HomeMy WebLinkAboutSHR-2004-00020 Hearing - SHR Letters / Memos - 3/22/2005 h
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BEFORE THE HEARING EXAMINER FOR MASON COUNTY
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Phil Olbrechts, Hearing Examiner
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RE: Robert Drohmanand Robert FINDINGS OF FACT, CONCLUSIONS
4 Turk OF LAW AND FINAL DECISION.
5 Shoreline Substantial Development
6 (SHR2004-00021t)
g INTRODUCTION
9 The applicant has requested a shoreline substantial development permit to construct a
10 6' X 60' fixed pier constructed of Douglas fir, 4' X 35' aluminum ramp, and one 8' X
12' float. Total length of the pier is not to exceed 115' from the Ordinary High Water
11 Mark of Hood Canal. The Examiner approves the requested permit subject to the
conditions recommended by staff.
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ORAL TESTIMONY:
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14 See transcript. Staff introduced the staff report.Amy Leitman. c
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EXHIBITS
:
16 The Examiner adopts the exhibit list submitted by staff, entitled "Case In ex o e
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Drohman Robert Turk SHR2004-0020.
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fiiste 4,-J to File:
19 FINDINGS OF FACT
20 Procedural:
21 1. Applicant. The applicants Robert Drohman and Robert Turk. The
22 applicant's agent and representative is Amy Leitman, of Marine Surveys and
Assessments.
23
2. Hearing. The Hearing Examiner conducted a hearing on the subject
24 application on March 8, 2005, at 1:00 p.m., in the Mason County Board of
Commissioners Meeting Chambers. No one other than County staff and Ms. Leitman
25 testified at the hearing.
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Drohman and Turk P. 1 Findings, Conclusions and Decision
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Substantive:
3. Site Description/Proposal. The site contains a single-family residence.
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There is currently a float at the site used to moor a boat. The applicant proposes to
construct a 6' X 60' fixed pier constructed of Douglas fir, 4' X 35' aluminum ramp,
and one 8' X 12' float. The total length of the pier is not to exceed 115' from the
Ordinary High Water Mark of Hood Canal. The pier will serve four properties.
4. Characteristics of the Area. The general area is characterized by
residential construction along the south shore of Hood Canal. Waterfront residences
are immediately west of the project site. There is a pier/ramp/float structure
approximately 330 feet to the east and a boat ramp approximately 12 feet to the west.
The photographs on page 31 and 32 of the Biological Evaluation (Exhibit 5) provide
an aerial overview of surrounding development.
5. Adverse Impacts. The Biological Evaluation and the information
provided by staff establish that the proposed structure, as mitigated by the
recommended staff conditions,will have no significant or material adverse impacts on
aquatic habitat or wildlife. As noted in the Biological Evaluation, there is eel grass 15
feet from the end of the pier/ramp/float structure. The Biological Evaluation notes
that boat scour may be possible at low tide. Although there may be some apparently
marginal impacts on eel grass (and its function as salmon habitat), these adverse
impacts are off-set by the fact that the pier will be used for four properties. Pile
driving impacts on spawning salmon are mitigated by limiting pile driving activities
to July 16 through September 14, outside the spawning season.
No adverse view impacts are anticipated given that there appears to be
only one home within the immediate view corridor and the owner of this adjoining
home has not made any objection to the proposed structure.
CONCLUSIONS OF LAW
Procedural:
1. Authority of Hearing Examiner. MCC 15.03.050(J) provides the Examiner with
the authority to review and issue a final decision upon Shoreline Substantial
Development Permits.
Substantive:
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Drohman and Turk p. 2 Findings, Conclusions and Decision
2. Shoreline Designation. The shoreline designation of the site is Urban
per the Mason County Shoreline Master Program. This area is considered a Shoreline
of Statewide Significance; therefore MMC 7.24.010 has application.
3. Permit Review Criteria: MCC 15.09.055(a) requires a substantial
development permit for any substantial development within the shoreline jurisdiction.
MCC 15.09.055(f) requires that applications for substantial development permits be
subject to review by the Hearing Examiner. MCC 15.09.055(f)(2)(C) provides that
the Examiner shall base a decision on a substantial development permit application on
the Shoreline Master Program for Mason County ("MCSMP") and the policies and
procedures of Chapter 90.58 RCW, the Shoreline Management Act ("SMA"). MCC
7.08 defines a substantial development as any development of which total cost for
market value exceeds $5,000 or any development that materially interferes with any
normal public use of the water or shorelines of the state. The staff report states that
the proposal will exceed $5,000 in cost and, therefore, requires a shoreline substantial
development permit. The MCSMP is codified as Title 7 of the Mason County Code.
The applicable shoreline policies are quoted and addressed below.
MCC 7.16.010 (Policy No. 1): Piers and docks should be designed and located to
minimize obstruction of views and conflicts with recreational boaters and fishermen.
4. As discussed in the Findings of Fact, the location of the pier and dock
will have minimal impacts upon views. There is no discernible, material impact on
recreational boat use or fishing. Further, as indicated in the Findings of Fact, the
proposed facility will not have any adverse impacts upon aquatic habitat or wildlife,
and therefore should not have any indirect impacts upon recreational boating or
fishing.
MCC 7.16.170 (Policy No. 2): Cooperative uses of piers and docks are favored,
especially in tidal waters.
5. The proposal provides for cooperative use. The proposed pier will
serve four properties.
MCC 7.16.170 (Policy No. 3): The type, design and location of docks and piers
should be compatible with the shoreline area where they are located. Consideration
should be given to shoreline characteristics, tidal action, aesthetics, adjacent land
and water uses, water quality and the habitat offish and wildlife.
6. As noted previously, the proposed pier/ramp/float structure is
aesthetically compatible to surrounding uses due to its minimal impact on views and
its proposed joint use (thereby precluding the addition of three additional
pier/float/ramp structures. The structure also has design features designed to mitigate
impacts on fish and wildlife habitat, including stops to prevent float grounding and
grating to provide for the passage of light.
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Drohman and Turk p. 3 Findings, Conclusions and Decision
MCC 7.16.170 (Use Regulation No. 1): The location and design of docks and piers,
as well as the subsequent use, shall minimize adverse effects on fish, shellfish,
wildlife and water quality.
7. As noted previously, impacts will be minimal upon aquatic wildlife
and habitat, which includes fish, shellfish, wildlife and water quality.
MCC 7.16.170 (Use Regulation No. 2): Docks and piers shall be located, designed
and operated to not significantly impact or unnecessarily interfere with the rights of
adjacent property owners, or adjacent uses. Structures shall be located at a
minimum of five feet from side property lines. Community use or joint use facilities
may be located on the property line.
8. As indicated in the staff report, the proposed structure will be five feet
from the nearest side property line. As noted previously, the pier/ramp/float structure
will have minimal impacts on views and water use.
MCC 7.16.170 (Use Regulation No. 4): No pier, dock, or float or similar device
shall have a residential structure constructed upon it.
9. No residential structure is proposed upon the proposed pier facility.
MCC 7.16.170 (Use Regulation No. 7): Maximum overall length of a recreational
pier dock facility including floats shall be only so long as to obtain a depth of three
feet of water as measured at mean low lower low water on a saltwater or a depth of
five feet as measured from ordinary low water on lakes. The length of any pier or
dock facility shall not extend the lesser of 15 percent of the fetch or 100 feet from
ordinary high water mark on saltwater and 50 feet on freshwater shore lines.
10. The pier/ramp/float are proposed at a total length of 115', which is the
maximum allowed length of the pier. As noted in the staff report, the the terminus of
the pier will be above the 0.0' lower low water.
MCC 7.16.170 (Use Regulation No. 8): Only one dock is allowed per lot.
11. This would be the only pier on the lot.
MCC 7.16.170 (Use Regulation No. 9): The width of recreational piers and docks
shall not exceed eight feet.
12. The maximum proposed width is eight feet.
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Drohman and Turk p. 4 Findings, Conclusions and Decision
MCC 7.16.170 (Use Regulation No. 10): At the end of a dock or pier, afloat may
be attached. These floats may either be parallel to the dock or pier, or form a "T"or
"L." In tidal water, the float shall not exceed 400 gross square feet without a
boatslip (700 square feet for two joint use owners), or 600 gross square feet with a
boat slip (1,000 square feet for two joint use owners).
13. The float surface area is 640 square feet for joint use.
MCC 7.16.170 (Use Regulation No. 13): The recreational pier shall be no higher
than eleven feet above mean higher high water. Piers and docks shall have at least
an eight foot span between pilings.
14. Pier height is 3' above mean higher high water. The piers are not
proposed to be any closer together than 8' as shown in Figure 4 of the Biological
Evaluation.
MCC 7.16.170 (Use Regulation No. 14): The surface of floating structures shall be
a minimum of eight inches above the surface of the water.
15. The staff report indicates that the dock satisfies this requirement. This
is not immediately evident from the drawings and the record so condition of approval
will be that the float shall be a minimum of 8"above the surface of the water.
MCC 7.16.170 (Use Regulation No. 15): All floating structures shall include
intermittent supports to keep structures off the tidelands at low tide.
16. The project description of the Biological Evaluation proposes to build
float stops and stub pilings to keep the floats at least 12" above the seabed during low
tide.
RCW 90.58.020(1): Recognize and protect the state-wide interest over local
interest.
17. The proposal avoids the shading of eel grass beds and minimizes beach
impacts through its design, material configuration and location. Joint use will also
serve to minimize impacts on eel grass. As detailed in the SCUBA survey results of
the Biological Evaluation, eel grass was found during the SCUBA survey, but the
horizontal distance between the water ward extent of the proposed float and eel grass
will be 20'. As noted under the Findings of Fact, some minor propeller scour is
possible. However, since the pier will be used for four properties, the joint use will
eliminate the need for three additional pier structures, which is an overall benefit.
RCW 90.58.020(2): Preserve the natural character of the shoreline.
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Drohman and Turk P. 5 Findings, Conclusions and Decision
18. As mentioned previously, the adverse effects of the adverse
development, including impacts on views and aquatic resources, are minimal.
RCW 90.58.020(3): Result in long-term over short-term benefit.
19. The proposal will facilitate access to the shoreline without any
cognizable significant adverse impact, creating more long term than short term
benefit.
RCW 90.58.020(4): Protect the resources and ecology of the shoreline.
20. As addressed several times before, as mitigated the proposed
development will have no significant adverse impacts upon the resources and ecology
to shoreline.
RCW 90.58.020(5): Increase public access to publicly owned areas of the
shorelines.
21. The proposal does not increase public access, but it doesn't decrease
such opportunities so no additional public access may be constitutionally required.
RCW 90.58.020(6): Increase recreational opportunities for the public and the
shoreline.
22. The proposed project may not increase recreational opportunities for
the public, but it also does not in any significantly decrease those opportunities so no
additional recreational opportunities can be constitutionally required. The proposal
does increase private recreational opportunities for the shoreline.
DECISION
The Examiner approves the requested shoreline substantial development subject to
the mitigation measures recommended by staff in the staff report. In addition, the
floating structures shall be a minimum of 8" above the surface of the water as
required by the shoreline regulations addressed above. The proposed joint use shall
be recorded by deed with the proviso (subject to the approval of the Mason County
Prosecuting Attorneys Office) that the joint use may not be subsequently restricted
without the consent of Mason County.
Dated this 22nd day March, 2005.
Phil Olbrechts
Mason County Hearing Examiner
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Drohman and Turk p. 6 Findings, Conclusions and Decision
Mason County
Department of Planning
Building I * 411 N. 5th 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.
iu. 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 181' 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
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 Desi ation. The Mason County Comprehensive Plan
designation for the site is Urban Growth Area.
D. ZoninQ. 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.
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
anted unless the Count 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
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
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 o the variance is not possible because it is inconsistent with the intent
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of Mason County's Resource Ordinance purposes as described above in 17.01.110.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.
l. 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 qP P_0 �
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
fencing or straw matting). STAPP:
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.
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 proval.
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