HomeMy WebLinkAboutLand Use, Shoreline, Fill Decisions, 3 parcels - PLN General - 9/3/2002 BEFORE THE HEARING EXAMINER OF
MASON COUNTY
DECISION
FILE NUMBER: HEX2002-00008 ?' ' ��` G
TAX PARCEL NUMBER: 12217-12-00010 & 12217-12-00013
PROPERTY OWNER: Ernesto Iuliano
REVIEW AUTHORITY: Mason County
TYPE OF CASE: Notice of Civil Violation
SUMMARY OF DECISION: Violation Occurred. Review Authority's
Notice of Civil Violation affirmed
INTRODUCTION
Ernesto Iuliano, was sent a notice of a Notice of Violation alleging a violation
occurring on tax parcel 12217-12-00010 and 13 owned by Mr. Iuliano and on tax
parcel 12217-12-00011 owned by William and Donna Berg and tax parcel12217-
12-00012 owned by Elizabeth Paine. The alleged violation consists of fill placed
in a Category II Wetland, within 200 feet of the Ordinary High Water Mark. The
fill created an access road and parking area/turnaround approximately 130 feet
long and approximately 35 feet wide at the widest point. The complaint alleged
fill had been deposited on several occasions during the past year and the work was
performed without Planning Department review and issuance of necessary permits
Kristen Olbrechts, Mason County Hearing Examiner(the Examiner), held hearings
on March 20, 2002 and on April 24, 2002. The Environmental Health Specialist
sent certified notice of the hearing to the property owner(Testimony).
Mr. Iuliano was present and represented by attorney Robert Johnson. Deputy
Prosecutor Darren Nienaber appeared for Mason County.
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Testimony under oath was presented by:
Mr. William Berg
Ms. Kristin French
Mr. Karl Demeree
Mr. Allan Borden
Mr. Ernesto Iuliano
Mr. Levy Boswell (by phone)
Mr. Fred Millar
EXHIBITS
Exhibit 1: Staff Report
Attachment A: Photographs (taken 8/29/02).
Attachment B: Diagram of the property, neighbor's property and survey.
Attachment C: Telephone call notes and letter to Mr. Iuliano from Ms.
French.
Attachment D: Investigation report-complaint dated 8/28/01.
Attachment E: Letter from Ms. French to Mr. Iuliano 8/30/01.
Attachment F: Stop Work order dated September 17, 2001.
Attachment G: Letter to Mr. Iuliano's attorney Steve Brown, from Ms.
French dated 9/19/01.
Attachment H: Notes from Ms. French. Information for permits for site.
Attachment I: Letter to Mr. Iuliano from Ms. French dated 10/15/01.
Attachment J: Letter to Ms. French from Ann Boeholt, Wetland
Specialist, Department of Ecology dated 11/19/01; fax dated 11/20/01.
Attachment K: Letter to Mr. Iuliano from Ms. French dated 12/12/01.
Attachment L: Notice of Hearing and violation dated 1/28/02 to Mr.
Iuliano.
Attachment M: Notice of Hearing and violation dated 1/25/02 to Mr. and
Mrs. Berg.
Attachment N: Notice of Hearing and Violation dated 1/25/02 to Ms.
Paine.
Exhibit 2: Letter from Ms. Paine.
Exhibit 3: Letter from Ms Paine.
Exhibit 4: (A-D) Photographs from Allan Borden of the site on 9/14/02.
Exhibit 5: Boswell Construction Contract
Exhibit 6: Oyster Records for parcel 122171200013
Exhibit 7: (A-B)Photographs
Exhibit 8: Letter from Prudential Northwest Real Estate.
Exhibit 9: Letter from Taylor Resource Inc.
Exhibit 10: Letter from Minterbrook Oyster Company.
Exhibit 11: Aerial photography
Exhibit 12: Two Photographs
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Having heard the testimony of the above referenced individuals and having
considered the exhibits admitted at trial, along with argument from counsel, the
Hearing Examiner enters the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
1. The subject property ("Mr. Iuliano property") is located at 1190 E. North Bay
Road Belfair, WA/Mason County.
2. On August 28, 2001, a complaint was filed alleging that filling activity had
taken place in a wetland on several occasions during the past year.
3. On August 29, 2001, Ms. French attempted to conduct a site visit. Due to the
"No Trespassing" sign, she did not make any factual determinations. The filled
area was evident from the North Bay road. Ms. French saw no work being
conducted on the property at this time
4. On August 30, 2001, Ms. French mailed a letter to Mr. Iuliano first class and
certified, requesting to set a date for a site visit. Ms. French requested a response
by September 7, 2001.
5. On September 17, 2001, Ms. French posted a Stop Work Order on the property,
as she had not received a response from Mr. Iuliano. Ms. French saw no work
being conducted on the property at this time
6. On September 19, 2001, Ms. French spoke with Mr. Steve Brown, attorney for
Mr. Iuliano. She drafted a letter advising Mr. Brown of the issues, and faxed and
mailed the letter to Mr. Brown. The letter requested that Ms. French be contacted
by October 1, 2001 to set a compliance schedule.
7. On October 3, 2001, Ms. French spoke with Allan Borden (Planning staff) and
Allan Eaton (Public Works staff) regarding two-road access permits. Permit
numbers 8057 and 8082 were issued in 1998. The purpose of the permits was to
establish access within the County right-of-way (10') from the edge of the North
Bay Road. The permits where for an access point/approach (apron) only. On
February 5, 2002, Ms. French spoke with Karl Demeree (Public Works staff). He
performed the final inspections on both of the permits. Mr. Demeree stated that
Mr. Iuliano did not have established access to the site. Mr. Iuliano indicated that
he just wanted to park off the shoulder of the road.
8. There are two Permit Transmittal Sheets. The first is permit number 8057. The
site pre-inspection notes as follows: "12" x 40' requested—access enters wetlands.
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Copy of the permit will be sent to planning" It is dated April 20, 1998 and signed
by Ken Demeree. The final inspection notes as follows: "looks ok" It is dated May
4, 1998 and signed by Ken Demeree.
The second is permit number 8082. The site pre-inspection notes as follows:
"Access should be extended on the west side-note existing access. This access
possible wetlands. Forward permit to planning" It is dated June 11, 1998 and
signed by Allan Eaton. The Notification of Completion states: "Received
notification from permittee that access is complete and ready for final inspection
on this date: 7/29/98." The final inspection notes as follows: "looks ok". It is dated
August 10, 1998 and signed by Ken Demeree.
9. Shortly before October 15, 2001, Ms. French met on site with Mr. Fred Millar.
Mr. Millar is Mr. Iuliano's nephew, and advised Ms. French that he is assisting his
uncle with this matter. Mr. Millar advised Ms. French that Steve Brown was no
longer representing his uncle on this matter. Ms. French explained the issues to
Mr. Millar while on site.
10. Ms. French measured and noted that the fill on Mr. Iuliano's property created
an access road and parking area/turnaround approximately 130 feet long;
approximately 35 wide at the widest point and approximately 8 feet at its
narrowest.
11. Ms. French measured the alleged road construction activity and it is within two
hundred feet of the ordinary high watermark from the North Bay Case Inlet.
12. On October 15, 2001, Ms. French mailed a letter first class and certified to Mr.
Iuliano. Ms. French advised him that she had provided compliance details to his
former attorney Steve Brown and to his nephew, Mr. Fred Millar. Ms. French
reiterated options for compliance and requested that Mr. Iuliano contact her by
November 5, 2001 to discuss a timeline for compliance.
13. Following the October 15, 2001 letter, Ms. French met with Mr. Iuliano and
his nephew on site to again explain the violation and compliance options. She
advised them of the same information that was outlined in the previous two letters.
During the site visit, Mr. Iuliano disputed the County position that the land is
classified as "wetland." He advised Ms. French that he has deposited no fill
whatsoever on the site since its purchase in 1996. Ms. French advised Mr. Iuliano
and Mr. Millar that it might be useful to obtain a specialist's opinion regarding the
"wetland" classification. Ms. French advised Mr. Iuliano and Mr. Millar that her
observations indicate that the site is a wetland with recent deposition of fill in the
wetland. Ms. French testified she observed that the fill is very loose on each side
with little evidence of established vegetation. She observed only recent
accumulation of leaf litter and very little established vegetation on the surface of
the fill material. Ms. French agreed to coordinate another site visit with Mr.
Iuliano and a DOE wetland specialist to address the "wetland"classification issue.
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14. On November 14, 2001, Ms. French met on site with Mr. Iuliano and
Department of Ecology wetland specialist Ann Boeholt. Ms. Boeholt was asked to
determine whether wetlands are present on the site and whether the recent fill
and/or grading had disturbed wetland areas.
15. On November 19, 2001, Ms. French received a letter from Ms. Boeholt
detailing her determination that the site is a wetland.
16. On November 20, 2001, Ms. French received e-mail from Ms. Boeholt that
provided additional information to supplement the November 19, 2001 letter. Ms.
Boeholt advised that it appears that the entire property is most likely a Category I
or Category II forested wetland. The distinction between a Category I or Category
II would have to be made by coring the trees on the site to obtain there age. This
was not done. As a default, since the coring was not done, it is classified as a
Category II wetland.
17. On November 21, 2001, planning staff Pam Bennett-Cumming advised Ms.
French that Mr. luliano's neighbor, Donna Berg, recently had a boundary line
survey completed. A survey was completed by Richard B. Norris, P.L.S.
(#1743817) with Forest Land Surveys. The survey was filed with the Mason
County Auditor November 21, 2001 and is recorded in book 27 of SURVEYS at
page 72. The survey of Richard Norris shows the paved approach (entrance
access) is greater than 200 feet from the ordinary high water mark at 214 feet.
18. The violation spans parcels 12217-12-00010/13 (Mr. luliano's parcels), 12217-
12-00012 (Elizabeth Paine's parcel), and 12217-12-00011 (William and Donna
Berg's parcel).
19. On December 12, 2001, Ms. French forwarded a copy of Ms. Boeholt's letter
to Mr. Iuliano and Mr. Millar. Ms. French advised Mr. Iuliano that the matter
would be set for a hearing in the near future and requested that she be contacted
with any questions or concerns.
20. On January 28, 2002, Ms. French mailed a Notice of Hearing to Mr. Iuliano
first class and certified.
21. On January 28, 2002, Ms. French mailed a Notice of Hearing to Mr. and Mrs.
Berg first class and certified.
22. On January 28, 2002, Ms. French mailed a Notice of Hearing to Ms. Paine first
class and certified. Ms. Paine subsequently contacted Ms. French and indicated
that she is unable to attend the hearing, but will provide a written statement for
consideration during the hearing. Ms. Paine asked that the court take action to
restore the property to its original condition
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23. On January 31, 2002, Ms. French spoke in detail with Mr. Iuliano on the
telephone. He advised that he is in the process of obtaining his own survey and
does not believe that he will have it in time for the February 13, 2002 hearing. Ms.
French advised Mr. Iuliano of the importance of either attending the hearing or
notifying her in writing of the need for a continuance. Ms. French mailed Mr.
Iuliano a handwritten letter advising him of the same, with her business card
included. During the conversation, Mr. Iuliano indicated to Ms. French that he did
not care what the decision or outcome of the hearing was because he is not going
to do anything. He indicated that he has "maintained the road and fixed the holes"
so he will continue to use the road one way or another. He stated, "I am going to
use the driveway one way or another because I have taken care of it."
24. Ms. French has never seen Mr. Iuliano place any fill on his property. From
when Ms. French first visited the site on August 29, 2001 to September 17, 2001
there was no ongoing construction or work activity. She posted the stop work
order, as it is standard practice to issue the stop work order if they feel the activity
might continue.
25. Ann Boeholt, the wetland expert from the Department of Ecology could not
make a determination if it was a regrade of an existing driveway or a new
driveway. She was unable to conclude whether the newer 12 inches of road fill was
placed on top of original soils, or on top of an older layer of previous road fill.
Ms. Boeholt suggested that a core sample be taken within the roadbed until the
original soils were reached and analyzing the material.
26. Mason County did not request that the DOE do a core sample. Mason County
relied instead upon photographs and a detailed site inspection from Allan Borden,
and other witnesses.
27. William L. Berglives on 1150 North Bay and has two lots next to Mr.
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Iuliano's property. Mr. Berg has lived on his property since he purchased the first
lot in August of 1996. In August of 1997 he bought the second lot adjacent to his
first lot. It is the second lot that Mr. Iuliano put part of the road access on. The
access road occupies twenty feet of Mr. Berg's property at the most. Mr. Berg did
not realize that the road was partially on his property until he had a survey
completed.
28. At the time Mr. Berg purchased his property in August of 1997, there was no
access road on it. He noticed the road sometime after August of 1997
29. Mr. Berg was familiar with and had walked the subject matter area even
though he didn't know he owned it at the time. Mr. Berg had walked around that
area prior to the construction of the road. He did not observe an old road. Mr.
Berg stated that if there was an old road there it wasn't obvious and it didn't stop
you from sinking in the soil of the area when you walked around it. Mr. Berg
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admitted he was not specifically looking for an old road when he walked around
the property.
30. Mr. Berg denied complaining to Mason County about Mr. Iuliano's oystering
and claming activity.
31. Karl Demeree has been the road supervisor for Mason County for the past ten
years. He is familiar Mr. Iuliano's property and the surrounding the area. He
passes the area about once a week.
32. In April of 1998 Karl Demeree conducted a site inspection on Mr. Iuliano's
property for an access apron on to North Bay Road. He received the permit
application through his office. Mr. Demeree met with Mr. Iuliano's contractor Mr.
Boswell. Mr. Demeree observed a vegetative wet area. He said told Mr. Boswell
that he would have to put in some drainage structures.
33. Mr. Demeree did not observe an existing roadway. He observed the apron area
off of the roadway and the remainder of the site was in a vegetative state.
34. Mr. Demeree didn't see a road or anything that looked like a former or old
access road. In Mr. Demeree's opinion, usually with an old access road there
would be a drainage structure but not always. He did not see a drainage structure
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on the property. Mr. Demeree admits he did not go out and look for an old road.
35. Mr. Demeree discussed with Mr. Boswell using an alternative location to
access the pr
operty e then one originallyfla ed. This was because it was going into
p P rtY gg g g
a curve and it would improve the site distance if he moved the location.
36. Allan Borden is the long-range planner for Mason County. He has held that
position since November of 2000. He has worked for the County since August of
1991 and worked as a planner seven years prior to that. Mr. Borden is familiar
with the area where Mr. Iuliano's property is located.
37. Mr. Borden was notified by the Public Works Department in April of 1998 that
a road access/apron permit was being proposed for Mr. Iuliano's property and the
Road Supervisor had noted that it should be referred to the planning department.
38. On his site visit in April of 1998, Mr. Borden observed a new paved approach
(the apron) and a new culvert. He saw that fill had been brought in, about twenty
feet deep from the edge of the road. The paved portion was brand new. There was
additional material and there was a certain amount of fill on the edge of the paved
area. The paved area is located on the waterside of North Bay road and the south
end toward the city of Allen. No other construction had taken place. Mr. Borden
did not observe an old road.
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39. Mr. Borden stopped by the property on September 14, 1999. He noticed new
activity and the area looked different. The vegetation on the site was recently
disturbed. A lot of the vegetation had been cleared away from the edge of the fill
area. He took four pictures (Exhibits 4A-D). The photographs showed that the area
was overgrown with thick vegetation. Mr. Borden observed a footpath area that
had been cleared away of trees and brush by hand. Mr. Borden walked down this
footpath toward the water. He didn't go all the way to the water because there was
dark soil. He did not observe any gravel, rock or gravely soil that he would have
recognized as being a road base. No road construction had taken place at this time.
40. On Mr. Borden initial site visit in April 1998, he believed the site may have
had a footpath but there was no road. In Mr. Borden's opinion, there was no way a
vehicle could have driven in there because it was too narrow. There was no level
area that could have been driven on. It was only wide enough for one or two
people to walk. The property appeared the same way in September of 1999 except
there was a lot more activity with respect to the vegetation.
41. Mr. Borden agreed that a roadway, overgrown for twenty years with no
maintenance could have looked like how the property looked in April of 1998 and
September of 1999. In Mr. Borden's opinion,if there was an old road it was buried
by a lot of years of vegetation and soil.
42. Mr. Borden testified that there was another road further down the property that
could have been used to access the same dock and oyster beds which Mr. Iuliano
claimed use of.
43. Ernesto luliano purchased his property on North Bay road June 1, 1997. He
testified that when he bought the property there was an old driveway. Mr. Iuliano
testified it was an old driveway not a trail. The old driveway was pretty
overgrown. In 1998, Mr. Iuliano hired a contractor, Boswell Construction, to
reestablish access to his property. He hired Mr. Boswell to blacktop at the entry
and repair/fix up the driveway. He had a written contract with Mr. Boswell. He
paid Mr. Boswell $4296.85. Mr. Iuliano testified that he was not aware that if you
put a new road into a wetland it is a violation.
44. The Boswell Construction contract between Levy Boswell and Ernesto Iuliano
describes the work to be done as "Install 12" x 40' Culvert followed by regarding
old sub base on roadway and approach. Compact approach for installation of
asphalt(pave approach only)".
45. Mr. Iuliano said he has not put on any gravel. He testified that Mr. Boswell put
on the gravel.
46. Mr. Iuliano testified he checks his property for clams and oysters almost every
day. Mr. Iuliano obtained a document from Mason County Assessors office
showing what appears to be a document indicating part of Mr. Iuliano's property
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was being used for oyster production as early as 1963. This document is for lot
122171200013 which belongs to Mr. Iuliano (Exhibit 6)
47. A letter from Taylor Resources confirms that Mr. Iuliano leases tidelands from
them for the cultivation and harvest of shellfish. (Exhibit 9).
48. A letter from Erika Wiksten, the general Manager of the Minterbrook Oyster
Company states that Donna Berg reported that Mr. Iuliano was stealing clams on
Taylor Resources Inc.'s property and she had called the police. According to the
letter, Mr. Wiksten told Ms. Berg that Mr. Iuliano owned/leased the property he
was harvesting. Ms. Berg continued to accuse Mr. luliano of theft. Mr. Iuliano
provided his lease as well as his property documents to Minterbrook Oyster
Company. Mr. Wiksten knows Mr. Iuliano as a reputable businessman who grows
and harvests quality products. (Exhibit 10)
49. Mr. Iuliano testified there is an old boat ramp or dock on his property
Photographs show an old boat ramp, dock or some type of structure on property
1221712000010 that is owned by Mr. luliano. (Exhibit 6 & 7)
50. Mr. Iuliano went to see the people at Prudential Real Estate. Mr. Iuliano
produced a letter from Prudential Real Estate. The name of the person who signed
the letter is illegible. The letter states "Prudential North West Real Estate listed
and sold parcels 122171200010 and 122171200013 in 1997. It was the company's
understanding that an overgrown drive crossing parcel 122171200012 and meeting
SR 302 near the corner of parcel 122171200011 has been used to access the
property for years." (Exhibit 8)
51. Levy Boswell owns Boswell Construction. He has been in the asphalt paving
business for twenty-five years. Mr. Boswell contracted with Mr. Iuliano to work
on his property located on North Bay Road. (See Findings of Fact#44)
52. Mr. Boswell applied to Mason County for the access permit. It was issued and
the work was constructed pursuant to that right away permit. He was hired to
install an asphaltiblacktop (apron) access point to the Iuliano property, install a
culvert and regrade the old road. Mr. Boswell testified the permit was only for an
access point (apron) off of North Bay road. The permit was to put the access point
(apron) in to connect to the main road. Mr. Boswell did the black top work by
paving the access; blade work/regrading on an old road bed; and put in some
gravel on top of the regrade.
53. Mr. Iuliano requested that Mr. Boswell install access at the Northerly end of
his property. When Mr. Boswell met with Mason County on the site, they
requested access be moved to the Southerly end of the old roadway for sign
distance issues.
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54. Mr. Boswell said there was an old roadbed. The condition of the old roadbed
was poor. It was hard to recognize it. There was an old sub base. He did blade
work and added gravel. Mr. Boswell said he followed the old sub base the best he
could. He cleaned off the road that was there. It was anywhere between a hundred
and a hundred and seventy-five feet. Mr. Boswell clarified by blade work he
meant leveling. That he leveled and graded the old roadbed. He put in a couple
dump trucks of gravel after he regraded it.
55. Mr. Boswell is aware that if there was not an old road that building a new road
into a wetland is a violation. Further, that it may be a crime.
56. Fred Millar is Mr. Iuliano nephew. He resides in Sacramento, California and
sees his uncle about one a year. Mr. Millar looked at the property before his uncle
purchase it. He walked the property with his uncle. His uncle showed him the old
drive way. It was overgrown. It was not apparent to Mr. Millar that it was a
driveway until his uncle pointed it out to him.
57. Mr. Millar saw the property after Mr. Boswell worked on it and the new drive
way looked like it was in the same location where the old road was that his uncle
had pointed out to him before he purchased the land
58. Mr. Millar took photographs on the property where there appeared to have
been an old dock, boat house or some other structure on the water. This structure
is lined up with the location of the driveway.
59. According to Mr. Borden there is another access on Mr. Iuliano's land to the
water. It is drivable in the summer when the soil isn't so damp. He has seen heavy
tracks in there. There are not a lot of trees, just grass. The shoreline can be
accessed using this trail. It accesses Mr. luliano's cove. Mr. Borden testified this
access has been utilized in this area for some time. This access allows for vehicles
to come off of the road and go down partway to the shore.
60 Additionally, according to Mr. Borden, there is a trail or footpath on the
property. It may have been there for a while. The trail can used to go from the
road to the shoreline.
61. The fill activities at issue did not occur until sometime after September 14,
1999. Staff visited the site on this date and observed that no road construction or
filling had occurred as of that date. There is no evidence in the record that
contradicts this observation.
62. Mr. Boswell, working at the request of Mr. Iuliano, deposited fill material in a
category UII wetland on or after September 14, 1999. Mr. Boswell, working for
Mr. Iuliano, admitted in testimony that he engaged in fill and road construction
activities for Mr. Iuliano. Mr. Iuliano did not refute this testimony. As noted in
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Finding of Fact No. 16, this construction and filling activity occurred within a
Category I or II wetland.
63. Mr. Iuliano did not acquire a conditional use permit identified in MMC
7.16.130 to engage in this fill activity. The staff report asserts that the activities
were done without a conditional use permit and Mr. Iuliano did not dispute this
claim.
64. Most of the fill activity occurred within 200 feet of a shoreline, and hence was
within the jurisdiction of the Shoreline Management Ordinance. Kristen French
measured the location of the subject road from the ordinary high water mark of
North Bay Case Inlet and determined that most of the road, and associated fill and
construction activities occurred within 200 feet of the Inlet. Mr. Iuliano did not
dispute this determination.
65. The County was unaware of the new access road until they received a
complaint August 28, 2001. Although Allan Borden, a Mason County employee,
did observe some changes to the vegetation of the subject area in September 1999,
these changes were not sufficient to place the County on notice of potential road
construction activities. Nothing at the site in the 1999 visit could be construed as
reasonably suggesting that Mr. Iuliano was undertaking fill or road construction
activities. Given these circumstances, one cannot assert that Mason County knew
or should have known about the road fill and construction activities prior to August
28`', 2001.
66. The property has been used for oyster production over the years and there are
remnants of an old dock or boat launch that are at the waterfront of this property.
At some point in time a road did serve this dock or boat launch. However, as
shown in photographs and other evidence, this road subsequently became
overgrown with vegetation and unusable for vehicular traffic. Mr. Boswell's
testimony establishes that the exact location of the road is no longer discernable ("I
followed the old sub base the best I could"). There is no evidence that shows how
long this road has been abandoned and how long it has been rendered unusable by
vehicular traffic. The subject road was built in the general location of the
abandoned dock/boat launch road — it most likely was not built entirely within the
confines of the abandoned road.
67. Mason County asserts that the violations at issue occurred over several days.
There is no evidence in the record to suggest that the filling/construction activities
occurred over more than a single day. The County did not question Mr. Boswell or
any other witnesses on how many days were involved in the road
filling/construction and nothing else in the records addresses how much time was
involved.
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CONCLUSIONS OF LAW
Mason County brings this action as a civil regulatory order authorized
by MCC 15.13.030. The Hearing Examiner has the authority and
jurisdiction to issue a decision on civil regulatory orders as provided in
MCC 15.13.045.
Statute of Limitation
The Examiner concludes that a two-year statute of limitation period
applies to the subject violation. The Examiner further concludes that the subject
violation is not barred by this limitations period because the defendant failed to
establish that the alleged violations occurred more than two years ago. Further,
even if the violations did occur more than two years ago, the limitations period
was tolled by the discovery rule.
The parties to this action agree that a two-year statute of
limitations applies to the subject violations. The Examiner similarly concluded
that the two-year limitations period applies in "Order on Motion to File an
Enforcement Complaint and Motion to Dismiss", Gray v. Mason County, Case
No. 01-2-0017. Not resolved in that Order was whether the Mason County Code
makes it a code violation to own or use structures illegally constructed. As noted
in the Order, if code violations are characterized as continuing in this regard, the
date at which the structure was constructed would be irrelevant since the date of
ownership or use would fix the date of violation. Chapter 15.13 does not
designate ownership or use of an illegally constructed structure as a continuing
violation. The 2001 amendment to MMC 15.13.020 provides that each day of a
continuing violation constitutes a separate offense, but this language does
nothingto transform an illegal act of construction into a continuing violation.
g g
Given the absence of the necessary code language, the Examiner must conclude
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that for purposes of statute of limitation analysis, the date of the alleged subject
offenses was the date(s) of the alleged roadwork.
The defendant has the burden of proving that the alleged activities
occurred beyond this two-year period because a statute of limitations claim
operates as an affirmative defense. See, e.g., Clark-Kunzl v. Williams, 78
Wn.2d 59, 65 (1970)(statute of limitations is an affirmative defense). As noted
in Finding of Fact No. 61, the evidence only establishes that the alleged
violations occurred sometime after September 14, 1999. The defendant never
asserted when the fill/construction activity actually occurred and there is no other
evidence to suggest when the alleged violations occurred. Given this lack of
evidence, the defendant has failed to prove that this enforcement action is barred
by the statute of limitations.
Even if the defendant had succeeded in establishing that the alleged
violations occurred more than two years prior to the filing of this action,the two-
year period was tolled by operation of the discovery rule. The discovery rule
operates to toll the date of statute of limitation accrual until a party knows, or
through the exercise of due diligence, should have known, all the facts necessary
to establish a legal claim. Crisman v. Crisman, 85 Wn. App. 15 (1997). Mason
County did not receive a complaint about the subject road until August 28, 2001
and was not aware of the alleged violation prior to that date. Given these
circumstances, the Examiner concludes that the limitation period was tolled until
August 28, 2001. Consequently, this action was timely filed within the two-year
limitations period.
Ex Post Facto
Under the "ex post facto' doctrine, both the United States and the
Washington Constitution prohibit the use of increased penalties to punish acts that
occurred before the effective dates of the increase. Ludeman v. Department of
Health, 89 Wn. App. 751, 763 (1997). As noted by Mason County, the Mason
County code has always had a general penalty clause. Clearly you cannot increase
13
the penalty, but here there has been no increase in penalty and therefore there is no
ex post facto violation as it does not apply to less harsh penalties. (see Ludeman v.
Department of Health 89 Wn. App. 751, 951 P.2d 266 (1997).
As indicated in the Ludeman case cited su ra, if the Examiner does not
exceed the penalties that were in place at the time the alleged violation occurred,
there is not an ex post facto problem. Section 7.32.020(2) of the Mason County
Shoreline Master Program, last amended in 1988, imposes a fine of up to 1,000 per
day for SMA violations. MMC 17.01.200(D)(3)(b) imposed a $500 fine as of
1997. Applying ex post facto restrictions, the Examiner has the authority to
impose a total of$1,500 in civil fines per day of violation. As noted in Finding of
Fact No. 67, Mason County has failed to prove that the subject violations occurred
over more than one day. Consequently, the Examiner can impose a fine of no
more than$1,500 in this case.
DOE Approval of Shoreline Master Program
Mr. luliano asserts that Mason County's SMA regulations do not apply to
him because they are invalid. Mr. Iuliano asserts that Mason County has failed to
acquire Washington State Department of Ecology approval of its shoreline
enforcement regulations (Chapter 15.13 MMC), a prerequisite to the adoption of
such regulations.
The Examiner has no authority to invalidate Mason County's regulations
and thus cannot address Mr. luliano's position on the validity of Chapter 15.13
MMC as it applies to SMA regulations. Administrative agencies are creatures of
the legislature without inherent or common-law powers and may exercise only
those powers conferred either expressly or by necessary implication Chaussee v.
Snohomish County Council, 38 Wn. App. 630, 636, 689 P.2d 1084 (1984)
(Hearing Examiner doesn't have authority to rule upon issues of equitable
estoppel; Examiner "strictly limited" to determine whether code applied to subject
property). MMC 15.13.045(D) limits the Examiner's authority to determining
whether a violation has occurred. Nothing in this provision or anywhere else in the
14
MMC grants the Examiner the extraordinary authority to invalidate ordinances
adopted by the Mason County Board of Commissioners. Mr. Iuliano will have to
pursue his invalidation argument in a more suitable forum.
Under Title 17 Wetland Ordinance- Exemption
Mr. Iuliano asserts that he has not violated the Mason County Resource
Ordinance (Title 17 MMC) because his activities fall within one of the exemptions
to his ordinance. The Examiner concludes that the road construction does not
qualify for an exemption.
The specific exemption asserted by Mr. Iuliano is MMC 17.01.130(G),
which provides as follows:
Mason County Resource Ordinance 17.01.130 general
exemptions
The following activities shall be exempt from the provisions of this
ordinance:
G. " Maintenance, operation, reconstruction of, or addition to,
existing roads, streets, and driveways, provided that
reconstruction of, or addition to, any such facilities does not
extend outside the previously disturbed area.
Mr. Iuliano asserts that he qualifies for the exemption quoted above because his
activities amount to the reconstruction of an existing road. The Examiner finds
that Mr. Iuliano does not qualify for this exemption for two reasons. First, in order
to be exempt under this provision, it must be a reconstruction of an existing road.
As noted in Finding of Fact No. 66, there was no existing road. As established by
photographs and testimony, prior to the "reconstruction", the road was completely
overgrown and not suitable for any type of vehicular travel. Apparently, Mr.
Iuliano takes the position that once a road is constructed, it serves as an "existing"
road for purposes of the MMC 17.01.130(G) no matter how long it has been
abandoned or how much is left to reconstruct. In addition to the absence of
anything that could be construed as a road, it is evident from the record that the
15
subject road was not suitable for vehicular traffic for several years. Given these
circumstances, the lack of any policy justification for Mr. Iuliano's position, and
the significant judicial animus to the preservation of nonconforming uses, the
Examiner must conclude that there was no "reconstruction" as intended by MMC
17.01.130(G).
The second reason why the alleged road construction fails to qualify for the MMC
17.01.130(G) exemption is because Mr. Iuliano has failed to prove that the
"reconstruction" was within the bounds of the "existing" road. MMC
17.01.130(G) expressly requires that any reconstruction must not extend beyond
the bounds of the previously disturbed area. Contrary to the assertions made in the
Iuliano Brief, it is Mr. Iuliano that has the burden of proof in qualifying for an
exemption, since this argument constitutes an affirmative defense. See Snohomish
v. Anderson, 124 Wn.2d 834 (1994)(an affirmative defense is a matter asserted by
a defendant, which, assuming the complaint is true, constitutes a defense to it). As
noted in Finding of Fact No. 66, Mr. Iuliano has failed to establish that the
"reconstruction" was limited to the previously existing roadbed. The previously
existing road is too overgrown at this juncture to determine its previous
boundaries, and even Mr. Iuliano's contractor was unable to testify that all of his
construction work was limited to the previously existing road, only stating that he
"followed the old sub base the best he could".
Violation of Mason County Shoreline Regulations
Mason County asserts in its Notice of Civil Violation (Exhibit 1, Attachment L)
and its staff report (Exhibit 1) that Mr. Iuliano has violated the Mason County
Shoreline Management Ordinance (MMC Title 7). The Notice does not identify
how Mr. Iuliano has violated these regulations, although corrective measures
suggest that the absence of a conditional use permit is the problem. At Section II
(B)(1)(sic) of the staff report, staff propose a Conclusion of Law that provides that
Mr. Iuliano violated MMC 7.16.130 by failing to acquire a conditional use permit
for fill activities. Consequently, as best as can be ascertained from the Notice of
16
Civil Violation and the staff report, Mason County is premising its shoreline
violation on the failure to acquire a conditional use permit as required by MMC
7.16.130.'
Mr. Iuliano argues in his brief that a he did not have to acquire a conditional use
permit because his activities did not qualify as "landfill" under 7.16.130.
Specifically, he argues that he has only added fill to dry land and that "landfill"
only applies to the filling of wetlands.
MMC 7.16.130 fi "defines landfill as follows:
Master Program 7.16.130 Landfill Definition:
The creation of or addition to a dryupland area by depositing
materials. Depositing topsoil for normal landscaping purposes is
not considered a landfill
The definition of"landfill" above is not limited to the filling of wet areas—
it also expressly applies to the "addition" to a dry area. Consequently, Mr.
Iuliano's activities qualify as landfill. As noted in Finding of Fact No. 62,
Mr. Iuliano has deposited materials within a Class I or 11 wetland. These
wetlands satisfy the definition of "biological wetland" in Chapter 7.08
MMC. As further noted in Finding of Fact No. 63, Mr. Iuliano did not
acquire a conditional use permit to engage in this fill activity.
Consequently, the Examiner concludes that Mr. Iuliano has violated MMC
7.16.130 by placing landfill in a biological wetland without a conditional
use permit. Also, as noted in Finding of Fact No. 64, most of the fill
Mr. Iuliano s attorney did not move for dismissal on the basis that the Notice of Civil Violation
was constitutional) defective b failing to adequately identify the violations that Mr. Iuliano
Y Y g q Y fY
allegedly committed. The Examiner will not dismiss the charges sua sponte as was done in the
Gray case(Case No.01-2-0017),because in this case the Examiner is able to identify the alleged
violations. Staff should take heed,however,that it is absolutely imperative that Notices of Civil
Violation expressly identify specific sections and subsections allegedly violated by a code
enforcement defendant. The Notice should also provide a concise and clear explanation of why
staff believes the defendant has violated the particular sections and/or subsections. The absence of
this specificity creates tremendous additional work for all parties concerned,as well as creating a
significant risk of confusion and mistakes. There is no question in this case that had Mr. Iuliano's
attorney moved for dismissal on the basis of a defective Notice of Civil Violation,the Examiner
would have been forced to grant the motion.
17
activity occurred within 200 feet of a shoreline, and hence was within the
jurisdiction of the Shoreline Management Ordinance.
Violation of Mason County Resource Ordinance
MMC 17.01.070(D)(1)(a) requires a Mason Environmental Permit for the filling of
any
regulated wetland. As noted in Finding of Fact No. 16, 62, and 63, Mr. Iuliano
filled Class I or II wetlands without a permit. Class I and II wetlands qualify as
regulated wetlands under MMC 17.01.070(B)(1)(a). Consequently, Mr. luliano
has violated MMC 17.01.070(D).
DECISION
Based upon the preceding Findings of Fact and Conclusions of Law, the hearing
examiner affirms Notice of Civil Violation HEX2002-00008 on tax parcel
number 12217-12-00010, the examiner further orders the following:
Mr. luliano shall complete the corrective action specified in the August 16,
2001 Notice of Violation. All specified correction actions must be
completed by September 30 2002. The Examiner has no authority to
authorize Mr. Iuliano to undertake corrective actions on property that he
does not own. Consequently, the corrective actions specified by this order
are limited to the properties owned by Mr. Iuliano and those properties for
which he acquires permission from the owners to perform the corrective
actions. Mr. Iuliano is required to make a good faith attempt at acquiring
permission from all affected property owners to undertake the corrective
actions required herein.
The monetary penalties are assessed at $1,500.00.
$500.00 of this monetary penalty is due within twenty-one (21) days ($250
on each of the two violations). The remaining $1,000.00 is suspended on
condition that Mr. Iuliano achieve compliance by September 30, 2002. If
compliance is not achieved by September 30, 2002, the suspended $1,000
is due on that date.
18
Decision issued on the day of c , 2002.
� G
Krist n lbrechts, Hearing Examiner
NOTICE OF RIGHT OF RECONSIDERATION AND APPEAL
Appeal to Superior Court. An appeal of the decision of the Hearing Examiner
must be filed with Superior Court within twenty-one calendar days, as required by
the Land Use Petition Act, Chapter 36.70C RCW.
19
I
MASON COUNTY
DEPARTMENT OF COMMUNITY DEVELOPMENT
Planning
Mason County Bldg. 1 411 N.5th
P.O.Box 279 Shelton,WA 98584
(360) 427-9670 Belfair (360) 275-4467 Elma (360) 482-5269 Seattle (206) 464-6968
DEPARTMENT OF COMMUNITY DEVELOPMENT
PLANNING DIVISION
ADVISORY REPORT
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS
To: Kristin Olbrechts
From: �--�-
Kristin French
Code Enforcement Officer
Date: February 5, 2002
File: Iuliano, Ernesto
12217-I2-00010
HEX2002-00008
Hearing
Information: February 13, 2002, at 10:00 am
Mason County Building One
Commissioners' Chambers
411 N. 5`h
Shelton, WA 98584
I. INTRODUCTION
A. Defendant Information
1. Defendant: Ernesto Iuliano
2. Site Location: 1190 E. North Bay Road Belfair, WA
B. Violation
1. (Attachment A) The violation consists of fill placed in a Category I/II
wetland, within 200 feet of Ordinary High Water. The fill creates an
access road and parking area/turnaround approximately 130 feet long
and approximately 35 feet wide at the widest point. The upper level of
the fill material appears to have been deposited recently (during past
year), and the complaint alleges that fill material has been deposited on
several occasions during the past year. The base of the fill appears to
section 17.01.200(I)of the Mason County Resource Ordinance
submitted addressing (A) mitigation actions to achieve compliance
with the Ordinance and (B) restoration actions to achieve compliance
with the Ordinance.
II. FINDINGS OF FACT AND CONCLUSIONS
A. Case Chronology
1. (Attachment D) On August 28, 2001, a complaint was filed alleging
that filling activity had taken place in a wetland on several occasions
during the past year.
2. On August 29, 2001, I attempted to conduct a site visit. Due to the
"No Trespassing" sign, I did not make any factual determinations.
The filled area was evident from the North Bay road.
3. (Attachment E) On August 30, 2001, I mailed a letter to Mr. luliano
first class and certified, requesting to set a date for a site visit. I
requested a response by September 7, 2001.
4. (Attachment F) On September 17, 2001, I posted a Stop Work Order
on the property, as I had not received a response from Mr. Iuliano.
5. (Attachment G) On September 19, 2001, I spoke with Mr. Steve
Brown, attorney for Mr. Iuliano. I drafted a letter advising Mr. Brown
of the issues, and faxed and mailed the letter to Mr. Brown. The letter
requested that I be contacted by October 1, 2001 to set a compliance
schedule.
6. (Attachment H) On October 3, 2001, 1 spoke with Allan Borden
(Planning staff) and Allan Eaton (Public Works staff) regarding two
road access permits. Permit numbers 8057 and 8082 were issued in
1998. The purpose of the permits was to establish access within the
County right-of-way (10) from the edge of the North Bay Road.
Allan Borden and Allan Eaton both had fairly clear recollections of the
site from the 1998 permits. Each stated that the lot did not have the
road access through the lot to the present filled area. On February 5,
2002, I spoke with Karl Demeree(Public Works star. He performed
the final inspections on both of the permits, and advised me that he
remembered the site. He stated that the applicant(Mr. Iuliano) did not
have established access to the site. The applicant indicated that he just
wanted to park off the shoulder of the road.
7. Shortly before October 15, 2001, I met on site with Mr. Fred Millar.
Mr. Millar is Mr. Iuliano's nephew, and advised me that he is assisting
his uncle with this matter. Mr. Millar advised me that Steve Brown
was no longer representing his uncle on this matter. I thoroughly
explained the issues to Mr. Millar while on site.
8. (Attachment I) On October 15, 2001, I mailed a letter first class and
certified to Mr. Iuliano. I advised that I had provided compliance
details to his former attorney Steve Brown and to his nephew, Mr.
Fred Millar. I reiterated options for compliance and requested that he
contact me by November 5, 2001 to discuss a timeline for compliance.
9. Following the October 15, 2001 letter, I met with Mr. Iuliano and his
nephew on site to again explain the violation and compliance options.
I advised them of the same information that was outlined in the
previous two letters. During the site visit, Mr. Iuliano disputed the
County position that the land is classified as"wetland." He advised
me that he has deposited no fill whatsoever on the site since its
purchase in 1996. I advised Mr. Iuliano and Mr. Millar that it may be
useful to obtain a specialist's opinion regarding the"wetland"
classification. I advised Mr. Iuliano and Mr. Millar that my
observations indicate that the site is a wetland with recent deposition
of fill in the wetland. I observed that the fill is very loose on each side
with little evidence of established vegetation. I observed only recent
accumulation of leaf litter and very little established vegetation on the
surface of the fill material. I agreed to coordinate another site visit
with Mr. Iuliano and a DOE wetland specialist to address the
"wetland" classification issue.
10. On November 14, 2001, I met on site with Mr. Iuliano and DOE
wetland specialist Ann Boeholt. Ms. Boeholt was asked to determine
whether wetlands are present on the site and whether the recent fill
and/or grading had disturbed wetland areas.
11. (Attachment J) On November 19, 2001, I received a letter from Ms.
Boeholt detailing her wetland determination for the site.
12. (Attachment J) On November 20, 2001, I received an e-mail from Ms.
Boeholt that provided additional information to supplement the
November 19, 2001 letter. Ms. Boeholt advised that it appears that the
entire property is most likely a Category I or Category II forested
wetland.
13. (Attachment B) On November 21, 2001, Planning staff Pam Bennett-
Cumming advised me that Mr. Iuliano's neighbor, Donna Berg,
recently had a boundary line survey completed because she was
concerned about where the Iuliano work was taking place. Pam then
provided me with a survey completed by Richard B. Norris, P.L.S.
(#1743817)with Forest Land Surveys. The survey was filed with the
Mason County Auditor November 21, 2001 and is recorded in book 27
of SURVEYS at page 72.
14. I conducted research and discovered that the violation spans parcels
12217-12-00010/13 (Mr. Iuliano's parcels), 12217-12-00012
(Elizabeth Paine's parcel), and 12217-12-00011 (William and Donna
Berg's parcel). Shortly thereafter, Mr. Iuliano left me a voice mail
message indicating that he had learned that a portion of the violation in
question was located on other individuals' parcels.
15. (Attachment K) On December 12, 2001, I forwarded a copy of Ms.
Boeholt's letter to Mr. Iuliano and Mr. Millar. I advised that the
matter would be set for a hearing in the near future and requested that I
be contacted with any questions or concerns.
16. (Attachment L) On January 28, 2002, I mailed a Notice of Hearing to
Mr. Iuliano first class and certified.
17. (Attachment M) On January 28, 2002, 1 mailed a Notice of Hearing to
Mr. and Mrs. Berg first class and certified.
18. (Attachment N) On January 28, 2002, I mailed a Notice of Hearing to
Ms. Paine first class and certified. Ms. Paine subsequently contacted
me and indicated that she is unable to attend the hearing, but will
provide a written statement for consideration during the hearing.
19. (Attachment C) On January 31, 2002, I spoke in detail with Mr.
Iuliano on the telephone. He advised that he is in the process of
obtaining his own survey and does not believe that he will have it in
time for the February 13, 2002 hearing. I repeatedly advised of the
importance of either attending the hearing or notifying me in writing
of the need for a continuance. I mailed Mr. Iuliano a handwritten
letter advising him of the same, with my business card included.
During the conversation, Mr. Iuliano indicated that he did not care
what the decision or outcome of the hearing was because he is not
going to do anything. He indicated that he has "maintained the road
and fixed the holes" so he will continue to use the road one way or
another. He stated that"I am going to use the driveway one way or
another because I have taken care of it."
B. Law
Chapter 17.01.070 of the Mason County Resource Ordinance contains
permit requirements for activities initiated within regulated wetlands
or their buffer areas.
1. Section 17.01.070(D)provides that a"Mason Environmental Permit
shall be obtained from the County, using the administrative review
process in this Chapter, prior to undertaking, in a regulated wetland or
its vegetation area, for the following activities . . . (a) In all regulated
wetlands, the removal, excavation, grading, dredging, dumping,
discharging, or filling of any material; or the draining or flooding of
the site . . ."
2. Section 17.01.200(1)(1)provides the requirement for submission of an
acceptable Restoration Plan were any designated wetlands . . . have
been disturbed . . ."
Chapter 7.16.130 of the Mason County Shoreline Master Program
regulates the deposition of material on land under Master Program
jurisdiction.
1. Use Regulation 1 provides that"landfills are prohibited . . . on
biological wetlands, except that they may be permitted as a
Conditional Use for aquacultural practices and water dependent uses
where no upland or structural alternative is possible . . . Land fill in
biological wetlands (excluding bogs, marshes, swamps, marine and
estuarine shore) for non-water dependent uses may be permitted. Such
fill may be considered as a Conditional Use PROVIDED the applicant
can demonstrate the following: (1)Extraordinary or unique
circumstances relating to the property exist which require the proposed
shoreline location; (2)No viable alternative using a different method
or structural solution exists."
C. Application
Prior to undertaking grading, dumping, discharging, or filling of any
material in a regulated wetland, a Mason Environmental Permit shall
be obtained from the County. This requirement was in place prior to
the date that I believe the filling activity was initiated. I believe that
the filling activity was initiated in 1998, following Mr. Iuliano's
application to Public Works for an access off of the North Bay Road. I
believe that the filling activity has continued from 1998 to present.
Two Mason County Public Works employees have stated that there
was no access or fill on site when they conducted their site inspections
in 1998. Additionally, one Mason County Planning Department
employee verified that no access or fill was on site when he conducted
his site inspection in 1998. Fill placed in a regulated wetland in 1998
and at any time thereafter would have required a Mason
Environmental Permit. The fill is placed in a regulated wetland
according to a wetland categorization performed by DOE wetland
specialist Ann Boeholt.
Landfill on biological wetlands is prohibited, unless it is associated
with an aquacultural practice and/or water dependent use where no
upland or structural alternative is possible. A Conditional Use Permit
must be issued for landfill on biological wetlands associated with an
aquacultural practice and/or water dependent use. The wetland is a
biological wetland under Shoreline Master Program jurisdiction as it is
proximate to (within 200' of the OHWM) and in a position to
influence the North Bay/Coulter Creek estuarine shoreline. As such,
fill placed in the wetland would have required a Conditional Use
Permit.
D. Conclusions
A significant amount of fill material has been placed in a wetland
regulated by the Mason County Resource Ordinance and the Mason
County Shoreline Master Program. The fill was deposited on the site
without issuance of the appropriate permits. A portion of the fill
deposited by Mr. Iuliano was deposited on parcels not under Mr.
Iuliano's ownership without the knowledge or consent of the parcel
owners. The fill will remain in noncompliance with the Resource
Ordinance and the Master Program until the compliance requirements
outlined in section I(C) of this report are satisfied.
III. RECOMMENDATION
The County recommends that action to achieve compliance be taken
by March 20, 2002. The County requests that a fine amount of$2,000
be imposed, with $1,000 to be suspended if compliance is achieved
prior to March 20, 2002. The County requests that a compliance
hearing date be set for March 20, 2002.
ATTACHMENT
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ATTACHMENT
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INVE,--GATION REPORT FORM
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ATTACHMENT
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August 30, 2001
Ernesto Iuliano
992 E. North Bay Road
Belfair, WA 98528
RE: Filling activity on tax parcel number 12217-12-00010
Dear Mr. Iuliano:
This letter follows a drive-by evaluation that I conducted August 29, 2001 in response to
a complaint regarding fill in a wetland area. From the road, I was able to observe your
"No Trespassing" sign. As a result, I am writing to request a date for a site visit.
Please call me at (360) 427-9670 ext. 593 by September 7, 2001 to arrange an acceptable
date for a site visit. If you reach my voice mail, please leave a message regarding when
the site visit could be conducted. Please reference the tax parcel number in bold text
above when calling. No further filling or grading may take place until this matter is
resolved.
Thank you for your anticipated cooperation.
Sincerely,
Kristin French
Code Enforcement
ATTACHMENT
F
360-427-9670 MASON COUNTY
DEPARTMENT OF COMMUNITY DEVELOPMENT
PLANNING DIVISION
P.O. Box 279, Shelton, WA 98584
ALL PERSONS ARE HEREBY ORDERED TO AT ONCE
TOP WORK
On These Premises at 11 , Z o o � 1 D ' `40 A----
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Posted /,!)'1 P.M. (n • ( ! By
The failure to stop work, the resuming of work without permission from the
WARNING Department of Community Development,orthe removal,mutilation,destruc-
tion or concealment of this Notice is punishable by fine and imprisonment.
ATTACHMENT
G
MASON COIJ
DEPARTMENT OF COMMUNITY DEVELOPMENT
Planning — I
Mason County Bldg.I 11 N. �X e-d !—1 t
P.O.Box 279 Shelton,,WA 98584
(360) 427-9670 Belfair (360) 275-4467 Elma (360) 482-5269 Seattle (206) 464-6968
up
September 19, 2001
Steve Brown
Attorney for Ernesto Iuliano
7525 Pioneer 4202
Gig Harbor, WA 98335
RE: Tax parcel number 12217-12-00010
Dear Mr. Brown:
Thank you for your interest in resolving the enforcement action against tax parcel number 12217-
12-00010. I will fax a copy of this letter and the attached information today, September 19, 2001.
I will follow the fax with a hard copy mailed to the address above. I will continue to work
directly with you on this issue until advised otherwise.
During our phone call on September 19,2001, I provided you with some basic information
regarding this matter. I understand that you may conduct a site visit yourself, in addition to
reviewing the enclosed pictures. I am enclosing copies of the Mason County Shoreline Master
Program (SMP) Chapter 7.16.130 and Mason County Resource Ordinance Sections 17.01.070
and 17.01.200 for your review.
The work is under the jurisdiction of the SMP and Resource Ordinance. The following will be
required to resolve this issue:
Y Submission of a Shoreline Conditional Use Permit(SMP requirement)and submission of a
Mason Environmental Permit(Resource Ordinance requirement);
AND
y Submission of a Restoration Plan detailed in Section 17.01.200(I) Mason County Resource
Ordinance addressing (A) mitigation actions to achieve compliance with the Ordinance and
(B) restoration actions to achieve compliance with the Ordinance.
Please discuss this with your client and contact me by October 1, 2001 to set a compliance date.
Also, contact me at(360)427-9670 ext. 593 if you have any questions or concerns regarding this
matter. Please reference the tax parcel number in bold text above when calling.
Sincerely,
Kristin French
Code Enforcement
09/19/01 WED 10:26 FAX 3604278425 MASON COUNTY IM 001 1
xc TX REPORT
TRANSMISSION OK
TX/RX NO 0738
CONNECTION TEL 6756912538588646
CONNECTION ID
ST. TIME 09/19 10:18
USAGE T 08'11
PGS. SENT 17
RESULT OK
Phone: 360-427-9G70
Fax: 360-427-8425
Mason •
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PERMIT
Transmittal Sheet
Permit Number: 8057
Type of Permit: District : 1
single family access Rd Number: 68360
Road Name: North Bay Road
Permittee: Location
Ernesto Iuliano Date 04/15/98
BOND INFORMATION
Bond Posted: No If Posted - Amount of Bond: $
County Receipt Number: Check Number:
SITE PRE-INSPECTION
Sight Distance: Left C_ Right 0 � Culvert Required: Yes y No
Comments• ,� c
C' M
Date: �
C.� "' �G`� � By: �_�i ���.. .-{.... (Inspector)
PROPERTY OWNER NOTIFICATION
Property owner notified of results of site inspection and permit issued by Engineer's
Office on this date: Access may now be installed.
Comments:
NOTIFICATION OF COMPLETION
Received notification from permittee that access is complete and ready for final
inspection on this date:
FINAL INSPECTION:
comments: �[y n�. 5 L ki_
Date: ( By: — (Inspector)
TO: ACCOUNTING (for return of bond)
Request for bond return sent to Treasurer's Office:
Bond returned to Permittee:
By: Check Number:
PERMIT
- Transmittal Sheet
Permit Number: 8082
Type of Permit: District :
multi-use Rd Number: 68360
Road Name: North Bay
Permittee: Location
Ernesto Iuliano Date 06/03/98
BOND INFORMATION
Bond Posted: No If Posted - Amount of Bond: $
County Receipt Number: Check Number:
SITE PRE-INSPECTION
Sight Distance: Left (],L- Right Culvert Required: Yes �_ No
Comments: � ' C i2�Sa! C i`� /` 5.� 4
l }
/Date: By: (Inspector
� '
�i
ROP y OWNER NOTIFICATION
Property owner notified of results of site inspection and permit issued by Engineer's
Office on this date: Access may now be installed.
Comments:
NOTIFICATION OF COMPLETION
Received notification from permitt_T hit access is complete and ready for final
inspection on this date:
FINAL INSPECTION:
Comments: �Qa(( G ��
f'G Q i
Date: n � .� U BY� (Inspector)
TO: ACCOUNTING (for return of bond)
Request for bond return sent to Treasurer's Office:
Bond returned to Permittee:
By: Check Number:
ATTACHMENT
I
MASON COUNT . S
DEPARTMENT OF COMMUNITY DEVELOPMENT
Planning
Mason County Bldg 1 411 N. 5th
P.O.Box 279 Shelton,WA 98584
(360) 427-9670 Belfair (360) 275-4467 Elma (360) 482-5269 Seattle (206) 464-6968
October 15, 2001
Ernesto Iuliano
992 E. North Bay Rd.
Belfair, WA 98528
RE: Tax parcel number 12217-12-00010
Dear Mr. Iuliano:
Thank you for your continued interest in resolving the enforcement action against tax
parcel number 12217-12-00010. I am writing to summarize details discussed during my
site visit with Mr. Fred Milear, and to clarify requirements for compliance.
In my correspondence to your attorney, Steve Brown, I indicated that the filling activity
is regulated under Mason County's Shoreline Master Program and Resource Ordinance.
I understand that Mr. Brown is no longer involved in this matter, and so I have advised
Mr. Milear of the same. While on site, Mr. Milear and I reviewed the applicable
ordinances. I explained to him that I am reviewing the project as recent fill subject to
County review and approval. The Shoreline Master Program, adopted August 12, 1975
and amended March 1, 1988, prohibits fill on biological wetlands. However, a
Conditional Use Permit may be issued for fill "for aquacultural practices and water
dependent uses where no upland or structural alternative is possible." If you wish to
retain the fill extending past the County Road Right Of Way, please contact me by
November 5, 2001 to discuss a timeline for submission of the following:
'r Submission of a Shoreline Conditional Use Permit (SMP requirement) and
submission of a Mason Environmental Permit (Resource Ordinance requirement),
AND
r Submission of a Restoration Plan detailed in Section 17.01.200(I)Mason County
Resource Ordinance addressing(A) mitigation actions to achieve compliance with the
Ordinance and (B) restoration actions to achieve compliance with the Ordinance.
Submission of permit applications does not guarantee project approval. If you do not
wish to apply for the permits noted above, the only option will be to remove the fill back
to the County Road Right of Way. Public Works Permits (number 8057 and 8082)
address access within the County Road Right of Way. They do not address the entire
parcel.
Please contact me by November 5, 2001 to set a timeline for permit submission or
removal of the fill. Also, contact me at (360)427-9670 ext. 593 if you have any
questions or concerns regarding this matter. Please reference the tax parcel number in
bold text above when calling.
Sincerely,
7 ,.. 9Aa.,,..c-4,
Kristin French
Code Enforcement
CHAPTER 7.16.130
LANDFILL
DEFINITION
The creation of or addition to a dry upland area by depositing materials.
Depositing topsoil for normal landscaping purposes is not considered a
landfill .
POLICIES
1 . Any permitted fills or shoreline cuts should be designed so that no
significant damage to existing ecological values or natural resources, or
alteration of local currents will occur, creating a hazard to adjacent life,
property, ecological values, or natural resources.
2. Priority should be given to landfills for water dependent uses.
3. In evaluating fill projects and in designating areas appropriate for
fill , such factors as total water surface reduction, navigation restriction,
impediment of water flow and circulation, reduction of water quality and
destruction of habitat should be considered.
USE REGULATIONS
1 . Landfills are prohibited waterward of the ordinary high water mark or
on biological wetlands, except that they may be permitted as a Conditional Use
for aquacultural practices and water dependent uses where no upland or
structural alternative is possible. Fill necessary for erosion control
bulkheads shall not be considered under landfill . Landfill in biological
wetlands (excluding bogs, marshes, swamps, marine and estuarine shore) for non-
water dependent uses may be permitted. Such fill may be considered as a
Conditional Use PROVIDED the applicant can demonstrate the following: (I)
Extraordinary or unique circumstances relating to the property exist which
require the proposed shoreline location; (2) No viable alternative using a
different method or structural solution exists.
2. Landfills are not permitted on estuaries, tidelands, marshes, ponds
or swamps, except that they may be allowed for water dependent uses as a
Conditional Use.
3. Landfills are not permitted in floodplains unless it can be clearly
demonstrated that the geohydraulic and floodplain storage capacity will not be
altered to increase flood hazard or other damage to life or property.
4. Landfills shall not disrupt normal surface water drainage.
5. Permitted fills shall be appropriately sloped and planted with
vegetation to prevent erosion.
6. Applications for landfill projects shall include the following
information (at a minimum) :
a. Character and source of fill material ;
61
b. Method of placement and compaction;
C. Type of surfacing proposed, if any;
d. Method of perimeter erosion control ;
e. Proposed use of fill area;
f. Location of fill relative to natural or existing drainage
patterns.
i g. Proposed revegetation and/or landscaping.
7. Perimeters of fills shall be provided with vegetation, retaining
walls, or other mechanisms for erosion prevention. Any fill on or adjacent to
a tideland or shoreline shall be designed to prevent erosion.
8.: ' -fill materials shall be of such quality that they will not cause
degradation of water quality.
9. Sanitary landfills and solid waste disposal sites are prohibited uses
within the shoreline jurisdiction.
62
days from the da•^ ^' completion of the work or abatement -rm P p ed by Mason
County pursuant is Section. The claim of lien shall cont, ie following:
1. The authority for imposing a civil penalty or proceeding to abate the violation, or
both;
2. A brief description of the civil penalty imposed or the abatement work done, or
both, including the violations charged and the duration thereof, the time the
work is commenced and completed and the name of the persons or
organizations performing the work;
3. A legal description of the property to be charged with the lien;
4. The name of the known or reputed owner; and
5. The amount, including lawful and reasonable costs, for which the lien is
claimed.
The lien may be foreclosed by a civil action in Mason County Superior Court.
H. CRIMINAL PROCEDURES
After the Director has exhausted civil options or if criminal negligence is apparent the
Director may refer to the Prosecuting Attorney for a determination action under RCW
9.66.010.
I. RESTORATION
For property which contains designated wetlands, aquatic management areas, or
terrestrial habitat management areas or their vegetation areas which has been
disturbed, or landslide, seismic or erosion hazard areas on which a structure has been
built or located in violation of this Chapter, no permit or approval or development of the
property shall be authorized or granted for a period of up to three (3) years from
completion of restoration as determined by the Director. In the event of intentional or
knowing violation of this Chapter, the County may bring an action against the owner of
the land or the operator who committed the violation. This restoration section is also
applicable to Mitigation for Wetland Impacts (Section 17.01.070 F) as modified below.
1. Restoration Plan.
a. Where any designated wetlands, aquatic management areas, or
terrestrial management areas or their vegetation area which has been
disturbed, or subject to a permitted fill requiring mitigation, or landslide,
seismic or erosion hazard areas or their buffers has been disturbed or a
structure has been built, the applicant shall cause to be prepared, by a
qualified biologist, plant ecologist, geologist or similarly qualified
professional, as appropriate, a restoration plan which shall include as a
minimum the following:
(1) The extent of disturbance, or permitted action requiring
mitigation, including an inventory of all vegetation cleared; and
(2a) Measures necessary to restore the critical areas or their
buffers/vegetation area, including removal of fill, regrading to
original contours, if necessary, replacement of excavated
material, revegetation of all cleared areas with native trees
and/or plants and removal of structures; or
(2b) Location of the proposed mitigation action, ownership, and
methods to recreate, as nearly as possible, the original wetlands
Mason County Resource Ordinance Revised 8129100
92
or vegetation area in terms of ac a function, geographic
location and setting.
(3) A schedule for restoration; and
(4) A monitoring plan to evaluate periodically the success of the
restoration and provide for amendments to the plan which may
become necessary to achieve its purpose.
b. In preparing and approving the restoration plan, the applicant and the
County, respectively, should consult with the Department of Wildlife,
Department of Natural Resources, Department of Fisheries, and the
Department of Ecology as appropriate.
C. The restoration plan shall be prepared at the applicant's cost and shall
be approved by the Director. The Director may approve, reject or
approve the plan with conditions. All restoration shall be consistent
with the approved restoration plan.
2. Monitoring. In any designated critical area where restoration has been required,
the applicant, at its own cost, shall provide for seasonal monitoring of the site
by a qualified biologist or other qualified professional, for a period of three years
after completion. The applicant shall submit an annual report to the Director
which discusses i) the condition of introduced or reintroduced plant species; ii)
the condition of open water areas or other water features; iii) use of the site by
fish and wildlife species; iv) any disturbances or alterations and their affects on
the restoration; v) additional or corrective measures which should be taken to
ensure the success of the restoration; and vi) other information which the
Director considers necessary to assess the status of the restoration.
3. Restoration bond. Prior to commencing restoration of a wetland, deep water
habitat, tributary stream or protected species habitat, or their vegetation area or
a steep or unstable slope, the applicant shall post with the Director a bond or
other security in an amount sufficient to cover the cost of conformance with
the conditions of the restoration plan, including corrective work necessary to
provide adequate drainage, stabilize and restore disturbed areas, and remove
sources of hazard associated with work which is not completed. After the
Director determines that restoration has been completed in compliance with
approved plans and the monitoring period has expired, the bond or other
security shall be released. The County may collect against the bond when work
which is not completed is found to be in violation of the conditions set forth in
the restoration plan and/or the Director determines that the site is in violation of
the purposes of this Chapter.
J. CLEARING AND GRADING
Where property has been subjected to clearing or grading activity in violation of this
Chapter, the County may bring an action against the owner of such land or the operator
who performed the clearing and grading. In addition, in the event of intentional or
knowing violation of this Chapter, the Court may, upon the County's request, deny
authorization of any permit or development approval on said property for a period up to
ten (10) years from the date of unauthorized clearing or grading. While a case is
pending in Court, the County shall not authorize or grant any permit or approval of
development on said property.
Mason County Resource Ordinance Revised 8129100
93
ATTACHMENT
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STATE OF WASHINGTON - -- _�
DEPARTMENT OF ECOLOGY
P.O. Box 4777.5 • Olympia, Washington 98504-7775 (360) 407-6300
November 19, 2001
Ms.Kristin French
Mason County Planning Department
411 N. 5`h
PO Box 279
Shelton,WA 98584
Dear Kristin:
Re: Wetland Determination on Parcels 1200010 and 1200013, 1190 North Bay Road,
Ernesto Iuliano, near Allyn
As per your request,I visited the above referenced parcels owned by Mr.Ernesto Iuliano with
you and Mr. Iuliano on November 14, 2001. The purpose of this site visit was to determine
whether wetlands are present on the site and whether the recent fill and or grading had disturbed
wetland areas.
This site is undeveloped,except for a gravel access road that enters the site from North Bay Road
and a ditch,which lies along the access road. I inspected the soils,vegetation,and hydrology,
on each side of the gravel access road. I also dug a soil pit within the road fill itself.
The dominant vegetation character of this site is deciduous forest. The forest canopy is
comprised of red alder(Alnus rubra)(FAC). Other dominant vegetation are salmonberry(Rubes
spectabilis)(FAC+)and red-osier dogwood(Corpus stolonifera)(FACW)in the scrub/shrub
canopy,and lady fern(Athyrium felix femina)(FAC)and horsetail(Equisetum sp.)(FAC to
FACW) in the understory. Given that the wetland indicator status of all of these dominant
vegetation species is facultative(FAC)or facultative wetland(FACW),this is clearly a
hydrophytic(or wetland)vegetation community.
According to the Soil Survey for Mason County, Washington(Soil Conservation Service 1960),
soils mapped on this site are Norma sandy loam, 0-3% slopes(parcel map and soil survey map
are attached). Norma soils are poorly drained,highly organic soils in upland depressions. They
are considered hydric soils.
I dug soil pits on both sides of the access road,and one soil pit at the north end of the site, north
of the access road. East and west of the access road,the soils were a dark brown muck in the
upper 12 inches,and then a gleyed sandy loam below that. While this soil observation does not
match the description for the surface horizons of a Norma sandy loam,the presence of the organic
soil(muck)and gleyed soils are clear indicators of hydric soils. The soils north of the access road
matched the description of Norma sandy loam. The upper horizon was dark brown(2.5Y 2.5/1)
sandy loam to 10 inches and below that a sandy loam horizon with soil color chroma of 2 and
having distinct mottles. All soil horizons were saturated with water.
Ms.Kristin French
November 19,2001
Page 2
The hydrophytic vegetation community,presence of hydric soils,and hydrology clearly reveal the
presence of wetland conditions on this site. While I only dug three soil pits, it appears, based on
the evenness of the vegetation and the topography of this site,that the site may be entirely
wetland.
I dug a soil pit within the road fill to ascertain whether the top,unconsolidated fill layer appeared
to be laid over older fill,or whether the entire profile of the road prism appeared recent. I dug
approximately 12 inches into the road fill. I observed a change in fill material after 6 inches: the
lower fill horizon was slightly brighter in color than the material above and it included larger
cobbles. Both fill horizons were unconsolidated;while we did not cause depressions in the gravel
fill by walking upon it,the material was very easy to dig into with a soil shovel. From these
observations, it appears that the top 12 inches of the gravel access road consists of two loads of
recent fill material. It does not appear that either fill material has been in place for any
considerable amount of time;the fill is not consolidated,as it would be expected to be after
weathering and continuously being driven upon over time.
I did not dig to the base of the road fill, so I am unable to conclude whether the newer 12 inches
of road fill was placed on top of original soils,or on top of an older layer of previous road fill.
Nor could I determine the absolute depth of the newer fill. It is clear that the location of the
gravel access road was originally wetland and that fill material had been placed in this area of
wetland,evidently without permits. However,I am unable to conclude whether the original
wetland fill had been placed in the past 4 years,under Mr. Iuliano's ownership,or by the previous
owner. To address this question,I would recommend digging another hole within the roadbed,
until the original soils are reached and analyzing the structure of all horizons of fill material.
Mr. Iuliano should be cautioned that any further placement of fill on this site will require permits
from the County,the US Army Corps of Engineers, subject to section 404 of the Federal Clean
Water At, and approval from the Department of Ecology. If he wishes to discuss permit
requirements from the State and Federal government, he is welcome to call me, at(360)407-
6221, or Helen Pressley,our Federal Permit Coordinator,at(360)407-6926.
1 hope this report assists you in your investigation of this potential wetland violation. Please call
me if you have any questions regarding this letter or if I can be of any further assistance.
Since ly,
Ann Boeholt,Wet4Spec
Shorelands and Environmental Assistance Program
AB:dn
Kristir French- Rating of wetland on luliano Parcels Page 1
From: "Boeholt, Ann" <aboe461 c@ECY.WA.GOV>
To: "'french k@co.mason.wa.us"' <frenchk@co.mason.wa.us>
Date: 11/20/01 1:46PM
Subject: Rating of wetland on Juliano Parcels
November 20, 2001
Dear Kristen,
Per your telephone request, I worked through the wetlands rating field data
form from the Washington State Wetland Rating System (Second edition). I'm
sorry that I failed to do this along with my earlier evaluation.
The wetland on luliano's property at 1190 North Bay Road, Allyn is either
Category I or Category 11. While there is no question that it is associated
with the North Bay/Coulter Creek estuary, it is considered separate from the
estuarine wetland for the purpose of wetland rating, since the hydrology of
the freshwater wetland is different from that of the estuarine wetland.
Mr. luliano stated that the area within these two parcels is approximately 2
acres. In my November 19 letter to you I stated that it appears likely that
the entire property is wetland. The wetland is classified as forested.
We did not core the trees to determine their age. But, based on their
girth, it is likely that the trees are greater than 50 years old.
Historical aerial photographs or coring the trees could be used to determine
the age of these trees. Given that the forested wetland is greater than 1
acre and that the forest structure is diverse, with trees 20-49 ft. tall,
shrubs, and an herbaceous groundcover, and that invasive/exotic plant
species are not present on this site, if the majority of the red alder trees
comprising the upper forest canopy are older than 50 years, this would be
considered a mature forested wetland--a Category I wetland.
If this criteria is not met, this wetland would still rate as a category II.
It receives 22 points from the rating system field data form. It receives
points for:
size (between 1 and 5 acres)--2 points;
species diversity within the forested wetland class (greater than 4
plant species with a cover greater than 5%)--3 points;
connection to streams (there is a stream at the north end of the
parcel)--2 points. The rating system does not give points for connection to
an estuary or mud-flats, but this element gets wrapped into the question of
connection to other habitat areas;
being well buffered--3 points;
having structural diversity within the forest, with 4 canopy layers:
tall trees, short trees, shrubs, and herbaceous ground cover--4 points;
having additional habitat features: probably at least 3 standing
dead trees per acre and areas that are ponded for at least 4 months out of
the year--3 points;
connection to other habitat areas (the estuary and mudflats) and to
an extensive wetland system that lies between the base of the hill and the
estuary all along this stretch of North Bay Road--5 points.
If the County can review aerial photographs dating back for more than 50
years, that may resolve the question of whether or not this wetland would be
Kristin French Rating of wetland on Juliano Parcels Paye 2
.. .........................................
4
considered a mature forested wetland. If not, this wetland would receive a
category II rating. If Mr. luliano wishes to hire a consultant to delineate
the wetland and reassess the category of the wetland, he should be sure to
rate the entire wetland, not just that portion of the wetland which lies on
his property.
I failed to mention in my letter to you (dated November 19) that this is
also an associated wetland, subject to shoreline jurisdiction. It is
proximate to and in a position to greatly influence the North Bay/Coulter
Creek estuarine shoreline. Any wetland fill or other activities on this
site are subject to shoreline review and permitting. The County takes the
lead on administering the shoreline act. Ecology reviews shoreline
permitting decisions and our approval is required for shoreline conditional
use and variance permits.
Sincerely,
Ann Boeholt, Wetland Specialist
Department of Ecology, SWRO
(360) 407-6221
aboe461 c@ecy.wa.gov
CC: "Vanzwalenburg, Kim" <kvan461 c@ECY.WA.GOV>
ATTACHMENT K
MASON COUNti
DEPARTMENT OF COMMUNITY DEVELOPMENT
Planning
Mason County Bldg. 1 411 N.5th
P.O.Box 279 Shelton,WA 98584
(360) 427-9670 Belfair (360) 275-4467 Elma (360) 482-5269 Seattle (206) 464-6968
December 12, 2001
Ernesto luliano
992 E. North Bay Road
Belfair, WA 98528
RE: Wetland determination letter from Department of Ecology
Dear Mr. Iuliano:
On November 14, 2001, I met with you and Ann Boeholt at the site of the graveled area
that is the subject of my enforcement action. The purpose of the meeting was to obtain
Ms. Boeholt's formal site evaluation. I have enclosed a copy of Ms. Boeholt's letter for
your review.
I will be scheduling this matter for a hearing in the near future. A Notice of Civil
Violation will be mailed prior to the hearing, advising you of the date, time, and place of
the hearing and the specific issues to be addressed. If you have questions or concerns
regarding this matter, please contact me at (360) 427-9670 ext. 593.
Sincerely,
Kristin French
Code Enforcement
cc: Darren Nienaber, Prosecuting Attorney
Bob Fink, Planning Manager
TAT
O
4 9 ■ ■
. o E
CEIVEJ)
Nov 2 6 2C^1
STATE OF WASHINGTON Mc��; '
DEPARTMENT OF ECOLOGY
P.O. Box 47775 • Olympia, Washington 98504-7775 • (360)407-6300
November 19,2001
Ms.Kristin French
Mason County Planning Department
411N. 5"
PO Box 279
Shelton, WA 98584
Dear Kristin:
and 1200013 1190 North BayRoad
Re: Wetland Determination on Parcels 1200010
Ernesto Iuliano,near Allyn
As per your request,I visited the above referenced parcels owned by Mr. Ernesto Iuliano with
you and Mr. Iuliano on November 14,2001. The purpose of this site visit was to determine
whether wetlands are present on the site and whether the recent fill and or grading had disturbed
wetland areas.
This site is undeveloped,except for a gravel access road that enters the site from North Bay Road
and a ditch,which lies along the access road. I inspected the soils,vegetation,and hydrology,
on each side of the gravel access road. I also dug a soil pit within the road fill itself.
The dominant vegetation character of this site is deciduous forest. The forest canopy is
comprised of red alder(Alnus rubra)(FAC). Other dominant vegetation are salmonberry(Rubes
spectabilis)(FAC+)and red-osier dogwood(Cornus stolonifera)(FACW)in the scrub/shrub
canopy,and lady fern(Athyrium felix femina)(FAC)and horsetail(Equisetum sp.)(FAC to
FACW) in the understory. Given that the wetland indicator status of all of these dominant
vegetation species is facultative(FAC)or facultative wetland(FACW),this is clearly a
hydrophytic(or wetland)vegetation community.
According to the Soil Survey for Mason County, Washington(Soil Conservation Service 1960),
soils mapped on this site are Norma sandy loam, 0-3%slopes(parcel map and soil survey map
are attached). Norma soils are poorly drained,highly organic soils in upland depressions. They
are considered hydric soils.
I dug soil pits on both sides of the access road,and one soil pit at the north end of the site,north
of the access road. East and west of the access road,the soils were a dark brown muck in the
upper 12 inches,and then a gleyed sandy loam below that.While this soil observation does not
match the description for the surface horizons of a Norma sandy loam,the presence of the organic
soil(muck)and gleyed soils are clear indicators of hydric soils. The soils north of the access road
matched the description of Norma sandy loam. The upper horizon was dark brown(2.5Y 2.5/1)
sandy loam to 10 inches and below that a sandy loam horizon with soil color chroma of 2 and
having distinct mottles. All soil horizons were saturated with water.
' Ms.Kristin French
November 19,2001
Page 2
The hydrophytic vegetation community, presence of hydric soils, and hydrology clearly reveal the
presence of wetland conditions on this site. While I only dug three soil pits, it appears, based on
the evenness of the vegetation and the topography of this site,that the site may be entirely
wetland.
I dug a soil pit within the road fill to ascertain whether the top, unconsolidated fill layer appeared
to be laid over older fill, or whether the entire profile of the road prism appeared recent. I dug
approximately 12 inches into the road fill. I observed a change in fill material after 6 inches: the
lower fill horizon was slightly brighter in color than the material above and it included larger
cobbles. Both fill horizons were unconsolidated; while we did not cause depressions in the gravel
fill by walking upon it,the material was very easy to dig into with a soil shovel. From these
observations, it appears that the top 12 inches of the gravel access road consists of two loads of
recent fill material. It does not appear that either fill material has been in place for any
considerable amount of time; the fill is not consolidated,as it would be expected to be after
weathering and continuously being driven upon over time.
I did not dig to the base of the road fill, so I am unable to conclude whether the newer 12 inches
of road fill was placed on top of original soils, or on top of an older layer of previous road fill.
Nor could I determine the absolute depth of the newer fill. It is clear that the location of the
gravel access road was originally wetland and that fill material had been placed in this area of
wetland, evidently without permits. However, I am unable to conclude whether the original
wetland fill had been placed in the past 4 years, under Mr. Iuliano's ownership,or by the previous
owner. To address this question, I would recommend digging another hole within the roadbed,
until the original soils are reached and analyzing the structure of all horizons of fill material.
Mr. Iuliano should be cautioned that any further placement of fill on this site will require permits
from the County, the US Army Corps of Engineers, subject to section 404 of the Federal Clean
Water At, and approval from the Department of Ecology. If he wishes to discuss permit
requirements from the State and Federal government, he is welcome to call me, at(360)407-
6221, or Helen Pressley,our Federal Permit Coordinator,at(360)407-6926.
I hope this report assists you in your investigation of this potential wetland violation. Please call
me if you have any questions regarding this letter or if I can be of any further assistance.
Since ly,
Ann Boeholt, Wetland Spec Est
Shorelands and Environmental Assistance Program
AB:dn
ATTACHMENT L
MASON COUNTY
DEPARTMENT OF COMMUNITY DEVELOPMENT n� a R cl
Planning I V`
Mason County Bldg. 1 411 N.5th U Z
P.O.Box 279 Shelton,WA 98584
(360) 427-9670 Belfair (360) 275-4467 Elma (360) 482-5269 Seattle (206) 464-6968
NOTICE OF HEARING
YOU ARE REQUIRED TO BE PRESENT FEBRUARY 13, 2002 AT 10:00 AM
MASON COUNTY BUILDING ONE,COMMISSIONERS' CHAMBERS
411 N. 5T1 SHELTON,WA 98584
January 28, 2002
Ernesto Iuliano
992 E. North Bay Road
Belfair, WA 98528
RE: NOTICE OF CIVIL VIOLATION 12217-12-00010 and related parcels
Dear Mr. Iuliano:
This letter serves as a Notice of Civil Violation in accordance with section 15.13.035 of
the Mason County Development Code.
(1) This Notice is directed to Mr. Ernesto Iuliano at 992 E. North Bay Road Belfair, WA
98528.
(2) Originally, it appeared that the violation was located on tax parcel 12217-12-00010
(1190 E. North Bay Road Belfair, WA 98528). After review of a survey dated
November 21, 2001, filed by Richard B. Norris, it appears that the violation traverses
tax parcels 12217-12-00011 (owned by William and Donna Berg), 12217-12-00012
(owned by Elizabeth Paine), and 12217-12-00013 and 10 (owned by yourself). The
violation consists of fill placed in a Category II Wetland, within 200 feet of Ordinary
High Water. The fill creates an access road and parking area/turnaround
approximately 130 feet long and approximately 35 feet wide at the widest point. The
complaint alleges fill has been deposited on several occasions during the past year.
The work was performed without Planning Department review and issuance of
necessary permits.
(3) This Notice is effective immediately upon posting at the site and/or receipt by the
person to whom it is directed.
(4) Any activity not in compliance with the Mason County Resource Ordinance and the
Mason County Shoreline Master Program must immediately cease.
(5) This Notice serves as a"Stop Work"Order until the violation is corrected and/or
remediated as specified under number(6).
(6)You must immediately comply with the following requirements:
➢ Submission of a Shoreline Conditional Use Permit (Shoreline Master Program
requirement) and submission of a Mason Environmental Permit(Resource Ordinance
requirement);
AND
➢ Submission of a Restoration Plan detailed in section 17.01.200(I) of the Mason
County Resource Ordinance addressing(A)mitigation actions to achieve compliance
with the Ordinance and(B)restoration actions to achieve compliance with the
Ordinance.
OR
➢ Removal of fill and submission of a Restoration Plan detailed in section 17.01.200(I)
of the Mason County Resource Ordinance addressing(A)mitigation actions to
achieve compliance with the Ordinance and(B)restoration actions to achieve
compliance with the Ordinance.
The Shoreline Conditional Use Permit, Mason Environmental Permit, and Restoration
Plan must be received by February 11, 2002 if you wish to have the hearing canceled.
Fees for"after the fact'permits are tripled. Submission of after the fact permits does not
guarantee approval. If you choose to remove the fill,please provide documentation of fill
removal prior to February 11, 2002 if you wish to have the hearing canceled.
The requirements noted above were explained in correspondence mailed to Steve Brown,
your former attorney, dated September 19, 2001 and in correspondence mailed to you
October 15, 2001. I have also discussed the requirements with you and your nephew,
Fred Millar, while on site.
(7) Failure to comply with the requirements listed above may result in further
enforcement actions, including civil fines and criminal penalties. The County will
recommend a$1,000 fine with compliance conditions if this matter proceeds to a
hearing. In addition, you may be found responsible for costs incurred by the County
if this matter proceeds to a hearing.
(8) HEARING DATE: Per section 15.13.045 of the Mason County Development Code,
you are scheduled to appear before the Hearing Examiner as noted below. The
hearing will be canceled if the applicable Review Authority determines that the
required corrective action has been completed or is on schedule for completion
as set by the Review Authority at least 48 hours prior to the scheduled hearing.
Required corrective action is detailed in number six, above.
YOU ARE REQUIRED TO BE PRESENT FEBRUARY 13,2002 AT 10:00 AM
MASON COUNTY BUILDING ONE,COMMISSIONERS' CHAMBERS
411 N. 5Tx SHELTON,WA 98584
Sincerely,
Kristin French
Code Enforcement
ATTACHMENT M
MASON COUNTY a;
DEPARTMENT OF COMMUNITY DEVELOPMENT
Planning
Mason County Bldg. 1411 N.5th
P.O.Box 279 Shelton,WA 98584
(360) 427-9670 Belfair (360) 275-4467 Elma (360) 482-5269 Seattle (206) 464-6968
NOTICE OF HEARING
YOU ARE REQUIRED TO BE PRESENT FEBRUARY 13, 2002 AT 10:00 AM
MASON COUNTY BUILDING ONE, COMMISSIONERS' CHAMBERS
411 N. 5TH SHELTON, WA 98584
January 25, 2002
William and Donna Berg
PO Box 340
Belfair, WA 98528-0340
RE: Work performed on tax parcels 12217-12-00010, 12217-12-00013,
12217-12-00012, and 12217-12-00011 (your parcel)
Dear Mr. and Mrs. Berg:
On February 13, 2002, a hearing is being held to address work performed on the above
mentioned tax parcel numbers. A recent survey indicates that a portion of the work in
question was performed on tax parcel number 12217-12-00011, a parcel under your
ownership. As such, you are required to be present for the February 13, 2002 hearing.
Although you are not being issued a Notice of Civil Violation at this point, your failure to
attend the hearing may result in the issuance of a Notice of Civil Violation against you.
See the attached Notice of Civil Violation issued to Mr. Ernesto Iuliano for more
information on the details of this matter.
I understand that you may have questions and concerns regarding this letter. I have
spoken with you regarding this issue, welcome you to contact me at(360)427-9670 ext.
593 if you have questions or concerns.
Very Sincerely,
Kristin French
Code Enforcement
ATTACHMENT N
MASON COUNTY M46 i 6 S♦ CA /
DEPARTMENT OF COMMUNITY DEVELOPMENT
Planning O
Mason County Bldg. 1411 N.5th
P.O.Box 279 Shelton,WA 98584
(360) 427-9670 Belfair (360) 275-4467 Elma (360) 482-5269 Seattle (206) 464-6968
NOTICE OF HEARING
YOU ARE REQUIRED TO BE PRESENT FEBRUARY 13, 2002 AT 10:00 AM
MASON COUNTY BUILDING ONE, COMMISSIONERS' CHAMBERS
411 N. 5TH SHELTON,WA 98584
January 25, 2002
Elizabeth Paine
8926 NE 361, St.
Bellevue, WA 98004-1237
RE: Work performed on tax parcels 12217-12-00010, 12217-12-00013,
12217-12-00012 (your parcel), and 12217-12-00011
Dear Ms. Paine:
On February 13, 2002, a hearing is being held to address work performed on the above
mentioned tax parcel numbers. A recent survey indicates that a portion of the work in
question was performed on tax parcel number 12217-12-00012, a parcel under your
ownership. As such, you are required to be present for the February 13, 2002 hearing.
Although you are not being issued a Notice of Civil Violation at this point, your failure to
attend the hearing may result in the issuance of a Notice of Civil Violation against you.
See the attached Notice of Civil Violation issued to Mr. Ernesto Iuliano for more
information on the details of this matter.
I understand that you may have questions and concerns regarding this letter. I have tried
to contact you but was not able to obtain a contact phone number for you. Please contact
me at (360) 427-9670 ext. 593 if you have questions or concerns regarding this matter.
Very Sincerely,
Kristin French
Code Enforcement
SETTLE&JOHNSONPLI-C.
ATTORNEYS AT LAW
ANGLE BUILDING
P.O.BOX 1400
SHELTON,WASHINGTON 98584
BENJAMIN H.SETTLE TELEPHONE
ROBERT W.JOHNSON (360)426-9728
FAX(360)426-1902
REC "
February 5, 2002 FEB C 6 2002
Kristin French
Mason County Community Development MCCD - PLANNING
P.O. Box 279
Shelton, WA 98584
Kristen Olbrechts
Hearings Examiner
705 2' Avenue, Suite 400
Seattle, Washington 98104-1718
Re: Notice of Civil Violation 12217-12-00010 and related parcels
Dear Sir or Madam:
I have been retained by Ernesto Juliano to represent him in the above referenced
violation hearing scheduled for February 13, 2002. I am hereby moving to continue the
hearing until March 20, 2002. Please consider this letter my notice of appearance.
Sincerely,
SETTLE & JOHNSON P.I,, .c
By: ROBERT W. JOHNSON
RWJ:fh
L
February 4, 2002
RECEIVED
FEB 0 5 2002
Mason County MCCD - p
Department of Community Development CANNING
P.O. Box 279
Shelton, WA 98584
Attn: Kristin French
-F e: Work perfon ed on tax parcels 12217-12-00al() --122a 7-12-00013, 12217-12-
00012 (my parcel), and 12217-12-00011
Dear Ms. French:
The gravel driveway that is the subject of the above hearing was put in without my
knowledge or consent. My property adjoins that of Ernesto Iuliano, who I believe had
this work done. I inherited this property in 1993 and have only seen it twice.
I request that the Hearing Examiner order Mr. Iuliano to restore my property so that it
is in compliance with all state and/or county regulations.
I hope this letter is sufficent to excuse my presence at the hearing on February 13.
Please let me know. I am needed at my job in Bellevue.
Sincerely,
Signed and sworn under penalty of perjury
Elizabeth Paine
8926 N.E. 361h St.
Bellevue, WA 98004
425.454.4869 (home)
425.453.6980 (work)
[/BA020350.008] 2/4/02
NEW ATTACHMENTS
Notice of Hearing to all parties
Elizabeth Paine's affadavit
03/06/02 WED 11: 21 FAX 3604278425 MASON COUNTY Z 001
* * TX REPORT *xs
TRANSMISSION OK
TX/RX NO 1844
CONNECTION TEL 94261902
CONNECTION ID
ST. TIME 03/06 11: 19
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• Mason County Cpmmunity Dcvelupmenl
Cade Enfurcemcnt,Kristin rrench
• PO Box 279
Shelton,WA 98584
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To: Rob Johnson Fax: (360)426-1902
From: Kristin French Date: 3/6/02
Re: Juliano; 12217-12-0001.0 Pages: 4 inc. cover
CC:
❑ Urgent For Review ❑ Please Comment ❑ Please Reply ❑ Please Recycle
. . . . . . . . . .
Rob,
Darren indicated that he spoke with you regarding moving the hearing time for the luliano
matter from 10.'00 am to 1'00 pm. As that worked for you, I am sending an updated
hearing notice reflecting a hearing date of March 20, 2002 with a time of 1:00 pm. If you
have any questions, please give me a call.
Kristin
MASON COUNT
DEPARTMENT OF COMMUNITY DEVELOPMENT
Planning
Mason County Bldg.1 411 N.5th
P.O.Box 279 Shelton,WA 98584
(360) 427-9670 Belfair(360) 275-4467 Elma (360) 482-5269 Seattle (206) 464-6968
NOTICE OF HEARING
YOU ARE REQUIRED TO BE PRESENT MARCH 20, 2002 AT 1:00 PM
MASON COUNTY BUILDING ONE, COMMISSIONERS' CHAMBERS
411 N. 5TH SHELTON, WA 98584
March 5, 2002
Ernesto luliano
992 E. North Bay Road
Belfair, WA 98528
RE: NOTICE OF CIVIL VIOLATION 12217-12-00010 and related parcels
Dear Mr. Iuliano:
This letter serves as a Notice of Civil Violation in accordance with section 15.13.035 of
the Mason County Development Code.
(1) This Notice is directed to Mr. Ernesto Iuliano at 992 E. North Bay Road Belfair, WA
98528.
(2) Originally, it appeared that the violation was located on tax parcel 12217-12-00010
(1190 E. North Bay Road Belfair, WA 98528). After review of a survey dated
November 21, 2001, filed by Richard B. Norris, it appears that the violation traverses
tax parcels 12217-12-00011 (owned by William and Donna Berg), 12217-12-00012
(owned by Elizabeth Paine), and 12217-12-00013 and 10 (owned by yourself). The
violation consists of fill placed in a Category II Wetland, within 200 feet of Ordinary
High Water. The fill creates an access road and parking area/turnaround
approximately 130 feet long and approximately 35 feet wide at the widest point. The
complaint alleges fill has been deposited on several occasions during the past year.
The work was performed without Planning Department review and issuance of
necessary permits.
(3) This Notice is effective immediately upon posting at the site and/or receipt by the
person to whom it is directed.
(4) Any activity not in compliance with the Mason County Resource Ordinance and the
Mason County Shoreline Master Program must immediately cease.
(5) This Notice serves as a"Stop Work" Order until the violation is corrected and/or
remediated as specified under number(6).
(6) You must immediately comply with the following requirements:
y Submission of a Shoreline Conditional Use Permit (Shoreline Master Program
requirement) and submission of a Mason Environmental Permit (Resource Ordinance
requirement);
AND
Y Submission of a Restoration Plan detailed in section 17.01.200(I) of the Mason
County Resource Ordinance addressing (A) mitigation actions to achieve compliance
with the Ordinance and (B) restoration actions to achieve compliance with the
Ordinance.
OR
Removal of fill and submission of a Restoration Plan detailed in section 17.01.200(I)
of the Mason County Resource Ordinance addressing (A) mitigation actions to
achieve compliance with the Ordinance and(B) restoration actions to achieve
compliance with the Ordinance.
The Shoreline Conditional Use Permit, Mason Environmental Permit, and Restoration
Plan must be received by February 11, 2002 if you wish to have the hearing canceled.
Fees for"after the fact" permits are tripled. Submission of after the fact permits does not
guarantee approval. If you choose to remove the fill, please provide documentation of fill
removal prior to March 18, 2002 if you wish to have the hearing canceled.
The requirements noted above were explained in correspondence mailed to Steve Brown,
your former attorney, dated September 19, 2001 and in correspondence mailed to you
October 15, 2001. 1 have also discussed the requirements with you and your nephew,
Fred Millar, while on site.
(7) Failure to comply with the requirements listed above may result in further
enforcement actions, including civil fines and criminal penalties. The County will
recommend a $1,000 fine with compliance conditions if this matter proceeds to a
hearing. In addition, you may be found responsible for costs incurred by the County
if this matter proceeds to a hearing.
(8) HEARING DATE: Per section 15.13.045 of the Mason County Development Code,
you are scheduled to appear before the Hearing Examiner as noted below. The
hearing will be canceled if the applicable Review Authority determines that the
required corrective action has been completed or is on schedule for completion
as set by the Review Authority at least 48 hours prior to the scheduled hearing.
Required corrective action is detailed in number six, above.
YOU ARE REQUIRED TO BE PRESENT MARCH 20, 2002 AT 1:00 PM
MASON COUNTY BUILDING ONE, COMMISSIONERS' CHAMBERS
411 N. 5TH SHELTON, WA 98584
Sincerely,
Kristin French
Code Enforcement
Fwx
MASON COUNT T A #�
DEPARTMENT OF COMMUNITY DEVELOPMENT
Planning
Mason County Bldg. 1411 N.5th
P.O.Box 279 Shelton,WA 98584
(360) 427-9670 Belfair (360) 275-4467 Elma (360) 482-5269 Seattle (206) 464-6968
NOTICE OF HEARING
YOU ARE REQUIRED TO BE PRESENT MARCH 20,2002 AT 1:00 PM
MASON COUNTY BUILDING ONE, COMMISSIONERS' CHAMBERS
411 N. 5TH SHELTON, WA 98584
March 5, 2002
Ernesto Iuliano
992 E. North Bay Road
Belfair, WA 98528
RE: NOTICE OF CIVIL VIOLATION 12217-12-00010 and related parcels
Dear Mr. Iuliano:
This letter serves as a Notice of Civil Violation in accordance with section 15.13.035 of
the Mason County Development Code.
(1) This Notice is directed to Mr. Ernesto Iuliano at 992 E. North Bay Road Belfair, WA
98528.
(2) Originally, it appeared that the violation was located on tax parcel 12217-12-00010
(1190 E. North Bay Road Belfair, WA 98528). After review of a survey dated
November 21, 2001, filed by Richard B. Norris, it appears that the violation traverses
tax parcels 12217-12-00011 (owned by William and Donna Berg), 12217-12-00012
(owned by Elizabeth Paine), and 12217-12-00013 and 10 (owned by yourself). The
violation consists of fill placed in a Category II Wetland, within 200 feet of Ordinary
High Water. The fill creates an access road and parking area/turnaround
approximately 130 feet long and approximately 35 feet wide at the widest point. The
complaint alleges fill has been deposited on several occasions during the past year.
The work was performed without Planning Department review and issuance of
necessary permits.
(3) This Notice is effective immediately upon posting at the site and/or receipt by the
person to whom it is directed.
(4) Any activity not in compliance with the Mason County Resource Ordinance and the
Mason County Shoreline Master Program must immediately cease.
(5) This Notice serves as a"Stop Work" Order until the violation is corrected and/or
remediated as specified under number(6).
(6) You must immediately comply with the following requirements:
y Submission of a Shoreline Conditional Use Permit (Shoreline Master Program
requirement) and submission of a Mason Environmental Permit (Resource Ordinance
requirement),
AND
➢ Submission of a Restoration Plan detailed in section 17.01.200(I)of the Mason
County Resource Ordinance addressing (A) mitigation actions to achieve compliance
with the Ordinance and (B) restoration actions to achieve compliance with the
Ordinance.
OR
Removal of fill and submission of a Restoration Plan detailed in section 17.01.200(I)
of the Mason County Resource Ordinance addressing (A) mitigation actions to
achieve compliance with the Ordinance and (B) restoration actions to achieve
compliance with the Ordinance.
The Shoreline Conditional Use Permit, Mason Environmental Permit, and Restoration
Plan must be received by February 11, 2002 if you wish to have the hearing canceled.
Fees for"after the fact" permits are tripled. Submission of after the fact permits does not
guarantee approval. If you choose to remove the fill, please provide documentation of fill
removal prior to March 18, 2002 if you wish to have the hearing canceled.
The requirements noted above were explained in correspondence mailed to Steve Brown,
your former attorney, dated September 19, 2001 and in correspondence mailed to you
October 15, 2001. I have also discussed the requirements with you and your nephew,
Fred Millar, while on site.
(7) Failure to comply with the requirements listed above may result in further
enforcement actions, including civil fines and criminal penalties. The County will
recommend a $1,000 fine with compliance conditions if this matter proceeds to a
hearing. In addition, you may be found responsible for costs incurred by the County
if this matter proceeds to a hearing.
(8) HEARING DATE: Per section 15.13.045 of the Mason County Development Code,
you are scheduled to appear before the Hearing Examiner as noted below. The
hearing will be canceled if the applicable Review Authority determines that the
required corrective action has been completed or is on schedule for completion
as set by the Review Authority at least 48 hours prior to the scheduled hearing.
Required corrective action is detailed in number six, above.
YOU ARE REQUIRED TO BE PRESENT MARCH 20, 2002 AT 1:00 PM
MASON COUNTY BUILDING ONE, COMMISSIONERS' CHAMBERS
411 N. 5TH SHELTON, WA 98584
Sincerely,
y�.o.�C.. .�..e,�
Kristin French
Code Enforcement
MASON COUNT
DEPARTMENT OF COMMUNITY DEVELOPMENT
Planning
Mason County Bldg.1411 N.5th
P.O.Box 279 Shelton,WA 98584
(360) 427-9670 Belfair(360) 275-4467 Elma (360) 482-5269 Seattle (206) 464-6968
NOTICE OF HEARING
YOU ARE REQUIRED TO BE PRESENT MARCH 20, 2002 AT 1:00 PM
MASON COUNTY BUILDING ONE, COMMISSIONERS' CHAMBERS
411 N. 5T11 SHELTON, WA 98584
March 5, 2002
William and Donna Berg
PO Box 340
Belfair, WA 98528-0340
RE: Work performed on tax parcels 12217-12-00010, 12217-12-00013, 12217-
12-00012, and 12217-12-00011 (your parcel)
Dear Mr. and Mrs. Berg:
On March 20, 2002 at 1:00 pm, a hearing is being held to address work performed on the
above mentioned tax parcel numbers. A recent survey indicates that a portion of the
work in question was performed on tax parcel number 12217-12-00011, a parcel under
your ownership. As such, you are required to be present for the March 20, 2002 hearing.
Although you are not being issued a Notice of Civil Violation at this point, your failure to
attend the hearing may result in the issuance of a Notice of Civil Violation against your.
See the attached Notice of Civil Violation issued to Mr. Ernesto Iuliano for more
information on the details of this matter.
I realize that you were present for the original hearing date. I apologize for the
inconvenience. If you have further questions or concerns, please contact me at (360)
427-9670 ext. 593.
Very Sincerely,
Kristin French
Code Enforcement
MASON COUN"I T
DEPARTMENT OF COMMUNITY DEVELOPMENT
Planning
Mason County Bldg. 1411 N.5th
P.O. Box 279 Shelton,WA 98584
(360) 427-9670 Belfair (360) 275-4467 Elma (360) 482-5269 Seattle (206) 464-6968
NOTICE OF HEARING
YOU ARE REQUIRED TO BE PRESENT MARCH 20, 2002 AT 1:00 PM
MASON COUNTY BUILDING ONE, COMMISSIONERS' CHAMBERS
411 N. 5TH SHELTON, WA 98584
March 5, 2002
Elizabeth Paine
8926 NE 36' St.
Bellevue, WA 98004-1237
RE: Work performed on tax parcels 12217-12-00010, 12217-12-00013, 12217-
I2-00012 (your parcel), and 12217-12-00011
Dear Ms. Paine:
The hearing to address the Iuliano matter was continued from February 13, 2002 to
March 20, 2002. On March 20, 2002 at 1:00 pm, a hearing is being held to address work
performed on the above mentioned tax parcel numbers. A recent survey indicates that a
portion of the work in question was performed on tax parcel number 12217-12-00012, a
parcel under your ownership. As such, you are required to be present for the March 20,
2002 hearing. Although you are not being issued a Notice of Civil Violation at this point,
your failure to attend the hearing may result in the issuance of a Notice of Civil Violation
Y
against our. See the attached Notice of Civil Violation issued to Mr. Ernesto Iuliano for
g
more information on the details of this matter.
I realize that you were unable to attend the original hearing date due to work obligations.
If you are not able to attend this hearing, another letter of explanation must be submitted.
I apologize for the inconvenience. If you have further questions or concerns, please
contact me at (360) 427-9670 ext. 593.
Very Sincerely,
Kristin French
Code Enforcement
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BOSWELL CONSTRUCTION
Asphalt Paving
6975 Alta Vista Dr. Seal Coating Office :(360)698-4461
Port Orchard,WA 98367 Home:(360)895-8566
Lic. & Bonded
STOP: Please read terms and conditions before signing.
am not responsible for grass, ruts, trees, gas or oil spillage. All work is to be Paid upon completion unless
otherwise agreed.
All checks payable to Levy Boswell
i
Terms: LV0 C �� �rP Forrl e d o4 yor Boy &<X 14
EstimateofCost: 33 .5- pe Plu5 TAX Blade Work: 19-'Yes ❑ No
7 O Base Work: U/Yes ❑ No
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Date Completed: �7 3 Tc7 _ Type of Base: e.l�° 30 s c' cs i
Square Yardsr
Total Cost: q
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RECEIVED
MAR 12 2002
MCCD - PLANNING
March 11, 2002
Mason County
Department of Community Development
P.O. Box 279
Shelton, WA 98584
Attn: Kristin French
Re: Work performed on tax parcels 12217-12-00010, 12217-12-
00013, 12217-12-00012 (my parcel), and 12217-12-00011
Dear Ms. French;
I am writing regarding the hearing on the above matter which has been continued to 1
p.m. on March 20.
As stated in my letter of February 4, 2002 the subject code violations were done
without my knowledge or consent. I have had no part in the work done. Please refer to
this letter for further information.
It is not possible for me to attend the March 20 hearing due to my work requirements
in Bellevue. I hope this letter will suffice to excuse my being present.
I would appreciate your contacting me in regard to this request. I would also like to be
informed as to what takes place at the hearing.
Sincerely,
Signed and sworn der penalty of perjury
Elizabeth Paine
8926 N.E. 36" St.
Bellevue, WA 98004
425.454.4869 (home)
425.453.6980 (work)
[/LETTER.01]
1
2
BEFORE THE HEARINGS EXAMINER
3 OF MASON COUNTY, WASHINGTON
4 ) Case No . : No. HEX2002-00008
MASON COUNTY ) (PARCEL 12217-12-00010)
5 )
Petitioner, )
6 ) RESPONSE TO MOTION TO CONTINUE
V. )
7 )
Ernesto Iuliano )
8 )
Respondent )
9 )
10
11
12 Mason County has no objection to the Motion to continue
this matter until March 20, 2002 .
13
14
Dated this 8th day of February, 2002
15
c�L
16 Kristin French
Code Enforcement Officer
17
18
19
20
21
22
23
24
25
Summary of Pleading - 1
1
2
3
4
5
6
7 BEFORE THE
MASON COUNTY HEARINGS EXAMINER
8
9
10 MASON COUNTY )
PETITIONER, ) CASE NO. :HEX2002-00008
11 ) (12217-12-00010)
V. )
12 )
ERNESTO IULIANO )
13 ) DECLARATION
RESPONDENT. ) OF SERVICE
14 )
1
15 )
16
17 I, Kristin French, under penalty of perjury under the laws
18 of the State of Washington, declare as follows :
19 I am an employee of the Mason County Department of
20 Community Development .
21 On the date indicated below and manner indicated herein,
22 Mason County' s Response to the Motion to Continue was sent to
23 the following:
24
25 Kristen Olbrechts
Hearings Examiner
1
1 710 Second Avenue, suite 700
2 Seattle, WA 98104
3 [ ] BY UNITED STATES MAIL
[ ] BY PERSONAL DELIVERY
4 [x] BY FACSIMILE: 206-682-0707
5
Rob Johnson
P.O. Box 1400
Shelton, Washington 98584
a
[ ] BY UNITED STATES MAIL
9 [ ] BY PERSONAL DELIVERY
[x] BY FACSIMILE: 360-426-1902
10
11
tti-
12 Dated this /� day of February, 2002 at Shelton, Washington.
13
14 J �(
15 Kristin French
16
1'7
18
1U
20
21
22
23
24
25
2
4a' TOW m Nw NAldE of 0"ER JDD TRACT fD u,.,n,..,. • SALE► e"
R& MA. Pert ►UO FPO �.
} 6 01155 Glenn i� Correa e ` ax .G.iio��`rd�' 0 A L H _�y y
;• 1 1.i 00
NUMBER OF ACRES VALUATIONS
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*,—ryyjj Prudential Prudential Northwest Real Estate
22580 NE State Route 3,Belfair WA 98528
B us360275-4477 Toll-free800935-7768
Fax 360 275-4022
April 11, 2002
To Whom it may concern:
R-7, Inc. dba Prudential North West Real Estate listed and sold parcels 122171200010
and 122171200013 in 1997. It was the company's understanding that an overgrown drive
crossing parcel 122171200012 and meeting SR 302 near the to access the property for yearsArn� of parcel
122171200011 had been used
Prudential North West Real Estate
By:
0 An independently owned and operated member of The Prudential Real Estate Affiliates..^c
June 14,2001
This agreement is between Justin E.and Carol J.Taylor who own a parcel of tidelands and Ernesto V
Iuliano who desires to lease the following described tidelands(see attached sheet,parcel I for description)
located in Mason County, Washington. The agreement is for the cultivation and harvest of shellfish on
this parcel of tidelands. The term of the contract shall be for two years starting on June 8,2001 and
finishing on June 8,2003. The payment is$500 per year which Mr. Iuliano has paid in full for the two
year agreement.
Ernesto V Iuliano
Justin E.Taylor (71
Carol J.Taylor
Taylor Resources Inc. SE 130 Lynch Rd. Shelton,WA 98584
Phone: 360-426-6178 Fax:360-427-0327
F �
Minterbrook Oyster Company
Fresh or Frozen Oysters and Clams
Minterbrook Oyster Company
Post Office Box 432
Gig Harbor, WA 98335
Telephone: (253) 857-5251
Facsimile: (253) 857-5521
March 29, 2002
To Whom It May Concern:
Donna Berg contacted me regarding Ernesto Juliano and his harvesting of clams. She was extremely
upset that he was harvesting product. She stated that he was harvesting the clams on Taylor United's
property. She stated that he was stealing product and she had called the police. She also stated that
we were receiving stolen product and that she felt she better tell us about it.
I told her I knew Mr.Juliano very well and knew he was not doing any such thing. 1 told her that he
owned/leased the property he was harvesting on and I tried to calm her down. She continued to
accuse Mr.Juliano of theft and I told her that if she truly felt that Mr.Juliano was taking product from
Taylor United,that she should call Taylor's.
Mrs. Berg continued with her comments about Mr.Juliano and I finally told her enough was enough
and I hung up. Mrs. Berg called me at my home,which I did not appreciate in the first place.
I next contacted Mr.Juliano and asked him what was going on. 1 explained what had happened. He
came over immediately and showed me his lease as well as his property documents. Mr.Juliano is a
very honest, reputable businessman, who grows and harvests quality products. He has always been
above board.
Sincerely,
Erika Wiksten
General Manager
State of Washington )
ss
County of Thurston )
I, TERRY CURTIS, Records Officer regarding aerial photography for DOUG
SUTHERLAND,Commissioner of Public Lands of the State of Washington,and ex officio
Administrator of the Department of Natural Resources for the State of Washington, do
hereby certify that the foregoing is a true and correct copy of an aerial photo,dated 5-7-65,
symbol KMT-65,flight 32C,exposure number 13,the original negative of which is on file
under the custody of this office.
IN WITNESS WHEREOF, I have set my hand and affixed the seal of the
Commissioner of Public Lands, this 21St day of March, A.D. 2002.
Cyr '
TERRY CURTIS
PHOTOGRAMMETRY SUPERVISOR
Resource Mapping Section
Department of Natural Resources Certified Photograph
Ex. i
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