
25 o ecuting Attorney
26 '
MIKE CLIFT, WSBA #14302
27 Deputy Prosecuting Attorney
of attorneys for respondent Mason County
28 RESPONDENT'S CLOSING - 8 411 North Fifth Street
Shelton, WA 98584
February 26, 1991
TO:: Mason County t•:.: Shoreline Advisory Board
FROM : Mason County Planning staff
SUBJECT : Variance request -- Vernon Gambr i e l 1
STAFF REPORT
I . INTRODUCTION. This report evaluates the proposal to
construct a. dining room canto an already nonconforming single
family residence on the south share of Hood Canal . - -
I I . APPLICANT. Vernon Gambr i el 1
III . PROJECT LOCATION. This project is located along the
south shore of Hood Canal at E93?1 HWY 106, lots 9 & 10 of
Murphy Brook: Point .
IV. PROJECT DESCRIPTION. The proposal is to construct a 16
foot by 13 foot addition to be used as a dining room . The
project was under construction during the summer but was stop
worked because of no valid building permit . Review of the
construction determined that the residence that was being
added to was nonconforming and that well over 60% of the site
is covered with impermeable surfaces. The residence is
considered nonconforming because it overhangs the water . The
Master program now prohibits this type of development .
V. EVALUATION.
A. Characteristics of the site . The site is located on the
south shore of Hood Canal in a tightly clustered residential
community . The residence on site extensively overhangs the
water . This tot is characteristic of man;` south shore lots
in which a lot was created behind a. bulkhead.
B. Characteristics of the Area. Murphy Brook: Point is a
small but high density residential community . Residences are
located either overhanging the water , at or very near a
bulkhead . Most lots have more than a 60% tot coverage .
VI . SEPA COMPLIANCE. A Determination of Nonsignificance was
issued on January 1 , 1991 . Mason County received an
objection from the Washington State Department of Ecology
stating that it does not meet all applicable policies and
regulations of the Shoreline Management Act and Master
program .
VI I . OTHER PERMITS. Mason County ty Building Permit .
VI I I . CONCLUSION. This proposal requires a variance because
it is not cons i stan t with the Mason County Shoreline Master
Program. The purpose of a. variance is to grant relief to a
specific bulk , dimensional or performance standards set forth
in the master program, where there are extraordinary
circumstances relating to the property such that the strict
implementation of the master program would impose unneccesary
hardships on the applicant . The applicant has not stated or
proven that a hardship exists . Therefore the Mason County
Planning 'Staff recommends denial of this variance request
because the proposal does not comply with the following
pp�l i cabl e policies and provisions of the Master Program:
UCha Ater 13 a 1 �? - A � 1ir_abi1it:.� to NonconformingF - � R ge FP aelopment . Nonconforming development is defined a. a.rel i ne use , structure or lot which a�:�.a.s lawfully
constructed or established prior to the effective date of the
^ act , or the master program, or amendments thereto, but which
does not conform to present regulations or standards of the
prbgra.m.
(/1 2 . Chapter 7. 16 .080 , page 53 , setbacks - there is over 0%:
,f site coverage and the residence overhangs the water .
3 . Chapter 7 . 28.020 , page 94 - cannot meet cr i ter i a. for
granting of a. variance , no hardship stated, and the variance ,
if granted , would constitute a special pr i v i l a.ge that nearby
property owners cannot enjoy because of present_ regulations.
IX. CHOICES OF ACTION.
1 . Recommend approval of the conditional use permit request .
2 . Recommend denial of the conditional use permit request .
. Recommend approval with conditions.
4 . Postpone for further information .
TO: Mike Clift , DPA
FROM: Planning Department -- Sean Orr
RE: Vern Gambriell -- Shorline Hearings Board Appeal
DATE: June 17, 1991
Dear Mike ,
The following is an evaluation on the variance permit request
for Vern Gambriell which was denied by The Board of Mason
County Commissioners.
Vern Gambriell applied for a variance to add a 16' by 13'
dining room onto an already nonconforming residence . This
residence is considered nonconforming because it overhangs
the water and does not meet setbacks. The addition would
also increase the site coverage to over 60%. Because the
residence is nonconforming and the addittion would result in
over 60% site coverage a variance is required under section
7. 13.020 - Applicability to Nonconforming Development , pages
19 and 20 and page 53, #4 site coverage .
"A" I
A variance could only be granted if the proposal were � a
consistant with sections 7. 28.020 , Variances. and 7.24.010 �� ���•�
Shorelines of Statewide Significance and RCW 90 .58 . 020 . v�5
Mason County has consistantly reviewed similar proposals as
nonconfroming developoments meaning they could not be
expanded or enlarged. Many proposals have come forth that
were similar to this proposal and were denied by General
Services or the Commissioners. These proposals are denied in
order to control the density on a Shoreline of Statewide
Significance . Shorelines of Statewide Significance are
regulated under. 90 .58.020 and section 7. 24.010 of the
Mason County Sh lr line Master Program.
The Mason County Department of General Services has
determined that this proposal is inconsistant with the
regulations and policies in the above referenced sections .
The proposal az--p+x��does not meet the requirements for
the granting of a variance . The applicant has used this
residence since it was coqstructed which waul-d make it
obvious that the county *,as not denying reasonable use of
\ this property by denying this permit application , especially
e to "- -t--# k it is inconsi staut with current
shoreline regulations and policies.
i
Please proceed with this case as scheduled. Mason County
should stand with its initial decision to deny the variance
request for the following reasons:
1 . The proposal is inconsistant with the regulations of the
Mason County Shoreline Master Program. Therfore a
variance is required.
2. The applicant has not stated a reasonable hardship and
the county has not denied the applicant reasonable use of
the property.
3. If this were settled out of court there would be a
significant presedence set in that area of Hood Canal .
The cummulative impacts of similar structures would have
a significant impact on the the environment of Hood Canal
and would be inconsistant with RCW 90 .58.020 , Shoreline
of Statewide Significance .
V1t=vJs
0ENSR� s
`Harold S.Zimmerman,Chairman ���STATE Pollution Control Hearings Board
Judith A.Bendor,Member o N Shorelines Hearings Board
A;mette S.M%ee,Member —
MAR 1992 Forest Practices Appeals Board
J• o� Hydraulics Appeals Board
William A.Harrison �'� leas °y
Administrative Appeals Judge (206)459-6327
11�.,�tf:`'F (SCAN)585-6327
Judy Greear,Hearings Coordinator STATE OF WASH INGT(A 'SAL SERVICES (FAX)(206)438-7699
Robyn Bryant,Administrative Assistant
ENVIRONMENTAL HEARINGS OFFICE
Location:4224-6th Avenue SE, Bldg. 2, Rowe Six, Lacey,WA 98504-0903
Mailing Address:MS:PY-21,P.0. Box 40903 OIVmPia•WA 98504-0903
March 2, 1992
Alexander Mackie Michael Clift
OWENS DAVIES MACKIE Mason County Deputy Prosecutor
P. 0. Box 187 411 North Fifth
Olympia, WA 98507-0187 Shelton, WA 98584
Allen T. Miller, Jr.
Assistant Attorney General
Department of Ecology
Mail Stop: QA-44
Olympia, WA 98504
RE: SHB 91-26; VERN GAMBRIELL v. MASON COUNTY and DOE
Dear Parties:
Enclosed are the Findings, Conclusions and Order of the
Shorelines Hearings Board majority and a Separate Opinion by Board
Member Judith Bendor.
This is a FINAL ORDER for purposes of appeal to Superior Court
within 30 days, pursuant to WAC 461-08-240.
The following notice is given per RCW 34 . 05.461 (3) : Any party
may file a petition for reconsideration within 10 days and serve it on
the other parties. The term "file" means receipt.
Sincerely,
Annette S. McGee
Presiding
HZ/jg/0146G
Enc.
cc: Vern Gambriell
Jo Sohneronne, Shorelands
Mason County Commissioners
Mason County Department of General Services
1 oath fnm I maned a copy of thita dool"t
' t'.lnrnpfl,
to .tip Iry n� united
1
1
1 BEFORE THE SHORELINES HEARINGS BOARD
STATE OF WASHINGTON
2
VERN GAMBRIELL, )
3 )
Appellant, ) SHB No. 91-26
4 )
V. )
5 ) FINDINGS OF FACT,
MASON COUNTY AND STATE OF ) CONCLUSIONS OF LAW
6 WASHINGTON DEPARTMENT OF ECOLOGY, ) AND ORDER
7 Respondents. )
8
9 This matter came on for hearing on January 10, 1992 in Shelton,
10 Washington, Mason County, before the Shorelines Hearings Board,
11 Annette McGee, presiding, with Board members Judith Bendor, Nancy
12 Burnett, and Dave Wolfenbarger in attendence, and with John H.
1�n } c`,Buckwalter, Tdmini . ma .vy Lu-: �T.uge, a� legal l adviser. Chair
man
14 Harold S. Zimmerman was unable to attend but has reviewed the tapes,
15 exhibits, and other pertinent documents.
16 At issue was Mason County's denial of Mr. Gambriell's request for
17 a variance permit, Mason County No. 90-52 , for the addition of a
18 dining room to his existing structure.
19 Appearances were:
20 Alexander W. Mackie, Attorney at Law, for appellant.
21 Michael Clift, Mason County Deputy Prosecutor, for
22 respondent Mason County.
23
24
25
26
27 FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB No. 91-26 (1)
1 Proceedings were recorded by Kim L. Otis of Gene Barker Associates
2 and were also taped. The site was visited by the Board, witnesses
3 were sworn and testified, exhibits were examined, and arguments of
4 counsel were considered. Written closing briefs were filed January,
5 17, 1992 . From these, the Board makes these
6 FINDINGS OF FACT
7 I
8 The site of the matter under consideration is in an area known as
9 Murphy Brook Point on the south shore of the Hood Canal. At this
10 point the Hood Canal runs generally west to east. Murphy Brook Point
11 is a small but high density residential community lying in a narrow
12 space between the Canal and Highway 106 which runs generally parallel
13 to the Canal and is landward from the houses. The area is designated
14 as Urban environment by the Mason County Master Shoreline Plan
15 (MCMSP) . Many of the residences either overhang the water or are at or
16 near bulkheads, and most of them exceed the 60% maximum limit for
17 impermeable surfaces which is set by MCSMP, Chapter 7 . 16. 080, p. 53 .
18 II
19 In 1986 Mr. Gambriell purchased two adjacent lots, 9 and 10, in
20 the Murphy Brook Point development. A residence which was built in
21 1956 is on lot 9, the westerly lot. Lot 10 is easterly and is
22 vacant. The front of the residence faces the water. Access is from
23 from the rear on the roadward side. Approximately three-quarters of
24 the house is landward of a bulkhead and the other quarter is on
25
26
27 FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB No. 91-26 (2)
I pilings waterward of the bulkhead. The ground floor of the house
2 measures approximately 616 square feet and includes a kitchen, bath
3 room, living room, and a deck along the front but no dining room
4 designated as such. There is also a deck on the east side of the
5 house which is totally landward of the bulkhead. This deck's surface
6 was permeable, allowing water to enter the soil through gaps in the
7 wooden floor.
8 III
9 In May 1987 appellant applied to the Mason County Department of
10 General Services for a building permit to perform certain internal
11 remodeling in the existing residence and also to add externally a 13 ,
12 by 16' enclosed dining room to be located entirely over the existing
13 deck of the same size on the east side of the house. The plans were
14 approved and the building permit was issued on June 8, 1987 with no
15 requirement for a Shorelines variance permit. The permit carried a
16 notice:
17 This permit becomes null and void if work or
construction authorized is not commenced within 180
18 days, or if construction or work is suspended or
19 abandoned for a period of 180 days at any time after
work is commenced.
20 IV
21 Appellant started construction in 1987 and completed the interior
22 remodeling. The exact or even approximate date of completion cannot
23 be determined from the evidence presented, but no work had been done
24 on the exterior dining room during this period. In 1989 Appellant
25
26
27 FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB No. 91-26 (3)
1 applied for shoreline and building permits for a pier and dock to be
2 built to the east of the house and side deck. The permits were
3 granted on March 8 , 1989, and appellant completed the work sometime
4 before May 17, 1990. On that date Mr. Gambriell submitted an
5 application for a building permit to construct the added dining room
6 which he had not completed before, but this permit was not issued by
7 the Department of General Services because it was determined by the
8 Department that a shorelines variance permit was required by the MCSMP
9 which had been revised March 1, 1988 . Appellant, without the building
10 permit having been issued, poured the dining room concrete floor and
11 erected some of the framework. Replacing the slatted wooden floor
12 with concrete increased the impermeable lot coverage.
13 V
14 By letter dated July 3 , 1990, the Mason County Department of
15 General Services notified appellant that a Stop Work Order had been
16 posted on his property because his 1987 building permit had expired.
17 The letter also informed him that he would have to get both a new
18 building permit and a shorelines variance permit because his house was
19 a nonconforming development, the expansion of which is prohibited by
20 the SMP. The second reason given for the requirement for a variance
21 permit was that the resulting site coverage by impervious surfaces
22 would exceed the allowable 60% of the total area.
23
24
25
26
27 FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB No. 91-26 (4)
I VI
2 Appellant immediately ceased work and on December 20, 1990
3 submitted an Application for Shoreline Variance 90-52 . The
4 application asked for a variance to build a 16' by 13 ' enclosed dining
5 room with a concrete foundation over the already existing deck to the
6 east of the house. Measurements by the Department of General Services
7 indicated that addition of the dining room would increase the
S proportion of impermeable surface on lot 9 to 65%.
9 VII
10 On January 2 , 1990, the Department of General Services issued an
11 Environmental Impact Determination of Nonsignificance for the
12 project. After posting and publication of required notices, analysis
13 and with recommendations by staff and the Mason County Shorelines
14 Advisory Committee, the Mason County Commissioners in public meeting
15 unanimously denied the variance request. The appellant was so
16 notified by letter dated March 18 , 1991 from the Department of General
17 Services. Appellant's request for review was filed with the Board on
18 April 18 , 1991 and was certified by the Department of Ecology by
19 letter dated April 29, 1991.
20 VIII
21 The Board heard testimony that a number of houses in the immediate
22 vicinity of appellant's residence have dining rooms, and in the
23 absence of any rebuttal testimony, we so state as a Finding of Fact.
24
25
26
27 FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB No. 91-26 (5)
1 We also state in the absence of rebuttal testimony that appellant's
2 only dining area at present is his small kitchen and bar area and
3 that, because appellant's drain field lies back of the house, the deck
4 area is the only space available for the addition of a dining room to
5 the present structure.
6 IX
7 Any Conclusion of Law deemed to be a Finding of Fact is hereby
8 adopted as such. From these Findings of Fact the Board makes these
9 CONCLUSIONS OF LAW
10 I
11 This Board has jurisdiction over the parties and subject matter of
12 this action. RCW 90. 58 . 180. Appellant has the burden of proof.
13 II
14 The PRE-HEARING ORDER issued June 14, 1991, defined the issues as:
15 1. Is the addition of a 131x16' dining room over an existing deck
16 consistent with the Mason County Shoreline Master Program and
17 Washington State Shoreline Management Act?
18 2 . If a variance is required, is a variance warranted under the
19 facts of this case?
20 There are three questions to be resolved by the Board in reaching
21 its decision:
22 III
23 The first is:
24 IS A VARIANCE PERMIT REQUIRED BECAUSE THE DINING ROOM IS AN
25 ADDITION TO A NONCONFORMING STRUCTURE?
26
27 FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB No. 91-26 (6)
1 Both MCSMP 7.04, GENERAL PROVISIONS, page 9, and section 7. 13 . 020,
2
Applicability to Nonconforming Developments, define a nonconforming
3 development as:
4 . . .a shoreline use or structure which was lawfully
5 constructed or established prior to the effective date
of the Act or the Master Program, or amendments
6 thereto, but which does not conform to present
regulations or standards of the Program or policies of
7 the Act.
8 The Gambriell residence is a "nonconforming structure" as defined
9 above because a portion of it overhangs the water in violation of
10 MCSMP POLICY, section 1, page 47, but it was built in 1956 before
11 enactment of the Shorelines Act in 1971. Therefore, it "may continue
12 to be utilized for the same purpose established on the date of the
13 statute. " MCSMP 7. 13 . 020.
14 IV
15 7. 13 . 020 further provides on page 20 that "Expansion of a
16 nonconforming development is prohibited. " (subsequently referred to
17 herein as the "first" paragraph) . That paragraph is immediately
18 followed by another paragraph (subsequently referred to herein as the
19 "second" paragraph) :
20 Nonconforming development may be continued provided
21 that it is not enlarged, intensified or increased or
altered in any way which increases its nonconformity:
22 PROVIDED significant environmental damage does not
result. Expansion of a development which is
23 nonconforming by reason of substandard lot dimensions,
setback requirements or lot area, but which is not a
24 nonconforming use may be allowed as a Variance.
25
26
27 FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB No. 91-26 (7)
l
1 V
2 In applying the last five lines of the above paragraph to the
3 proposed project, the Board concludes that the issuance of the DNS by
4 the County on January 2 , 1990 disposes of the proviso that significant
5 environmental damage may result from this project alone. The Board
6 also concludes that the expansion is not nonconforming due to
7 substandard lot dimension or lot area, and that the setback
8 consideration is disposed of by respondent County's Exhibit R-9 , Board
9 of Mason County Commissioners' Proceedings, March 12 , 1991, page 2 :
10 Chairman Hunter asked if the proper setbacks
11 would be maintained if the proposal were
constructed. Mr. Orr (of the Department of
12 General Services) responded that they would be.
13 VI
14 The remaining factor to be considered is the first sentence of the
15 "second" paragraph of 7 . 13 . 020 quoted above: "Nonconforming
16 development may be continued provided that it is not enlarged,
17 intensified or increased or altered in any way which increases its
18 nonconformity. " We must consider the relationship between this
19 sentence and the "first" paragraph of 7 . 13 . 020 quoted in Conclusion of
20 Law III above since both relate to the permissibility of an addition
21 to a nonconforming structure.
22 VII
23 We note first that if, under the "second" paragraph, any
24
25
26
27 FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB No. 91-26 (8)
1 enlargment to a nonconforming structure would per se increase its
2 nonconformity, both cited paragraphs would have the same effect: any
3 increase in the size of a nonconforming development would require a
4 variance permit. This would make the second paragraph superfluous.
5 We must apply the rules of statutory construction and read these two
6 requirements together so that a regulatory scheme evolves which
7 maintains the integrity of both requirements. (State v. O'Neill, 103
8 W. 2d 853 , (1985) ) . In doing so we find that the first paragraph is a
9 general requirement which is modified by the more specific second
10 paragraph and that the second more specific requirement must prevail
11 in this matter. (Estate of Little, 106 Wn. 2d 269 , (1986) )
12 VIII
13 In interpreting the provision in the second paragraph that an
14 enlargement to a nonconforming structure may not increase its
15 nonconformity, we must first define the word "nonconformity" . Since
16 no definition of nonconformity appears in any of the controlling
17 documents, 90. 58 RCW, 173 . 14 WAC, or the MCSMP, we will give the word
18 its plain and ordinary meaning. (Estate of Little, supra, at 283) We
19 find that a noncomformity is an action or act of not conforming to the
20 law. See Webster's Third New International Dictionary. We conclude
21 that the nonconformity under consideration is the act of building a
22 structure over the water of the Canal. In building his proposed
23 dining room landward behind the bulkhead, we conclude the appellant
24
25
26
27 FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB No. 91-26 (9)
1 will not enlarge that act.
2 We note further that, if the County intended the second paragraph
3 to control any enlargement of the structure itself, it very well could
4 have used words such as "in any way which increases the size of the
5 structure. " The fact that it did not do so is a further indication
6 that such a meaning was not intended since the second paragraph would
7 then, in effect, be duplicative of the first, which prohibits any
8 expansion.
9 IX
10 In its written Closing Argument on page 4 , the County argues that
11 "because appellant has located his residence over the water, " making
12 it a nonconforming use, the addition of a dining room increases the
13 nonconformity of the use "because it facilitates increased use of the
14 residence by extended family. " (We note that the appellant did not
15 locate his residence over the water. That was done in 1956 by a prior
16 owner. )
17 The word "use" is not defined in 90. 58 RCW, 173 WAC, and the
18 MCMSP, but in those documents it consistently designates the type of
19 construction, development, or manner of use of the land which is to be
20 permitted or denied, not the amount of usage nor the number of people
21 who may subsequently enjoy the "use" . (See, for instance, MCMSP use
22 requirements for Water Dependent Use, Water Oriented Use, and Water
23 Related Use on page 13) . More particularly, the nonconformance in
24
25
26
27 FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB No. 91-26 (10)
I appellant's residence is the violation of MCSMP USE REGULATIONS, par.
2 1. on page 48 : "Residential development over the water is
3 prohibited" . Any increased use by appellant of the overhanging
4 portion of his residence will not increase the size or extent of the
5 original "development over the water" which occurred in 1956 .
6 X
7 We conclude that the construction of a dining room over the
8 already existing deck which does not overhang the water will not
9 increase the nonconformity of the structure and that no variance
10 permit is required under MCSMP 7 . 13 . 020.
11 The County argues that the above interpretation makes unnecessary
12 the provisions in Section 7 . 13 . 020 for the normal maintenance and
13 repair of nonconforming developments. The Board cannot agree.
14 Maintenance, repair, expansion, or increase are different kinds of
15 activities with differing requirements (such as time limitations)
16 imposed by their respective MCSMP paragraphs.
17 XI
18 The second question to be resolved is:
19 IS A VARIANCE REQUIRED BECAUSE THE ADDITION OF THE DINING ROOM
20 WILL RAISE THE IMPERMEABLE SURFACES ABOVE THE 60% LEVEL ALLOWED BY
21 THE MCSMP?
22 The MCSMP requires that for a single family residence the
23 impermeable portion of the total lot area in an Urban environment
24
25
26
27 FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB No. 91-26 (11)
1 shall not exceed 60% of the total area of the lot. MCSMP page 53 .
2 XII
3 The County argues that a variance is required because the County's
4 measurements show that the addition of the dining room would increase
5 the impermeable area of the lot to 65% of its total. The appellant
6 argues that the County's measurements are incorrect, that the level
7 would not increase any existing impermeability nonconformity, and,
8 therefore, no variance should be required.
9 XIII
10 Although there is a certain lack of clarity as to how the County's
11 measurements were made, particularly with respect to the area covered
12 by a wood shed which extends to some undefined length on the west and
13 south sides of the residence, the Board finds that appellant has not
14 met his burden of proof to show that the County's measurements are
15 incorrect. Accordingly, the Board concludes that the dining room
16 would increase the proportion of impermeable surfaces and that a
17 variance permit is required. The Board also concludes that lots 9 and
1s 10 are separate entities and that measurements made by either party to
19 determine the percentage of the area of impermeability are to be based
20 on lot 9 area only.
21 XIV
22 i In the hearing on January 10, 1992 , appellant stipulated that he
23 is willing to remove a portion of his wood shed to meet the applicable
24
25
26
27 FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB No. 91-26 (12)
1 impermeable surface limit. Accordingly, the Board concludes that, if
2 appellant satisfies his stipulation by reducing the total impermeable
3 surfaces to the same proportion which existed without the dining room,
_........
4 no variance permit will be required.
5 XV
6 If appellant is not able to reduce the impermeable area to the
7 previous level or less as noted above, the amount of impermeability
8 nonconformity will be increased over that which existed before the
9 dining room construction and a variance permit will be required. The
10 following determinations will then apply.
11 XVI
12 The third question to be resolved is:
13 CAN APPELLANT SATISFY ALL OF THE CRITERIA OF MCSMP CHAPTER
14 7 . 28 . 020, VARIANCES?
15 A variance permit may be authorized only if the application meets
16 all of the six criteria required by MCSMP 7 . 28 . 020.
17 XVII
18 The fifth paragraph of the six criteria in 7 . 28 . 020 requires that
19 the public interest must suffer no substantial detrimental effect.
20 In another paragraph, the MCSMP states that "consideration shall
21
be given to the cumulative impact of additional requests for like
22 actions in the area. " A number of lots in the area already exceed the
23 60% limit for impermeable surfaces. An increase in the impermeable
24
25
26
27 FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB No. 91-26 (13)
1
ace on appellant's t ma in itself create very little
surfl0 9
Y Y
2 deleterious effect on the ecology, but a number of lots in the area
3 already exceed the 60% limit. We conclude that the increase of
4 impermeable surface on appellant's property, the excesses already
5 present, and further possible increases due to reliance on this
6 decision as a precedent, raise a valid concern that the public may
7 suffer substantial detrimental effect because of the possibility of
8 ecological damage due to cumulative effect.
9 The Board concludes that a variance for an increase in the
10 proportion of impermeable surface on lot 9 should be denied.
11 XVIII
12 The failure to meet any one of the criteria for approval of a
13 variance permit is cause for denial. Our conclusion above makes it
14 unnecessary to consider the other criteria of 7 . 28 . 020.
15 XIX
16 In summary, the Board has concluded that appellant's project will
17 not increase the nonconformity of his dwelling and no variance is
18 required for that reason. The Board has also concluded that an
19 increase in impermeable surface on lot 9 does require a variance
20 permit, and that such a variance permit should be denied because of
21 the cumulative effect of similar increases. And, finally, the Board
22 concludes that, if the appellant acts to assure that the impermeable
23
24
25
26
27 FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB No. 91-26 (14)
1 surface does not exceed its previous proportion, no variance permit is
2 required.
3 XX
4 Any Finding of Fact deemed to be a Conclusion of Law is hereby
5 adopted as such. From these Conclusions of Law, the Board enters this
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27 FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB No. 91-26 (15)
1 ORDER
2 THAT the denial of Variance Permit No. 90-52 because of an alleged
3 increase to a nonconforming development is reversed; THAT the denial
4 due to an increase in the proportion of impermeability surfaces is
5 affirmed, and THAT, if appellant takes action to the County's
6
satisfaction to assure that the project does not increase the
7 proportion of impermeable surface on lot 9 over that which previously
8 existed without the dining room, no variance permit is required
9 SO ORDERED this day of % , 1992.
10 SHORELINES HEARINGS BOARD
12 ANNET E S. McGEE, Presiding
13
14 HAROLD S. ZIMME Chairman
15 _�)
(See Separate Opinion)
16 JUDITH A. BENDOR, Member
17 —::h
18 N CY BURNET , Member
19 c)
20 DAVE WOLFENEA4ZGER, Member
21 ` 4�3
HN H. BUCKWALTER
23 ministrative Law Judge
24 0022j
25
26
FINAL FINDINGS OF FACT,
27 CONCLUSIONS OF LAW AND ORDER
SHB No. 91-26 (16)
�a6 STAr OA
o �
Pollution Control Hearings Board (206) 459-6327
Shorelines Hearings Board 'ya 18e9 a°' (SCAN) 585-6327
Forest Practices Appeals Board FAX (206) 438-7699
Hydraulics Appeals Board STATE OF WASHINGTON
ENVIRONMENTAL HEARINGS OFFICE
4224 -6th Avenue SE, Building No. 2, Rowe Six, MS: PY-21, Lacey, Washington 98504-8921
May 2, 1991
- r= J '1 J M
James B. Jolly Gary P. Burleson
2904 - 128th Avenue SE Mason County Prosecuting Att �Y-3
Bellevue, WA 98005 411 North 5th u 1
Shelton, WA 98584 MAY
RE: SHB No. 91-28; JAMES B. JOLLY v. MASON COUNTY
GrE-NEF;AL SET„�CEc
Dear Parties:
Your request for review was filed with the Board on April 29, 1991. The
Shorelines Hearings Board is required by the Shoreline Management Act to
schedule review proceedings without regard to whether this request for review
will be certified by the Department of Ecology or the Attorney General's
office. Certification means that it appears to the Department or Attorney
General's Office that "valid reasons to seek review" have been presented. A
certification decision will be made by June 3, 1991. If the appeal is not
certified, the Board is required to dismiss it. If it is certified, a
pre-hearing conference will be held.
To facilitate this case, a pre-hearing conference is scheduled for
Tuesday, June 11, 1991 at 8:00 a.m. in the Board's office in Lacey,
Washington. If this date poses a problem, please confer with each other and
contact Ms. Judy Greear of our office and suggest alternative near-term dates.
Please be prepared to discuss at the conference possible settlement, to
present in writing your proposed legal issues, proposed witnesses and exhibits
lists, and to schedule pre-hearing events, such as motion/discovery deadlines,
etc. Bring your calendars through May, 1992, and a copy of the above written
materials for each other party and (2) copies for the Presiding Member. A
Pre-Hearing Order will issue as a result of the conference which will govern
these proceedings. Enclosed is a (blank) Pre-Hearing Order form to assist you
in preparing for the conference. Also enclosed for appellant is a copy of the
Board's procedural rules, 461-08 WAC.
Parties are, of course, free to discuss settlement at any time, without
the presence of the Board's Presiding Member.
Do not hesitate to contact this office if you have procedural questions.
ncerely,
Hal Zimm rma
Presidi g I certify that I mailed a copy of this document
to ':•a persons and addresses listed thereon,
HZ/jg/0148G pos rge prepaid, in a receptacle for United
Encs. Sty mail t L it, W::s i �,on
cc: Jo Sohneronne, Shorelands °^ ----•- �'
Mason County Department of General Services
•dC 3
Harold S.Zimmerman,Chairman �yv STAT, 0
Pollution Control Hearings Board
Judith A.Bendor,Member o Shorelines Hearings Board
.,:r
Annette S.Mee,Member � — � .. ��t+� Forest Practices Appeals Board
Hydraulics Appeals Board
William A.Harrison 1889 a0Y v
Administrative Appeals Judge G E�, 16 1991 (206)459-6327
Judy Greear,Hearings Coordinator STATE OF WASHINGTON 3 (SCAN) 38-6327
4
Robyn Bryant,Administrative Assistant ` (FAX)(206) 38-7699
ENVIRONMENTAL HEARINGS 8 f-- DEPT.Location:4224-6th Avenue SE, Bldg.2, Rowe Six, Lacey,WA 98504-0903
Mailing Address:MS:PY-21,P.O. Box 40903,Olympia,WA 98504-0903
December 13, 1991
Alexander Mackie Michael Clift
OWENS DAVIES MACKIE Mason County Deputy Prosecutor
P. O. Box 187 411 North Fifth
Olympia, WA 98507-0187 Shelton, WA 98584
.Allen T. Miller, Jr.
Assistant Attorney General
Department of Ecology
Mail Stop: QA-44
Olympia, WA 98504
RE: SHB 91-26; VERN GAMBRIELL v. MASON COUNTY and DOE
Dear Parties:
Dates have opened up in January, so this hearing has been
rescheduled for Friday, January 10, and Monday, the 13th, 1992, in
Shelton opening day and in Lacey for the second day if needed.
We have received lists of witnesses and exhibits, and October 15,
1991 was the deadline for discovery. The date for dispositive motions
was October 30, 1991.
We encourage the parties to reach an amicable agreement and to
work toward a stipulation.
Sincerely,
Hal Z �gqm
an
im
P r e s i
HZ/jg/0146G
� [I � f
cc: Jo Sohneronne, Shorelands
Mason County Commissioners DEC
161991
Mason County Department of General Services
GENERAL SERVICEC
1 certify that 1 mined a copy of this document
to the ,crsora ana ac�dracses !iated thereon,
pc.- prepaid, ;M a roc rlacla for United
Sr syr�ail at 1.. cp wa . on
on ! tS
s sTA 7-
Pollution Control Hearings Board (_'Ofi) 459-6327
Shoreiines Hearings Board (SCAN) 585-632.'
Forest Practices Appeals Board FAX (206) 438-7699
Hydraulics Appeals Board STATE OF WASHINGTON
ENVIRONMENTAL HEARINGS OFFICE
4224 -6th Avenue SE, Building No. ? Rowe Six, MS: PY-21, Lacey, Washington 98504-8921
May 1, 1991
Alexander Mackie Gary P. Burleson �: ;
OWENS DAVIES MACKIE Mason County Prosecutor 4T
P. O. Box 187 411 North Fifth r C bar
Olympia, WA 98507-0187 Shelton, WA 98584
Allen T. Miller, Jr. -
Assistant Attorney General - "
Department of Ecology
Mail Stop: QA-44
Olympia, WA 98504
RE: SHB 91,Z6; VERN GAMBRI= v. MASON COUNTY and DOE
Dear Parties:
Your request for review was filed with the Board on April 18, 1991 and
certified by the Department of Ecology on May 1, 1991.
To facilitate this case, a pre-hearing conference is scheduled for
Tuesday, June 11, 1991 at 10:00 a.m. in the Board's office in Lacey,
Washington. If this date poses a problem, please confer with each other and
contact Ms. Judy Greear of our office and suggest alternative near-term dates.
Please be prepared to discuss at the conference possible settlement, to
present in writing your proposed legal issues, proposed witnesses and exhibits
lists, and to schedule pre-hearing events, such as motion/discovery deadlines,
etc. Bring your calendars through May, 1992, and a copy of the above written
materials for each other party and (2) copies for the Presiding Member. A
Pre-Hearing Order will issue as a result of the conference which will govern
these proceedings. Enclosed is a (blank) Pre-Hearing Order form to assist you
in preparing for the conference.
Parties are, of course, free to discuss settlement at any time, without
the presence of the Board's Presiding Member.
Do not hesitate to contact this office if you have procedural questions.
Sincerely,
Hal Z' a an
Pres'din I certify that I mailed a ropy of this document
HZ/]g/0146G to the persons and addresses listed thereon,
Enc. posta a prepaid, in a receptacle for United
cc: Jo Sohneronne, Shorelands Stare a cey Wash n
on1
Mason County Commissioners /
Mason County Department of General Services
3
a:�.OEI ED MAY — 17991
MAY01IN
1 MASON CO. PANWG KK. BEFORE THE SHORELINES HEARINGS BOARD a3"ENERAL SER."IC S
OF THE STATE OF WASHINGTON
2
3 IN THE MATTER OF A SHORELINE PERMIT )
DENIED TO VERN GAMBRIELL BY MASON )
4 COUNTY, )
5 VERN GAMBRIELL, )
6 Appellant, )
SHB No. 91-26
7 V. ) CERTIFICATION OF REQUEST
FOR REVIEW
8 MASON COUNTY AND DEPARTMENT OF )
ECOLOGY )
9 )
Respondent. )
10
11
12 On March 12, 1991, Mason County denied a Shoreline Variance Permit to
13 expand an existing non-conforming residence on Hood Canal.
14 On March 18, 1991, the Washington Department of Ecology filed said
15 denied permit.
16 On April 19, 1991, appellant submitted a request for review to the
17 Shorelines Hearings Board, the Department of Ecology and Attorney General as
18 defined in RCW 90.58.140(6) .
19 After receiving the files submitted to it pertaining to the issuance of
20 said permit, the Attorney General and the Department of Ecology conclude that
21 the requestor has valid reasons to seek review pursuant to RCW 90.58.180(1) .
22
23
24
25
26
ATTORNEY GENERAL OF WASHINGTON
CERTIFICATION OF REQUEST - 1 Ecology Division
4407 Woodview Drive S.E.
OA-44
Olympia.WA 98SO4-8077
h
1 Therefore, the Department of Ecology and Attorney General hereby
2 certify the request for review to the Shorelines Hearings Board within thirty
3 (30) days of receipt of said request by the Attorney General and the
4 Department of Ecology.
5 Dated this 2. day of POLL 1991.
6
7 r
S 1 ,.
9 Thomas Mark, AICP V
Supervisor, Management Section
10 Department of Ecology
State of Washington
11
12
13
KENNETH 0. EIKENBERRY
14 Attorney General
15
16 �� 1
17 Allen T. Miller
18 Assistant Attorney General
19
20
21
22
23
24
25
26
VEST - 2 ATTORNEY GENERAL OF WASHINGTON
CERTIFICATION OF REQUEST Ecology Division
4407 Woodview Drive S.E.
OA-44
Olympia.WA 98504-8077
L
i
CERTIFICATION OF MAILING
I certify I mailed copies of the foregoing document on the day of
1991, to each of the following parties:
Shorelines Hearings Board
4224 Sixth Avenue
Building Two, RoweSix
Mail Stop PY-21
Lacey, WA 98504-8921
Vern Gambriell
235 SW 153rd
Seattle, WA 98166
Alexander W. Mackie
OWENS DAVIES MACKIE
Post Office Box 187
Olympia, WA 98507-0187
Gary P. Burleson
Mason County Prosecutor
411 North Fifth
Shelton, WA 98584
Mason County Commissioners
411 North 5th
Shelton, WA 98584
the foregoing being the last known post office addresses of the above-named
parties. I further certify that proper postage had been affixed to the
envelopes deposited in the U.S. Mail.
Diane Hughes
COM SHB No. 91-26
SENDER:
� Complete items 1 and/or 2 for additional services.
I also wish to receive the
4, • Complete items 3,and 4a&b. following services (for an extra N
• Print your name and address on the reverse of this form so that we can fee): .j
0 return this card to you.
> • Attach this form to the front of the mailpiece,or on the back if spare 1. El Addressee's Address
Les not permit. y
t • Write"Return Receipt Requested"on the mailpiece below the article number. C
• The Return Receipt will show to whom the article was delivered and the date 2. El Restricted Delivery •W
o delivere,..- Consult postmaster for fee. 0
v 3. Article Addressed to: 4a. Article Number
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4b. Service Type
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7. Date of Delivery
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5. Signature (A ressee) dres ee's Address (Only if requested Y
and fee is paid)
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y PS Form 3811, December 1991 *U.S.GPO:1993-352-714 DOMESTIC RETURN RECEIPT