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HomeMy WebLinkAboutUnauthorized Landfill - GRD Letters / Memos - 6/9/1993 Llqly-3 -- -- --- ---- - a 30 -740 -74 nod U -- -- -- Aa4,u ova a-CILP- IvLi o � U f . U r - OFFICE OF THE MASON COUNTY PROSECUTING ATTORNEY GARY P.BURLESON 411 N.FIFTH STREET PROSECUTING ATTORNEY SHELTON,WASHINGTON 98584 PHONE(206)427-9670 ext.417 July 14, 1993 Gary H. Sexton SEXTON, BARTHOLAMEW & JOHNSEN Attorneys At Law 1126 Highland Avenue Bremerton, WA 98310 RE: BYERLY v. MASON COUNTY Dear Gary: I discussed settlement of this case with Grace Miller, Mason County Planner. She in turn contacted people over at the Department Of Ecology for their ideas concerning settlement. In a spirit of compromise, we propose the following offer of settlement: 1. That your clients remove the gravel and other fill material from the approximately 3/4 of an acre which covers the wetland area. The removal would be done at a time when representatives of the county and DOE can be present to define the limits of excavation. 2 . That your clients move the excavated material, to a place and in such a manner that there will be no erosion impact to any wetland. Representatives of the county and DOE would monitor this work. 3 . That your clients agree not to use the wetland portion of the property for storage or for any other use unless or until it gets proper approvals. Your clients would further agree not to use the wetland area for storm or waste water discharge purposes, or for any other purpose which in the county' s or DOE' s judgment would detrimentally impact the wetland. 4 . In return, we would not require that your clients replant the wetland areas. The wetland would reestablish itself. This should save your clients a considerable amount of expense. 5 . The suit against the county would be dismissed with prejudice, with each side handling its own costs. i a Please discuss this offer with our clients and let us know their position. hank you for your continued cooperation. e'y trulsy yours, MIKE CLIFT Chief Deputy Prosecuting Attorney c: Grace Miller Rebecca Todd, Assistant Attorney General OFFICE OF THE MASON COUNTY PROSECUTING ATTORNEY GARY P.BURLESON 411 N.FIFTH STREET PROSECUTING ATTORNEY SHELTON,WASHINGTON 98584 PHONE(206)427-9670 ext.417 July 14, 1993 Gary H. Sexton SEXTON, BARTHOLAMEW & JOHNSEN Attorneys At Law 1126 Highland Avenue Bremerton, WA 98310 RE: BYERLY v. MASON COUNTY Dear Gary: I discussed settlement of this case with Grace Miller, Mason County Planner. She in turn contacted people over at the Department Of Ecology for their ideas concerning settlement. In a spirit of compromise, we propose the following offer of settlement: 1. That your client remove the gravel and other fill material from the approximately 3/4 of an acre which covers the wetland area, and agree not to use the wetland portion of the property for storage or for any use which would detrimentally impact the wetland. 2 . In return, we would not require that your clients replant the wetland areas. The wetland would reestablish itself. This should save your clients a considerable amount of expense. 3 . The suit against the county would be dismissed with prejudice, with each side handling its own costs. Please consider this offer carefully and let us know your thoughts. Very truly yours, MIKE CLIFT Chief Deputy Prosecuting Attorney c: Grace Miller Rebecca Todd, Assistant Attorney General L 4r `�'�,� /`�/�� - �!°► ILL U AV 6- rAr CO T-H i S G 6hr f--tlV--b III I vc 11 r iLE" SETTLEMENT AGREEMENT This agreement is entered into between Plaintiffs, Jerry, John, Bill and Bob Byerly, (Byerlys) , Defendant Mason County and the State of Washington Department of Ecology as follows: 1. Plaintiffs agree to contract with and hire a contractor to perform the work as herein agreed. Byerlys shall notify the Department of Ecology designee Al Wald, (unless Al Wald shall advise the attorney for plaintiffs that someone else shall provide supervision, and shall be the designee) not less than 10 days before the work is to begin of the name, address and phone number for the contractor. The contractor is subject to prior approval by the Department of Ecology designee. In the event that the Department of Ecology should reject the Byerlys contractor, the Byerlys shall name two additional proposed contractors. The Department of Ecology designee shall then select between the three named contractors. 2 . It is agreed that the maximum total expense and cap on expense and/or work to which the Byerlys shall be subject to pay is (1) Six Thousand Five Hundred Dollars ($6, 500. 00) , (2) the on site equipment operation maximum hours as provided for in paragraph 3 herein, or (3) the arrival at the edges and depths of any "wetlands" as identified by Ecology and herein established; which ever contingency is met first. 3 . The maximum required equipment and operator time under this agreement is 27 hours for on site operation time for site preparation, material removal (soil, stumps, vegetation, etc. ) and cleanup using a Case Crawler 1088, (tracked excavator, with a thumb on the bucket and minimum reach of 20 feet) , or equivalent, at the maximum rate of $120. 00 per hour including operator, plus a 10 yard dump truck for a maximum 25 hours at a rate of $70. 00 per hour including operator. 4 . The respective attorneys for plaintiffs (Gary Sexton) and Mason County (Mike Clift) shall, prior to commencement of work, meet on site and agree upon the Southwesterly and Northwesterly lower edges of the fill area, and mark those locations. In the event, for any reason, the attorneys cannot agree upon the two westerly corners of the lowerly edge of the fill, the decision as to location shall be subject to site visit and final determination by Judge Toni Sheldon, or the presiding judge if for any reason she is not available. It is agreed that the maximum limitation_ for work and potential "wetland" location shall be 135 ' moving in an easterly direction along the south property line of the Byerly property, from the agreed Southwest corner of the fill, and 165 ' moving in an easterly direction along the north property line from the agreed northwest corner of the fill. 5 . The Department of Ecology designee shall supervise the work performed by the Byerly contractor, with material to be removed beginning on the westerly edge and continuing on a continuous basis toward the east. Work shall cease when the first limitation and cap is achieved as provided for in paragraph 2 above. The Byerlys shall use their best efforts to comply with terms of this agreement. Materials removed by contractor may be placed onsite at locations selected by and at the discretion of the Byerlys, excepting it shall not be placed on the hereinafter defined wetland as established pursuant to paragraph 6 . 6. Upon the achieving of the first limitation or cap the attorneys for the parties shall meet on site and stake the edge of removal work. Thereafter, that property located easterly of the stake area shall be considered by the parties to this agreement to be "upland" property and the property to the West thereof shall be "wetland" area for all state and county regulation purposes . It is agreed that, in no event, shall the edge of the wetland area extend furtherly eastward than the limitations provided for in paragraph 4 above. 7. The Department of Ecology designee shall make himself available and accommodate the work schedule of the contractor, upon 48 hours advance notice by the contractor as to the date that he/she intends to commence work. The contractor shall continuously advise, in advance, regarding when he/she will be performing work._ Work shall be performed during normal business hours, which for purposes of the agreement shall be between 7: 00 A.M. and 5 : 00 P.M. Monday thru Friday. Work shall be completed not later than October 15, 1993 . 8 . It is agreed and understood that the proposed work under this agreement required no permits from Mason County or the State of Washington. 9 . Upon completion of the work as provided for herein, it is further agreed that all claims and counter claims are dismissed with prejudice and without costs to either parties. This agreement is in full settlement of all claims, counter claims, and the issues presented in testimony and exhibits in Mason County Superior Court Cause No. 91-2-00078-0. Dated this J day of August, 1993 . SEXTON, BARTHOLOMEW & JOHNSEN -r GARY H. 9tXTON Of Attorneys For Plaintiffs ARY P. BURLESON rosecuting Attorney 7 4 MIKE E. CLIFT Chief Deputy Prosecuting Attorney Of Attorneys For Defendants STATE OF WASHINGTON DEPARTMENT OF ECOLOGY ALAN WALD, Shorelands Division Printed by Grace Miller 8/25/93 11: 08am - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - From: Grace Miller To: Permit system Group Subject: Byerly' s in Belfair - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ====NOTE_______________ 8/25/93 11 : 08am= To all field inspectors: Next week there will be some heavy grading work going on in Belfair on the west side of Hwy 3 on the John and Jerry Byerly property. The property is south of the Masonic Temple. PLEASE DO NOT STOP to investigate or Stop Work for the grading under any circumstances . This is crucial considering the history of the site and lawsuit ' s settlement agreement. The removal and restoration is part of the settlement agreement reached in recent lawsuit between the Byerlys and County and DOE. They are removing approx. 7000 cubic yards of fill from an associated wetland of Hood Canal . They are re-depositing the fill on same piece of property but out of the wetland. There is approx. 600 c.y. of woodwaste within the fill . Part of the settlement agreement reached was that no permits would be required for this work. Al Wald of DOE will be on site supervising. If you have any questions, please ask me or Jason or Mike Clift. I will not be in the office much of next week but Jason is familiar with the situation. Jason has informed me that there is a recently installed septic system on the property. Mike Clift will be corresponding with the Byerlys to insure the fill is not placed on the system. Please contact Mike Clift and Jason if you have ANY comments regarding this work or would like to see a copy of the settlement agreement . Please ignore this site if you are out in the field next week - probably Tuesday and Wednesday - and see work taking place. It is a resolution to a long standing violation. If you know someone in Bldg. or Environmetal Health who does not read their E-mail please pass this message to them as it is very urgent . Thank you. SON.STq TF O o A DEPARTMENT OF COMMUNITY DEVELOPMENT U = ►.- O T Z Z�OJ N Y y Planning - Landfill - Utilities 1864 January 24 , 1992 Mary Waters USACOE P.O. Box 3755 Seattle, WA 98124 Dear Ms . Waters : On December 17, 1991 you requested a status report of two Corps violations which occurred in Mason County. The first violation was by a Mr. Clarence Luce. The County has not taken any action on this violation since January of 1991 . At that time, staff had requested removal of the bulkhead and fill in violation since 1987 . In response to our request, Mr. Luce notified the County that he had been in a serious automobile accident where he had suffered a brain concussion and spinal injuries . He requested additional time to remove the fill and bulkhead which the County granted. We have not heard from Mr. Luce since February 28 , 1991 . I will attempt to contact him again but from studying the history of this violation, it does not appear to that Mr. Luce will cooperate. The second violation was Jerry Byerly. It appears that this violation has not been followed up on by Mason County. The Planning Department turned the violation over to the Prosecutor' s office approximately two years ago. Jerry Byerly, along with his family have sued the County for not being able to use their property. I am not aware of any court dates being set . I recommend that you contact Mike Clift, the Mason County Assistant Prosecuting Attorney, to learn of the status of the violation. Mike Clift' s phone number is 427-9670 . Apparently, for reasons beyond the Planning staff' s understanding, the Prosecuting Attorney has chosen not to pursue the violation because of the lawsuit . If I can be of any further assistance to you, do not hesitate to call either myself or Erik Fairchild, Planning Coordinator. Thank you. Sincerely, Grace Miller, Planner DEPT. OF COMMUNITY DEVELOPMENT Gary Yando,Director of Community Development • Erik Fairchild,Planning Director Mason County Bldg. III • 426 W. Cedar • P. O. Box 578 9 Shelton, WA 98584 • (206) 427-9670 Recycled SON. STgTFo P 'c o A U N DEPARTMENT OF COMMUNITY DEVELOPMENT = i 0T Z �0 N Y boy Planning - Landfill - Utilities 1864 January 27, 1992 Mary Waters USACOE P.O. Box 3755 Dear Ms . Waters : On December 17, 1991 you requested a status report of two Corps violations which occurred in Mason County. The first violation was by a Clarence Luce. The County has not taken any action on this violation since January 1991 . At that time, staff had requested removal of the bulkhead and fill in violation since 1987 . In response to our request, Mr. Luce notified the County that he had been in a serious automobile accident where he had suffered a brain concussion and spinal injuries . He requested additional time to remove the fill and bulkhead. Mason County granted him an unspecified extension for compliance. We have not heard from Mr. Luce since February 28 , 1991 . I will attempt to contact him again at this time. The second violation was Jerry Byerly. The Planning Department turned this violation over to the Mason County Prosecuting Attorney approximately two years ago. Jerry Byerly, along with his family, have sued the County for not being able to use their property. I believe the court dates have been set for March of this year and the Mason County Prosecuting Attorney is requesting the presence of the Corps staff who were involved. I recommend that you contact Mike Clift, the Mason County Asst . Prosecuting Attorney, to learn of the status of the violation. Mike Clift' s phone number is 427- 9670 . If I can be of any further assistance to you, please do not hesitate to call either myself or Erik Fairchild, Planning Coordinator. Thank you. U7erely, Grace Miller, Planner DEPT. OF COMMUNITY DEVELOPMENT Gary Yando,Director of Community Development - Erik Fairchild,Planning Director Mason County Bldg. 111 - 426 W. Cedar - P. O. Box 578 9 Shelton, WA 98584 - (206) 427-9670 JUN MASON Co. PLANNING DEFT. MEMO TO: Friends in building/planning/zoning and other permitting processes FROM: Robert D. Wilson-Hoss I RE: County liability, employee mistakes, Mull v. Bellevue, 64 Wn.App. 245 (1992) This is not an exhaustive review of all cases and law about municipal (city or county) liability for errors made by municipal employees within a permitting process. It is a discussion, for the personal use of friends, of some aspects of a recent case. Particular questions about certain fact patterns should be referred to your own attorney. No decisions about what to do should be made solely on the basis of this memorandum. I have noticed on occasion some confusion about municipal liability, for example, certifying septic system designs and installations. What if a county employee makes a mistake, and fails to inspect before a system is covered, or simply gets the code requirements wrong? Is the county liable? What about building permit mistakes - what if a foundation is not adequate, the problem should have been caught, but wasn't, and a wall collapses on the owner? A building is approved for height by mistake, and the neighbor sues? Can I sue the county for any problems in my house caused by non-compliance with building or other permits, when non-compliance was a mistake by the building department? Mull V. Bellevue, 64 Wn.App. 245 (1992) copy attached, is a recent case that discusses the rules. Basically, the first rule is, when a municipal employee makes a mistake in approving a project, the municipality is not responsible for harm to an individual caused by non-compliance with building or similar codes unless there is a special relationship between the individual and the municipality. In order for a special relationship to exist, an individual must show: 1. direct contact between the individual and a responsible municipal employee; 2. a clear question by the individual, that is clearly answered by an assurance by the employee; and 3. the individual justifiably relies on that assurance. If I ask an inspector if my house can be 26 feet high, and the code says 20 feet maximum; but the inspector assures me that 26 feet is fine, can I sue the county, when my neighbor sues me for having a building that is too tall? Most of the cases deal with unclear requests or assurances. If the request is clear, such as about allowable height for my house, the issue is, do I have a right to rely on the inspector's advice? I think I do, if the inspector knows I am going to rely on his or her advice, and assures me that my house is going to be legal. But my guess is that a court may not agree, for public policy reasons. It is better to say that no one can rely on an inspector, and that the public has the duty to be sure about codes, than to allow people to rely on inspectors, which would lead to people using building inspectors to plan their projects for them. If this is true, then when can a municipality be sued? One example is in Rogers v. Toppenish, 23 Wn.App. 554 (1979) - the city did not keep up to date zoning maps, so the only place to go for information was to ask the zoning administrator. His answer to a clear question was wrong. Under these circumstances, the property owner did have a special relationship with the administrator. Similarly, there was a small seasonal wet area where we wanted to build the Lake Limerick ballfield. I spoke to DOE wetlands people several times, and walked the area with them three times, to see if we needed to do anything about wetlands. Finally, the DOE employee said to go ahead and build the ballfield. This was a clear request, and a clear assurance. What if he was wrong, and the Sierra Club sues me? Can I sue D.O.E., or was I responsible for knowing the rules? One answer could be in the availability of the rules. If the code in question is available to the public, without the need for interpretation, then the public is likely going to be held responsible. On the other hand, if it is not available, or involves interpretations that cannot be resolved by reference to the rules, but require a site inspection, then I think the municipal employer may be responsible. On the third hand, I am only guessing at most of this. I hope that this helps clarify things at least a little for you. Your best course of action is to make no mistakes. Again, please talk to your own county or city attorney about particular questions, and do not act in reliance solely on this memorandum. To repeat my conclusions, when a municipal employee makes a mistake, and there is damage: 1. Usually, people do not have the right to rely on building inspectors, etc., to insure code compliance. People are responsible for code compliance on their own projects. 2. If there is a special relationship with a municipal employee, a private person may have the right to rely on that advice. 3. For a special relationship to exist, there must be a clear question, a clear assurance by the employer in response to the question, and the private person must have a right to rely on the assurance. 4. Usually, private people do not have a right to rely on an inspector's assurance. They do, when they cannot otherwise access the rules and regulations. One possible way of looking at this might be whether the regulations require interpretation in light of particular facts. 5. There are no doubt other ways a special relationship can arise. l � INDEX Pie EXAMINATION BY CLIFT: 2 - 18 EXHIBITS • None . - i - CA bf. amp sues p Byerly 'Ong w over ra in coupon he work order was posted General Services - A Belfair family has filed suit in Mason Coun to determine whattys the owners have S Mason County Superior Court Departmeernmits they would need. property. The suit say against Mason County asking county p permits were subsequently received three let- damages for loss of use of property They were told no p at the area was not ters, ber S 1990, the have been directed to needed and tetlands,the suit says. telling them th y must remove eehe b which y and filling. considered w laced becaus stop grading Work on the project was in prog- fill which wasp In the suit Jerry Byerly,Mr.and area is considered wetlands. rec Mrs.William Byerly,Mr. and Mrs. ress between September 2 and 5, The court action asks for an a`h', they were con- Wa Robert Byerly and Mr. and Mrs. b9 he plaintiffs say,s.On September unspecified amount of damages � John Byerly say they own p p y Lemore Marken of the in Belfair which they planned to fill tacted by es and also asks for reimbursement the E from the county for the cost of ha and grade for commercial or b�usi- Department,who told athem they removing the fill if it is determined ha ness use in September of 198ork, the would need a grading permit and the fill must be removed. lea Before beginning suit says, they contacted the on September 14, 1989, a stop- inc T .Pr Ar-r-1 s6ti-o"i [-IA ULI A 'r414 ZZ effl I Ilk Iv L/ 3 C,rL 1-10 f)6 1,46 VpL A.ka 44 P,VA r-- rIle; ri t�jcr g , S LL, 6 PL L61 IZ Z f--Ft i - JI Ll CG�Q S'r� 1- NG A iZ.A Y Lir• I �1.1��LcL1N6 PL-,4h,&16fL3 t4s�-I? 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( Get ory.t W Z 5 114re &U" SG10zC,6 �O�yLa�wi 5 ado awd 1�6(1 res -/n- nw� 1Oro m0/7in �-rt5wt a A-a s sa�d 44Ld s11-e (5 tvwc� -a � a G /`aaJZti e�-, 6,01,4h tSs .741 pvu 5 - /" 113v r nee C,0 6d d a,,v ,i�e c a&W a s a dLaAL C76- , Gv& d- 7 AdAle hit' o i rvl.Lh Alrn _ �� .ed Q 1%sue -oohs w es v►' t,'- � � C } y0N.SrgTFo o A N DEPARTMENT OF COMMUNITY DEVELOPMENT U = ~ 0T Z J x Y y Planning - Landfill - Utilities 1864 TO: Gary Burleson FROM: Mason County Planning Department - Sean Orr & Erik Fairchild DATE: November 13, 1991 RE: Byerly enforcement action On December 20, 1990 the Mason County Planning Department with direction from the Mason County Prosecuting Attorneys Office sent a final certified letter to Mr. John Byerly. Mr. Byerly did not respond to the letter in the allotted time period, thus the file was turned over to the Prosecutors Office for final enforcement actions . Mr. Byerly filled a biological wetland associated with Lynch Cove in Hood Canal . A stop work order was posted on September 14, 1989 . Over the last two years the county has repeatedly tried to resolve the situation but has had little success . Therefore, the Planning Department is requesting a response on the status of the file that was turned over to the Prosecutor' s Office in January of 1991. This action has resulted in the Byerly family filing a lawsuit against the county for holding up development on their property. At your convenience please provide this department with an update on the status of this case. 1 Thank You, Sean Orr Gary Yando,Director of Community Development • Erik Fairchild,Planning Director Mason County Bldg. 1111 9 426 W. Cedar • P. O. Box 578 9 Shelton,WA 98584 • (206) 427-9670 OFFICE OF THE MASON COUNTY PROSECUTING ATTORNEY GARY P. BURLESON 411 N. FIFTH STREET PROSECUTING ATTORNEY SHELTON, WASHINGTON 98584 PHONE(206)427.9670 exr. 411 DATE. October 1, 1991 OCT - 11991 TO: Erik Fairchild, Mason County Planning Director j FROM: Mike Clift, Deputy Prosecuting Attorney GENERAL SERVICES RE: SHORELINE VIOLATION - BYERLY Previously we discussed the impact of a General Services Policy Memo on a pending application by John Byerly to erect a building on the same property involved in a shoreline violation. The policy memo forbids issuance of a building permit for property involved in litigation. In other words, where the granting or denial of a previous permit application is being appealed to either the Shorelines Hearings Board or to the Courts, the policy has been to hold up processing of other permits for the same property. I reviewed the policy memo with you and concluded that its language is too broad. You have informed me that while Byerly's pending building permit application is on the same parcel as the unlawful fill, it won't directly impact the filled area which forms the subject matter of the current lawsuit against Mason County. Site inspection reveals that if a building were to be erected according to the site plan, it would not interfere with any court ordered restoration plan for removing the fill. Accordingly, we take the position that Mason County has no legal basis for denying an otherwise lawful building permit solely because of an unrelated shorelines violation which happens to be in litigation. We hope this addresses your concerns. MEMORANDUM TO: Erik Fairchild FROM: Sean Orr DATE: September 27, 1991 RE: Byerly Pole Building It is in my opinion that permitting this structure would have no implications on the removal of the fill if it is determined that the fill must be removed. However, the proposed pole building is located on the property that is in litigation. The only benefit in holding the permit would be that permits could be used as a negotiating tool for fill removal . .P CERTIFIED MAIL ,/a • DEPARTMENT OF THE ARMY SEATTLE DISTRICT, CORPS OF ENGINEERS J P.O. BOX C-3755 SEATTLE, WASHINGTON 9 8 1 24-2 255 1990 REPL TO JAN 1 2 iggn ATTENTION OF Regulatory Bran c6 11r. Gary H. sexton S,:xtnn and 3ratt 1126 Highland Avenum 3rs +ertm, a.shilgton 98313 _ *ieference: +oy3-4--C13137 overly, John oc�ar hr. Sexton: Wa tsavp revie►3e.: your letter of 'GctQber 17, 191,19. T=)p area of unauthorized fill (see enclosure 1) is flat and at the fcot of a stef-- slope. forested/Scrub-shrubI wetlands surround the fill area in question. fit? is T SLlit, our })osit,jon that we"'1 ja fjavp, ^?ate f?il='t. £-`ti:.l�.f15 u,,c:!?an(jF'(�. T I^ �-,n,.Ausure also ��!(A is the hydrolaqic conn4ct#on beetween the site anct Homi Canal through Union SlcWh. Bec3ust, there are: no ep arent t raph11. 'creaks ont�:jnen t.,As connection arld the fill, the fill site I.C. considared onticu ous wit,i Hood Canal. Fi4. lling of tiiesp e*lancs would have recoir d an tnjivioual 3epartmant of trio Armv Sectiai 404 per:--At. N&tio.jwio,�- Per,,f.t #26 ��es nc)t ar4p ly. We !iav : also received a letter fro:,*, Mason County dated 3anuary 4, 1989, ,-egi1rinG you tc, swriit plans for removal of the wetland fill. W_: supxrt this .removal action and ramire a copy of Chis r oval plan by January 19, 199,% Thp unauthorized Pill r gust be removed down to the original rrouncj. If restoration is -adpouately r(yviiplRted, we will resolve this violation. Fa i Lure to reFxvn tnc unaUth.'r lZell fill fray result if' future laqpl action. 5! t.t1:1 you nave soy qL:sstxorts, please Mchntacf Mr. ^kris McAuliffe, tole )hone (206) 764-3495. Colonel, Corps of Err,tneers 01stricct End ineer Copy f urni.s`►ed: Envirun �:ntal ?rot,-,rtlon At!n-:y/Mr. ferry Voffr-an mason County :.1e2art`-,,nt of Genera I%ryj,ce s/Ms. nr. JoMi Byerly f r' Law Offices of b w E ry Gary f. Sexton Attorney Clary H.Sexton �k_j RECHWE JAN 2 3 193'' January 18, 1990 MASON COUNTY PROSECUTING ATTORNEYS OFFICE Mike Clift Mason County Prosecutor ' s Office 411 N. Fifth Shelton, WA 98584 RE: Byerly/Mason County This letter is to confirm our telephone conversation of January 17, 1990. As agreed, Mason County will take no action in regard to those matters set out in Lenore Marken ' s letter dated January 4, 1990, until after your office has had an opportunity to discuss it further with Lenore and after contact has been made with the undersigned . Very truly yours, GARY H XTON GHS/cw 1126 Highland Avenue Bremerton,Washington 98310 (206) 479-5808 as t`�� r' e � b f I + + e r .r v Y.. t . x a ` Y»� ` e 40 toe JFA r i' N t . :0� ¢ i! }• , ter. ` t Al f Ic Pe LA 10 • 11 'l � �11 a 'L ter � � �1 1 ��,• � �` a t r United States Region 10 Alaska __^ D / Environmental Protection 1200 Sixth Avenue Idaho Ara Agency Seattle WA 98101 Oregon Washington EPA JAN 2 9 1990 Reply To Attn Of: WD-138 Colonel Milton Hunter District Engineer Seattle District, Corps of Engineers Post Office Box C-3755 Seattle, Washington 98113 ATTN: Chris McAuliffe RE : 071 -OYB-4-013157, Joh=Byerly, January 12, 1990 Dear Colonel Hunter: We have reviewed the referenced removal directive concerning the unauthorized fill placed in wetlands adjacent to Hood Canal near Belfair, Washington. We support this removal directive and request a copy of any correspondence which sets a deadline by which the fill is to be removed. We recommend the fill removal and site restoration work be completed as soon as possible, but no later than April 1 , 1990. EPA is not interested in taking the enforcement lead at this time, but would be if the county and Corps cannot obtain voluntary site restoration. Please keep us informed of significant development in this case. For further coordination, please contact Gary Voerman of my staff at 442-8513. Sincerely, William M. Riley, Chief Water Resources Assessment Section cc : Ecology (Jim Anest) i STA ¢ L7 '''nJuJM`/ 889 D STATE OF WASHINGTON DEPARTMENT OF ECOLOGY JUN 0 8 1990 Mail Stop PV Olympia, Washington 98504-8711 • (2(Y)) 459-{)(X)() GENERALSERVICES June 7, 1990 Ms. Grace Miller Mr. Erik Fairchild Mason County Planning P. 0. Box 186 Shelton, WA 98584 Subject: Shoreline site inspection field notes. After attending the pre-construction meeting for the Sand Hill Road/SR-300 road widening project, I made the following site inspections. 1. Sims/Christiansen proposed bulkhead adjacent to SR-302 and North Bay, Case Inlet. Mr. Sims indicated that his front yard was inundated with water several times a year. He attributed this high water primarily to tides higher than about +12.5 feet with additional input from high creek flows near his property and increased ground water flows. He noted that the high water table would probably constrain his proposed septic system to be a 'curtain type' installed at one of two high spots on his property. Much of the fresh surface water on his property comes from the bluff behind his lot, across SR-302. Also, a culvert on or adjacent to his property discharges water from SR-302 ditches and this bluff. The Ordinary High Water Mark (OHWM) definition that appears to apply in this case is found in WAC 173-22-030 (6) (a) (ii) : . . . the landward limit of salt tolerant vegetation. " It appeared the salt tolerant plant pickleweed (salicornia) was growing in the front yard within 10 feet of the front porch. However, this needs to be determined by a qualified botanist or wetland ecologist. If salt tolerant plants are not present in the front yard then the OHWM would appear to be the edge of the bank at the waterward edge of the vegetated area of the front yard. Since I do not have the precise location of the shoreline environment boundaries , and because the Mason County Shoreline Master Plan (SMP) text differs from the map, the property may be in a Rural, Conservancy, or Natural area. Bulkheads and fills are not permitted in the Natural environment. Non water dependent upland fill is a conditional use in the Rural and Conservancy environments. Non water dependent fill waterward of the OHWM is prohibited in all environments. r Grace Miller and Erik Fairchild June 7, 1990 Page 2 2. Ernesto Iulliano wetland fill adjacent to SR-302 and North Bay, Case In- let. While standing on the east shoulder of SR-302 and looking down on the site, it appears fill is still in the wetland and I could not see any indication of fill at the disposal site, as indicated on the Plot Plan submitted to the Shorelands Program on 5 March 1990. I understand that Mr. Iulliano is currently searching for a wetland ecologist to delineate the wetland boundary. 3. William Beyerly mobile home lot adjacent to SR-3 in Belfair. Since there was no Mason County staff with me, I did not go on the site but observed it from the west shoulder of SR-3. It appeared the are two levels of fill, the western most being further down the slope, relatively flat and covered with tall grass. This lower fill appears to be close to the edge of a Palustrine Forested Seasonally Flooded wetland (National Wetlands Inventory Map, copy enclosed) . It also appears the fill is above the 20 foot elevation contour and above the OHWM. However, the location of the OHWM and the wetland identification should be made by a qualified wetlands ecologist or botanist. In determining the OHWM WAC 173-22-030 (6) will probably apply in this area, southeast of the Union River and northwest of SR-3. Note there is a creek less than 200 feet from the fill depicted on the "Plan View" . If this creek is tidally influenced its banks may be the OHWM. Again, this determination should be made by a qualified person. 4. Port of Dewatto Camp Grounds on the southeast shore of Dewatto Bay and the Dewatto River. This is actually two sites about 3/4 mile apart. The Old Oyster House site was fenced and had a locked gate. A weathered sign advertised Camping and Boat Launching cost $3.00 each. There was a locked fee collection box on the Oyster House and a list of Camp Ground Rules. There was no sign of any filling or camping use having occurred in the past several months. The second site is east and upstream along the Dewatto River. This site appeared to have been cleared and graded to accommodate 60 or more unimproved camping sites. These sites did not appear to have any utility connections. There were two portable restrooms and a covered community kitchen facility built on a concrete slab. Grace Miller and Erik Fairchild June 7, 1990 Page 3 There was a fee collection box which was inspected by a person driving a Port of Dewatto pickup truck while I was on-site. The Dewatto River is ap- proximately 200 feet from the portable restrooms. No other vehicles or persons were on-site at the time. The camp ground was surrounded and flagged by red plastic tape. Several old gravel roadways leading to the River were also blocked off by tape. Signs were posted listing the camp ground rules and fees and stated that the site was Port of Dewatto property. Camp fire sites and trash were present within 50 feet of the River bank. The boundaries of the Port's property and/or the campground need to be determined. Then its location relative to the OHWM of the Dewatto River can be determined. It should be noted that recreational facilities are a conditional use in all shoreline environments. Shoreline substantial development and conditional use permits are required for the camp ground if it is within 200 feet of the OHWM Dewatto River. Thank you for providing the site plans and maps. I am looking forward to ,joint site visits with all of your staff. Please call any time so we can work out a schedule at (206) 459-6762 or SCAN 585-6762. e: Sincerely, I: Donald J. Bales Shorelands and Coastal Zone Management Program DJB:de1 Enclosure t': 15:57 D.O.E. BAP,AN HALL p7 rt'a r• s '! z ST ATC 01 lVA`+HINGTC i d DEPARTMENT OF FCOLOGY hldd Sf0p PV•11 • (1Y11.1pit. Washington 989.4 1i'11 • i20b) f 5l3-1WO September 6, 1990 Mr. Erik Fairchild Mat;on County Planning 411 North 5th Street Shelton, WA 98584 ' Re; yS r_erl- aria! NrXhart Far s_S_ te_ Inspections Dear Mr. Fairchild: . Thank you for your patience in wait.inS fur our staff c:.ommerits on the above rM ' Site visits. We appreciate you and your staff taking time to arrange for ; `. and attend these site inspections. For the record, those present for the aitn inspections were: Erik Fairchild & Dun Brush - Mason County Planning , .. Chris MGCauliff - Corps of Engineers Al Wald & John Marshal Ecology Shorelands Program d41 '1'tke BYERLY SITE, is a mobile home parking area adjacent to the west side of �Y State Route 3 (SR-3) sout.h oC Bulfair, it-, approximately the NE quarter of the NE quarter Section 32, Township 23 North, Raciee 1 West . The site in- cludes a fill area cut from the adjavdLlt uplands And pushed into a wetland ; tributary to Union Slough, ' The wetland includes a continuous, flowing stream tributary to Union Slough. The flow rate was estimated ac 0.5 to 1.5 cubic feet pri %ec:uad (cfs) at the time of the site inspecrion. The wetland extanda downstream to a farm road and culvert that appears to be wiL11111 200 feet of the upper extent of tidal influence from Hood Canal. The corps of Engineers considers- L11e wrLlnad and stream to be "adjacent" for their purpoies. The wetland buffers both the quantity and quality of runoff from SR-3 acid various commercial developments along the highway. The filling on the Byerly site has impacted and lessened the ability of the wetland to perform these fuitctiuiis. It is our 9PJnion the wetland meets the hydraulic criteria for" assucIatiuti with Un on Slovkh and Hood Cg Al f The NEYH'ART FARM SITE near the Tahuya River is upstream of its estuary on the north shore of Hood Canal. The 1988 Flood Insurance Rate Map LtidiLdtGs the Neyhart farm includes portions of the 100-year f•loodplain of the Tahuya River. More detailed survey information is needed to confirm this. The site includes recent fill on one of the side channels of rice Tahuya River. The Farm manager reports the channel used to Garry flows during the winter. Based on his walking inspection of the upper reach of this channel , it may t currently reconnect with the main channel of the Tahuya River, 1 c, rs- . r 09,'05.`'30 15:58 L.Cl.E. BARP.14 HALL 005 `5 1 Mr, Erik Fairchild September 6, 1990 Page 2 This side cha1111el has bVUiI completely blocked with several hundred cubit Yards of local soils bulldozed from the surrounding area, It is our opinion Lh1s 5itle %;ttarinel and adjacent wetlands i a functional part of the Tahuya River and meets the hXdraulie criteria_ association . f Ba}ed oLt the forgoing we believe these two sites meet the definition of "wetlands" in Chapter 90, 58,030(2) (f) RCW, and "Associated wetlands" in Chapter 173-22-030 WAG. As such, the sites fill r,,indet 0,.e •jut•isdLcLiut). of , the Shoreline Management AcL and t.11e, Mason County Shoreline Master Program (MCSMP) . TL appears truth sites contain unpermitted landfills in violation of Chapter 7 .16.1.30 of the MCSMP, which stales in part-, r t Landfills are prohibited waterward of the ordinary high water mark or on biolugic:xl wetlands, except that they may be permitted as a Condi- � tional Use for aquac,ultural practices and water dependent uses where no upland of structural alternative is possible. + Lanklfllls arc not permitted on estuaries, tidelands, marshes, ponds or v swamps, except Lhat they may be allowed for water dependent uses as a Conditional Use. Lattdfilla ary tiut permitted in floodplains unless it can be clearly }. demonsL.cat-ecl (.ha Gl,e 8e.oltydraulis and fl.�vclplair, storsge capacl y will not be .al:er.ed Lv lI1C=IEi1SC flood hi;.zard or other damage to life or property. ' Y Landfills shall not cl',srupt nonzr,&l s,,trfac:e water rrainagc , 1 As you are aware, local governments have primary responsibility for enforc- ing their Shoreline Master Programs. Ecculugy' S Shurelands and Coastal Zone �rY4 Management F'rc%tam has sume rC,�uurces -available to pursue enforcement . Par further assistance wish enforcement issues, please contaeC Jim A.ncst, Shoreline Enforcement (:ourdina or at (206) 459-6795 or SCAN 585-6795, Sincerly, Donald J. Baies ShOrelirle ri--IM I �lr�Ji t?1�1,Mt.`I Shorelands and Coastal none Mcin:.gement Pr grsm DJB:del cc: Al Wald Jahn Marshal i Jim Anest Joan VAlil<Anjp Chris McOamliff, GOF 4.1 TA s re o� 0 4 ° STATE OF WASHINGTON DEPARTMENT OF ECOLOGY Mail Stop PV-11 • Olympia, Washington 98504-87 1 1 • (206) 459-6000 September 6, 1990 Mr. Erik Fairchild Mason County Planning 411 North 5th Street Shelton, WA 98584 Re: Byerly and Neyhart Farms Site Inspections Dear Mr. Fairchild: Thank you for your patience in waiting for our staff comments on the above site visits. We appreciate you and your staff taking time to arrange for and attend these site inspections. For the record, those present for the site inspections were: Erik Fairchild & Don Brush - Mason County Planning Chris McCauliff - Corps of Engineers Al Wald & John Marshal - Ecology Shorelands Program The BYERLY SITE is a mobile home parking area adjacent to the west side of State Route 3 (SR-3) south of Belfair, in approximately the NE quarter of the NE quarter Section 32, Township 23 North, Range 1 West. The site in- cludes a fill area cut from the adjacent uplands and pushed into a wetland tributary to Union Slough. The wetland includes a continuous, flowing stream tributary to Union Slough. The flow rate was estimated at 0.5 to 1.5 cubic feet per second (cfs) at the time of the site inspection. The �..etland extends doi•n:stream to a farm road and culvert that appears to be within 200 feet of the upper extent of tidal influence from Hood Canal. The Corps of Engineers considers the wetland and stream to be "adjacent" for their purposes. The wetland buffers both the quantity and quality of runoff from SR-3 and various commercial developments along the highway. The filling on the Byerly site has impacted and lessened the ability of the wetland to perform these functions. It is our opinion the wetland meets the hydraulic criteria for association with Union Slough and Hood Canal. The NEYHART FARM SITE near the Tahuya River is upstream of its estuary on the north shore of Hood Canal. The 1988 Flood Insurance Rate Map indicates the Neyhart Farm includes portions of the 100-year floodplain of the Tahuya River. More detailed survey information is needed to confirm this. The site includes recent fill on one of the side channels of the Tahuya River. The Farm manager reports the channel used to carry flows during the winter. Based on his walking inspection of the upper reach of this channel, it may currently reconnect with the main channel of the Tahuya River. 3 �'3 Mr. Erik Fairchild September 6, 1990 Page 2 This side channel has been completely blocked with several hundred cubic yards of local soils bulldozed from the surrounding area. It is our opinion this side channel and adjacent wetlands is a functional part of the Tahuya River and meets the hydraulic criteria for association. Based on the forgoing we believe these two sites meet the definition of "wetlands" in Chapter 90.58.030(2)(f) RCW, and "Associated wetlands" in Chapter 173-22-030 WAC. As such, the sites fall under the jurisdiction of the Shoreline Management Act and the Mason County Shoreline Master Program (MCSMP) . It appears both sites contain unpermitted landfills in violation of Chapter 7.16.130 of the MCSMP, which states in part: Landfills are prohibited waterward of the ordinary high water mark or on biological wetlands, except that they may be permitted as a Condi- tional Use for aquacultural practices and water dependent uses where no upland of structural alternative is possible. Landfills are not permitted on estuaries, tidelands, marshes, ponds or swamps, except that they may be allowed for water dependent uses as a Conditional Use. Landfills are not permitted in floodplains unless it can be clearly demonstrated that the geohydraulic and floodplain storage capacity will not be altered to increase flood hazard or other damage to life or property. Landfills shall not disrupt normal surface water drainage. As you are aware, local governments have primary responsibility for enforc- ing their Shoreline Master Programs. Ecology's Shorelands and Coastal Zone Management Program has some resources available to pursue enforcement. For further assistance with enforcement issues, please contact Jim Anest, Shoreline Enforcement Coordinator at (206) 459-6795 or SCAN 585-6795. Sincerly, _D/ '9�11X4 Z�C� Donald J. Bales Shoreline Permit Coordinator Shorelands and Coastal Zone Management Program DJB:del cc: Al Wald John Marshal Jim Anest Joan Velikanje Chris McCauliff, COE Dear, Mr, . Dyer,-1 y". U 1.)()n r,,e v i e w yuk.w, violati(:;)n (:::ase at the Ma4,,,:'C:)r.) 17 e 1:.i a I,--t m e I-)t i t, 1--i a s come to oLm afttentiori that 1­)alli� 1::)een a -tak:eri by yait..t tl--ie illegal, fill Your. 1-.)1,-o 1.)e I--t y a t NE q ua. I,--t e I,- (-.if -the NE q u a e r' Sect j.on .12 'T'(::)w n i!. !-,I a.1::) 2:1 1\1 o r'''t 1--i , R as n g e 1. W e s t Plewnie , 1::)e acJvi0.-.Bed , Mi­. nyer-ly, that your catsm iiiii irl pr;;(l")C.....f"....�A"i..,."I raf +o11(.:)w thr--ough and at all levels a f e n+o I-.c.e m e ri t agger)cies involve(:J to this point. zltc'aC::k:9r'•C:)Unc::1 (:::a ii,i e 1­i i s t a r y r e v a 1.iii, exc(•?1:AJ. (::)r)a1, efforts 1:-.)y i n v(::)1.v e(:J agen(:::ies wot­k ir) Y(::)L.L the Asses;smervt. of YOU are her-c-,by penalizec.J J.n accordarice with C ..q:)ter '7. 32. 02C) (2) a fir') . 'in tl­ie amoukrit c.)f Ili".50. 00 +or +ai ].Ure -tc::) t(::) a Natiw.-? a f Vi(-)].iiktiori wr-iU-..en I..)(J sent 1::)y I'll i::i(::)n Co t_t ri t y D e I.)a I,-,t ryi e ri (,.),f G.-Iener-al Ser-i v(:::ei:5 Jaru.tary 4 , 1-989. This., pL­malty w i 1, 1. a c k.t In u 3,a t e a t :ate cm, $50. 00 a n t-1. 1 (:::(::)rAac:A.-. is made witi"I OUr-- Departmerit (:::cr)cer-ning r--emecfl.istion of the sk.A.').je. ct w e t 1.a ri(I i:5 c::)I,,- t5 dayii4 from yout- wh j, ch ever- is less. A n(::)ri^ r--e i.iii 1,.,)(::)n cl;e a c t j. n a t erid o f :1.'5 d a y s"; will. initiate 6% change in t 1--)e classificatiori of y(-.)ur-- v.i. (::)1atiori +r,om t 1--i e C.i vii, 1. p)r o c e d U r e t o t I—)e Cr-iminal pro(:::(,"..?dUre iri w 1--1 i c h c a s e YOU Wi 11. be 1--i e I d g U i 1,t y 0 f a g I,--o s s (n i s c-.1 e M e a ri o r a n d C 0 Li 1 d r i s 1< i m 1::)1­i sizi ca ri m e r0-... Pens.-.O.ty paymerit will. ruxt. be :i.r') lie(A C'.)+ r..q)pr-opri ate and adeCjUz'..kte vi e t I a ri d I,--e fn e(j 4 L a t i e a t.:i e n-L.a c t (:m..,,r- of+ice c.ks as, r.:)o erg sible. YOU- Si Wendy Van Eatc::)n I ev M.1. k e R y r ri e Shoreline Planner- 0 i 1- 11 a i;.,(::)n C a u ri t y (3e ri e r a 3. e r vi (:e s WVEL/wvel MASON COUNTY DEPARTMENT of GENERAL SERVICES Mason County Bldg. III 426 W.Cedar P.O. Box 186 Shelton, Washington 98584 (206) 427-9670 building environmental health fire marshall parks & recreation fair/convention center planning Mr . John Byerly December 20 , 1990 P.O . Box 133 Bel fair , I,JA 985 $ RE: Wetland fill violation Clear Mr . Bxer 1 `i , It has been determined that the wetland on your property is a ,jurisdictional wetland as delineated by the United States Army Corps of Engineers and the Department of Ecology . Mason County is therefore authorized to regulate this particular wetland with the Mason County Shoreline Master Program which states in Section 7. 16. 130 : of Landfills are prohibited waterward of the Ordinary High Water Mark or on biological wetlands, except that they may be permitted as a Conditional Use for aquacultural practices and water dependent uses where no upland structural alternative is possible . " You are hereby notified in this certified letter that you are in violation of the Mason County Shoreline Master Program under the above mentioned section . Immediate removal of the fill that has been placed in the wetland and proper restoration of the disturbed area must be completed . You must subm i t plans _.ho!.ki i ng the removal of the f i 1 1 and the erosion control measures to be incorporated and maintained throughout the restoration period to our office within 15 days from the date of this letter . I have discussed this matter with the prosecuter' s office and they are prepared to file a criminal complaint or seek civil penalties of $1 ,000 against you for this violation , if you do not make a satisfactory response within 15 days. R Tz:�u , Sean Orr , Planner Mason County CC : Gary H . Sexton , Attorney Mike Clift , Prosecuting Attorney Erik Fairchild, Planning Coordinator Jim Anest , WDOE * � � hl Y i # �Brl '�"� �.� r.? . l SFr i`'•��` w `'.�'�,+w �` -- _MI r•. ; iir !r 'wl Pele +•%' w� r' r�y7.,' �.: ate,. •. � ' �Sr 4 a . r +, w} t L s� 140y- •1t�1>t ML •. ; ,. erg✓°s� g} c ,L, �. lit �y � �� `•�l-% i I� �: �f+�� rae, Q - � �'± fit:-.�,�•:7ya� �1 �{ �► ^}:�..� +,� � �`p� ��}` � ♦, Jr -w •jy\1,�i yy,, yy„'� i • �r �« .:5� g �• s - �`,��:,44 .F'�L .f 1-�I r �� � .its' .�4 .wllan t, ., ° � e ��i,:ht 1�j✓� t"n +.. .�hr 1 `''�: �f�r4���MS,�sr•1�,t y�' -�t ",.'/ ��q �'� t IrA tl., 1. -„�F yy ty. b � �.• �r a�� r y � '.4� Pl f �k ti �� �, .� ,-,� '� (i.. '`'•"' :� a }`} .-�4 �'�4 — 1 �s TO : Jim Anest RE : Byerly wetland fill violation Meeting : 12-27-90 The following is a timeline for your information on this particular violation . /14/89 - Stop work posted for landfill in biological wetland Shorleine Master Program Sections 7.04 .030 & 7. 16 . 130 . 9 20/"89 - Site inspection with with Chris McAuliffe and Norm Hanson of Army Corps of Engineers and Lenore Marken and Erik: Fai rch i 1 d of Mason County to verify and delineate the biological wetland associated with Lynch Cove of Hood Canal . 10/2/89 - Certified letter sent to John Byerly explaining stop work and reque�_ting removal of fill . / 10/20/89 - Letter received by Lenore from Gary Sexton Attorney for• John Byerly . 10/20 89 Send letter with facts and copies, Sections from SMP . CC to Mike Cl ift , 1/4/90 Revised letter sent to Mr . Sexton . Lent letter certified to Mr . Sexton and Mr . Byerly . CC to Mike Clift , Chris McAuliff , and Bruce Smith . 1/19'90 Received letter from USACOE notifying Mr . Byerly of the violation . IN f---1916190 Received letter from DOE about their site inspection and recommendations. sl '�I'—/ 1 1/22/90 Sean Orr drafted letter to be sent to Mr . Byerly �pCf and his attorney requesting removal or further action by the county will be taken . 12/20/90 Mike C:l ift approved letter to be sent to Byerly. �oG Contacted Jim Anest , WDOE , about Bye1y fill and � �av to request .joint action to be taken against Byerly . 12/2O/?0 Sent certified letter to Jahn Byerly requesting he submit plans for removal within 15 days or the county would take further action to correct this matter . 12/27/90 Site inspection with Jim Anest at. Byerly site . MASON COUNTY DEPARTMENT of GENERAL SERVICES Mason County Bldg III 426 W. Cedar P.O. Box 186 Shelton, Washington 98584 (206) 427-9670 building environmental health maintenance landfill parks&recreation fair/convention center planning sewer&water Mr. Gary H. Sexton January 4, 1989 Sexton & Bratt 1126 Highland Ave. Bremerton, WA. 98310 Dear Mr. Sexton, In reply to your letter dated October 17, 1989, regarding the John Byerly property, the Coastal Zone Atlas of Washington for Mason County is not the primary controlling document regarding the right to grade and fill. The Coastal Zone Atlas is used by the Planning Department to determine critical biological areas, slope stability, coastal flooding, geology and is used as a reference when doing research and preparing staff reports. Mason County does not presently have a clearing and grading ordinance, but one of the regulating ordinances the Planning Staff works with on a daily basis is the Shoreline Master Program. According to the Shoreline Master Program, Section 7. 04. 030, Ordinance No. 99-84, Environmental Policy, and the National Wetlands Inventory Maps from the U. S. Department of the Interior, Fish & Wildlife Service, 1987 a portion of the Byerly property is an associated wetland of Lynch Cove and development within this wetland is regulated by the Shoreline Master Program. According to the Shoreline Master Program, Section 7. 16. 130 "landfills are prohibited waterward of the ordinary high water mark or on biological wetlands, except that they may be permitted as a Conditional Use for aquacultural practices and water dependent uses where no upland or structural alternative is possible. " s SZ1� --��1.A site inspection of the Byerly property on September 21, 1989 conducted by Mason County Planning Staff and Army Corps. of Engineers Staff reconfirmed our prior determination : fill has been placed in a biological wetland. Section 7. 32. 010 of the Shoreline Master Program states "the administrator shall issue a notice and order to the owner or tenant of such premises advising such person of any violation and requiring him to take whatever action is necessary to comply with the Act and this ordinance, " thus the no✓ #�// 21g9 request for the removal of the fill in our letter to Mr. Byerly dated October 2, 1989. The consultations with the Mason County Planning Staff, as stated in your letter, have been investigated and it has been determined that the person inquiring about ordinances in our office specifically asked for the Coastal Zone Atlas, researched what they wanted to know and assumed it was the controlling document. To this extent, four of the five Planners in the department use the Coastal Zone Atlas as a reference, but all know it is not the "controlling document" and do not use it as such. As required by the Mason County Code, "Any person violating any of the provisions or failing to comply with any of the mandatory requirements of resolutions or ordinances of the County is guilty of a misdemeanor. Any person convicted of a misdemeanor under the resolutions or ordinances of the County shall be punished by a fine of not more than five hundred dollars, or by imprisonment not to exceed ninety days, or by both, unless otherwise required by state law. Each such person is guilty of a separate offense for each and every day during any portion of which any violation of any provision of the resolutions or ordinances of the County is committed, continued or permitted by any such person, and he shall be punished accordingly. " If the Mason County Planning Department does not receive plans showing the removal of the fill from the wetlands and the erosion control measures to be incorporated and maintained throughout the restoration period with a time line or a similar, adequate response within fifteen ( 15) days from the date of this letter, a citation will be issued on January 19, 1990 and the matter will be turned over to the Prosecuting Attorneys Office. If you have any questions, please contact Mr. Mike Clift, Mason County Prosecuting Attorney at 427-9670. We look forward to hearing from you. Sincerely, Lenore Marken, Planner Dept. of General Services LM/lm cc : Mr. John Byerly Mike Clift, Prosecuting Attorney Chris McAuliffe, Army Corps. of Engineers Bruce Smith, Dept. of Ecology J c�L41-\ tc cl 4t) ccvo;;fi�k� tx� c-fC— � ' P CLI4- �Cj 1 (CkCI t � � CrcClt4 N—c— P. 44—,q"— c ,c— +C) c �- q - rU�aQd W' 40 SZtA4 4C) W - ��n . +['f(90 - pzuised l--e� -to lw'- letter Cvu-�6'�-i cc] 40 GLcv-. i'l,t,r -� �(.,`'� � I4(qo . C .C. to Ciw1 l:s --� -- f�T� E � CN VI.Li►l � C�r.� �"� � l�i19(a T� 'N �CY p �9/�-t 1.?�„ low- kA 0 Li 1 e S ' I1 S — c,- � Sic r"f`S CJ, �-f q,-t 7L do - b --es tN�-,4 Lt s-e LA-� S Ok i � .r wok �f�J �o � .� s,P4 5V , y� /Is- a C G1 f\-I NL I C3 • J\(+l \}� C C��G.1 -ci. I �' C ✓ C (kSS- �-�- � LAC`�'� S,-� �' C U v -:-�`�1 /��,�`� �,`v�-• 1 Li 14 d, �jl Ltt,,- 41--b (ems 3 5L co a re AL-V- 46 C. I s CAS or c"r akou-e- hxctdt-v q---A-� sle FCC (-x c,'-t Ac i f A III CL car a,,`cc C -0 C�OCQS� ° J (-7L O cz r cedar Car) ;-r ► _ ..� f� 1 C�tTO . C� .. _ SEP 25 '83 - -• _- ID:CORPS OF Ehl5IIaEERS TEL NO: 06 T64 �3OS #3,9 P02 s r • 4 ,y 0 IVA �,�•b p 21. Ak W 7p- LA 1 a too sQr PURPOSE: DATUM //ADJACENT PROPERTY OWNERS: IN u AT O COUNTY OF STATE APPLICATION OY SHEET OF PATE ul,4c r73- 2,Z.0 -77 ce,J14 7# "*+yam WO �, �:-"R`S�""� ��' r"` R^tr s",✓�j ` �r v' yd > a ,�.�•' ,T ���""�r.�'.�- s '1'4� „s,� �'t�',s, t°.. r +�', �i Ik �Xy� RS .!.h .,�.� 'aE' `*., #r 'f'► j''��t�� � "+ .. �x'' .+�c W r �tle a:,• A. b•'a. /f W G .y k _.r4... L �4 -!- ' ;� � �:,y r -a rc.�. �q4_u.::__.`_�+l�.�r^��• „� .�{�¢�,�' --•J�Ara`� _--+a�-�-,Md ' - a� jT,;. vow f ^k X �9v k. f ,,. R �_ • � �1fc'vs -d b7� . W`�:` Y - d � Y.h.� � � � z R k ;-� d '•<'is B, 3c` .-• '-a4. ys: s;° '� ''w �k,,.,..,� ra'�,;S4y>.�, t-..fi ".m�. t � � `�4 . ::� �' �� ^� � � ;w � �ik F � ,a �.,k ," �s ��._ ' k�`a`�n �QF` a t � '. � �y .�" _• '�- ya,� a, �� G J Z^, '�'' _'� "."`."`�^aa'. ..."�'e.��._.�.�..._'_-••g 'f - r.' _` r,; = 'gam" ""�* + s • �.; � � � v -M-,:� k,, �.i t �� F :`{ ,"t.,�s f a'rv-"` � ��$+Srt^'' C �' "`��{ K �`, ". :' J}.�t��•� awn.. f ._.i t FIV kt -7----.tea.+.,-- ----"��� �. R.r. .,�,. �,�� � ,� �• a •�, s R `` WE 70 Air t _ a 3C 3 a. r a „h ��' y4.� � .wa. k►'. es.+.�..: '.C.,� aQy, r {���bb. .�y.Ys 3. � _.._.. .... ._ a, ,.__,- � __..f. ....:i sue- ='iw.•r:.. _ ,.�. - dvW z,bl 9�q vyr-/" 531 — L r vr'q —M n-1-0 �� • � �ws �,­�YTr Ot '91S-ob ' l ' so l to 7 d _ LI rwwp E -- - - - qc-I --- --- l� 1 - G� P► G� GG4'� -ctn UGC,-?_ Q CE �Lc f hO T ----- --- - - E r/ -J-5 1 I I I � I I, i li I I i I I I I I � I I i I SJMASON COUNTY DEPARTMENT of GENERAL SERVICES Courthouse Annex I N. Fourth & W. Cedar P.O. Box 186 Shelton, Washington 98584 (206) 427-9670 building environmental health maintenance landfill parks&recreation fair/convention center planning sewer&water Mr . John Bverlv October 2. 1989 F . O. Bor. 1�- Belfair , WA. 98528 Dear Mr . Byerly , On September- 14 , 1981' a Stop Work Order was posted on your prooerty at NE 2'31-)1 Hwy . in Belfair because the creation -f :and occurring on the site is in violation of the Mason County Shoreline Master Program. According to the Shoreline Master Proqram " landfills are prohibited waterward of the ordinary high water mark or on biological wetlands . " A portion of your property has been determined to be wetlands associated with Lynch Cove and thus comes under the jurisdiction of the Shoreline Master Program. I have enclosed copies of the applicable sections of the Shoreline Master Proqram for vour information . On September 21 , 1989 staff members from the Mason County Plannina Department once again visited the site along with staff members from the U . S . Army Corps . of Engineers . During this inspection , the boundaries of the wetland were determined . All fill that has been placed in the wetland , as shown on the enclosed copy of the field notes , must be removed and the area must be restored to its previous condition . i Please submit plans showing the removal of fill in the wetland area and the erosion control measures to be incorporated and maintained throughout the restoration period to our office within 15 days of this letter . We look forward to hearing from you . Sincerely , T1 b Lenore Marken , Planner Dept . of General Services LM/ lm 1-7 c S ID Comps . Ic��cl c Law Offices of Sexton & Bratt Attorneys at Law Gary H.Sexton Kent R.Bratt VV October 17, 1989 OCT 2 01989 GENERAL SERVICES Mason County Dept of General Services Court House Annex 1 N. Fourth & W. Cedar P.O. Box 186 Shelton, Wa 98584 ATTN: Lenore Marker RE: John Byerly Our office represents the Byerlys, including John Byerly. We have received and reviewed your letter dated October 2, 1989 with great amazement. On three occasions, prior to commencing the grading, the Byerlys and a person performing the grading work, went to the Mason County Department of General Services to determine if any permits were required. On each occasion, a planning department employee pulled out the Coastal Zone Atlas of Washington for the Mason County area. On each occasion, the department employee indicated that the Atlas was the primary and controlling document regarding the right to grade and fill . As you are aware, the Atlas is to scale, and is not schematic. No where does that document indicate that it is not accurate or cannot be relied upon for accuracy regarding designations and use categories. Equally, no department official suggested that the Atlas could not be relied upon. The Atlas includes a color coded section entitled "Land Cover/Land Use For Pierce, Thurston and Mason County. " On each occasion mentioned above, the county employee assisted and turned the Atlas to the color coded page for the Belfair area. The depth for the Byerly property was discussed, located, and measured on the map. The Atlas designates, categorizes and describes the entire Byerly property as "uplands, " and "Second Growth Mixed Forest" ( category 433 ) . On each occasion, the county official agreed that the Byerly property fell within that category. In fact, on site viewing of the property confirms its designation as second growth 1126 Highland Avenue Bremerton,Washington 98310 (206)479-5908 Page 2 Mason Cty Dept of General Services October 17, 1989 mixed uplands. The pre-existing Byerly property sloped downhill from south to north. Additionally, a hill or mound ran along the north/south centerline of the property, thus necessitating removal of some stumps and a cut/fill of the existing ground in order to obtain a level area. Only a very small part of the northwest corner of the property ( not the large section marked on the diagram attached to your letter) was marsh. However, as you know, many properties contain dips or low points. Naturally, that does not suggest that the small, low area is "wetland" for development purposes. Your letter of October 2, 1989 states further that the fill is in violation of the Mason County Shoreline Master Program. In that regard, it must be remembered that when the three individuals previously met with the planning department employees, they were led to and shown the Coastal Zone Atlas, not the Shoreline Master Plan. The planning department did not pull out, or discuss the Shoreline Master Plan. Presumably, that was because the Byerly property is located more than one-half (z) mile from the Hood Canal Shoreline. No county employee suggested or indicated that the Byerly property was subject to the Shoreline Master Plan . In fact, the Mason County Shoreline Master Plan does not reflect that the Byerly property is subject to that plan. The Shoreline Master Plan map indicates that the plan extends only 200 feet from the Hood Canal mean high tide. A heavy b:I. ue line around the end of Hood Canal designates the 200 foot control or planning area. That 200 foot zone stops more than 1400 feet west of the Byerly property. The Coastal Zone Atlas of Washington, discussed above, reflects that the Byerly property is separated from the shoreline area by a large "upland" farm or grassland. That upland has several homes, barns and other structures located on it. Nothing within Chapter 7. 16. 130, cited in your October 2, 1989 letter, suggests or confirms that the Byerly property is subject to or within the boundaries of the Shoreline Master Plan. At this point, we do not understand how "a portion of your property has been determined to be wetlands associated with Lynch Cove" . Finally, your October 2, 1989 letter directs that the fill shown on the "field notes must be removed and the area restored to its previous condition" . We are unaware of any i Page 3 Mason Cty Dept of General Services October 17, 1989 authority for that directive. We find no such authority within the Shoreline Master Plan, nor does your letter cite any such authority. More importantly, the grading operation was performed only after three consultations with the Mason County Planning staff. As noted above, on all occasions the planning staff actively participated and directed the persons to the Coastal Atlas. Any fill performed contrary to county shoreline regulations or other regulations was proximately caused by the negligence of the Mason County Planning staff . Therefore, any direction or instruction that fill should be removed must be accompanied with a plan regarding how the county plans to pay the cost thereof. Naturally, any such instruction at this point appears contrary to Mason County requirements, plans or authority. Please feel free to call so that we can discuss this matter further. 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