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HomeMy WebLinkAboutVAR2004-00034 Hearing - VAR Letters / Memos - 5/10/2005 May 10, 2005 Notice of Decision Case: VAR2004-00034 Applicant: Scott and Jan Russell Notice is hereby given that Scott and Jan Russell,who is the applicant for the above- referenced Resource Ordinance Variance has been denied. The request was denied pursuant to the Mason County Resource Ordinance (Ordinance No. 77-93), specifically for the construction of a single-family residence in a Type 3 stream buffer. This is a final County decision. No further appeals to the County are available. Appeal may be made to Superior Court or the appropriate administrative agency as regulations apply. It is the appellant's responsibility to meet all legal requirements of any appeal process. If you have questions or require clarification on these issues please contact Charles Mead McCoy III, Land-Use Planner with Mason County at 360-427-9670 x294. Charles McCoy III - 598686.DOC Page 1 1 BEFORE THE HEARING EXAMINER FOR MASON COUNTY 2 Phil Olbrechts,Hearing Examiner 3 RE: Scott and Jan Russell FINDINGS OF FACT,CONCLUSIONS 4 OF LAW AND FINAL DECISION. 5 MCC 17.01.150 Variance 6 INTRODUCTION 7 The applicants have applied for a variance from a 150-foot buffer plus 15-foot 8 building setback from a Type 3 stream in order to construct a 2,132 square foot single- family residence and garage approximately 56 feet from the stream. The Examiner 9 denies the variance because a less environmentally adverse building site (recommended by staff) is available on the subject parcel and the environmental 10 impacts of constructing in this stie have not been addressed in the proceeding for this 11 variance application. In order to build at the site recommended by staff,the applicant will have to apply for another variance or reasonable use exception in order to fully 12 assess and address the environmental impacts of building at the staff recommended site. 13 14 ORAL TESTIMONY 15 See transcript. Charles Mead McCoy III introduced the staff report, and testified that the staff recommends alternative placement of the structure further from the protected 16 stream to minimize the impact on critical areas. Mr. McCoy testified that the further the home is located from the Type III stream, the less impact the home will have due 17 to acitvities associated with the home, erosion and soil compaction. Mr. McCoy 18 based this testimony on his experience in dealing with riparian habitat. He has worked for several years for the Washington State Department of Fish and Widlife 19 studying riparian habitat and has a college degree in the biological sciences. 20 Applicant Scott Russell testified, objecting that the location suggested by staff would 21 prohibit him from installing a daylight basement because it does not have the slope of Applicants' proposed location. Mr. Russell also objected that the staffs proposed 22 location would force him to back his car out from his driveway onto the adjoining roadway,presenting safety problems. Mr. Russell cited the Habitat Management Plan 23 as concluding that the proposed location would have no adverse impact on the stream. 24 EXHIBITS 25 Exhibit 1: Staff Report. Exhibit 2: Resource Ordinance application. Russell Variance P. 1 Findings,Conclusions and Decision {VE0598521.DOC;1/13009.900000/} Charles McCoy III - 598686.DOC Page 2 Exhibit 3: Variance from Standards Information. I Exhibit 4: Habitat Management Plan. 2 Exhibit 5: July 16, 2004 Notice of Mason County Code Violation Exhibit 6: March 8,2005 Notice of Mason County Code Violation 3 Exhibit 7: Affidavit of Posting Notice Exhibit 8: Habitat Management Plan Notification of Review Letter 4 Exhibit 9: September 1,2004 Email Comments Marty Ereth 5 Exhibit 10: WDNR Stream Typing Criteria Exhibit 11: Puget Sound Cutthroat Trout ESU Map 6 Exhibit 12: Belfair UGA Draft Zoning—Online Exhibit 13: Title Notification of Habitat Management Plan 7 Exhibit 14a: Title Notification of Aquifer Recharge Area 8 Exhibit 14b: April 1, 2005 Comment Letter from John Diehl Exhibit 15: April 4,2005 Comment Letter from Dorothy M. Harper 9 Exhibit 16: March 30,2005 Comment Letter from B. Eklund 10 FINDINGS OF FACT 11 procedural: 12 1. Applicants. The Applicants are Scott and Jan Russell. 13 14 2. Hearing. The Hearing Examiner conducted a hearing on the application on April 12,2005 in the Mason County Board of Commissioners meeting room. 15 Substantive: 16 17 3. Site/Proposal Description. The parcel is rectangular in shape, extending approximately 181 feet from north to south and 274 feet from east to west. Newkirk 18 Road is adjacent to the northern property line of the parcel. An unnamed tributary (Type 3 stream)to the Union River meanders through the property in a general east to 19 west direction adjacent to the southern most property line. An access easement 20 divides the parcel into two portions, east and west of the easement. The applicants propose to construct a 2,132 square foot single-family residence and attached garage 21 approximately 56 feet from a Type 3 stream, with a septic and drain field encompassing an additional 1,800 square feet. The portion of the parcel to the west of 22 the access easement and designated as the best build-site location in the submitted f Habitat Management Plan is approximately 181' X 84' in area (See Exhibit 4). The 23 other parcel portion to the east of the access easement is approximately 181' X 190' 24 in area. There are no existing structures on the parcel. The majority of the 1.03 acre parcel exists in a mixed, coniferous/deciduous riparian forest. The best-build site 25 recommended by the Habitat Management Plan places the building in an area within the stream buffer cleared by the applicants without proper permitting. The clearing is currently the subject of a code enforcement action(See Exhibits 5 and 6) . Russell Variance p. 2 Findings,Conclusions and Decision (VE0598521.DOC;1/13009.900000/) Charles McCoy III-598686 DOC _ „. .� Page 3 1 1 4. Characteristics of the Area. The general area is north of Belfair. Several 2 single-family residences occupy the area. 3 5. Alternate Building Site. Staff have identified an alternate building site to the northeast of the proposed site. This site would place the structure 100 feet from 4 the stream as opposed to 56 feet from the stream as proposed by the applicants. 5 6. Adverse Impacts. The Habitat Management Plan(Exhibit 4) identifies the 6 greatest impact coming from the unauthorized clearing, and advocates for placement of building in this cleared area. It recommends use of preservation measures, 7 restoration measures, and best management practices to avoid, minimize and mitigate 8 for the proposed construction. It notes no adverse impacts to wildlife. However, the Habitat Management Plan also concedes that "The area initially cleared for the house 9 is not entirely the most appropriate location for the house. Because a portion of the suitable area exists further from the stream, only a portion of the already cleared zone 10 will be utilized for building." 11 Comments were received from Marty Ereth, Skokomish Tribe biologist. Exhibit 9. 12 Mr. Ereth raised concerns about the adverse impacts of building within the setback, which compounds the prior clearing on the property. Mr. Ereth advocated placement 13 of as far as possible from the stream as well as mitigation of the previously cleared area. 14 15 Comments were also received from John Diehl on behalf of Advocates For Responsible Development, raising concerns that construction within a stream buffer 16 will always have adverse effects both during the course of construction and afterward due to impacts of residents. (Exhibit 14b). Mr. Diehl also pointed out that the 17 applicants' proposed location would not be the minimum necessary to afford relief 18 from the impacts. 19 Comments were also received from two neighbors (see Exhibits 15 and 16) raising concerns about impacts to the fragile riparian woodland and abutting creek, prior 20 clearing of native vegetation, diversion of water, and the size of the proposed 21 building. 22 CONCLUSIONS OF LAW 23 Procedural: 24 25 1. Authority of Hearing Examiner. MCC 15.03.050(I) provides the Examiner with the authority to review and act upon variance applications. Russell Variance p. 3 Findings,Conclusions and Decision (VE0598521.DOC;1/13009.900000/) Charles McCoy III 598686.DOC Page 4 Substantive: 1 2 2. Zoning Designation. The parcel is within the Belfair Urban growth Area and zoned Low-Density Residential District ("R-3") per the Belfair Urban Growth 3 Area Zoning Map(Revised December 6, 2004). 4 3. Review Criteria and Application. The applicants seek a variance from a 5 150 foot setback from an adjoining Type III stream. This buffer is imposed through MMC 17.01.110, Table III. MCC 17.01.150(E) provides that the general variance 6 criteria of MCC 15.09.057 shall apply to Resource Ordinance variances. Those 7 review standards are laid out below with applicable conclusions of law. 8 MCC 15.09.057(1): The strict application of the bulk, dimensional or performance standards precludes or significantly interferes with the reasonable use of the property 9 not otherwise prohibited by county regulations. 10 4. Case law on reasonable use, at least in the constitutional context, generally 11 provides for at least one-single family home per parcel that conforms with the minimum lot size requirements. Minimum reasonable uses may also include 12 recreational uses, if factors such as investment backed expectations, historical uses, surrounding uses and parcel size are consistent with a recreational use limitation. See 13 Buechel v. Washington State Department of Ecology, 125 Wn.2d 196 (1994), for a 14 good description of the factors used in a "reasonable use" analysis, as the term is used in the Mason County shoreline variance criteria. 15 The proposal for a 2,132 square foot single-family residence and attached garage is an 16 allowable use in Belfair Urban Growth Area "R-3" zone. Several single family residences occupy the area, although it is unclear from the staff report whether they 17 are consistent in terms of size. One comment letter (Exhibit 15) objected to the 18 proposed size, although it did not state whether it was out of character with surrounding land uses. 19 One comment letter indicated the applicants originally purchased the property for 20 investment purposes, with the understanding that it was not suitable for building a 21 dwelling due to the property's shape and proximity to Viola Creek. See Exhibit 16. The property has historically been used for recreational purposes, by the applicants' 22 children as an place to play,and ride bikes and motor scooters. 23 The balancing involved in a reasonable use determination involves a consideration of 24 the burden on the property owner in addition to the impacts on environmental resources. The applicants' parcel is entirely encumbered by the stream buffer that 25 runs along the southern portion of the parcel. The size of the lot, which exceeds an acre in size, is certainly compatible with the placement of a single-family home. Single-family use is also characteristic of the area. Given these factors a minimum Russell Variance p. 4 Findings,Conclusions and Decision {VE0598521.DOC;1/13009.900000/) Charles McCoy III 598686.DOC Pale 5 F 1 reasonable use of the property is a single-family home. 2 MCC 15.09.057(2): The hardship which serves as the basis for the granting of the variance is specifically related to the property of the applicants, and is the result of 3 unique conditions such as irregular lot shape, size, or natural features in the application of the County Regulations, and not,for example,from deed restrictions or 4 the applicants'own action. 5 5. Applicants' hardship is due to the Type 3 stream that bisects the lot. The 6 entire lot is within the buffer of this stream. Consequenty,the hardship is based upon the natural feature of the lot,i.e. the Type 3 stream. 7 8 MCC 15.09.057(3): The design of the project will be compatible with other permitted activities in the area and will not cause adverse effects to adjacent 9 properties or the environment. 10 6. The construction of a single-family residence is consistent with surrounding land uses and a permitted use in the Belfair Urban Growth Area "R-3" 11 zone. Placement of the structure within the stream buffer may have adverse effects on 12 the environment, as discussed above. The applicants' testimony that the home will have no adverse impact on the stream is premised on the perpetuation of the cleared 13 site on the property. This premise would be valid if the site were a valid nonconforming use. However, as noted in the findings of fact, the clearing was done 14 in violation of the County Code. Consequently, the cleared area is an illegal use and 15 in the absence of a variance, the applicants would be required to restore the cleared area to its natural condition. 16 As noted by Mr. Diehl, the cleared area should be restored to its natural condition, 17 and any analysis of adverse impacts should address the loss of this potential habitat. 18 As noted in the staff report, the area to be restored could begin to provide the necessary elements of protection to water quality and concerns for aquatic and 19 terrestrial resources,within a few decades after completion of the restoration plan. The long-term view of the benefits of riparian restoration are preferred over the near- 20 term advantages of placing a dwelling in a cleared location as a result of a code violation in a critical area buffer 21 22 The design of the project is not compatible with the environment and does not meet this criteria. Unfortunately, the Habitat Management Plan does not address 23 environmental impacts and mitigation of development at the staff recommended alternative site. Staff have provided recommendations on mitigation measures for the 24 alternative site, but there is nothing in the record to suggest that the alternative site 25 will have "no adverse effects" to the environment as required above. A full analysis of the environmental impacts of construction in the staff recommended location will have to be considered in another variance application or reasonable use application. Russell Variance p. 5 Findings,Conclusions and Decision (VE0598521.DOC;1/13009.900000/1 Charles McCoy III - 598686.DOC Page 6 The Habitat Management Plan should support the conclusion that, as mitigated, the 1 proposed home will have no adverse environmental effect. If this cannot be done,the 2 applicant should consider applying for a reasonable use exception (MCC 17.01.120(K))instead of a variance. 3 MCC 15.09.057(4): The variance authorized does not constitute or grant special 4 privilege not enjoyed by the other properties in the area, and will be the minimum 5 necessary to afford relief. 6 7. The applicant is requesting the right to build a single-family home,which is a right enjoyed by other property owners in the vicinity. The granting of the 7 variance would not grant a special privilege. As indicated previously however,the 8 site proposed by the applicants is not the minimum necessary to afford relief. It locates the structure within 56 feet of the stream,as opposed to the staffs alternative 9 site 100 feet from the stream. The staff recommended location is less of an encroachment into the stream buffer and still provides a reasonable use to the property 10 owner. 100 foot separation is"less"of an encroachment than a 56 foot separation because,as testified by staff,the closer the structure the greater the adverse impact. 11 Consequently,the applicants' proposed location is not a minimum reasonable use. 12 MCC 15.09.057(5): The public interest will suffer no substantial detrimental effect. 13 8. As noted in the staff report (Exhibit 1) and Mr. Diehl's written comments 14 (Exhibit 14b),substantial detrimental effect to the public interest comes in the form of 15 the cumulative effect of impairment of stream buffers. This in turn negatively impacts habitats connecting stream riparian corridors, and is inconsistent and 16 incompatible with long-term efforts to"protect critical features to support genetically viable populations of fish and wildlife species and allow for commercial and non- 1 7 commercial uses". (Mason County Resource Ordinance 17.01.110.A.1). These 18 stream buffers are critical to keeping the ecosystem in a reasonable balance. Also noted in the staff report is the existence of coastal cutthroat trout (Oncorhynchus 19 clarki clarki)in the stream. Consequently,it cannot be said that the public interest will suffer no substantial detrimental effect from the proposed construction. 20 21 MCC 15.09.057(6): No variance shall be granted unless the owner otherwise lacks a reasonable use of the land. Such variance shall be consistent with the Mason County 22 Comprehensive Plan, Development Regulations, Resource Ordinance and other County ordinances, and with the Growth Management Act. Mirror loss in value only 23 shall not justify a variance. 24 9. The Comprehensive Plan and Zoning Code provide for residential 25 development in the subject area. The granting of a variance is necessary for the placement of any structure on this lot due to the required buffer/setbacks from streams and wetlands. The Growth Management Act also encourages the protection of private Russell Variance p. 6 Findings,Conclusions and Decision {VE059852 LDOC;1/13009.900000/) Charles McCoy III - 598686.DOC Page 7 property rights. However, the proposal does not provide for a minimal amount of 1 critical area disturbance, and thus is not a reasonable use of the property. The 2 alternate site proposed by staff would provide a more reasonable use of applicants' property. Any reasonable use determination involves a consideration of the burden on 3 property owner in addition to the impacts on environmental resources. Requiring placement in the alternate site does not deprive the applicants of the right to build a 4 home on their property; it merely requires them to build in a location that they 5 consider less desirable. 6 DECISION 7 The Hearing Examiner denies the requested variance because a site with less adverse 8 impact is available on the subject property. To build on this alternative site, the applicant will have to apply for another variance or reasonable use exception to 9 ensure that a full environmental review of the alternative site is undertaken. 10 Dated this 26th day of April,2005. 11 12 Phil Olbrechts 13 Mason County Hearing Examiner 14 15 16 17 18 19 20 21 22 23 24 25 Russell Variance p. 7 Findings,Conclusions and Decision (VE0598521.DOC;1/13009.900000/) 1 BEFORE THE HEARING EXAMINER FOR MASON COUNTY Phil Olbrechts, Hearing Examiner 3 RE: Scott and Jan Russell FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION. 5 MCC 17.01.150(E) Variance 6 INTRODUCTION 7 The applicants have applied for a variance from a 150-foot buffer plus 15-foot building setback from a Type 3 stream in order to construct a 2,132 square foot 8 single-family residence and garage approximately 56 feet from the stream. The q Examiner denies the variance because a less environmentally adverse building site (recommended by staff) is available on the subject parcel and the environmental 10 impacts of constructing in this stie have not been addressed in the proceeding for this variance application. In order to build at the site recommended by staff, the applicant 11 will have to apply for another variance or reasonable use exception in order to fully assess and address the environmental impacts of building at the staff recommended 1 site. 13 ORAL TESTIMONY 14 See transcript. Charles Mead McCoy III introduced the staff report, and testified that 15 the staff recommends alternative placement of the structure further from the protected stream to minimize the impact on critical areas. Mr. McCoy testified that the further 16 the home is located from the Type III stream, the less impact the home will have due 17 to acitvities associated with the home, erosion and soil compaction. Mr. McCoy based this testimony on his experience in dealing with riparian habitat. He has is worked for several years for the Washington State Department of Fish and Widlife studying riparian habitat and has a college degree in the biological sciences. 19 20 Applicant Scott Russell testified, objecting that the location suggested by staff would prohibit him from installing a daylight basement because it does not have the slope of 21 Applicants' proposed location. Mr. Russell also objected that the staff's proposed location would force him to back his car out from his driveway onto the adjoining 22 roadway, presenting safety problems. Mr. Russell cited the Habitat Management Plan 23 as concluding that the proposed location would have no adverse impact on the stream. 24 EXHIBITS 25 Exhibit 1: Staff Report. Exhibit 2: Resource Ordinance application. Exhibit 3: Variance from Standards Information. Russell Variance P. 1 Findings, Conclusions and Decision {V E0598521.DOC;1/13009.900000/1 Exhibit 4: Habitat Management Plan. 1 Exhibit 5: July 16, 2004 Notice of Mason County Code Violation 2 Exhibit 6: March 8, 2005 Notice of Mason County Code Violation Exhibit 7: Affidavit of Posting Notice 3 Exhibit 8: Habitat Management Plan Notification of Review Letter Exhibit 9: September 1, 2004 Email Comments Marty Ereth 4 Exhibit 10: WDNR Stream Typing Criteria Exhibit 11: Puget Sound Cutthroat Trout ESU Map 5 Exhibit 12: Belfair UGA Draft Zoning—Online 6 Exhibit 13: Title Notification of Habitat Management Plan Exhibit 14a: Title Notification of Aquifer Recharge Area 7 Exhibit 14b: April 1, 2005 Comment Letter from John Diehl Exhibit 15: April 4, 2005 Comment Letter from Dorothy M. Harper 8 Exhibit 16: March 30, 2005 Comment Letter from B.Eklund 9 FINDINGS OF FACT 10 Procedural: 11 12 1. Applicants. The Applicants are Scott and Jan Russell. 13 2. Hearing. The Hearing Examiner conducted a hearing on the application on April 12, 2005 in the Mason County Board of Commissioners meeting room. 14 Substantive: t5 t 6 3. Site/Proposal Description. The parcel is rectangular in shape, extending approximately 181 feet from north to south and 274 feet from east to west. Newkirk 17 Road is adjacent to the northern property line of the parcel. An unnamed tributary (Type 3 stream) to the Union River meanders through the property in a general east to 18 west direction adjacent to the southern most property line. An access easement divides the parcel into two portions, east and west of the easement. The applicants 19 propose to construct a 2,132 square foot single-family residence and attached garage 20 approximately 56 feet from a Type 3 stream, with a septic and drain field encompassing an additional 1,800 square feet. The portion of the parcel to the west of 21 the access easement and designated as the best build-site location in the submitted Habitat Management Plan is approximately 181' X 84' in area (See Exhibit 4). The other parcel portion to the east of the access easement is approximately 181' X 190' in area. There are no existing structures on the parcel. The majority of the 1.03 acre 23 parcel exists in a mixed, coniferous/deciduous riparian forest. The best-build site 24 recommended by the Habitat Management Plan places the building in an area within the stream buffer cleared by the applicants without proper permitting. The clearing is 25 currently the subject of a code enforcement action (See Exhibits 5 and 6) . Russell Variance p. 2 Findings, Conclusions and Decision t VE0598521.DOC;1/13009.900000/) 4. Characteristics of the Area. The general area is north of Belfair. Several I single-family residences occupy the area. 5. Alternate Building Site. Staff have identified an alternate building site to 3 the northeast of the proposed site. This site would place the structure 100 feet from the stream as opposed to 56 feet from the stream as proposed by the applicants. 4 6. Adverse Impacts. The Habitat Management Plan (Exhibit 4) identifies the greatest impact coming from the unauthorized clearing, and advocates for placement 6 of building in this cleared area. It recommends use of preservation measures, restoration measures, and best management practices to avoid, minimize and mitigate 7 for the proposed construction. It notes no adverse impacts to wildlife. However, the Habitat Management Plan also concedes that "The area initially cleared for the house 5 is not entirely the most appropriate location for the house. Because a portion of the suitable area exists further from the stream, only a portion of the already cleared zone 9 will be utilized for building." 10 Comments were received from Marty Ereth, Skokomish Tribe biologist. Exhibit 9. 11 Mr. Ereth raised concerns about the adverse impacts of building within the setback, which compounds the prior clearing on the property. Mr. Ereth advocated placement 12 of as far as possible from the stream as well as mitigation of the previously cleared area. 13 14 Comments were also received from John Diehl on behalf of Advocates For Responsible Development, raising concerns that construction within a stream buffer 15 will always have adverse effects both during the course of construction and afterward due to impacts of residents. (Exhibit 14b). Mr. Diehl also pointed out that the 16 applicants' proposed location would not be the minimum necessary to afford relief 17 from the impacts. 18 Comments were also received from two neighbors (see Exhibits 15 and 16) raising concerns about impacts to the fragile riparian woodland and abutting creek, prior 19 clearing of native vegetation, diversion of water, and the size of the proposed building. 20 21 CONCLUSIONS OF LAW 22 Procedural: 23 1. Authority of Hearing Examiner. MCC 15.03.050(I) provides the Examiner 24 with the authority to review and act upon variance applications. 25 Substantive: Russell Variance p. 3 Findings, Conclusions and Decision {V E0598521.DOC;1/]3009.900000/} 2. Zoning Designation. The parcel is within the Belfair Urban growth Area 1 and zoned Low-Density Residential District ("R-3") per the Belfair Urban Growth Area Zoning Map (Revised December 6, 2004). 3 3. Review Criteria and Application. The applicants seek a variance from a 150 foot setback from an adjoining Type III stream. This buffer is imposed through 4 MMC 17.01.110, Table III. MCC 17.01.150(E) provides that the general variance criteria of MCC 15.09.057 shall apply to Resource Ordinance variances. Those 5 review standards are laid out below with applicable conclusions of law. 6 MCC 15.09.057(1): The strict application of the bulk, dimensional or performance 7 standards precludes or significantly interferes with the reasonable use of the property not otherwise prohibited by county regulations. 8 4. Case law on reasonable use, at least in the constitutional context, generally 9 provides for at least one-single family home per parcel that conforms with the 1 minimum lot size requirements. Minimum reasonable uses may also include recreational uses, if factors such as investment backed expectations, historical uses, 11 surrounding uses and parcel size are consistent with a recreational use limitation. See Buechel v. Washington State Department of Ecology, 125 Wn.2d 196 (1994), for a 12 good description of the factors used in a "reasonable use" analysis, as the term is used 13 in the Mason County shoreline variance criteria. 14 The proposal for a 2,132 square foot single-family residence and attached garage is an allowable use in Belfair Urban Growth Area "R-3" zone. Several single family 15 residences occupy the area, although it is unclear from the staff report whether they are consistent in terms of size. One comment letter (Exhibit 15) objected to the 16 proposed size, although it did not state whether it was out of character with 17 surrounding land uses. 18 One comment letter indicated the applicants originally purchased the property for investment purposes, with the understanding that it was not suitable for building a 19 dwelling due to the property's shape and proximity to Viola Creek. See Exhibit 16. The property has historically been used for recreational purposes, by the applicants' 20 children as an place to play, and ride bikes and motor scooters. 21 The balancing involved in a reasonable use determination involves a consideration of 22 the burden on the property owner in addition to the impacts on environmental resources. The applicants' parcel is entirely encumbered by the stream buffer that 23 runs along the southern portion of the parcel. The size of the lot, which exceeds an acre in size, is certainly compatible with the placement of a single-family home. 24 Single-family use is also characteristic of the area. Given these factors a minimum 25 reasonable use of the property is a single-family home. Russell Variance p. 4 Findings, Conclusions and Decision {VE0598521.DOC;1/13009.900000/1 MCC 15.09.057(2): The hardship which serves as the basis for the granting of the 1 variance is specifically related to the property of the applicants, and is the result of 2 unique conditions such as irregular lot shape, size, or natural features in the application of the County Regulations, and not,for example,from deed restrictions or 3 the applicants'own action. 4 5. Applicants' hardship is due to the Type 3 stream that bisects the lot. The entire lot is within the buffer of this stream. Consequenty, the hardship is based upon 5 the natural feature of the lot, i.e. the Type 3 stream. 6 MCC 15.09.057(3): The design of the project will be compatible with other 7 permitted activities in the area and will not cause adverse effects to adjacent properties or the environment. 8 6. The construction of a single-family residence is consistent with 9 surrounding land uses and a permitted use in the Belfair Urban Growth Area "R-3" 10 zone. Placement of the structure within the stream buffer may have adverse effects on the environment, as discussed above. The applicants' testimony that the home will I 1 have no adverse impact on the stream is premised on the perpetuation of the cleared site on the property. This premise would be valid if the site were a valid 12 nonconforming use. However, as noted in the findings of fact, the clearing was done in violation of the County Code. Consequently, the cleared area is an illegal use and 13 in the absence of a variance, the applicants would be required to restore the cleared 14 area to its natural condition. 15 As noted by Mr. Diehl, the cleared area should be restored to its natural condition, and any analysis of adverse impacts should address the loss of this potential habitat. 16 As noted in the staff report, the area to be restored could begin to provide the necessary elements of protection to water quality and concerns for aquatic and 1 terrestrial resources within a few decades after completion of the restoration plan. 18 The long-term view of the benefits of riparian restoration are preferred over the near- term advantages of placing a dwelling in a cleared location as a result of a code 19 violation in a critical area buffer 20 The design of the project is not compatible with the environment and does not meet 21 this criteria. Unfortunately, the Habitat Management Plan does not address environmental impacts and mitigation of development at the staff recommended alternative site. Staff have provided recommendations on mitigation measures for the v� alternative site, but there is nothing in the record to suggest that the alternative site 23 will have "no adverse effects" to the environment as required above. A full analysis of the environmental impacts of construction in the staff recommended location will 24 have to be considered in another variance application or reasonable use application. 25 The Habitat Management Plan should support the conclusion that, as mitigated, the proposed home will have no adverse environmental effect. If this cannot be done, the Russell Variance p. 5 Findings, Conclusions and Decision (VE0598521.DOC;1/13009.900000/) applicant should consider applying for a reasonable use exception (MCC 1 17.01.120(K)) instead of a variance. 2 MCC 15.09.057(4): The variance authorized does not constitute or grant special 3 privilege not enjoyed by the other properties in the area, and will be the minimum necessary to afford relief. 4 7. The applicant is requesting the right to build a single-family home, which 5 is a right enjoyed by other property owners in the vicinity. The granting of the 6 variance would not grant a special privilege. As indicated previously however, the site proposed by the applicants is not the minimum necessary to afford relief. It 7 locates the structure within 56 feet of the stream, as opposed to the staff's alternative site 100 feet from the stream. The staff recommended location is less of an 8 encroachment into the stream buffer and still provides a reasonable use to the property owner. 100 foot separation is "less" of an encroachment than a 56 foot 9 separation because, as testified by staff,the closer the structure the greater the adverse impact. Consequently, the applicants' proposed location is not a minimum reasonable use. 11 MCC 15.09.057(5): The public interest will suffer no substantial detrimental effect. 12 8. As noted in the staff report (Exhibit 1) and Mr. Diehl's written comments 1 (Exhibit 14b), substantial detrimental effect to the public interest comes in the form of 14 the cumulative effect of impairment of stream buffers. This in turn negatively impacts habitats connecting stream riparian corridors, and is inconsistent and 15 incompatible with long-term efforts to "protect critical features to support genetically viable populations of fish and wildlife species and allow for commercial and non- 16 commercial uses". (Mason County Resource Ordinance 17.01.110.A.1). These stream buffers are critical to keeping the ecosystem in a reasonable balance. Also l7 noted in the staff report is the existence of coastal cutthroat trout (Oncorhynchus 18 clarki clarki) in the stream. Consequently, it cannot be said that the public interest will suffer no substantial detrimental effect from the proposed construction. 19 MCC 15.09.057(6): No variance shall be granted unless the owner otherwise lacks a 20 reasonable use of the land. Such variance shall be consistent with the Mason County 1 Comprehensive Plan, Development Regulations, Resource Ordinance and other County ordinances, and with the Growth Management Act. Mirror loss in value only shall not justify a variance. 23 9. The Comprehensive Plan and Zoning Code provide for residential development in the subject area. The granting of a variance is necessary for the 24 placement of any structure on this lot due to the required buffer/setbacks from 25 streams and wetlands. The Growth Management Act also encourages the protection of private property rights. However, the proposal does not provide for a minimal amount of critical area disturbance, and thus is not a reasonable use of the property. Russell Variance p. 6 Findings, Conclusions and Decision {VE0598521.DOC;1/l3009.900000/1 The alternate site proposed by staff would provide a more reasonable use of 1 applicants' property. Any reasonable use determination involves a consideration of the burden on property owner in addition to the impacts on environmental resources. Requiring placement in the alternate site does not deprive the applicants of the right 3 to build a home on their property; it merely requires them to build in a location that they consider less desirable. 4 DECISION 5 6 The Hearing Examiner denies the requested variance because a site with less adverse impact is available on the subject property. To build on this alternative site, the 7 applicant will have to apply for another variance or reasonable use exception to ensure that a full environmental review of the alternative site is undertaken. 8 9 Dated this 4th day of May, 2005. 10 1 l Phil Olbrechts Mason County Hearing Examiner I? 13 14 15 16 17 18 19 ?0 ?1 24 25 Russell Variance p. 7 Findings, Conclusions and Decision {VE0598521.DOC;1/13009.900000/) CASE INDEX Scott and Jan Russell VAR2004-00034 Index # Date Description 1 March 31, 2005 Exhibit 1: Staff Report December 23, 2004 Attachment 1: Resource Ordinance Application 3 January 28, 2005 Attachment 2: Variance from Standards Information [August, 2004 Attachment 3: Habitat Management Plan 5 July 16, 2004 Attachment 4: Notice of Mason County Code Violation March 8, 2005 Attachment 5: Notice of Mason County Code Violation 7 February 7, 2005 Attachment 6: Affidavit of Posting Notice 8 —January 21, 2005 Attachment 7: HMP Notification of Review Letter 9 —September 1, 2004 Attachment 8: Email Comments Marty Ereth 10 July, 2001 Attachment 9: WDNR Stream Typing Criteria 11 February 11, 1999 Attachment 10: Puget Sound Cutthroat Trout ESU Ma 12 Attachment 11: Belfair UGA Draft Zoning—Online 13 Attachment 12: Title Notification of Habitat Management Plan 14 Attachment 13: Title Notification of Aquifer Recharge ea 15 Nril 1, 2005 Attachment 14: Letter from B. Eklund 16 [April 4, 2005 Attachment 15: Letter from Dorothy M. Harper CASE INDEX Scott and Jan Russell VAR2004-00034 Index# Date Description I arch 31, 2005 xhibit 1: Staff Report ecember 23, 2004 ttachment 1: Resource Ordinance Application anu 28, 2005 ttachment 2: Variance from Standards Information— ugust, 2004 ttachment 3: Habitat Management Plan 5 my 16, 2004 ttachment 4: Notice of Mason County Code Violation arch 8, 2005 ttachment 5: Notice of Mason County Code Violation 7 ebruary 7, 2005 ttachment 6: Affidavit of Posting Notice 8 anu 21, 2005 ttachment 7: HMP Notification of Review Letter September 1, 2004 ttachment 8: Email Comments Marty Ereth 10 uly, 2001 ttachment 9: WDNR Stream Typing Criteria 11 ebruary 11, 1999 ttachment 10: Puget Sound Cutthroat Trout ESU Map 12 ttachment 11: Belfair UGA Draft Zoning—Online 13 ttachment 12: Title Notification of Habitat anagement Plan 14 ttachment 13: Title Notification of Aquifer Recharge ea 15 April 1, 2005 ttachment 14: Letter from John Diehl 16 April 4, 2005 ttachment 15: Letter from Dorothy M. Harper 17 arch 30, 2005 ttachment 16: Letter from B. Eklund Mason County Department of Planning Building I * 411 N. 51h Street * P.O. Box 279 Shelton, Washington 98584 * (360) 427-9670 March 30, 2005 TO: Mason County Hearing Examiner FROM: Planning Staff—Charles Mead McCoy III RE: Variance from the Mason County Resource Ordinance (VAR2005-00002) STAFF REPORT I. Introduction. This report evaluates a request for a variance from the Mason County Resource Ordinance No. 77-93, specifically for the construction of a two- story, single-family residence with a proposed footprint of 1,800 square feet; approximately 100 feet from a Type 3 stream; and within a Category II wetland vegetation area. The proposed project is described in detail in the attached Habitat Management Plan(HMP) (Attachment 3). Staff recommends approval of proposed project. II. Applicant. Ryan Griffey. III. Property Location. Site address and Project Location: 461 E. Coulter Creek Road, Belfair. Parcel #12209-24-00041. IV. Date of complete application: February 8, 2005 V. Evaluations. A. Characteristics of the site. The parcel is generally, rectangular in shape extending approximately 450 feet from east to west and 320 feet from north to south. The parcel is 1.12 acres. Coulter Creek(Type 1 stream) enters the property along the northern boundary line and then exits the property northward. Lucas Creek (Type 3 steam) roughly parallels the western boundary line and flows through the property from south to north. It joins with Coulter Creek in the northwest corner of the property. A Category II wetland lies on the northern portion of the property, flanked to the north by Coulter Creek and to the west by Lucas Creek. East Coulter Creek Road borders the property on the south. No Existing structures are on the property. Approximately 0.29 acres of the lot has historically been maintained as a "cleared and graveled area for several decades"per HMP (Attachment 3). Pictures of site are included in the HMP (Attachment 3). B. Characteristics of the area. The area lies less than 1 mile north of the North Bay of Puget Sound. The vegetation in the vicinity is mixed, lowland riparian, deciduous forest and conifers with several single-family residences occupy the area. C. Comprehensive Plan Desi iig_ ation. The Mason County Comprehensive Plan designation for the site is Rural. D. Zoning. The parcel is zoned Rural Residential-10 (RR-10) per the Mason County Development Areas Map. VI. SEPA Compliance, public and agency comment. This activity is SEPA exempt per WAC 197-11-800 (1), (iii). Public notice of the application and hearing date was posted onsite on February 17, 2005 and notice was made in the Shelton-Mason Journal on February 24, 2005 (Attachments 4 and 5). The proposal required review and comment of a Habitat Management Plan by the Squaxin Island Tribe and Washington Department of Fish and Wildlife. Notification was sent on February 17, 2005 (Attachments 6 and 7). A 28-day comment period followed. Tracy Farrell of the Squaxin Island Tribe Natural Resources Department commented that he"would like the plan [HMP] to address the control of scotch broom(Cytisus scoparius) in addition to Japanese knotweed (polygonum cuspidatum), Himalayan blackberry(Rubus discolor) and reed canarygrass (Phalarys arundinacea). There should be no lawn within the 150' standard buffer area."(Attachment 8). Proposed mitigation is to place native plantings in an area of 6,000 square feet located in zones of high habitat priority. This area is currently a moderately to highly disturbed site with established exotic, alien plant species present with cleared and graveled areas established. The parcel is encumbered by a Type 3 stream buffer and a Category II wetland vegetation area. A Type I stream also passes through the property on the north. Locations of restoration sites are identified in the HMP(Attachment 3). VII. Other Permits or Approvals. The proposal will require a Mason County Building Permit for the construction of a single-family residence. VIII. Analysis: (All references to County codes are with respect to those codes as adopted.) The required buffer for a Type 3 stream is 150 feet plus a 15-foot building setback for a total distance of 165 feet from the stream. Stream typing is per Washington Department of Natural Resources stream typing criteria(Attachment 9). The proposal is to construct a single-family residence with a footprint of 1,800 square feet approximately 100 feet from the ordinary high water mark of a Type 3 stream. This proposal requires a variance per the requirements associated with Mason County Resource Ordinance No. 77-93, specifically Section 17.01.110, Fish and Wildlife Habitat Conservation Areas,which details stream buffer requirements and Section 17.01.150, Variances from Standards, which establishes variance procedures and criteria. The submitted HMP addresses requirements for wetland mitigation, specifically Section 17.01.070, Wetlands, which details mitigation for wetland impacts. The Category II wetland designation of the area sited in the HMP,with the associated wetland-type being Shrub-Scrub and Emergent, requires a ratio of 1:2 (wetlands acres filled to wetlands acres created) replacement of habitat loss. The location of the proposed single-family residence within the buffer effectively reduces that buffer. Section 17.01.110.G.c. states that"new residential construction ...is not permitted within FWHCA or its buffer, except...as approved through a variance or reasonable use exception." Staff has been instructed that the reasonable use exception may only be pursued after the variance option has been exhausted. Section 17.01.120.Q. states that"except when application from this Chapter would deny all reasonable use of a site, an applicant who seeks an exception from the regulations of the Chapter shall pursue a variance as provided in Section 17.01.150." Section 17.01.110.G.1 requires that a Habitat Management Plan (HMP)be prepared in association with the proposed development. The HMP shall consider measures to preserve and protect wildlife habitat and shall identify how the impacts from the proposed use or activity will be avoided or mitigated through habitat mitigation. Section 17.01.150(E),Review Standards for a variance states that no variance shall be granted unless the County makes findings of fact showing that the following circumstances exist: 1. That the strict application of the bulk, dimensional or performance standards precludes or significantly interferes with a reasonable use of the property not otherwise prohibited by County regulations; 2. That the hardship which serves as a basis for the granting of the variance is specifically related to the property of the applicant, and is the result of unique conditions such as irregular lot shape, size, or natural features and the application of the County regulations, and not, for example from deed restrictions or the applicant's own actions; 3. That the design of the project will be compatible with other permitted activities in the area and will not cause adverse effects to adjacent properties or the environment; 4. That the variance authorized does not constitute a grant of special privilege not enjoyed by the other properties in the area, and will be the minimum necessary to afford relief, 5. That the public interest will suffer no substantial detrimental effect; 6. No variance shall be granted unless the owner otherwise lacks a reasonable use of the land. Such variance shall be consistent with the Mason County Comprehensive plan, Development Regulations, Resource Ordinance and other county ordinances, and with the Growth Management Act. Mere loss in value only shall not justify a variance. Staff discussion: 1. The purposes of the Mason County Resource Ordinance are detailed in Section 17.01.020. The parcel is entirely encumbered by two critical areas, a Type 3 stream and a designated Category II wetland. The siting of the proposed single-family residence in an area on the parcel that has been disturbed for decades, attempts to mitigate further impact to the critical areas. There are no existing structures on the property. The proposal recommends that the dwelling be placed 100 feet from the stream. This situates the home in the southeast corner of the property, allowing for the placement of a septic system to the east of the proposed home site. The proposed dwelling footprint of 1,800 square feet is an allowable use in Rural Residential 10 zoning, and is therefore consistent with surrounding land uses. Over 4,000 square feet of stream buffer and 2,000 square feet of wetland vegetation area will be restored through vegetation enhancement per HMP (Attachment 3). This provides for minimal amount of critical area disturbance and thus is consistent with purposes #2 & #3 of Section 17.01.110.A. of the Resource Ordinance. A single-family residence is considered as reasonable use. The proposed dwelling with footprint of 1,800 square feet does not appear to be inconsistent with other residential uses in this area. Included in the footprint calculation of 1,800 square feet an attached garage is contemplated. 2. The hardship is a direct result of the size and location of the parcel. The parcel is encumbered by a Category H wetland to the north and Type 3 stream to the west. There is no allowable area on the lot to be built upon without a variance as a result of the configuration of the two critical areas and their associated buffer/vegetation area requirements. The proposed placement of the single-family residence is the most logical choice in that it places the structure in a previously disturbed area and at a reasonable distance from both critical areas. 3. The construction of a single-family residence is consistent with surrounding land uses and a permitted use in Rural Residential 10 zoning. Factors considered in the placement of the structure include the presence of a Type III stream and a Category H wetland. The proposed building location was chosen because the area has previously been cleared and graveled and also as a compromise position intended to diminish the combined impact to both stream and wetland critical areas. This provides for a minimal amount of critical area disturbance. Additionally, the applicant has offered to place a garage below the residence within the proposed footprint of 1,800 square feet. The driveway entrance to the proposed dwelling will allow for vehicle entry below the structure. The applicant has proposed mitigation per attached HMP for enhancement of existing riparian and wetland vegetation (Attachment 3). 4. Variances are contemplated and procedures are established by the provisions of Chapter 17.01.110 (D)(2). The intended use is compatible and in keeping with the surrounding land use. The size of the proposed structure appears to be consistent with the surrounding single-family residences as noted in the response to question one. The proposed location for the new structure will be in an area that contemplates the least impact on critical areas. S. The public interest will suffer no substantial detrimental effect. The proposal is consistent and compatible with the surround land uses. The structure will be built to current Mason County codes. 6. The granting of the variance is necessary for the placement of any structure on this lot due to the required buffer/setbacks from streams and wetlands. IX. Conclusions. Upon the above discussion the proposal is consistent with the variance criteria detailed in Section 17.01.150. Staff recommends approval of the proposal subject to the conditions listed below. 1. Developers and individuals shall be required to control erosion during construction. Removal of vegetation shall be avoided and any areas disturbed should be restored to prevent erosion and other environmental impacts. 2. The existing natural vegetative buffer shall remain undisturbed by any construction and/or development activities on the parcel. 3. The provisions and recommendations of the Habitat Management Plan shall be enacted. 4. All upland areas disturbed or newly created by construction activities shall be seeded, vegetated or given an equivalent type of erosion protection(silt fencing or straw matting). 5. A detailed planting plan, with species composition, density, and distribution shall be provided to and approved by planning staff prior to final approval of the building permit. 6. A monitoring plan shall be enacted whereby a qualified biologist shall submit a report detailing the condition of the restoration area. This report shall be due on the anniversary date of the issuance of the building permit and shall be submitted annually for three years. 7. A survival rate of 90%of plantings is required each year during the three-year monitoring period. If survival falls below 90%, the applicant shall replant to restore the required survival percentage and shall extend the monitoring report the necessary period to address the replantings. 8. A restoration bond shall be established with Mason County in the amount necessary to perform the restoration prior to final approval of building permit. 9. No degradation of water quality shall occur as a result of this project. 10. A title notification of habitat management plan shall be recorded with the deed prior to final approval of the building permit (Attachment 10). X. Choices of Action. 1. Approval of the Variance request. 2. Denial of the Variance request. 3. Conditional approval of the Variance request. 4. Remand the case to staff for further information and/or clarification �CNi t3�T- Mason County Department of Planning Building I * 411 N. 51h Street * P.O. Box 279 Shelton, Washington 98584 * (360) 427-9670 March 31, 2005 TO: Mason County Hearing Examiner FROM: Planning Staff—Charles Mead McCoy III RE: Variance from the Mason County Resource Ordinance (VAR2004-00034) STAFF REPORT I. Introduction. This report evaluates a request for a variance from the Mason County Resource Ordinance No. 77-93, specifically for the construction of a 2,132 square foot single-family residence and garage approximately 56 feet from a Type 3 stream. The proposed project is described in detail in the attached Habitat Management Plan (HMP) (Attachment 3). Staff recommends denial of proposed project. II. Applicant. Scott and Jan Russell. M. Property Location. Site address and Project Location:Newkirk Road, Belfair. Parcel#12321-32-00130 (Section 21 of Township 23 North,Range 1 West). IV. Date of complete application: February 2, 2005 V. Evaluations. A. Characteristics of the site. The parcel is rectangular in shape extending approximately 181 feet from north to south and 274 feet from east to west. Newkirk Road is adjacent to the northern property line of the parcel. An unnamed tributary(Type 3 stream)to the Union River meanders through the property in a general east to west direction adjacent to the southern most property line. An access easement divides the parcel into two portions, east and west of the easement. The portion of the parcel to the west of the access easement and designated as the best build-site location in the submitted HMP is approximately 18 V X 84' in area(Attachment 3). The other parcel portion separated to the east of the access easement is approximately 181' X 190' in area. Structures do not exist on either portions of the parcel. The majority of the 1.03acre parcel exists in mixed, coniferous/deciduous riparian forest. The proposed building area in the HMP recommends the residence be placed in an area that is an existing code violation case(ENF2004-00274) (Attachments 4 and 5)where the applicant allowed clearing in a stream buffer without proper Z0F6 permitting. Photographs of the proposed building site are included in the Habitat Management Plan(Attachment 3). B. Characteristics of the area. The general area is north of Belfair. Several single-family residences occupy the area. C. Comprehensive Plan Designation. The Mason County Comprehensive Plan designation for the site is Urban Growth Area. D. Zoning. The parcel is within the Belfair Urban growth Area and zoned Low- Density Residential District("R-3")per the Belfair Urban Growth Area Zoning Map (Revised December 6,2004). VI. SEPA Compliance,public and agency comment. This activity is SEPA exempt per WAC 197-11-800 (1), (iii). Public notice of the application and hearing date was posted onsite on February 7,2005 and notice was made in the Shelton-Mason Journal on February 10, 2005 (Attachment 6). The proposal required review and comment of a Habitat Management Plan by the Skokomish Tribe and Washington Department of Fish and Wildlife. Notification was sent on January 21, 2005 (Attachment 6). A 28-day comment period followed. Comments were received from Marty Ereth and Jeff Heines, Fisheries Biologist and Habitat Biologist, respectively, for the Skokomish Tribe. Both biologists preferred that the County not allow for development to occur in a stream buffer conservation area. Both tribal biologists also agreed that if development were permitted that "the home [be placed] further away with restoration to the cleared area before the applicant pursues new construction"(Attachment 7). Jeff Heines' comments were received via personal communication with staff on March 16,2005. No comments were received from Washington Department of Fish and Wildlife. VII. Other Permits or Approvals. The proposal will require a Mason County Building Permit for the construction of the single-family residence and attached garage, and a Title Notification of Aquifer Recharge Area. VIII. Analysis: (All references to County codes are with respect to those codes as adopted.) The required buffer for a Type 3 stream is 150 feet plus a 15-foot building setback for a total distance of 165 feet from the stream. Stream typing is per Washington Department of Natural Resources stream typing criteria(Attachment 8). The proposed construction of a 2,132 square foot single-family residence and attached garage is approximately 56 feet from a Type 3 stream as proposed in the submitted HMP (Attachment 3) This proposal requires a variance per the requirements associated with Mason County Resource Ordinance No. 77-93, specifically Section 17.01.110,Fish and Wildlife Habitat Conservation Areas, which details stream buffer requirements and Section 17.01.150, Variances from Standards,which establishes variance procedures and criteria. OF 6 The location of the proposed single-family residence and attached garage negatively impact the existing buffer. Section 17.01.110.G.c. states that"new residential construction ...is not permitted within FWHCA or its buffer, except...as approved through a variance or reasonable use exception." Staff has been instructed that the reasonable use exception may only be pursued after the variance option has been exhausted. Section 17.01.120.Q. states that"except when application from this Chapter would deny all reasonable use of a site, an applicant who seeks an exception from the regulations of the Chapter shall pursue a variance as provided in Section 17.01.150. Section 17.01.110.G.1 requires that a Habitat Management Plan be prepared in association with the proposed development. The HMP shall consider measures to preserve and protect wildlife habitat and shall identify how the impacts from the proposed use or activity will be avoided or mitigated through habitat mitigation. Section 17.01.150(E),Review Standards for a variance states that no variance shall be granted unless the County makes findings of fact showing that the following circumstances exist: 1. That the strict application of the bulk, dimensional or performance standards precludes or significantly interferes with a reasonable use of the property not otherwise prohibited by County regulations; 2. That the hardship which serves as a basis for the granting of the variance is specifically related to the property of the applicant, and is the result of unique conditions such as irregular lot shape, size, or natural features and the application of the County regulations, and not, for example from deed restrictions or the applicant's own actions; 3. That the design of the project will be compatible with other permitted activities in the area and will not cause adverse effects to adjacent properties or the environment; 4. That the variance authorized does not constitute a grant of special privilege not enjoyed by the other properties in the area, and will be the minimum necessary to afford relief; 5. That the public interest will suffer no substantial detrimental effect; 6. No variance shall be granted unless the owner otherwise lacks a reasonable use of the land. Such variance shall be consistent with the Mason County Comprehensive plan, Development Regulations,Resource Ordinance and other county ordinances, and with the Growth Management Act. Mere loss in value only shall not justify a variance. Staff discussion: 1. The purposes of the Mason County Resource Ordinance are detailed in Section 17.01.020. The parcel is entirely encumbered by the stream buffer that runs along the southern portion of the parcel. A code violation is currently being pursued, where the applicant allowed clearing/removal of vegetation from the protected stream buffer without permit review by the County. The applicant has chosen this location for the proposed new construction, as defined in the HMP(Attachment 3). The current 4 OF � proposal places the planned new, single-family residence and attached garage at 56 feet from the ordinary high watermark of the stream. The proposal for a 2,132-sq.ft. single-family residence and attached garage is an allowable use in Belfair Urban Growth Area "R-3"zoning, and is therefore consistent with surrounding land uses. No information was provided by the applicant as to the species composition of the botanical community that existed in the cleared area prior to application for a Resource Ordinance Variance. The proposal does not provide for a minimal amount of critical area disturbance and thus is inconsistent with purposes#1, #2& #3 of Section 17.01.110.A. of the Resource Ordinance. 2. The hardship is a direct result of the size and location of the parcel. The parcel is completely encumbered by a 150 foot Type III stream buffer and 15 foot building setback requirement. The lot width is 181'and is unequally bisected by the stream channel for the entire length of the lot. Therefore allowing no area on the lot to be buildable without a variance. However the proposed placement of the dwelling is not the most logical choice in that it places the structure nearer the steam than is necessary. Other build-able locations exist on the parcel that would allow for the proposed development to be as far from the stream as possible. 3. The construction of a single-family residence and attached garage are consistent with surrounding land uses and a permitted us in Belfair Urban Growth Area "R-3" zoning. Factors considered in the placement of the structure are: "The area initially cleared for the house is not entirely the most appropriate location for the house. Because a portion of the suitable area exists further from the stream, only a portion of the already cleared zone will be utilized for building."(Attachment 3). As a result of un permitted clearing in the stream buffer the applicant's HMP supports placing of the new residence and attached garage to within 56 feet of the steam where a location exists on the parcel to the northeast of the proposed site that would place the dwelling at a significantly greater distance from the stream. The restoration of the disturbed site is required as a result of the pending code violation. The applicant is required to submit a Restoration Site Plan following these proceedings. The area to be restored could begin to provide the necessary elements of protection to water quality and concerns for aquatic and terrestrial resources within a few decades after completion of the restoration plan. The long-term view of the benefits of riparian restoration are taken in this staff report over the near-term advantages of placing a dwelling in a cleared location as a result of a code violation in a critical area buffer 4. Variances are contemplated and procedures are established by the provisions of Chapter 17.01.110(D)(2). The intended use is compatible and in keeping with the surrounding land use. The size of the proposed structure is consistent with the surrounding single-family residences as noted in the response to question one. The proposed location for the new structure will not be in an area that will have the least impact on the critical area. 5. The public interest will suffer substantial detrimental effect. The accumulative negative impact to landscape level habitat concerns connecting stream riparian S of corridors is inconsistent and incompatible with long-term efforts to 'protect critical features to support genetically viable populations offish and wildlife species and allow for commercial and non-commercial uses" (Mason County Resouce Ordinance 17.OI.110.A.1). Coastal cutthroat trout (Oncorhynchus clarki clarki) are known to inhabit the stream via personal communications with Lee Boad, Fish and Wildlife Biologist contracted by the applicant to complete the submitted HMP and Jeff Heines, Skokomish Tribal Habitat Biologist. A map indicating location of O. clarki clarki Evolutionarily Significant Unit (ESU) is attached(Attachment 9). 6. The granting of the variance is not possible because it is inconsistent with the intent of Mason County's Resource Ordinance purposes as described above in 17.01.I IO.A, specifically purposes #1, #2 and#3. Variance cannot be approved as proposed. IX. Conclusions. Based on the above discussion the proposal is inconsistent with the variance criteria detailed in Section 17.01.150. Staff recommends denial as proposed. If the Hearing Examiner chooses Conditional approval of the Variance request staff recommends imposition of the conditions listed below. 1. Developers and individuals shall be required to control erosion during construction. Removal of vegetation shall be minimized and any areas disturbed should be restored to prevent erosion and other environmental impacts. 2. The existing natural vegetative buffer shall remain undisturbed by any construction and/or development activities except those absolutely required for minimal disturbance to construct a single-family residence and attached garage of no more that 2,132 square feet in total area. 3. The area disturbed due to a Code Violation shall be restored per Restoration Site Plan approved by planning staff prior to beginning new construction. 4. The Habitat Management Plan must be modified to select a location at greater distance from the stream than is currently proposed in the submitted Plan. -- Amo Ae Rojo 5. All upland areas disturbed or newly created by construction activities shall be �7 seeded, vegetated or given an equivalent type of erosion protection(silt P '^' fencing or straw matting). s � 6. A detailed planting plan, with species composition, density, and distribution shall be provided to and approved by planning staff prior to final approval of the building permit. 7. A monitoring plan shall be enacted whereby a qualified biologist shall submit a report detailing the condition of the restoration area. This report shall be due on the anniversary date of the issuance of the building permit and shall be submitted annually for three years. 8. A survival rate of 90% of plantings is required each year during the three-year monitoring period. If survival falls below 90%, the applicant shall replant to restore the required survival percentage and shall extend the monitoring report the necessary period to address the replantings. 9. A restoration bond shall be established with Mason County in the amount necessary to perform the restoration prior to final approval of building permit. 6 �F ,� 10. No degradation of water quality shall occur as a result of this project. 11. A"no-build"covenant be recorded with the title that states that no future development on the parcel as prescribed under Title 17 Mason County Code 17.22.110 stating: "The district allows for a density of three dwelling units per acre, except where"critical lands"are present—which reduce the permitted density."(Attachment 10) 12. A title notification of the modified Habitat Management Plan shall be recorded on the property deed, subsequent to staff approval (Attachment 11) 13. A site inspection by planning staff is required prior to final ermit a roval. 14. Subject to conditions of Aquifer Notification letter(Attachment 12). X. Choices of Action. 1. Approval of the Variance request. 2. Denial of the Variance request. 3. Conditional approval of the Variance request. 4. Remand the case to staff for further information and/or clarification Notice of Application for Variance from the Mason County Resource Ordinance and Notice of Public Hearing Notice is hereby given that Scott M. Russell, who is the applicant for the following proposal, has filed an application for a Variance. The request for a variance from the Mason County Resource Ordinance No. 77-93 is for the construction of an approximately 2,132 square foot single family residence and utilities within a Type III stream buffer. Property location is Section 21, Township 23 N, Range 1 W and Parcel No. 12321-32-00130. Date of complete application: February 2, 2005. The proposed development is reviewed as a Variance under the Mason County Resource Ordinance No. 77-93, specifically Section 17.01.110, Fish and Wildlife Habitat Conservation Areas, which details stream buffer requirements and Section 17.01.150, Variances from Standards,which establishes Variance procedures and criteria. The proposal requires a Habitat Management Plan and Hearing Examiner approval. A PUBLIC HEARING will be held by the Mason County Hearing Examiner on the proposed project on Tuesday,April 12, 2005 at 1:00 p.m. in the County Commissioners Chambers, Bldg. I, 411 N. 5th Street, Shelton, WA. Please contact Charles Mead McCoy III of the Mason County Department of Community Development at(360) 427-9670, ext. 294,with any questions or comments on this development and variance. A-`T-TAc N K1-fXV 1 1 Iof5 PERMIT NO.: DATE RECEIVED: 7iq MASON COUNTY DEPARTMENT OF COMMUNITY DEVELOPMENT V'PIi',-2t)d4— j3(L RESOURCE ORDINANCE (Chapter 17.01 MCC) 7 411 N.5TH Street/P.O. Box 279, Shelton, WA 98584 ENVIRONMENTAL PERMIT APPLICATION MASON ENVIRONMENTAL PERMIT❑ CONDITIONAL USE ❑ VARIANCE The purpose of the Resource Ordinance is to protect Mason County's natural resource lands and critical areas and is under the authority of Chapters 36.32, 36.70A, 39.34, 58.17, 76.09, 84.33, 84.34 and 90.58 RCW. PLEASE PRINT 1. Owner: .<,5'7 H. R0:5-SrG.L. Owner Mailing Address: /tJE /oo Rt0f_2W14L AA Site Address: City: AUFAtrZ State: L.Jq Zip: 2ALj-,,b,A City: State Zip: --.yen/Title Holder: SiSi•�c A i AEay� Phone:Daytime Xa 4 9!0-.S'oI1 27S=4ao S'(�, Address: Fire District#: City: State: Zip: Signature: 2' Parcel Number: /L 3 Z 1 - .3 Do 13 e3 Legal description: SE�!c,rJ L/ Towat3K,A Z 3 -u a zT,y sew G2,—; X f�AZ��Y /L3Ll-3L—Dor3o Parcel Size:_ 3. Directions to Site: F-2es, 3rLr4,RL3c'LFA,,L \j,�LLy� ,Zi1 Ta AJF-ujJeiRK 9 b , Ri _,S+T 4. State what sections require a permit: In-Holding Lands, Chapter 17.01.062 ❑ Long-Term Commercial Forest, Chapter 17.10.060 ❑ Wetlands, Chapter 17.01.070 ❑ Mineral Resource Lands, Chapter 17.01.066 El Frequently Flooded Areas, Chapter 17.01.090 ❑ Aquifer Recharge Areas, hapter 17.01.080 ❑ Landslide Hazard Areas, Chapter 17.01.100 ❑ Erosion Hazard Areas, Cha ter 17.01.104 ❑ Seismic Hazard Areas, Chapter 17.01.102 ^❑ Fish and Wildlife Habitat Conservation Areas, Chapter 17.01.110 L / 5. Identify current use of property with existing improvements: , � ��,ZZEA)F L to AA P ; 6. Identify and describe the proposed project,including the type of materials to be used, construction methods,principle dimensions and other pertinent information(Attach additional sheets if needed): — .4 L - 4&fQIZ 6"A `�.LL_�L JvLr ..a F eZ E_xi..,Zra�2 —7 �T 1Ir !� ,�9s.L IC. d,a 1.L n..Z 'Sy F---L,2,1 sSEs *,0 rN eP n , a vT'e j :7he ADiK 7. ' Any water on or adjacent to property: Saltwater ❑ Lake ❑ River ❑ Pond ❑ Wetland ❑ Seasonal Runoff ❑ Other 1 YPE- ZM 8. Will there be an alteration of a wetland and/or wetland vegetation area? Yes ❑ No L�J 9. If septic is located on ro. t site,include records. Connect to septic? Community Septic? ❑ Public Water Supply? ❑ Well? 10. Type of Job: New Add [I Alt ❑ Repair [I Demolition El Other This permit is granted pursuant to the Resource Ordinance(Chapter 17.01 MCC)and nothing in this permit shall excuse the applicant from compliance with any other federal,state,or local statutes,ordinances,or regulations applicable to this project,but not inconsistent with the Resource Ordinance.The permit may be rescinded pursuant to the event the permittee fails to comply with the conditions of this ordinance. T(0.ov 305.Vo MASON ENVIRONMENTAL PERMIT: $599,AA�$?d6�0(with ano er ermit) MASON CONDITIONAL USE ENVIR.PERMIT: %,V%00 t �-0 O MASON RESOURCE ORDINANCE VARIANCE: ft-,2W,00 I Z Z .o U REVISED: 03-12-03 HEARINGS EXAMINER: 52%.00 I:\PLANNING\R&GPAC\ENVIRONMENTAL PERMIT APPLICATION 3 5 0-0 0 ZOFS Show the following on the site plan Lot Dimensions Flood Zones Existing Structures Fences Water Lines Driveways Drainage Plans Shorelines Septic System Topography Indicate Directional by (N,S,E,W,etc.) Proposed Improvements Easements In relation to plot plan Name if Flanking Street APPLICANT TO DRAW SITE PLAN BELOW: So f..u�S�''Hg FA.�M�vr• �Eu. it I O uN.claN, 'INC � � FT f3yFTi .f'O J�i�A?19� Alkilo?o � � , � �� f�sE�IATo.J .So. �, ���►?7'er DRAO Fiat APPLICANT TO DRAW TOPOGRAPHY BELOW: ii"c�GSf yea DEPARTMENTAL REVIEW FOR OFFICE USE ONLY COMMENTS Planning.- Environmental Health: Building Plan Review: Occupancy Group: Fire Marshal: Other: Conditions: FEES TOTAL FEES: ,[Accepted by: Date: 4 dF s MASON COUNTY RESOURCE ORDINANCE May 5,2002 FOR CONDITIONAL USE AND VARIANCE Publication cost is the responsibility of the applicant. Final permit processing will not occur until advertising fees have been paid to the newspaper by the applicant. The Shelton-Mason County Journal will bill the applicant directly. I /WE understand that I /WE must sign and date the attached acknowledgment indicating and that I / WE understand that is MY/ OUR responsibility. I /WE must submit the signed page as part of application in order for it to be considered as complete. 2 DATE OWNER .� z% APPLICANT Sas= S MASON COUNTY RESOURCE ORDINANCE May 5,2002 LIST OF ADJACENT PROPERTY OWNERS WITHIN 300 FEET OF YOUR PROPERTY BOUNDARIES FOR CONDITIONAL USE AND VARIANCE Addresses are to be obtained from the Mason County Assessor's Office, Bldg. 1, Second Floor. �(Alyahnr- actirve C'GA SwS"4o-qne �arve-y Oauid �► lzrna Qco,k, iv 0vv asi N IJe�uk,"rig P,d. atv� tiE ivewk�rl�2d• a.5 1 NL New kirk Rd• (3e14�t;r l3el ;c, WA `1$5�$ 9$5 6e/�ra;r WA98g�$ �eNi��s"rYTi Ram1 No rennin Alon IV 4eaA_ Shau s GeC4ry k �'(�. i3ou New �r�', R J. dtgl 1JL. Nei,.,'kitk Rd- , �' /3�/�Ciir ilteli�.r, WA 9 5 y,�A 98�2 8 , �✓�+ 98 5a s fO0.rb0..r 0, T f.{t�(And cttn y neborQ, ;S hoNo ra Af QoX 7/(0 TO K Rd . �ohQ1c� S C,nc'►stne � ¢r F-adorn bOrC7 NatrPtr ►F\OC)OL L . Sc hrp fde� Po #1zq 33z Po /90)4 Po. Sox /,295- �►7C w9 S &&"" mwa lav�n �,itnseln an C�C� G�� Teccy Aa Mar arQ a1I ao U CketvicLw Rd.0 b`� dc�c4. N M;-<s,b>1 R4kv, Po �oX `70$ ►3rerr—en Safer,, O� ��303-37i� I�q;r Tecc,� L• CateS 0.r �n w pZbora Po 3�xc� 3 Asa ►�� NGwkFrk RJ. i k-rx wm,::E7 Z z t/Am Z&e,4-oev,31 1bF9. Mason County Department of Community Development Resource Ordinance (Chapter 17.01) 411 N. 5th Street/ P.O. Box 279, Shelton, WA 98584 Variance from Standards Information: * Mason County may consider requests to vary or adapt certain numerical standards of the Resource Ordinance where strict application of said standards would deprive property owners of reasonable use of their property. Application for a variance does not guarantee approval. A variance is an application for a special exception to the rule. The proposal must undergo public review and must meet the specific variance criteria listed below. Please state how the variance request satisfies all of the following criteria. 1. Describe the specific modification from the terms of the Chapter required. .. a S 0 2. Describe the reasons for the variance. Rom_o Zvi e� , Variances from the bulk and dimension requirements of the Resource Ordinance or the Development Regulations (zoning regulations) may be allowed as follows. The County must document with written findings compliance or noncompliance with the variance criteria, The burden nr the app!!Cant tto p»ave that each of'the 1c),jju w• LLg criteria are met: 1. That the strict application of the bulk, dimensional or performance standards precludes or significantly interferes with a reasonable use of the property not otherwise prohibited by County regulations; G), \\CLUSTERI_HOME SERVER\HOME\MRAZR\My Documents\Forms and Templates\Mason Countymep variance.doc 2. That the hardship which serves as a basis for the granting of the variance is specifically related to the property of the applicant, and is the result of unique conditions such as irregular lot shape, size, or natural features and the application of the County regulations, and not, for example from deed restrictions or the applicant's own actions; /.J.T/�' � i .f� o �1J i� ci �.CrS 1 �F-�ra•-t 3. That the design of the project will be compatible with other permitted activities in the area and will not cause adverse effects to adjacent properties or the environment; � rJZS7 A ecyct.J� A.J 214 ��:sE /9GTicl�TiE f,�iS�iJ� .cJ©r/�1�,/�sty. �F��crFrS �'.v f?�xtiu�icJi.c,�Z. icvrtr 4. That the variance authorized does not constitute a grant of special privilege not enjoyed by the other properties in the area, and will be the minimum necessary to afford relief, -- t 1 %v 7-V*7— 42 e 6 -fin ,��,uC2 _ i� �'.2� 5 �', T►,�E,,Z, 5. That the public interest will suffer no substantial detrimental effect; \\CLUSTERI HOME_SERVER\HOME\MRAZR\My Documents\Forms and Templates\Mason Countymep variance.doc rr 6. No variance shall be granted unless the owner otherwise lacks a reasonable use of the land. Such variance shall be consistent with the Mason County Comprehensive Plan, Development Regulations, Resource Ordinance and other county ordinances, and with the Growth Management Act. Mere loss in value only shall not justify a variance. zz- Signature Date VCLUSTERI_HOME_SERVERMMENRAZR My Documents\Fonns and Templates\mason Countymep variance.doc 10 191 I Md25 "Z UMMUxaid 1 qj' 0091 PM wwj*ga 1051 * SI \ -6W "fa a 1 I ,obl 1 i I 1 � ► f 59A^A95 f"FM PW wwJld 1' W l+9LN f'L'Ofl 2P1 04100-Z4-IZ4Zi# i�'-�d�l I�'d�O7S t yr 1, Lee Boad Habitat Management Planning and Wetland Services PO Box 2854 •Belfair, WA 98528 * 360-620-0618 • leeboad�&,,hctc.com Russel Building Project Habitat Management Plan oo13cv Parcel 12321-32 003t9O Prepared for: Scott and Jan Russell 100 NE Riverhill Dr. Belfair,WA 98528 Prepared by: Lee Boad Habitat Management Planning and Wetland Services PO Box 2854 Belfair, WA 98528 360-620-0618 leeboad@hctc.com Russel Project Habitat Management Plan Table of Contents 1.0 Introduction... ... ......... ............ ... ...... ... ......... ... ... ......... ...... 2 2.0 Project Description...... ... ......... ...... ... ............ .................. .... 2 3.0 Property Description...... ...... ... ......... ......... ... .................. ..... 3 4.0 Applicable Setback... ... ............ ...... ... ............ ......... ......... .... 3 5.0 Species Information......... ........................... ........................ 3 6.0 Potential Development Impacts...... .................................... ..... 5 7.0 Mitigation Measures......... ............ ..................... ......... ......... 6 7.1 Preservation of Critically Important Plants... ...... ................ 6 7.2 Preservation of Type III Stream............ ... ...... ......... ........ 7 7.3 Recommended Best Management Practices... ............ ... ... ... 8 8.0 Monitoring... ......... ...... ... ... ... ... ... ... ............ ... ............ ......... 8 9.0 Conclusion...... ... ... ... ............... ... ... ............ ... ......... ... ......... 8 Recommended Citation: Lee Boad Habitat Management Planning. August 2004. Russel Building Project,Habitat Management Plan. Belfair, WA . Prepared for Scott Russel. 1 3 OF U 1.0 Introduction At the request of Scott M. Russel, a Habitat Management Plan has been prepared for the proposed building project on Newkirk Road. This parcel is mapped in Section 21 of Township 23 North, Range 1 West. The property is recorded by the Mason County Tax Assessor's Office as Tax Parcel 12321-32-00130. All observations described in this report relate to this parcel unless otherwise stated. 2.0 Prooect Description This report addresses the proposed construction of a residential building as well as restoration for non-permitted clearing within a Type III Stream Buffer. The proposed building footprint within the buffer totals 2,132 square feet, and is located in the northern half of the parcel. The nearest portion of the structure will be 56 feet from the stream. Site preparation has already commenced independent of county review or permitting. A site inspection was conducted on June 22, 2004 by Mason County Planning staff in which a Stop Work Order was posted for non-permitted clearing within the stream buffer. As the required stream buffer encompasses the entire ownership,the strict application of standards listed in the Mason County Resource Ordinance denies the landowners the opportunity to establish a residence on the property. _ 5 �a v. . . _•,,•fir:: - �r Proposed building plan looking from the southeastern corner of the parcel. 2 a' t ,t r. t[XET`�A1 :'..3e J. R.. I N w :S►a b t 1 The area initially cleared for the house is not entirely the most appropriate location for the house. Because a portion of the suitable area exists further from the stream, only a portion of the already cleared zone will be utilized for building. The remaining cleared zone will be restored. 3.0 Property Description The property consists of roughly one acre located on Newkirk Road in Belfair, Washington. An unnamed Type III tributary to the Union River meanders parallel to the southern boundary of the property. The riparian area existing within the channel consists of a mature conifer/deciduous mix forest. The landowners have recently cleared an area of approximately 4,720 square feet within the center of the parcel. The southwest corner of the parcel is maintained as a lawn during most of the year. There are no existing buildings on the parcel. 4.0 Applicable Setbacks This site is within the jurisdiction of Mason County. Ordinance 17.01.110 identifies Fish and Wildlife Habitat Conservation Areas adopted by Mason County. The applicable setback for this project is as follows: Habitat Type Buffer Building Setback from Buffer Type III Stream 150' 15' 5.0 Species Information Puget Sound Chinook(Oncorhxnchus tshaw tsy ha)_Threatened Listed as threatened since March 24,1999 adult Puget Sound Chinook spawn in several rivers and streams flowing into Puget Sound. In the vicinity of the proposed project area, summer/fall Chinook spawn in the main stem of the Union river. This stock is assumed to be of hatchery origin and is not documented in any tributaries. 3 S0FII Desiggated Critical Habitat For Puget Sound Chinook Critical habitat includes all marine, estuarine, and river reaches accessible to Chinook salmon in Puget Sound. Therefore, by definition, critical habitat is present within the vicinity of the project area. There have been no Chinook documented in this portion of the watershed. This project will have no adverse impacts on Chinook salmon. Bull Trout(Salvelinus malma)-Threatened Bull trout typically inhabit very cold headwater streams. Bull Trout populations exist in the Skokomish watershed. Suitable habitat for Bull Trout is not present within the vicinity of the project area. Therefore, the proposed project is not likely to have any adverse impacts on Bull Trout. Bald Eagle(Haliaeetus leucocephalus)-Endangered Stands of second growth, deciduous, and deciduous/coniferous mix forests are in proximity to the project site. Wintering bald eagles have been observed in the vicinity of the project area near the mouth of the Union River and throughout the main stem. Foraging habitat encompasses a large vicinity of the surrounding area and is supported by the abundance of anadromous fish returning to the Union River. No large snags or old growth trees with dead or broken tops are within the project site. Foraging and nesting habitat is not expected to be negatively impacted by the proposed project, as no further vegetation removal will occur. The restoration program associated with the project will likely have a net benefit on habitat features important to bald eagles. Marbled Murrelet(Brachyramphus marmoratus)-Threatened This parcel is not in the vicinity of a coastal habitat that is suitable for Marbled Murrelet. There are no documented nesting sites in this part of the Hood Canal Watershed. The project will have no adverse impacts on Marbled Murrelet. Hood Canal Summer Chum(Oncorhynchus keta)-Threatened Hood Canal Summer Chum return to the Union River and certain tributaries. No Summer Chum have been documented spawning or rearing in the stream associated with this 4 property. Best management practices are recommended to minimize impacts to water quality and protect watershed processes important to summer chum. This project will have no adverse impacts to Summer Chum. 6.0 Development Impacts The entire parcel lies within the regulated Buffer Zone of a Type III Stream. Development scale in the protected area is as follows: Development Type Habitat Type Project scale Residential Building Type III Stream Buffer 2,132 square feet Septic Drainfield Type III Stream Buffer 1,800 square feet Vegetation Disturbance The proposed building location is within an existing Type III Stream buffer located in the center of the parcel. Approximately 4,720 square feet of the site has been cleared. The landowners have already replanted a large portion of the cleared area with native shrub and overstory tree species. It is estimated that the proposed development will require approximately 4,000 square feet of the buffer area to be displaced by the proposed house and septic drainfield. 2,000 of which will occur in the already cleared area. Proper positioning of the house should require no more than 10-overstory conifers(> 10" dbh) do be removed. A restoration zone and planting densities have been recommended that allow for over 60-overstory trees to be planted. This provides a mitigation ratio of greater than 6:1 trees planted to trees removed. Designated Critical Habitat for Salmonids Existing land clearing has likely increased fine sediment recruitment to the aquatic system and decreased the amount of shade. Actions have been taken to address and minimize these impacts. Silt fencing has been installed between the cleared area and the stream. Vegetation has been reinstalled throughout the cleared area. The application of recommendations listed in this plan will protect the continued existence of any listed species. 5 A i `O Preliminary measures have been taken to mitigate impacts from land clearing Noise Pollution A slight increase in noise from construction activities is anticipated during daylight construction hours. This will not adversely impact listed fish species occurring in the vicinity of the project area. It will not likely impact bald eagles. The project is located more than 2,600 feet from any observed nesting sites. No roosts have been observed or documented within the radii of concern. 7.0 Mitigation Measures 7.1 Restoration and Preservation of a Riparian Corridor The proposed house is located 56 feet north of the stream at the closest point. It is recommended that a 50-foot Riparian Restoration and Preservation Zone be established between the stream and the house. This would be an area of approximately 4,200 square feet to be restored through native plantings and maintained as a permanent no-touch zone in terms of vegetation removal(excluding exotics),vehicle access, storage, construction, etc. 6 o�- 1 Native Plantings It is recommended that supplemental native plantings be installed within the above mentioned Riparian Restoration and Preservation Zone to achieve the following densities: Trees- 10' on center Shrubs-4' on center Ferns- 3' on center These densities have been selected to provide a moderately dense, structurally diverse plant community within the restoration area. Any natural volunteer or existing supplemented native vegetation can be counted towards the target densities of restoration plants. Native plant species that can be used within the restoration zone include: Trees: big leaf maple (Acer macrophyllum) Douglas fir(Pseudotsuga menziesii) western red cedar(Thuja plicata) Shrubs salal (Gaultheria shallop) Oregon grape (Mahonia nervosa) Ferns: sword fern(Polystichum munitum) Groundcover: trailing blackberry (Rubus ursinur) The optimum time for planting is All planting should occur during winter dormancy p p g during February and March. 7.2 Preservation of Type III Stream No modifications to the Type III Stream are necessary to achieve project objectives. This low energy stream occurs in a relatively confined channel and is not characterized by extensive channel migration. There should be no future need to armor the bank or alter the stream for the purpose of protecting the proposed structure. 7 7.3 Recommended Best Management Practices Recommended Best Management Practices for this project are as follows: • Perform excavation work during dry weather. • Maintain silt fencing around the work area to prevent erosion and siltation of waters. • Minimize amount of erodible soils at any given time to the maximum extent feasible. • Check all equipment daily for leaks. Refueling and lubrication of equipment should occur off site. All fuel, lubricants,chemicals, and hazardous substances should be stored indoors during nonworking hours. • Do not apply any chemicals when there is a possibility of rain. • Comply with all permits and requirements of the government authority or agency. 8.0 Monitoring Monitoring of the site will begin the first fall following restoration and maintained on a seasonal basis. The information gathered will provide the following: 1)condition of reintroduced plant species; 2)the use of the site by wildlife species; 3) any disturbance caused by the development and its effect on protected zones and associated aquatic habitat; 4)any occurrence of exotic species within the Riparian Restoration and Preservation Zone; 5)any corrective measures that may be deemed necessary to provide desired conditions. This monitoring will be in effect for the duration of three years. The information gathered will be provided in an annual report and submitted to the Director of Mason County Department of Community Development. 9.0 Conclusion This project involves the construction of a 2,132 square foot building, with a septic and drainfield encompassing an additional 1,800 square feet. The entire project lies within the protected buffer of a Type III Stream. A Riparian Restoration and Preservation Zone has been identified to preserve ecological functions and restore habitat features upheld by the riparian corridor. 8 F Preservation Measures,Restoration Measures, and Best Management Practices have all been identified to avoid, minimize,and mitigate for proposed construction. I trust this information is sufficient for your needs at this time. Thank you for choosing me as your environmental consultant. If you have any questions feel free to call. Lee Boad Lee Boad Habitat Management Planning and Wetland Services PO Box 2854 Belfair, WA 98528 360-620-0618 leeboadAlictc.com Attached: Plot Map 9 40 a vz UMMUP"Jd vbs OOBI 1 b9 pua wwxr—j Ali rig pasoao�d ' 1 / I -d4Nnd,cT� c1v�4) 1 I I �061 I I I I ► I �ooz saAA15 t"AMOM PW �+u'LId*"Av"lq9uH PE09 w1 aQ U4JM 04100-Z4-IZQI# I"-Udwl I Ao 1 AT 1 Ac Rm,,F�7 + 1 6 C, Z MASON COUNTY Shelton (360) 427-9670 DEPARTMENT OF COMMUNITY DEVELOPMENT Belfair (360) 275-4467 Planning Mason County Bldg.1 411 N.5th Elma (360) 482-5269 P.O.Box 279 Shelton,WA 98584 i July 16, 2004 t b 0 Scott and Jan Russell 100 NE Riverhill Dr. Belfair, WA 98528-9643 NOTICE OF MASON COUNTY CODE VIOLATION ENFORCEMENT CASE FILE NUMBER:ENF2004-00274 PARCELNUMBER: 12321-32-00130 SITE ADDRESS:lot off easement from Newkirk Rd. TAX ASSESSOR RECORD INFORMATION: Scott and Jan Russell 100 NE Riverhill Dr. Belfair, WA 98528-9643 Dear Mr. and Mrs. Russell: On June 17,2004,Mason County Building Planner Scott Longanecker inspected the above referenced parcel in response your pre-inspection application(SPI2004-00167). A copy of Scott's notes are enclosed for your review. I recently spoke with Lee Boad,consulting biologist, regarding this site. I understand that you plan to work to resolve the code compliance issue detailed by Scott. The vegetation removal that occurred within the regulated buffer area associated with a Type 4 stream constitutes a violation of Mason County Resource Ordinance section 17.01.110(G)(1)(b)— copy enclosed. To address this issue,you will need to refer to Mason County Resource Ordinance section 17.01.210(enclosed and highlighted). Item numbers 1,2,and 3 listed under section 17.01.210 will need to be completed and submitted by August 16,2004. The Restoration Plan will need to be prepared by a professional who meets the definition of a "Fish and Wildlife Professional,"as defined in the enclosed attachment(highlighted). You can use the Wetland Consultant List as a starting point when locating a qualified professional. The bond amount will need to be based on a reasonable, formal estimate for the costs associated with the Restoration Plan. In addition to the Restoration Plan and Restoration Bond,you will need to submit a$360 Restoration Plan Review and Tracking Fee—to cover County costs incurred in addressing and resolving this matter. If you have questions regarding the compliance requirements,please contact me at(360)427-9670 ext. 593. I anticipate receiving the Restoration Plan,Restoration Bond and$360 fee payment by August 16,2004.Upon receipt of the bond form and fee,I will close the enforcement case and create a tracking case file. Once per year, for a period of three years from completion of restoration activities,a qualified professional shall submit an annual report to the County(see Mason County Resource Ordinance section 17.01.210(2)—copy enclosed). The bond will be released following the three-year monitoring period,if the requirements of section 17.01.210(3)are satisfied. Thank you for anticipated cooperation. Sincerely, Kristin French Planner,Code Enforcement NOTE: Enclosures in first-class mailing only. Certified mail contains no enclosures. oF 2- MASON COUNTY Shelton (360) 427-9670 DEPARTMENT OF COMMUNITY DEVELOPMENT Belfair (360) 275-4467 Planning Elma (360 Mason County Bldg. 1411 N.5th ) 482-5269 P.O.Box 279 Shelton,WA 98584 March 8, 2005 Scott and Jan Russell 100 NE Riverhill Dr. Belfair, WA 98528-9643 NOTICE OF MASON COUNTY CODE VIOLATION ENFORCEMENT CASE FILE NUMBER:ENF2004-00274 PARCELNUMBER: 12321-32-00130 SITE ADDRESS:lot off easement from Newkirk Rd. TAX ASSESSOR RECORD INFORMATION: Scott and Jan Russell 100 NE Riverhill Dr. Belfair, WA 98528-9643 Dear Mr. and Mrs.Russell: On July 16,2004,I mailed correspondence to you advising of a code violation and detailing action required by you to resolve the violation. I have enclosed a copy of the letter for your review. In the letter,I requested that you submit a Restoration Plan,Restoration Bond and$360 Restoration Plan Review and Tracking Fee by August 16,2004. I did not receive any of the required items. I understand that you have submitted an application for a Variance to construct a residence within the regulated stream buffer in the vicinity of the violation. In speaking with your consultant,Lee Boad,I understand that he prepared your Habitat Management Plan last summer,but that it was evidently not submitted to me for review. At this time,you will need to submit the following items: 1. $360 Restoration Plan Review and Tracking Fee 2. Completed Bond Form(form enclosed)—Bond amount to be based on a reasonable, formal estimate for the costs associated with plan implementation(see number 3) 3. Please coordinate with Lee to have the following information added into your Habitat Management Plan(to satisfy Restoration Plan Requirements, detailed in section 17.01.210— copy enclosed): Site Plan depicting site characteristics prior to disturbance, Site Plan depicting the specific location of all proposed restoration measures,Formal schedule for restoration activity, and Formal estimate for bonding purposes. The following information pertains only to Enforcement Case Number ENF2004-00274,not to your pending variance application: Please submit the $360 fee by April 1,2005. Following my discussion with Lee, I am willing to wait on the variance outcome so that Lee can tailor the Restoration Site Plan around the approved footprint(should one be approved by variance),and provide you with an accurate bond amount. I expect that the Restoration Bond Form and Habitat Management Plan information(detailed in number 3, above)be submitted within 30 days from the date of decision in the variance case. Please contact me at(360)427-9670 ext. 593 if you have any questions regarding this information, and please provide a copy of this letter to Lee Boad as well. Sincerely, Kristin French Planner,Code Enforcement AT—mc tit til i I d r z AFFIDAVIT OF POSTING NOTICE STATE OF WASHINGTON ) ) ss. COUNTY OF MASON ) I, C A s M . M.C i do hereby certify that I posted 3 copies of the attached I ncyi of I mtc in 2-- public places as follows: one at e link I'OAV �R- ' _s- t_20o is v;N fa, ,q one at_ k(V53.-r 12ji one at � �cL In witness whereof, the party has signed this Affidavit of Posting Notice this �4h day of RyEwoiw , , 20 C'S By: Address: 4�l ►.l , S r �r = �C{ ��,� v,� STATE OF WASHINGTON ) ) ss. COUNTY OF MASON ) Subscribed and sworn to me this day of 20 Sf o BONNIE L. CAP ; 0 NOTARY PUBLIC i tary Public forithrStaTe of Washington STA1c o .1.4,AUN i 0 My commission Expires June 6,2006 i ram......................5 Residing at r_S�A� Commission Expires 6—6 — U(� 1 Notice of Application for Variance fr om rom the Mason County Resource Ordinance and Notice of Public Hearing Notice is hereby given that Scott M. Russell, who is the applicant for the following proposal,has filed an application for a Variance. The request for a variance from the Mason County Resource Ordinance No. 77-93 is for the construction of an approximately 2,132 square foot single family residence and utilities within a Type III stream buffer. Property location is Section 21, Township 23 N, Range 1 W and Parcel No. 12321-32-00130. Date of complete application: February 2, 2005. The proposed development is reviewed as a Variance under the Mason County Resource Ordinance No. 77-93, specifically Section 17.01.110, Fish and Wildlife Habitat Conservation Areas, which details stream buffer requirements and Section 17.01.150, Variances from Standards,which establishes Variance procedures and criteria. The proposal requires a Habitat Management Plan and Hearing Examiner approval. A PUBLIC HEARING will be held by the Mason County Hearing Examiner on the proposed project on Tuesday,April 12,2005 at 1:00 p.m. in the County Commissioners Chambers, Bldg. I, 411 N. 5th Street, Shelton, WA. Please contact Charles Mead McCoy III of the Mason County Department of Community Development at(360) 427-9670, ext. 294, with any questions or comments on this development and variance. MASON COUNTY Shelton (360) 427-9670 DEPARTMENT OF COMMUNITY DEVELOPMENT Belfair (360) 275-4467 Planning Elma (360 Mason County Bldg. 1411 N.5th ) 482-5269 P.O.Box 279 Shelton,WA 98584 TO: THE MASON COUNTY JOURNAL FROM: MASON CO. DEPARTMENT OF COMMUNITY DEVELOPMENT DATE: 3 Ff-"k-P-q � S" Please publish the attached t"'(O- lc" vi on the following day(s) 2-�s- Please keep the Affidavit of Publication for the Department of Community Development to pick up from your office and send copies to the following 7:S c.e>-�`�- F2-v S ss,- U Please charge �C c� T �W S S C-�7-< k— for the publication at: Thank you, Mason County Planning Staff 1 Notice of Application for Variance from the Mason County Resource Ordinance and Notice of Public Hearing Notice is hereby given that Scott M. Russell, who is the applicant for the following proposal,has filed an application for a Variance. The request for a variance from the Mason County Resource Ordinance No. 77-93 is for the construction of an approximately 2,132 square foot single family residence and utilities within a Type III stream buffer. Property location is Section 21, Township 23 N, Range 1 W and Parcel No. 12321-32-00130. Date of complete application: February 2, 2005. The proposed development is reviewed as a Variance under the Mason County Resource Ordinance No. 77-93, specifically Section 17.01.110, Fish and Wildlife Habitat Conservation Areas,which details stream buffer requirements and Section 17.01.150, Variances from Standards, which establishes Variance procedures and criteria. The proposal requires a Habitat Management Plan and Hearing Examiner approval. A PUBLIC HEARING will be held by the Mason County Hearing Examiner on the proposed project on Tuesday,April 12,2005 at 1:00 p.m. in the County Commissioners Chambers, Bldg. I, 411 N. 5th Street, Shelton, WA. Please contact Charles Mead McCoy III of the Mason County Department of Community Development at (360) 427-9670, ext. 294, with any questions or comments on this development and variance. Notice of Application for Variance from Affidavit of Publication the Mason County Resource Ordinance and Notice of Public Hearing Notice is hereby given that Scott M. Russell. who is the applicant for the follow- STATE OF WASHINGTON, SS. ing proposal, has filed an application for a COUNTY OF MASON Variance. The request for a variance from the Ma- son County Resource Ordinance No. 77-93 Julie G. Orme is for the construction of an approximately being first duly swom 2,132 square foot single family residence and utilities within.a Type III stream buffer. on oath deposes and says that she is the clerk Property location is Section 21,Township 23 of THE SHELTON-MASON COUNTY JOURNAL,a weekly newspaper.That said news- N, Range I W and Parcel No. 12321-32- paper is a legal newspaper and it is now and has been for more than six months prior to the 00130. date of the publication hereinafter referred to,published in the English language continu- Date of complete application: February ously as a weekly newspaper in SHELTON,Mason County,Washington,and it is now 2,2005. The proposed development is reviewed and during all of said time was printed in an office maintained at the aforesaid place of as a Variance under the Mason County Re- publication of said newspaper.That the said SHELTON-MASON COUNTY JOURNAL source Ordinance No 77-93, specifically was on the 9th day of August,1941,approved as a legal newspaper by the Superior Court Section 17.01.110, Fish and Wildlife Habitat of said Mason County. Conservation Areas, which details stream Notice Of Application for buffer requirements and Section 17.01.150, That the annexed is a true copy of a Variances from Standards, which establish- es Variance procedures and criteria. The Variance from Mason Co.Resourse Ordinance proposal requires a Habitat Management Plan and Hearing Examiner approval. SCOTT M. RUSSELL A PUBLIC HEARING will be held by the Mason County Hearing Examiner on the as it was published in regular issues(and not in supplement form)of said proposed project on Tuesday, April 12, 2005 at 1:00 p.m. in the County Commis- newspaper once each week for a period of one sioners Chambers, Bldg. 1, 411 N. 5th consecutive weeks,commencing on the Street,Shelton,WA. 1 Oth February 05 Please contact Charles Mead McCoy III day of y 20 and ending on the of the Mason County Department of Com munity Development at(360)427-9670,ext. 1 0 th day of February .20 0 5294, ,both dates inclusive, development and variance.with any questions or comments on this and that such newspaper was regularly distributed to its subscribers during all of the said development period.That the full amount of the fee charged for the 2l10 1 t Pe foregoing publication is the sum of$ 3 7. 5 0 (�k" . Subscribed and sworn to before me this 10 th day of �tttutri���� i February ,20 05 `�����DwNN DOS��'%, 4.1 Notary Public in and for the State of Washington ? %OTAgy Residing at Shelton,Washington My commission expires ,20 AVB LAG !y 11 boo•'`��\ ''sisop rW ASH\\a\`�. 1TT7-Acij�A PST tot-- I MASON COUNTY Shelton (360) 427-9670 DEPARTMENT OF COMMUNITY DEVELOPMENT Belfair (360) 275-4467 Planning Mason County Bldg.1 411 N.5th Elma (360) 482-5269 P.O.Box 279 Shelton,WA 98584 MEMORANDUM DATE:. January 21,2005 TO: Gloria Rogers,WDFW Skokomish Tribe FROM: Charles Mead McCoy III,Planner ' RE: Habitat Management Plan for your review and comment.Proposed Scott M.Russell residence located on Newkirk Road,Belfair. NOTE:Please submit comments by February 22,2005,to the address above,attn:Chuck McCoy. Please find enclosed Habitat Management Plan for your review and comment.Mason County Resource Ordinance Fish&Wildlife Habitat Conservation Area Chapter 17.01.110 provides that management plans shall be reviewed by local Tribes,Washington State Dept of Fish and Wildlife and other applicable State/Federal agencies.A 28-day comment period is provided.Details of the project follow and are attached. SITE ADDRESS:Parcel# 12321-32-00130 APPLICANTS: Scott M.Russell. Legal Description: Sec 21,Twn 23 N,R 1 W. Project description:Construction of a residential building of 2,132 sq.ft.within a Type III stream buffer. Please feel free to contact me if you have any questions.I can be reached at 427-9670,ext 294. Message Page 1 of 2 7 Kristin French - RE: Newkirk Rd. HMP From: "Marty Ereth"<marty@skokomish.org> To: "Lee Boad"<leeboad@hctc.com> Date: 9/1/2004 9:15:06 AM Subject: RE:Newkirk Rd.HMP CC: "Kristin French"<frenchk@co.mason.wa.us>,"Keith Dublanica"<keith@skokomish.org>,"Jeff Heinis"<jheinis@skokomish.org> Lee, Sorry I didn't get right back to you after your 8/26 voice-mail. Just from assessing your description of the proposal, the tribe would rather have new construction further away from the creek. Obviously as you said, the best alternative would be to use it as a recreational lot or offer it up as a conservation easement but we know how it is. It's unfortunate the clients already cleared the area nearest the creek. How long have they owned the parcel and when was the clearing done? Is there any enforcement action or mitigation being required from Mason County? It would seem unreasonal to reward applicants by giving them a variance after they have violated the critical areas ordinance. However since we are in Mason County we understand the politics. Have you ever been unsuccessful in securing a variance for your clients? We know of only one that was turned down and that's because we challenged it. Removal of the additional 12-15 trees is also unfortunate. If the home was placed in the cleared area closest to the stream, these trees would provide primarily wildlife habitat and potentially shade to the stream and riparian forest because they would be on the opposite side of the home. So putting the home further away and restoring the cleared area would be preferred if the applicant pursues new construction. Obvioulsy there should be an aggressive mitigation plan to revegetate the illegally cleared area regardless if an enforcement action is sought and regardless if an HMP is being prepared to construct a new residence. The goal would be to have the cleared area nearest the stream to function as a riparian forest and not to install lawn, gardens or landscaping in this area. Other mitigation should include an agreement that no future hard bank protection will be allowed. There should also be an attempt to use the additional 12-15 trees removed as �. mitigation as down wood between the home and the creek and within the creek if it's lacking LWD. I JC .. We may provide additional comments during the HMP review phase. I will get ahold of you later and see if we can connect to look at the site. Have a good day. Marty -----Original Message----- From: Lee Boad [mailto:leeboad@hctc.com] Sent: Tuesday, August 31, 2004 3:17 PM To: 'Marty Ereth' Subject: Marty, I left a fairly lengthy message on your voice mail a while back seeking recommendations regarding an HMP that I am preparing for some clients on Newkirk Road in Belfair. The entire parcel falls within jurisdiction of an unnamed Type III tributary to the Union River. The landowners are seeking a variance to construct a residence. The proposal seems to fulfill the criteria for a reasonable use exemption and will likely get approved in some way shape or form. I would like to know if the Tribe would rather see a proposal that utilizes the already cleared area for construction (cleared without permitting)or be more supportive of constructing the house in a currently uncleared area further from the stream (50-55 feet at the nearest point). Removal of approximately 12-15 mature second growth overstory conifers from the protected buffer would be necessary to utilize the area furthest from the stream.. file:HC:\Documents and SettingsTrenchkTocal Settings\Temp\GW}00001.HTM 9/1/2004 Message Page 2 of 2 I understand that the best solution is to not build anything on the property and donate the land to a conservation group or the Skokomish tribe. The clients have not yet agreed to pursue such an avenue. Your advice on this matter would be greatly appreciated. If you will be in the area in the next couple weeks and have 10-minutes to spare I would be glad to show you the site. Lee file://C:\Documents and SettingsTrenchkTocal Settings\Temp\GW}00001.HTM 9/1/2004 A-T7Af%t{ ► & T- Chapter 222-16 Definitions— 712001 "Young forest marginal habitat" see WAC 222-16-085 (1)(b). WAC 222-16-030 Water typing system. Until the fish habitat water type maps described below are adopted by the board, the Interim Water Typing System established in WAC 222-16-031 will continue to be used. The department in cooperation with the departments of fish and wildlife, and ecology, and in consultation with affected Indian tribes will classify streams, lakes and ponds. The department will prepare water type maps showing the location of Type S, F, and N (Np and Ns) Waters within the forested areas of the state. The maps will be based on a multiparameter, field-' verified geographic information system (GIS) logistic regression model. The multiparameter model will be designed to identify fish habitat by using geomorphic parameters such as basin size, gradient, elevation and other indicators. The modeling process shall be designed to achieve a level of statistical accuracy of 95% in separating fish habitat streams and nonfish habitat streams. Furthermore, the demarcation of fish and nonfish habitat waters shall be equally likely to over and under estimate the presence of fish habitat. These maps shall be referred to as "fish habitat water typing maps" and shall, when completed, be available for public inspection at region offices of the department. Fish habitat water type maps will be updated every five years where necessary to better reflect observed, in-field conditions. Except for these periodic revisions of the maps, on-the-ground observations of fish or habitat characteristics will generally not be used to adjust mapped water types. However, if an on-site interdisciplinary team using nonlethal methods identifies fish, or finds that habitat is not accessible due to naturally occurring conditions and no fish reside above the blockage, then the water type will be immediately changed to reflect the findings of the interdisciplinary team. The finding will be documented on a water type update form provided by the department and the fish habitat water type map will be updated as soon as practicable. If a dispute arises concerning a water type the department shall make available informal conferences, as established in WAC 222-46-020 which shall include the departments of fish and wildlife, and ecology, and affected Indian tribes and those contesting the adopted water types. The waters will be classified using the following criteria: *(1) "Type S Water" means all waters, within their bankfull width, as inventoried as "shorelines of the state" under chapter 90.58 RCW and the rules promulgated pursuant to chapter 90.58 RCW including periodically inundated areas of their associated wetlands. *(2) "Type F Water" means segments of natural waters other than Type S Waters, which are within the bankfull widths of defined channels and periodically inundated areas of their associated wetlands, or within lakes, ponds, or impoundments having a surface area of 0.5 acre or greater at seasonal low water and which in any case contain fish habitat or are described by one of the following four categories: (a) Waters, which are diverted for domestic use by more than 10 residential or camping units or by a public accommodation facility licensed to serve more than 10 persons, where such diversion is determined by the department to be a valid appropriation of water and the only practical water source for such users. Such waters shall be considered to be Type F Water upstream from the point of such diversion for 1,500 feet or until the drainage area is reduced by 50 percent, whichever is less; (b) Waters, which are diverted for use by federal, state, tribal or private fish hatcheries. Such waters shall be considered Type F Water upstream from the point of diversion for 1,500 feet, including tributaries if highly significant for protection of downstream water quality. The department may allow additional harvest beyond the requirements of Type F Water designation provided the department determines after a landowner- 16-18 Ft7— Dt anitions— 712001 Chapter 222-16 requested on-site assessment by the department of fish and wildlife, department of ecology, the affected tribes and interested parties that: (i) The management practices proposed by the landowner will adequately protect water quality for the fish hatchery; and (ii) Such additional harvest meets the requirements of the water type designation that would apply in the absence of the hatchery; (c) Waters, which are within a federal, state, local, or private campground having more than 10 camping units: Provided, That the water shall not be considered to enter a campground until it reaches the boundary of the park lands available for public use and comes within 100 feet of a camping unit, trail or other park improvement; (d) Riverine ponds, wall-based channels, and other channel features that are used by fish for off-channel habitat. These areas are critical to the maintenance of optimum survival of fish. This habitat shall be identified based on the following criteria: (i) The site must be connected to a fish habitat stream and accessible during some period of the year; and (ii) The off-channel water must be accessible to fish. (3) "Type Np Water" means all segments of natural waters within the bankfull width of defined channels that are perennial nonfish habitat streams. Perennial streams are waters that do not go dry any time of a year.of normal rainfall. However, for the purpose of water typing,Type Np Waters include the intermittent dry portions of the perennial channel below the uppermost point of perennial flow. If the uppermost point of perennial flow cannot be identified with simple, nontechnical observations (see board manual, section 23), then Type Np Waters begin at a point along the channel where the contributing basin area is: (a) At least 13 acres in the Western Washington coastal zone (which corresponds to the Sitka spruce zone defined in Franklin and Dyrness, 1973); (b) At least 52 acres in other locations in Western Washington; (c) At least 300 acres in Eastern Washington. (4) "Type Ns Water" means all segments of natural waters within the bankfull width of the defined channels that are not Type S, F, or Np Waters. These are seasonal, nonfish habitat streams in which surface flow is not present for at least some portion of a year of normal rainfall and are not located downstream from any stream reach that is a Type Np Water. Ns Waters must be physically connected by an above-ground channel system to Type S, F, or Np Waters. *(5) For purposes of this section: (a) "Residential unit" means a home, apartment, residential condominium unit or mobile home, serving as the principal place of residence. (b) "Camping unit' means an area intended and used for: (i) Overnight camping or picnicking by the public containing at least a fireplace, picnic table and access to water and sanitary facilities; or (ii) A permanent home or condominium unit or mobile home not qualifying as a "residential unit' because of part time occupancy. (c) "Public accommodation facility" means a business establishment open to and licensed to serve the public, such as a restaurant, tavern, motel or hotel. (d) "Natural waters" only excludes water conveyance systems which are artificially constructed and actively maintained for irrigation. (e) "Seasonal low flow" and "seasonal low water" mean the conditions of the 7-day, 2- year low water situation, as measured or estimated by accepted hydrologic techniques recognized by the department. 16-19 I Chapter 222-16 Definitions— 712061E (f) "Channel width and gradient" means a measurement over a representative section of at least 500 linear feet with at least 10 evenly spaced measurement points along the normal stream channel but excluding unusually wide areas of negligible gradient such as marshy or swampy areas, beaver ponds and impoundments. Channel gradient may be determined utilizing stream profiles plotted from United States geological survey topographic maps (see board manual section 23). (g) "Intermittent streams" means those segments of streams that normally go dry. (h) "Fish habitat" means habitat which is used by any fish at any life stage at any time of the year, including potential habitat likely to be used by fish which could be recovered by restoration or management and includes off-channel habitat. WAC 222-16-031 Interim water typing system. Until the fish habitat water type maps mentioned above are available, waters will be classified according to the interim water typing system described below. If a dispute arises concerning a water type, the department shall make available informal conferences, which shall include the departments of fish and wildlife, ecology, and affected Indian tribes and those contesting the adopted water types. These conferences shall be established under procedures established in WAC 222-46-020. For the purposes of this interim water typing system see the following table: Water Type Conversion Table Permanent Water Typing Interim Water Typing Type "S" Type 1 Water Type "F" Type 2 and 3 Water Type "Np" Type 4 Water Type "Ns" Type 5 Water *(I) "Type 1 Water" means all waters, within their ordinary high-water mark, as inventoried as "shorelines of the state" under chapter 90.58 RCW and the rules promulgated pursuant to chapter 90.58 RCW, but not including those waters' associated wetlands as defined in chapter 90.58 RCW. *(2) "Type 2 Water" means segments of natural waters which are not classified as Type 1 Water and have a high fish, wildlife, or human use. These are segments of natural waters and periodically inundated areas of their associated wetlands, which: (a) Are diverted for domestic use by more than 100 residential or camping units or by a public accommodation facility licensed to serve more than 10 persons, where such diversion is determined by the department to be a valid appropriation of water and only considered Type 2 Water upstream from the point of such diversion for 1,500 feet or until the drainage area is reduced by 50 percent, whichever is less; (b) Are diverted for use by federal, state, tribal or private fish hatcheries. Such waters shall be considered Type 2 Water upstream from the point of diversion for 1,500 feet, including tributaries if highly significant for protection of downstream water quality. The department may allow additional harvest beyond the requirements of Type 2 Water designation provided by the department of fish and wildlife, department of ecology, the affected tribes and interested parties that: 16-20 i Vefinitions - 712001 Chapter 222-16 i (i) The management practices proposed by the landowner will adequately protect water quality for the fish hatchery; and (ii) Such additional harvest meets the requirements of the water type designation that would apply in the absence of the hatchery; (c) Are within a federal, state, local or private campground having more than 30 camping units: Provided, That the water shall not be considered to enter a campground until it reaches the boundary of the park lands available for public use and comes within 100 feet of a camping unit. (d) Are used by fish for spawning, rearing or migration. Waters having the following characteristics are presumed to have highly significant fish populations: (i) Stream segments having a defined channel 20 feet or greater within the bankfull width and having a gradient of less than 4 percent. (ii) Lakes, ponds, or impoundments having a surface area of 1 acre or greater at seasonal low water; or (e) Are used by fish for off-channel habitat. These areas are critical to the maintenance of optimum survival of fish. This habitat shall be identified based on the following criteria: (i) The site must be connected to a fish bearing stream and be accessible during some period of the year; and (ii) The off-channel water must be accessible to fish through a drainage with less than a 5% gradient. *(3) "Type 3 Water" means segments of natural waters which are not classified as Type 1 or 2 Waters and have a moderate to slight fish, wildlife, and human use. These are segments of natural waters and periodically inundated areas of their associated wetlands which: (a) Are diverted for domestic use by more than 10 residential or camping units or by a public accommodation facility licensed to serve more than 10 persons, where such diversion is determined by the department to be a valid appropriation of water and the only practical water source for such users. Such waters shall be considered to be Type 3 Water upstream from the point of such diversion for 1,500 feet or until the drainage area is reduced by 50 percent, whichever is less; (b) Are used by fish for spawning, rearing or migration. The requirements for determining fish use are described in the board manual section 13. If fish use has not been determined: (i) Waters having the following characteristics are presumed to have fish use: (A) Stream segments having a defined channel of 2 feet or greater within the bankfull width in Western Washington; or 3 feet or greater in width in Eastern Washington; and having a gradient of 16 percent or less. (B) Stream segments having a defined channel or 2 feet or greater within the bankfull width in Western Washington; or 3 feet or greater within the bankfull width in Eastern Washington, and having a gradient greater than 16 percent and less than or equal to 20 percent, and having greater than 50 acres in contributing basin size in Western Washington or greater than 175 acres contributing basin size in Eastern Washington, based on hydrographic boundaries; (C) Ponds or impoundments having a surface area of less than 1 acre at seasonal low water and having an outlet to a fish stream; (D) Ponds of impoundments having a surface area greater than 0.5 acre at seasonal low water. 16-21 Chapter 222-16 Definitions — 7/2001 (ii) The department shall waive or modify the characteristics in (i) of this subsection where: j (A) Waters have confirmed, long term, naturally occurring water quality parameters incapable of supporting fish; (B) Snowmelt streams have short flow cycles that do not support successful life history phases of fish. These streams typically have no flow in the winter months and discontinue flow by June 1; or (C) Sufficient information about a geomorphic region is available to support a departure from the characteristics in (i) of this subsection, as determined in consultation with the department of fish and wildlife, department of ecology, affected tribes and interested parties. *(4) "Type 4 Water" means all segments of natural waters within the bankfull width of defined channels that are perennial nonfish habitat streams. Perennial streams are waters that do not go dry any time of a year of normal rainfall. However, for the purpose of water typing, Type 4 Waters include the intermittent dry portions of the perennial channel below the uppermost point of perennial flow. If the uppermost point of perennial flow cannot be identified with simple, nontechnical observations (see board manual, section 23), then Type 4 Waters begin at a point along the channel where the contributing basin area is: (a) At least 13 acres in the Western Washington coastal zone (which corresponds to the Sitka spruce zone defined in Franklin and Dyrness, 1973); (b) At least 52 acres in other locations in Western Washington; (c) At least 300 acres in Eastern Washington. *(5) "Type 5 Waters" means all segments of natural waters within the bankfull width of the defined channels that are not Type 1, 2, 3, or 4 Waters. These are seasonal, nonfish habitat streams in which surface flow is not present for at least some portion of the year and are not located downstream from any stream reach that is a Type 4 Water. Type 5 Waters must be physically connected by an above-ground channel system to Type 1, 2, 3, or 4 Waters. *(6) For purposes of this section: (a) "Residential unit" means a home, apartment, residential condominium unit or mobile home, serving as the principal place of residence. (b) "Camping unit' means an area intended and used for: (i) Overnight camping or picnicking by the public containing at least a fireplace, picnic table and access to water and sanitary facilities; or (ii) A permanent home or condominium unit or mobile home not qualifying as a "residential unit" because of part time occupancy. (c) "Public accommodation facility" means a business establishment open to and licensed to serve the public, such as a restaurant, tavern, motel or hotel. (d) "Natural waters" only excludes water conveyance systems which are artificially constructed and actively maintained for irrigation. (e) "Seasonal low flow" and "seasonal low water" mean the conditions of the 7-day, 2- year low water situation, as measured or estimated by accepted hydrologic techniques recognized by the department. (f) "Channel width and gradient' means a measurement over a representative section of at least 500 linear feet with at least 10 evenly spaced measurement points along the normal stream channel but excluding unusually wide areas of negligible gradient such as marshy or swampy areas, beaver ponds and impoundments. Channel gradient may be determined utilizing stream profiles plotted from United States geological survey topographic maps. (See board manual section 23.) 16-22 TTPtck}NnE�MT I D I PUGET SOUND s,e4i�f U CUTTHROAT TROUT ESU 6,9 tic o� 9 IN, ck /S�91O BRITISH COLUMBIA ck (CANADA) BRITISH COLUMBIA (CANADA) �,\� 'Nookse h H •, M rn * f fq l • rtes ` °e Q\ _ / �F� r 3UPN afok stNlaa<<<i��r f STRAIT OF ge d ^j Everett fir: Cutthroat Trout ESUsD a o Sky rris 1m � �,k tt, t;r �aiecs N aco a River v m 9G�y Gp i y c, 0 Land Ownership Federal(36%) Private(53%) United States Department of Commerce Scale: National Oceanic&Atmospheric Administration 10 0 10 20 30 40 50 Miles State/Local(10%) NATIONAL MARINE FISHERIES SERVICE HABITAT CONSERVATION DIVISION to o 10 20 30 40 50 Mlume— Tribal0%) 525 N.E.Oregon St.,Suite 410 Portland,OR 97232 MAP DATE:2/11/99 Tel(503)231-2223 CREATED BY:D.N NcociswcvAws�sroNEicum Note:Map is for general reference only. 1�F� A-TTAc(4 M EF-mT- Chapter 17.22 RESIDENTIAL DISTRICTS IN THE BELFAIR UGA 17.22.100 11R-3" LOW DENSITY RESIDENTIAL DISTRICT Sections: 17.22.110 Purpose:The purpose of the R-3 District is to provide a lower density housing option in the UGA. Locations are restricted to sites containing critical areas and slopes as development is expected to be clustered into the more suitable building areas.Locations should also be away from development nodes and commercially zoned areas but with the intensity of development still relatively low,beyond a normal walking distance of to'/<mile.The district allows for a density of three dwelling units per acre,except where"critical lands"are present—which reduce the permitted density.Clustering of the dwelling units and properties is encouraged to protect open space and water quality,reduce infrastructure needs,and enhance energy efficiency.Multi family dwelling units are conditionally permitted as long as they do not exceed the density requirement and minimize impacts to adjacent single family dwelling units. 17.22.120 Allowed uses:Uses allowed in the R-3 District shall be as follows: One detached dwelling per lot Duplexes Public parks Public utility service lines 17.22.130 Accessory uses:The following uses are permitted only as they are ancillary to the primary allowed uses and may or may not require a special license or permit in addition to holding a building permits: Home Occupations Accessory Structures Accessory Dwelling Units Family Child Care Centers Group Homes Outdoor Vehicle Parking Well heads and water treatment facilities Community drain fields 17.22.140 Special uses: Churches Schools Commercial Child Care Centers Bed and Breakfast Inns Multi Family Dwelling Units Other Essential Public Facilities Townhouses Triplexes 17.22.145 Prohibited uses:The following uses are prohibited: Adult entertainment 17.22.150 Bulk and dimensional standards: Density: Maximum average of three dwelling units per acre excluding the area of designated wetlands,designated landslide hazard areas(note:building may be allowed in LHA),lakes,ponds,or marine waters. Intensity: 35%lot coverage on individual lots. BELFAIR UGA ZONING CODE—Title 17 Mason County Code Page 8 ZvFZ Min.Lot Area:None.Development must not exceed density and lot coverage requirements above. Lot Dimensions: All lots shall have a minimum width of 25 feet. Height: The maximum height of structures in the district shall be as follows: Buildings containing the permitted use:30 feet Accessory structure:20 feet Setbacks: Front yard: 15 feet Side yard: 5 feet for accessory structures and 10 feet for the dwelling unit Street side yard: 15 feet Rear yard: 5 feet for accessory structures and 10 feet for the dwelling unit Street rear yard: 15 feet BELFAIR UGA ZONING CODE—Title 17 Mason County Code Page 9 Return To: TITLE NOTIFICATION OF HABITAT MANAGEMENT PLAN DATE: OWNER NAME: MAILING ADDRESS PARCEL# LEGAL DESCRIPTION: (ABBR.FORM: QUARTER/QUARTER,SECTION,TOWNSHIP,RANGE,PLAT, LOT&BLOCK NOTICE: The property was the subject of a development proposal within a critical area or its buffer, for the purpose of application number filed on . (date) This property is subject to the conditions,mitigation and/or conservation measures as contained within the Habitat Management Plan submitted to and approved by the Mason County Department of Community Development. Restrictions on the use or alteration of the property may exist due to the contents, conditions, mitigation and/or conservation measures of the Habitat Management Plan which are to be maintained in perpetuity. A copy of the Habitat Management Plan is attached hereto. GRANTOR(S): LAST FIRST MI LAST FIRST MI SIGNATURE(S): GRANTEE: PUBLIC I Return To: TITLE NOTIFICATION OF AQUIFER RECHARGE AREA DATE: OWNER NAME: MAILING ADDRESS: PARCEL NUMBER: LEGAL DESCRIPTION: (ABBR.FORM: QUARTER/QUARTER,SECITON,TOWNSHIP,RANGE, PLAT,LOT&BLOCK) NOTICE: This property lies within a Critical Aquifer Recharge Area as defined by Chapter 8.52 Mason County Code. The property was the subject of a development proposal for: Application number: filed on (date). Restrictions on use or alteration of the property may exist due to natural conditions of the property and resulting regulation. Review of such application provides information on the location of a critical aquifer recharge area and the restrictions on the site. A copy of the plan showing the aquifer recharge area is attached hereto. GRANTOR(S): LAST FIRST MI GRANTEE: vAU ecr Ls coo�-naves mcuoy iviason�ountFrom: John E. Diehl 426-3709(call first) 04/12/05 12:31:12 Page 1 of 4 FACSIMILE COVER PAGE Date: 04/12/05 Time: 12:31 :08 Page: 1 To: Phil Oibrechts c/o Charles McCoy Company: Mason County Planning Department Fax #: 427-8425 From: John E. Diehl Address: 678 Portage Rd. Shelton, WA 98584 USA Fax #: 426-3709 (call first) Voice #: 426-3709 Message: Please provide copies to Mr. Olbrechts and the applicants. -- John Diehl i c• rim umecnts cio t-nanes Mcuoy Mason uountFrom: John E. Diehl 426-3709(call first) 04/12/05 12:31:44 Page 2 of 4 r Advocates for Responsible Development 678 Portage Road • Shelton, WA .98584 . 360-426-3709 April 12, 2005 TO: Pllil Ulbreclits, Mason County hearing Lxanliiler FROM: John F. Diehl Re: Russell Resource Ordinance variance request(VAR2004-00034) In behalf of Advocates for Responsible Developincnt, I join with the Planning Department stag and Skokonlisll Tribe biologists Marty Erctll and Jeff I Icines in opposing the request for a varianlec. As Mr. Ercth said in his c-inail to the applicant's consultant, it.would seem unreasonable to reward applicants by giving them a vanYance after they have violated the critical areas ordinance. Index#9. 'I'llc tendency to clear fast mid ask questions later Il ust be curbed if any meaningful prot..c.tion f:>r rttroaun an rsh.>rcluic.buffors irs to tie..re.taincA. of course,from a legal perspective,the question of whether a variance should be granted is distinct$'onl the issues surrounding the illegal cleariilg of a part of the stream buffer. Still,there is i1.T1 iTl LLMIl:L:HOTI 17L:I.WL:L:T1 1..11C V:1.li allcu l.•Tll.l;ll:l.and i\\Ill:\ONIIICL�,11 l:iC l•1T1n W}11:T1 l.fllkaia.3, 4, 5, and h 1. C:rvnLing u wur•iuncu would lie incuuaiyLcuL wil.11 crit.crioll 3. 421yt,m4rm 3 r,-quiroa that a vni-in inn- tut oauaa Adlvolvo to tho atsvir.-sunont. TAIL 11 lltcra.11y,there is ilo doubt that cotistrllctioil within a strc3111 buffer will a.lwa , ha.vc advcisc cffcl is oil the enviroinllcllt,whcthcl'or not the buffer llas been previously disturbed. It has such advcise effects both during the course of construction--primarily in the form of runoff from bare soil dist.urtlCcl ill illlll adlcrwartl ill 11'i1111C Uy rC"1dullus and then'pets, displaciIlg wildlife habitat,and in the form of more I'a.pid runoff and storlllwatei' colltaininatioll caused by increase itl inipernica.blC sulfa.ces and ina.dverteIlt pollutioIl associated With application of chlcmica.ls to lawns, oil froill cars-,inowors and other Illachlincs, and shnilar externalities, connllon to ordinary, less-than-fastidious household occupancy. Igor several good reasons,the ordinance does not allow an exception for mitigation of a.dvelsc of ects. Mitigation is only a,reduction of adverse effects,not,ail avoidance or clink latlon of then. RCvegetatioI1 of a,buffer is a,process that is not complete for decades. Meanwhile,the functiotis of the stream bluffer for ailuatic life--to provide filtration of runoff to ensure water quality, to provide shade to ensure that water telllperaturc does not exceed levels tolerable to sensitive fish species,and to provide inscc"t habitat.that results in sonle fraction of the ins-ec t,populatioIl bcconnng watcl'boine and thus available as food for fish and other aquatic species arc inlpanl'ed. -1- i o' rnil Ulprecnts c/o Charles McCoy Mason CountFrom:John E. Diehl 426-3709(call first) 04/12/05 12:32:10 Page 3 of 4 r Admittedly, it is common to ignore these adverse elleets or to treat them as de minimis. But two (actors give reason (irr more careful scrutiny in the present instance. One is the precedent lirr reiteration that approval ol'a variance implies. Where a variance creates a precedent liar similar applications, one mules expect (hut :Lny advero.e ellectr: tolerated in the variances Linder immediate consideration will he multiplied many times by lilture variances that may be expected to hollow suit. variance, even where rmilivalinn N prnpriserl, as in ilia case ol'anollher variance reriLled helnre the Hew Mr,Exail hill today, ific Ch Il1Cy applicatll)11 (VAR200.5-00002). ill the uric ul'lhc RLI11Cll -.>,.1�,.>„L,►,<,..,,:,..•:,., u., ..�racL:<,,,<.r <.<,,,,,;a:,,-..L:<,., ..err:,,,: Lr,:. .��,,.,L <.r�....,,0 <,rl�.,a..,,,u,;., u,:. h�.1>'•.,.- 1_... Lhe fact that there apparently hLLs boon Borne revogotation of Lho situ and installation of"a"lunec" intended to reduce sediment rLui011; the site lacks the huller it would have enjoyed Wit had not been illr.v:rlly nl:+:rrrrl MnrNnvr+r, rie�cPtlr lhF+.reef+nI Mr Hfimi, nn nnr wrlh rxrNrImp.. in i-xiwrnn rnnlrril arid fit rllnlirur rrl*t'v I }rr� invr.-div rlrrl I}rr.�ilr.ru nr:ulr. err runrnr.nrlalirrn� tier lirinrr. 'Jrunrwnlr.r management. (Mr. Road has some credentials in biology, but none in the technical areas in question.) The Hearing Examiner faced a similar issue in the 7,immaro variance request(VAR2003- 00018). The applicant there sought to build within a cleared part ol'the stream huller. The examiner wrote: Uiven that the building site should be restored to its natural condrllon, any analysis of adverse impacts should address the loss ol'this potential habitat. The applicant has provided no evidence on this issue. The countervailing evidence. 01 course, is the Romouruc Ordinunuc and the bo»t available iui:ncc that nupportn it. Tho LVuahington State Growth Management Act, Chapter 36.70A RCW,requires that critical area regulations he based upon best available science. . . . As a result of*. . . intense review, Mason County has determined that a 165 loot butler is necessary to protect Type 1 [and Type 2 and 3] streams. The record contains no compelling evidence to reline this legislative determination . . . . Notice of'Decision, 11/24/03, at 7. Similarly, Applicant Russell has presented no compelling evidence to reline the legislative determination ol'buller requirements. Thus, the illegal clearing distinguishes this case from others insofar as the applicant is responsible lirr already creating adverse environmental impacts, which will be magnified 11' construction is allowed helirre the original huller is (idly restored, and magnified still more il'every case of'illegal clearing is allowed a variance. Given that the disturbed huller has not been li.rlly restored, and that no one with real expertise in erosion/pollution control has observed the site to recommend needed mitigation, the application (ails to meet the lest of'criterion 3. 11. Gi-antvig a variance wound be inconsistent with cizteiion 4. As the slall'report points out—apparently with the concurrence ol'Mr. Road—the proposed location of a house and garage will not be as little within the stream buffer as is feasible. As such, -2- i r rnll unxecnts c/o Charles McCoy Mason CountFrom: John E. Diehl 426-3709(call first) 04/12/05 12:32:40 Page 4 of 4 the proposal is not "the minirnurn necessary to allirrd reliel'." Ill. Grantuig a variance would be niconsistent with cilteilon 5. The stall'report correctly slates that the public interest will suffer a substantial detrimental elleCt, not so much because al'the identified impacts on cutthroat trout in the nearby stream, but because the Cumulative efleCl ol'impairnient of stream bolters in like circumstances is substantial. Mason County experiences more than 60" annual precipitation. This precipitation runs oft' lllc latid III ouch a nrL111r1LILIC ul'SlltdIIIN that It Ia all unuNual acrcagc that IIa-, nu Crcck of a"welatcd boiler to he considered in development. Because the streatn boiler areas are especially critical to keeping the ecosystem in a reasonable balance, the regulation of them has been the subject of intense scrutiny over the past decade, as the County has endeavored to comply with the requirement ol'the Growth Management Act to protect critical areas. The regulations eventually adopted were deemed minimal to achieve protection, but have been judicially determined to be based on hest available .;c once. Inl;ollir as the existing regulations thereby canonize the public;interest in protecting critical .aruun, iL �n �. .........A .,L avilh it'.put.liu mLur—i u.+at—Ate ur'lur;.... 5 L., 1.5runi a. .aar.ur.u.a ti.A—. Lhu Irlr•vanl Irv,ulalilnl way iv.nllrr•Il rlr rlrlillrralrly virll.rlrrl IV a>;tI It-XI:r17'rr..rt:r1 XIAIt-.:. lrr::rllirIf! -mi.will s!t►».... _.. .. ........... ... .... intent ol'the Mason County Resource Ordinance. The issue remains, of course, as to whether some similar variance might he granted. Our view is that in cases where a variance request is preceded by a violatimi 111'dic RMOUICc OldilIMICC, Ill) VaI IaIICC 1110111d 1)c giUII1Cd.SLIbjOW tl1 Oldlllaly .cola,i.c...cn L. It'. n.iti atian.. J47c waia.la.l .ca.an.n..cual pout an.ly tl.vr.c man.ali tiara.w ..aacwtcal i.. 0—wt.alT' report, but two Further conditions: 1. Reconvrlendatlons; lirr eros:ran/pollution control rh,: kl-be sllad.prolssr>u>hsl +.is�z... ........ __. .. credentials appropriate to address the issue. Any variance should he conditioned upon agreement, adequately bonded, to nrrplemenl such recommendations. 2. Issuance ol'any building permit should he restricted Lentil such lime as at least 75%of rc:rtoration ol'bul1Lr Rinction:r and values i.r cortilicd by a ctualilicd prolLmmonal. Donding to cnnurc restoration addresses only part of the problem, firr the impacts on the stream and its buffer are likely to most severe during the Course of conslruCliOn. If construction is begun with a substantially impaired, albeit partially revegetated buffer, then the revegetation program will not adequately address the adverse impacts created by construction, even if the stream huller is eventually restored (except firr[lie areas needed to accommodate house, garage, and leach field). if there is difficulty in quantifying the finlctions and values ofthe huller, then a qualified prolessional in erosion/pollution control should propose an alternative measurement to determine when a level of revegetation has been achieved adequate to ensure that construction will create no adverse impacts on the stream beyond those that might he expected at a site where reasonable precautions were taken and no prior disturbance had disrupted the stream butler. To: Phil Clbrechts c/o Charles McCoy Mason Count From: John E. Diehl 426-3709 (call first) 04/12/05 12:31:12 Page 1 of 4 4. FACSIMILE COVER PAGE Date: 04/12/05 Time: 12:31 :08 Page: 1 To: Phil Olbrechts c/o Charles McCoy Company: Mason County Planning Department Fax #: 427-8425 From: John E. Diehl Address: 678 Portage Rd. Shelton, WA 98584 USA Fax #: 426-3709 (call first) Voice #: 426-3709 Message: Please provide copies to Mr. Olbrechts and the applicants. -- John Diehl To,;Phil Olbrechts c/o Charles McCoy Mason CountFrom: John E. Diehl 426-3709(call first) 04/12/05 12:31:44 Page 2 of 4 Advocates for Responsible Development 678 Portage Road • Shelton, WA 98584 . 360-426-3709 April 12, 2005 TO: Phil Olbrechts, Mason County Hearing Lxamincr FROM: John K ]Mehl Re: Russell Resource Ordinance variance request(VAP,2004-00034) IIl behalf of Advocates for Responsible Development,, I_loin with the Planning Department st,9ff and Skokonllsll Tribc biologists Marty Erctll and Jcff IIcines ill opposing the requcst.for a. variance. As Mr. Erctll said ill his c-nia.il to the applicant's consultant, it.would seem unreasonable to reward applicants by giving tllclll a.variance after they have violated the critical areas ordinance. Index 09. 'I11c tendency to clear first and ask questions later must be curbed if any meaningful prohcctioa for rArc-gull and AvvC111lc.bu Crs ird to tic rcliiulcd. Of course,from a.legal pei;spcetive,the qucstlon of whether a variance should be granted is distinct ftonl the issues surrounding the illegal clearing of a pail.of'the sircarn buffer. Still,there is 21.T1 1TII.CT-NCCI.I0I'1 I1l;I.VV[:[:TI Ill[; VillikI'ICU CTl1.CT171.i1.T1[r 1NNIACN cif11ICnill ClCiViT1n VVIICTI 1-7'11.GTia.3, 4, 5, i1.T1[i l7 i. GrauNl.iug u ValrlullcC would hu iucunai:cl.cnl,witli cril.criun 3. CI-It„rinYl_L roquir„v that a vni-iatv'2, of o'-tv t,n tllo 'Il?rirntltllnilt. 'I:1L_r+sl litcra.11y,there is no doubt that.consti`11c'tion within a.stream buffer will always have adverse ct}cc't on the cilvlronnient.,whether or not.the buffer llas been previously disturbed. It.has such adverse effects both during the course of construe-trod--primarily in the form of runoff from bare soil (listtll'UCcl ill prCpill-iIlg it I0undation and all•CI'Witrll ill tri llic Uy 1"Csidvilt" and their pets, displacing wildlife habitat, and in the form of more rapid runoff and storillwater contamination caused by increase ill impermeable surfaces and inadvertentt pollution associated with application of chemicals to lawns, oil from cars,mowers and other machines, and shilllar externalities conlnlon to ordinary, less-than-fastidious household occupancy. l'or several good reasons,the ordinmice does not allow an exception for mitigation of adverse cffects. Mitigation is only a reduction of adverse cff"-ts,nott an a•voidancc or elimination of them. Revegetation of a.buffer is a.process that is not complete for decades. Meanwhile,the fllllct.lons of the stream buffer for aquatic life --to provide filtration of runoff to ensure water quality, to provide shade to ensure that water temperature does not.exceed levels tolerable to sensitive fish species, and to provide itiscet ha.blt<at that results in sonic fraction of the Bisect.population becoming waterborne and thus available as food for fish and other aquatic species arc unpaired. -1- To,;Phil Olbrechts c/o Charles McCoy Mason CountFrom: John E. Diehl 426-3709 (call first) 04/12/05 12:32:10 Page 3 of 4 1 Admittedly, it is common to ignore these adverse ellecls or to treat them as de minimis. But two litclors give reason firr more caretill scrutiny in the present instance. One is the precedent 1br reiteration that approval of a variance implies. Where a variance creates a precedent lirr similar applicalionr:, c>na n•nua expect that mly adverr:e ell;aetl: tolerated in lha varicuice under immediate consideration will he multiplied many limes by IUtUre variances that may be expected to 1*011Ow suit. 1), ,Lnv11•LI,,., ,., ...,,,,.,,,,,ry ..1,v.. .. I..uv..t .vu L-6..I.tlwv.,tv,,..,, .,11-- ...............tut..— vr•u variance, even where, miliv,llion i"propnszed, ,I" in the cwe of,neither variance reltuesl heliYre the, Hmu Mg Exa1 lim today, the CAI II1Cy appllcatitm (.VAR2005-00002). LI the ca,C of ti r,Rlc1sCil .��t.,:>.,t, t,<,....,:,..•�,-, ..>, ..a.�;c;<,.,�1 <,<>.,.,:a:,...c;<,., ..rri;�.,: tt,:, .:,<.:,.,t �1�..�;.,o<>rl...,a •.,•:ch:., tt,.> h�.rY•:,. TS.,t....:tl...t....`l:..Ly llic lout that More apparently has been some revegetation of the site and installation ol'a "Ioncc" intended to reduce sediment ru11011; the site lacks the buller it would have enjoyed Wit had not been rllrvally nlr:rrp.d Morrnve�.r, rii,crrlN lhr rrcr ill Mr Kom].. nn one. wrlh rvperlmp. ni Prncrnn nnnlrol :rnri ill vr.�li`:,Ir.�I rite.. rnoulr. rrciurnnr.nrlaliiuw iiu lillinr.vliunlwAry management. (Mr. Road has some credentials in biology, but none in the technical areas in question. The Hearing Examiner faced a similar issue in the 7,immaro variance request(VAR2003- 00018). The applicant there sought to build within a cleared part of the stream buller. The examiner wrote: (Then Thal the building site should he restored to its natural condition, any analysis ofadverse impacts should address the loss of this potential habitat. The applicant has Provided no evidence on this issue. The countervailing evidence, of course, is the Rcwou,cc Ordinanuz and lh:•,bv,:Sl uvuilublc oicncc thin wupportw it. Tho Wuwhington Stale Growth Management Act, Chapter 36.70A RCW, requires that critical area regulations he based upon hest available science. . . . As a result of. . . intense review, Mason County has determined that a 165 loot huller is necessary to protect Type 1 [and Type 2 and 3] streams. The record contains no compelling evidence to reline this legislative detenninal1011 . . . . Notice of Decision, 1 1/24/03, at 7. Similarly, Applicant Russell has presented no compelling evidence to reline the legislative determination of buller requirements. Thus, the illegal clearing distinguishes this case Isom others insofar as the applicant is responsible lirr already creating adverse environmental impacts, which will be magnified 11' construction is allowed belirre the original huller is fully restored, and magnified still more if every case ol'illegal clearing is allowed a variance. Given that the disturbed buller has not been Rilly restored, and that no one with real expertise in erosion/pollution control has observed the site to recommend needed mitigation, the application tails to meet the lest ol'criterion 3. 11. Gi•antuig a varlame would be falcousistent with cizteilm 4. As the slall'reporl points out—apparently with the concurrence o('Mr. Road—the proposed location of a house and garage will not he as little within the stream huller as is feasible. As such, -2- To.Phil Olbrechts c/o Charles McCoy Mason CountFrom: John E. Diehl 426-3709(call first) 04/12/05 12:32:40 Page 4 of 4 f the proposal is not "tile minimum necessary to allbrd relief"' r 111. Grallthig a V811�rice WoWd be 111C011slstellt wltll CPlteilm 5. The slall'reporl correctly slates that the public interest will suffer a substantial detrimental efleCt, not SO much because Oflhe identified impacts on cutthroat trout in the nearby stream, but because the Cumulative eflect ol'impaimient of'stream hullers in like circumstances is substantial. Mason County experiences more than 60" annual precipitation. This precipitation rums oil' the land IiI 'Atull a n11.11MudC ul'slrcarrls that It Is an unusual aulcagc that lid-, no uimk m a"wulalml huller to be considered in development. Because the stream buffer areas are especially critical to keeping the ecosystem in a reasonable balance, the regulation ol'them has been the subject of intense scrutiny over the past decade, as the County has endeavored to comply with the requirement ol'lhe CTrowlh Management Act to protect critical areas. The regulations eventually adopted were deemed minimal to achieve protection, but have been judicially determined to be based on best available science. Insofhr as ilia existing regulationh thereby canonize the public: interest in protecting critical Irlr,vnnl loylih11i1rn w.ln iylltilrll Ill (It-Ail)rn ill r,Iy villlnit-fl -—.4--w .1.1 1—;.,n.a„eiaYlm,f..Akh .Qs:tile. x1all,I eulr rl I s<tsrlrs<. I!rs.rl1 ir11!.I!:- ::::e::::::e- !t.!!v.....r;.;! will$!Is:+.... ... .. ........... ... intent of the Mason County Resource Ordinance. The issue remains, O course, as to whether some similar variance might be granted. Our view is that in cases where a variance request is preceded by a violation of Llio RCS0LIILC Ordinance, nu vat iancc should be glanted subject to ordinal y .calaan c.ucuLa. it'. naili�wtian�. ,r,'c ......oual .—L 1—I. Ll.ainc a.ai..lilian.a. naa��cwlcal ia. Ll,c a.LafY' report, but two further conditions: 1. 1lecommendatiotw li>r epos ton/rsollullc»i control !+!,c> ,!,l.he KY.a."z::-a!e-IIHC{pro lYS:f.Y.>1?'l!�.Y.1�3... ........ _—- .. credentials appropriate to address the issue. Any variance should be conditioned upon agreement, adequately bonded, to implement!;uch recommandatlons. 2. TSSutance ol'any building permit should he restricted until such time as at least 75%of' restoration ohbull ,r lin?vtion:i and value, IN ccrtllwd by a gUL1l1licd prolcwnional. T3onding to onmuro restoration addresses only part of the problem, liar the impacts on the stream and its buffer are likely to most severe during the Course of'construC11011. Tl'conslruCtiOn is begun with a substantially impaired, albeit partially revegetaled buffer, then the revegetation program will not adequately address the adverse impacts created by construction, even if the slrearn buffer is eventually restored (except liar the areas needed to accommodate house, garage, and leach field). Wthere is difliCulty in quantifying the functions and values oflhe buller, then a qualified professional in erosion/pollution control should propose an allemalive measurement to determine when a level of revegetation has been achieved adequate to ensure that construction will create no adverse impacts on the stream beyond those that might be expected at a site where reasonable precautions were taken and no prior disturbance had disrupted the stream butler. -3- P.O.Box 224, 310 NE Newkirk Rd. Belfair, Washington 98528 - 0224 03-31-2005 Mason Co, Dept. Community Development Charles Mead McCoy III 7RECEIVED P.O. Box 279 APR 0 4 2005 Shelton, Washington 98584 MCCD - PLANNING In response to your notice,postmarked Feb. 8, 2005 regarding the request for a variance by Scott M. Russell: property location: Section 21, Twnshp 23N, R 1 W, Parcel No 12321-32-00130: I am registering an objection to that proposal. I am Dorothy Mae Newkirk Harper, 79 years and 8 months old. I came to Belfair, with my parents and 2 brothers, to this piece of property, beside this creek, in November 1931. I lived on this property until I was 26 years old, spent the next 27 years two miles south, down the highway in Belfair and then returned to live on this property again in 1979. Admittedly, during the ensuing years there have been many changes around and on this property. Since I have been aware of developments on the land, we have acted as caretakers for the creeks and native growing things. We were quite pleased to recognize there had been controls and ordinances placed "on the books" in the county regulations to continue this plan of natural protection. I am concerned that this request for variance, for a building that size, would not be a reasonable trade for those plans already in existence. For a great deal of my life, in my early and middle years, I was acknowledged to be a superb extemporaneous speaker. On numerous occasions I was called on to explain a thought which might be difficult for some to understand.. I had the command of an extensive vocabulary to help me in this endeavor and usefulness Now, in my older years, I am aware that what I perceive as a problem has developed. It is complicated to explain in my communication with others, but to say it without any hyperbole or exaggeration, Now my tongue does not rapidly respond to the thoughts my brain is thinking. I must depend on the written word for my important exchanges of ideas with others.. I am no longer comfortable taking part in public discussions because of the difficulty in expressisng profound thoughts and explaining my feelings about certain situations. As I will be unable to attend the public hearing, I hope you will give attention to this le er as if I were there to present a speech. Thank you for your consideration, Dorothy M Harper P.O. Box 224, 310 NE Newkirk Rd Belafir, Washington 98528 - 0224 (OF CEIVED APR 0 12005 Mason County Plan Comm March 30 2005 B. Eklund I MCCD - PLANNING County Offices, 250 NE Newkirk Md. Shelton, Wa. P.O. Box 716. Belfair, Wa 98584 98528 (275-5444) Re: Notice of Application for Variance from Mason County Resource Ordinance#7793 8 February 2005 Dear Sirs, I am writing regarding the proposed variance for the Russell property which is adjacent to MY property on the East. This property is fragile riparian woodland, abutting Viola Creek The County tested streams and septic systems and found Viola Creek to be clear of any septic drainage. I want it kept that way. When the property originally sold,the Russell's were told that,because of it's shape and proximity to the creek, the property would be too small for a dwelling. They seemed to have no intentions of ever building there. For several years their youngsters used the lot as a playground, for their bikes and motor scooters. Their home is located on Riverhill Drive,a few hundred feet away. According to Mason County codes,there isn't a place where they can build and stay within the ordinances. I t seems that they bought the property on speculation that they would be able, after a few years,to circumvent the restrictions. When there was first talk of building,the dwelling was going to be a small"Granny" house. Now it is being estimated as exceeding 2400 square feet. In other words, start out modest, and then go for the variances. The Russell boys have helped me with yard work. w From what they have said,the family is planning on putting a second dwelling on the upper section of this small plot They jumped the gun on clearing the native cover off the land. The County put a stop to the clearing and grading, restricting them to wait until after the building permit was granted. They had to replace the removed plants and they then placed a pump in the creek. I have a water right on Viola Creek, and in the summer there is barely enough for me to be able to water my garden. I would have no objection to them building, according to the codes, after the sewer system goes through.. Several years ago I inquired about putting additional dwellings on my property, and was told that the area was not zoned to permit that. I strongly request that you do not waive these restrictions and ordinances but continue to protect the environment. It is unsafe to the neighboring properties to permit this variance. e - 2,k" Cc: Charles Mead McCoy III MC Dept. Of Communitee Development 1,6 F _ I 1 2005 MCCD - PLANNING Mason County Plan Comm March 30 2005 B. Eklund County Offices, 250 NE Newkirk Rd. Shelton, Wa. P.O. Box 716. Belfair,Wa 98584 98528 (275-5444) Re: Notice of Application for Variance from Mason County Resource Ordinance#7793 8 February 2005 Dear Sirs, I am writing regarding the proposed variance for the Russell property which is adjacent to my property on the East. This properly is fragile riparian woodland, abutting Viola Creek The County tested streams and septic systems and found Viola Creek to be clear of any septic drainage. I want it kept that way. When the property originally sold,the Russell's were told that,because of it's shape and proximity to the creek, the property would be too small for a dwelling. They seemed to have no intentions of ever building there. For several years their youngsters used the lot as a playground, for their bikes and motor scooters. Their home is located on Riverhill Drive, a few hundred feet away. According to Mason County codes,there isn't a place where they can build and stay within the ordinances. I t seems that they bought the property on speculation that they would be able, after a few years,to circumvent the restrictions. When there was first talk of building,the dwelling was going to be a small"Granny" house. Now it is being estimated as exceeding 2400 square feet. In other words, start out modest, and then go for the variances. The Russell boys have helped me with yard work. From what they have said,the family is planning on putting a second dwelling on the upper section of this small plot They jumped the gun on clearing the native cover off the land. The County put a stop to the clearing and grading,restricting them to wait until after the building permit was granted. They had to replace the removed plants and they then placed a pump in the creek. I have a water right on Viola Creek, and in the summer there is barely enough for me to be able to water my garden. I would have no objection to them building, according to the codes,after the sewer system goes through.. Several years ago I inquired about putting additional dwellings on my property, and was told that the area was not zoned to permit that. I strongly request that you do not waive these restrictions and ordinances but continue to protect the environment. It is unsafe to the neighboring properties to permit this variance. Cc: Charles Mead McCoy III MC Dept. Of Communitee Development