HomeMy WebLinkAboutSHB99-033 Hearing - SHR Letters / Memos - 9/28/1999 rrIV'!�
SEP 2 9 1999
David Viafore MASON CO.PLANNING DERT
Petitioner
PETITION
vs. FOR
Mason County, Washington Municipal REVIEW
Corporation;
Howard and Nancy Bauer
Respondents
COMES NOW the Petitioner, David Viafore and alleges as follows:
1. PARTIES
1.1 David Viafore (the "Petitioner")
Address: 157 E. Community Club Road
Shelton, Washington 98584
Mailing address: 1120 Paradise Parkway
Fircrest, Washington 98466
Telephone: 253-564-2228 (work)
253-566-1850 (home)
1 .2 Nancy and Howard Bauer (the "Applicant")
Address: 155 E. Community Club Road
Shelton, Washington 98584
The Petitioner owns property adjacent to the Applicant.
2. JURISDICTION
2.1 The local jurisdiction whose land use decision is Mason County, 411 North
Fifth, Shelton, Washington 98584 (the "County").
2.2 The decision making body for this matter is the Mason County Board of
Commissioners (the "Board").
2.3 The Shoreline Hearing Board has jurisdiction pursuant to RCW 90.58.58.140
and WAC173-27-100.
3. Statement OF FACTS
3.1 On April 4, 1999 the Applicant submitted a Substantial Development Permit
request to the Department of Community Development (the "Proposal"). The
Proposal was for a 56-foot long and a 6-foot wide pier, a 40-foot long and a 4-
foot wide aluminum ramp, on to a 10-foot x 20-foot float. The project would
extend 100 feet from the existing bulkhead and require 9 pilings to support the
pier and floats. The structure would be located on Pickering Passage at
Applicant's address.
Letters and concerns from the adjoining property owners to the South of the
Proposal within the 300 feet notification requirement were received by the
Department of Community Development and the Board noting the obstruction
of views, conflicts with recreational boaters and fisherman and eliminating the
access of the beach.
3.2 On June 7, 1999, first public hearing, the Department of Community
Development issued a staff report recommending denial of the Proposal.
Their conclusion states:
"The project appears to be consistent with most of the applicable policies and
P 1 pp PP
use regulations of Mason County Shoreline Master Program's Piers and
Docks Chapter. It appears that the facility will impact the neighbor's and
recreational boaters and fisherman's use of the water. In addition, the
adjacent property owner's views of the water will be significantly altered.
Therefore, the proposal is inconsistent with Policies #1 and #3 and Regulation
#2."
"In 1991 , a similar proposal was brought before the Board at that time and was
subsequently denied based on these same policies and use regulations. That
pier, ramp and float facility was proposed north of this site. The commissioners
denied it based on the conflicts with Policy #1(it will impact the fishing along
the shoreline and water uses in the area) and Policy #3 (because of its
impacts on aesthetics and pristine visual environment in the area)."
"Based on the neighboring property owners concerns and the similarity of this
proposal to above mentioned project, staff finds that this proposal is
inconsistent with Policies #1 and #3 and Use Regulations #2. "
have listed the above mentioned Policies and Use Regulations as they are
written in Chapter 7.16.170 Piers and Docks
Policy #1 — it will impact the fishing along the shoreline and water uses
in the area.
Policy #3 — it will impact the aesthetics and pristine visual environment
in the area.
Regulation #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 water uses. Structures shall be located
a minimum of five feet from side property lines. Community use or joint use
facilities may be located on the property line.
3.3 On July 6, 1999, second public hearing, the Board failed to pass a motion
made to approve the proposal showing a 40 foot pier, a 40 foot ramp, and the
float. The board discussed rather than putting the applicant back through a
new permit process, they would prefer to see another alternative. The Board
than carried a motion to continue the hearing to July 27, 1999 at 8:45 p.m.
3.4 On July 27, 1999, third public hearing, the staff of the Department of
Community Development issued another report, again recommending denial
of the Proposal for the same reasons as listed in their staff report dated June
7, 1999. No other alternative was presented. The Board granted the
Substantial Development Permit.
3.5 On August 31, 1999 the Board issued its Findings of Facts, which states:
"After review of the proposal during three public hearings and reduction of the
pier length portion of the facility from 56 feet to 40 feet, the Board decided to
conditionally approve the permit request. Based on the Shoreline Master
Program's policies and use regulations, the Board found that the proposed
pier, ramp and float facility meets the policies and use regulations. In review
of the impact of these types of proposals, the Board has discretion as to how
they determine what is significant and what is insignificant. There is no
definition or guideline in the SMP. The Board does not disagree that there is
an impact with the proposal, but the views that are impacted are not
substantially impacted and still afford those owners very nice views."
4. ADDITIONAL BACKGROUND
4.1 While the Board found that the Proposal complied with the Mason County
Shoreline Master Program (the "SMP"), the Board made no specific finding
that would minimize the adverse effect on the shoreline characteristics, tidal
action, conflicts with recreational boaters and fishermen and other water and
beach users.
4.2 The design and location of this Proposal is not compatible with the
surrounding area since this will be the first of its kind since the adoption of the
SMP in this area. The types of structures preferred under the SMP are floats
and mooring buoys and occasional docks with joint use preferred. In this area,
this will set a precedent because once the structure is in place other proposals
brought before the Board will use it as a common practice in this area. The
Board approving this Proposal ignores the requirement that piers and docks
be designed and located to minimize the obstructions of views and conflicts
with recreational boaters and fishermen. The Board did not address this issue
in their Findings of Facts.
4.3 On July 6, 1999 the Board failed to pass a motion to approve the Proposal.
Rather than requiring the Applicant to obtain a new permit, the Board preferred
the Applicant submit alternatives to the original Proposal that would mitigate
neighbor's concerns at the July 27, 1999 meeting.
Other alternatives were not presented to the Board at the July 27, 1999
meeting and the Board did pass a motion. During this meeting, the Petitioner
questioned the Open Public Meeting Act, Appearance of Fairness Doctrine
and pointed out that this is a quasi-judicial hearing process and that the
Petitioner's due-process had been violated since there were numerous
discussions outside of the hearing process.
5. ASSIGNMENT OF ERRORS
5.1 The Board ignored the SMP mandate to:
A. seek alternatives that would minimize adverse effects to the
environment, aesthetics, and adjacent land and water use;
B. prefer joint or community use docks over individual use docks:
C. prefer floats and buoys over piers and docks; and
D. address and minimize environmental concerns.
5.2 The Applicant has failed to show that the current buoy and boat ramp is
inadequate for their single family purposes and that such inadequacies
outweigh the aesthetic, environmental, and recreational use disruptions
caused by the proposed structure.
5.3 The Applicant's Proposal is not compatible with surrounding properties as
required by the SMP and substantially and impermissibly interfere with the
recreational use of the shoreline.
5.4 The Board ignored the impact on adjacent property owners and the
interference with rights of adjacent property owners and adjacent water uses.
5.5 The Board violated the Open Public Meetings Act, the Appearance of Fairness
Doctrine, which both apply to a quasi-judicial hearing and land use cases.
6. REQUEST FOR RELIEF
The Petitioner requests that the Applicant's Shoreline Substantial Development
Permit be denied.
I do hereby attest that the above information is true.
Respectfully submitted on September C)/T , 1999
David M. Viafore
1 SHORELINES HEARINGS BOARD
STATE OF WASHINGTON
2
DAVID VIAFORE, )
3 )
Appellant, ) SHB NO. 99-033
4 )
V. ) FINAL FINDINGS OF FACT
5 ) CONCLUSIONS OF LAW AND ORDER
MASON COUNTY; and HOWARD AND )
6 NANCY BAUER, )
7 Respondent. )
8 )
9
10 The above matter came before the board on July 24, 2000. The board was comprised of
11 James A. Tupper, Jr., Presiding, Ann Daley, Chair, and Dan Smalley. Ms. Daley, having
12 reviewed all pleadings and exhibits in this matter together with a transcript of the proceeding,
13 participated in the decision of the board. Gene Barker& Associates of Olympia provided court-
14 reporting services.
15 Jay A. Goldstein represented appellant David Viafore. Michael Clift, Deputy Prosecuting
16 Attorney represented Mason County and Robert H. Raymond represented Howard and Nancy
17 Bauer.
18 The Board received the sworn testimony of witnesses, admitted exhibits and considered
19 written closing arguments on behalf of the parties. Having fully considered this record, the
20 Board enters the following
21
FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB NO. 99-033 (1)
1 FINDINGS OF FACT
2 I.
3 David Viafore seeks review of a shoreline substantial development permit issued by
4 Mason County to his neighbors Howard and Nancy Bauer. The permit would allow for the
5 construction of a 100-foot pier and floating dock appurtenant to the Bauers' single-family
6 residence. The structure would consist of a 40-foot fixed pier, a ramp that would extend 40 feet
7 and an overlapping 26-foot float.
8 Il.
9 The fixed pier would be anchored on the top of an existing railroad tie bulkhead. Four
10 pilings would be used to support the middle and waterward extension of the pier. The permit
11 limits the pier handrail to a height of 36 inches. There would be a 4-foot clearance under the pier
12 at the face of the bulkhead. On the waterward end of the pier there would be a vertical clearance
13 of 11 feet.
14 III.
15 The Bauer property is located on the eastern shore of Pickering Passage across from
16 Harstene Island. The shoreline is designated as an urban residential environment under the
17 Mason County Shoreline Master Program (SMP). The area is developed with a number of
18 recreational and permanent residences. South of the property there is an existing dock and
19 boathouse that extends approximately 200 feet into Pickering Passage. This structure predates
20 the Shoreline Management Act (SMA), chapter 90.58 RCW. Further south is a bridge to
21 Harstene Island. The shoreline north and south of the subject property is otherwise devoid of
FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB NO. 99-033 (2)
I any dock structures. With the exception of the two noted structures, the view of the shoreline
2 from the Bauer property and surrounding properties is unobstructed and relatively pristine.
3 IV.
4 The tidelands directly in front of the bulkhead are held in title by the Bauers. The
5 shoreline is used for beachcombing without objection by the Bauers. Extensive use is made of
6 the nearshore for recreation including boating, swimming and fishing. The proposed dock would
7 interfere with established uses of the shoreline.
8 V.
9 The Mason County staff recommended against approval of the shoreline permit based on
10 aesthetic view impacts and interference with established uses of the shoreline for recreation and
11 fishing. The staff also noted that the county had previously denied a similar permit on Pickering
12 Passage based on the same concerns. The board heard limited testimony on the issue of whether
13 the proposed dock was prohibited under restrictive covenants that apply to the Bauer property.
14 The board does not have jurisdiction to resolve that particular issue. It is relevant to consider,
15 however, that granting the subject permit here will set a positive precedent for the development
16 of additional docks along the shoreline of Pickering Passage.
17 VI.
18 The Bauer lot is 82 feet wide at the bulkhead. An existing boat ramp straddles the
19 common property line to the north. Mr. Bauer testified that his boat typically goes dry at the
20 proposed float during low tide. This same condition currently exists with a mooring buoy used
21
FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB NO. 99-033 (3)
1 by the Bauers. The dock would make it easier for Mr. Bauer to secure and access his boat during
2 low tides.
3 VII.
4 Appellant contends that the proposed dock will have an adverse impact on Coho and
5 chum salmon migrating through Pickering Passage. Both stocks of fish are currently deemed to
6 be stable. They are not listed as threatened or endangered under the Endangered Species Act. 16
7 U.S.C. § 1532. Numerous studies have documented that salmonids react to changes in light
8 intensity. Shading created by a dock may cause salmon to be diverted around the structure. This
9 may be particularly significant for Chinook and chum salmon fry that tend to school during
10 migration along nearshore habitat. This disruption to migration patterns may impact nearshore
11 feeding habits and expose salmon to greater predation in deeper water.
12 VIII.
13 Mr. Viafore and the Bauers rely on a recent literature review of the extant knowledge of
14 the effects docks have on salmon migration. Washington State Department of Transportation,
15 Impacts of'Ferry Terminals on Juvenile Salmon Migrating Along Puget Sound Shorelines: Phase
16 I Synthesis of State of Knowledge, (June 1999). This report offers several important conclusions.
17 Ocean type juvenile salmon prefer to migrate in shallow water along the edges of refuges, such
18 as eelgrass, dock shadows, and turbid water. Schools of salmon fry and fingerlings disperse
19 upon encountering docks. This may cause a delay in migration direction. It is assumed that this
20 effect increases mortality but there is a lack of conclusive evidence to support this paradigm.
21 There are no studies that substantiate whether docks concentrate salmon predators.
FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB NO. 99-033 (4)
I IX.
2 It is not probable that the proposed dock would have any adverse impact on salmon
3 migration. The WSDOT report discusses a 1994 study of the Manchester Naval Fuel Dock.
4 That study found no evidence of stalling or movement offshore by salmon approaching the
5 facility. Rather, the salmon appeared to move freely under the structure to travel between
6 eelgrass habitats on either side of the pier. Id., at 47. The WSDOT report concludes that the
7 scale of shading resulting from the physical design of a dock can influence whether the shadow
8 cast on the nearshore is sufficient to cause any impacts. While we do not know the dimensions
9 of the fuel dock discussed in the literature review, we assume it is larger and casts a greater
10 shadow than the dock proposed here. From this record it is difficult to conclude that the
11 proposed dock alone is likely to have a significant impact on salmon migration.
12 X.
13 It is nonetheless important to note that there is a lack of definitive scientific knowledge in
14 this area of fisheries management. The Department of Transportation attempted to quantify the
15 effects of a dock using the Port Townsend Ferry Terminal. The study was not able to measure
16 any significant disruption in fish migration. The published report states, however, that several
17 problems were encountered in conducting the study and cautions against drawing any definitive
18 conclusions about dock impacts using the study. We must also consider the present proposal in
19 the context of potential future development of similar docks along Pickering Passage. The board
20 noted in Gennotti v. Mason County, SHB No. 99-011 (1999), that listed salmon stocks on Hood
21 Canal have been adversely impacted by extensive dock development. Even if the proposed dock
FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB NO. 99-033 (5)
1 alone would have no adverse impact, it should be considered in the cumulative adverse impact
2 attendant on potential future dock development.
3 XI.
4 Mr. Viafore claims that Mason County violated the appearance of fairness doctrine in
5 issuing the subject permit. The board of county commissioners held three public meetings on the
6 shoreline permit application. At the commencement of the third hearing, one of the county
7 commissioners and county staff disclosed a conversation that the county commissioner had with
8 a representative of the National Marine Fisheries Service. The federal agency is not a party or a
9 proponent of the Bauer dock. Mr. Viafore had an opportunity to testify and did testify at the
10 third hearing before the county commissioners. Mr. Viafore offered no testimony or evidence in
11 this matter relating to substance of the conversation between the county commissioner the
12 representative the National Marine Fisheries Service.
13 XII.
14 Any conclusion of law deemed to be a finding of fact is hereby adopted as such.
15 Based on the foregoing findings of fact, the board enters the following
16 CONCLUSIONS OF LAW
17 I.
18 The board has jurisdiction over the persons and subject matter of this appeal pursuant to
19 RCW 90.58.180.
20
21
FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB NO. 99-033 (6)
1 II.
2 The board's standard of review is de novo. Mr. Viafore bears the burden of proving by a
3 preponderance of the evidence that the proposed development is inconsistent with applicable
4 provisions of the Shoreline Management Act and the Mason County Shoreline Master Program.
5 RCW 90.58.140; WAC 461-08-500.
6 III.
7 Mr. Viafore's contention that Mason County violated the appearance of fairness doctrine
8 is without merit. The type of communication at issue is specifically authorized under WAC
9 42.36.060(2) where the communication is disclosed on the record:
10
During the pendency of any quasi-judicial proceeding, no member of adecision-making
body may engage in ex parte communications with opponents or proponents with respect
11 to the proposal which is the subject of the proceeding unless that person:
12 (1) Places on the record the substance of any written or oral ex parte communications
concerning the decision of action; and
13
(2) Provides that a public announcement of the content of the communication and of the
14 parties' rights to rebut the substance of the communication shall be made at each hearing
where action is considered or taken on the subject to which the communication related.
15
The communication at issue, a conversation between a county commissioner and a representative
16
of the National Marine Fisheries Service, was disclosed at the outset of the final hearing on the
17
permit application. Mr. Viafore had every opportunity to respond to the substance of the
18
communication at the time of hearing. Mr. Viafore, who serves as the Mayor of the City of
19
Fircrest, could have also asked to continue the hearing to provide additional information if he
20
thought that was appropriate or otherwise seek to supplement the record. Mr. Viafore further
21
FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB NO. 99-033 (7)
I had every opportunity to address the substance of the communication in the de novo proceeding
2 before this board. In Washington Environmental Council v. Douglas County, SHB No. 86-34
3 (1988), the board ruled that it would not entertain or resolve appearance of fairness issues arising
4 from local shoreline permit proceedings.' The board reasoned that the de novo hearing before
5 the board provided adequate procedural safeguards to obviate the need to resolve such issues.
6 IV.
7 Mr. Viafore contends that the proposed dock is inconsistent with the following provisions
8 of the SMP relating to docks:
9 Policy 1: Piers and docks shall be designed and located to minimize obstruction of views
and conflicts with recreational boats and fishermen.
10
Policy 3: The type, design and location of docks and piers should be compatible with the
11 shoreline area where they are located. Consideration shall be given to shoreline
characteristics, tidal action, aesthetics, adjacent land and water uses.
12
Regulation 2: Docks and piers shall be located, designed, and operated to not
13 significantly impact or unnecessarily interfere with the rights of adjacent property owners
or adjacent water uses. Community use or joint use facilities may be located on the
14 property line.
15 V.
16 The SMA is to be broadly construed in order to protect the state shorelines as fully as
17 possible. Buechel v. Department of Ecology, 125 Wn.2d 196, 203 (1994).
18
19
20
21 This ruling did not apply to decisions of a local government under the State Environmental Policy Act, chapter
43.21C RCW,subject to review by the SHB under RCW 43.21C.075(7).
FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB NO. 99-033 (8)
I VI.
2 The proposed dock is not consistent with the cited policies and use regulation from the
3 SNIP. The Bauer dock would be the first dock approved under the SMA in an area with only
4 one other existing dock structure that predates the SMA. In this context the proposed dock is not
5 compatible with the shoreline. The proposed dock will also unduly impact the views on an
6 extensive shoreline with almost no dock development. In terms of both compatibility and view
7 impacts, considerable weight must be given to the possibility that similar docks will be sought by
8 property owners on Pickering Passage if the permit here is allowed to stand. The cumulative
9 effect of such development would be inconsistent with the cited policies and regulations. It
10 would allow for the substantial degradation and corresponding reduction in public rights
11 resulting from multiple docks on what is now a relatively pristine shoreline environment. In a
12 case such as this it is critical to consider the cumulative impacts of a proposed development.
13 Buechel, 125 Wn.2d at 210; Hayes v. Yount, 87 Wn.2d 280 (1976)("Logic and common sense
14 suggest that numerous projects, each having no significant effects individually, may well have
15 very significant effects when taken together."); Bellevue Farm Owners Ass'n v. Shorelines
16 Hearings Board, 100 Wn. App. 341, 362 (2000).
17 VII.
18 The permit should accordingly be denied as inconsistent with the applicable policies of
19 the SMA and SMP.
20 VIII.
21 Any finding of fact deemed to be conclusion of law is hereby adopted as such.
FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB NO. 99-033 (9)
I Based on the foregoing findings of fact and conclusions of law the board enters the
2 following
3 ORDER
4 The appeal of David Viafore is hereby GRANTED and the shoreline substantial
5 development permit issued by Mason County to Howard and Nancy Bauer is REVERSED.
6 DONE this 14+- day of 2000.
7 SHORELINES HEARINGS BOARD
8 \ �7� Z--- -�' �' -
9 �-J -ES A. TUPPER, JR., Presiding
� 10 --�)
11 ANN DALEY, Chair
12
37
13 DAN SMALLEY, Member
14
SHB 99-033 FINAL
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21
FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB NO. 99-033 (10)
I Based on the foregoing findings of fact and conclusions of law the board enters the
2 following
3 ORDER
4 The appeal of David Viafore is hereby GRANTED and the shoreline substantial
5 development permit issued by Mason County to Howard and Nancy Bauer is REVERSED.
6 DONE this day of , 2000.
7 SHORELINES HEARINGS BOARD
8
9 JAMES A. TUPPER, JR.,Presiding
10
11 ANN DALEY,Chair
12 J' G
"(�' �-
13 DAN SMALLEY, Member
14
SHB 99-033 FINAL
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21
FINAL FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
SHB NO. 99-033 (10)
MAR-21-2000 09:49 53LDSTEINBROSTBLUHMTIMMER 360 357 0944 ?.02i13
1
2
3
4
BEFORE THE SHORELINE HEARINGS BOARD
5 STATE OF WASHINGTON
6
7 DAVID VIAFORE,
8 No. SHB 99-033
Appellant,
9 V. APPELLANT VIAFORE'S TRIAL
MEMORANDUM
10 MASON COUNTY; and HOWARD
BAUER and NANCY BAUER,husband
11 and wife,
12 Respondents.
13 Appellant, David Viafore ("Viafore"), by and through his attorney, Jay A.
14 Goldstein, sets forth his Trial Memorandum as follows:
15 I. RELIEF REQUESTED
16 Viafore requests the Shoreline Hearings Board to vacate Mason County's
17 ("County") issuance of the substantial development permit to Howard and Nancy Bauer
18 ("Bailers") for the construction of a one-owner pier, ramp and float. Viafore further
19 requests the Shoreline Hearings Board to award costs and damages that it finds just and
20 equitable.
21 IY. STATEMENT OF FACTS
22 A. Background
23 The Appellant Viafore and the Applicants Bauer are next door neighbors. On
24 April 4, 1999, Bauers applied to Mason County for a shoreline substantial development
25 permit to construct on their property a one-owner pier, ramp and float, although they
26 already have a wide, very functional ramp to the beach for walking and water craft
27 purposes. The proposed structure would consist of a 56-foot long and 6-foot wide pier, a
28 JAY A. GOLDSTEIN•LAW OFFICE
APPELLANT VIAFORE's 1800 Cooper Point Road SW,No.8.Olympia,WA 98502
TRIAL MEMORANDUM- 1 FAX 360.357.0844 •VOICE 360.352-1970
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MAR-21-2000 09:49 GOLDSTEIyBROSTBLJHMTIMMER 360 357 0944 P.03i13
1 40-foot long and 4-foot wide aluminum ramp, and a 10-foot x 20-foot float. Thus, the
2 structure would extend 100 feet from the existing bulkhead and require 9 pilings to
3 support the pier and floats.
4 Bauers' property is located on Pickering Passage facing Harstine Island. The
5 Pickering Passage area contains single family residences, and its scenic beauty is of
6 exceedingly high quality. The residents of Pickering Passage have enjoyed the
7 unobstructed panorama of the shoreline. (Photos). The proposed structure is the only
8 facility of its kind within view, other than a pier to the south of the site, which predates
9 the Shoreline Management Act. (DCD Staff Report 6/7/99).
10 Almost all the neighbors are opposed to the proposed construction and believe that
11 the structure would be detrimental to the area for various reasons. (BCC Minutes June 8,
12 1999). First and foremost, the neighbors are concerned about obstruction of the view.
13 Mr. Viafore, especially, maintains that extension of a pier 100 feet beyond the Ordinary
14 High Water Mark ("OHWM") will greatly diminish his northerly view. Second, not only
15 will the neighbors have an impaired view, but also they can no longer enjoy the historic
16 use of their property. The pier will restrict access to the beach, and the neighbors can no
17 longer walk along the beach when the tide is out a short distance. The pier will no
18 longer allow near-shore trolling by the fishermen, a use that is currently available during
19 medium to high tide.
20 Furthermore, the neighbors will lose the pleasing natural setting and the lifestyle it
21 affords. Mr. and Mrs. Silverthorn will testify that they have enjoyed the Pickering
22 Passage area because of the natural pristine beauty, the privacy, and quietness. The
23 neighbors fear the cumulative effects of a dock in a no-dock area because the
24 construction of the proposed pier will open the door to more construction of its kind: The
25 view will be further obstructed, and motorboat activities will drastically increase.
26 The staff agrees with the neighbors. The June 7 staff report states:
27
28 JAY A GOLDSTEIN• LAW OFFICE
APPELLANT VIAFORE'S 1800 Cooper Point Road SW,No.8•Olympia,WA 98502
TRIAL MEMORANDUM-2 FAX 360.357.0844 •VOICE 360-352-1970
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1 It appears that the facility will impact the neighbors' and
recreational boaters and fishermen 's use of the water, In
2 addition, the adjacent property owners' views of the water will
be sivi teantly altered. Therefore, the proposal is inconsistent
3 with Policies 41 and #3 and User Regulation #l.
4
The staff report goes on to state:
S
In 1991, a similar proposal was brought before the Board at
6 that time and was subsequently_denied based on these same
policies and use regulations. -That pier, ramp and float facility
7 was proposed north of this site. The Commissioners denied it
based on conflicts with policy #1 (it will impact the tshing
8 along the shoreline and water uses to the area) an Policy #3
(because of its impacts on aesthetics and pristine visual
9 environment in the area).
10 B. Procedural History
11 The first public hearing took place on June 7, 1999. Commissioner Cady asked
12 that the hearing be continued to see if the Applicants could come up with a proposal to
13 reduce the visual impact. Commissioner Bolender also stated that he was intending to
14 deny the application and asked the Applicants to review and look for alternatives.
15 Thus, the hearing continued on July 6, 1999. Again, the Board failed to reach a
16 decision and decided to have another hearing to seek alternatives. The Board held the
17 continuation hearing on July 27, 1999.
18 The Applicants refused to revise the application, nor did they seek alternatives.
19 Consequently, no alternative was presented. However, the Board granted the Substantial
20 Development Permit. The Board made no specific finding of fact to justify its decision.
21 Rather, the Board stated that "the Board has discretion as to how they determine what is
22 significant and what is insignificant." Further, the Board failed to address the staff s
23 recommendation to deny the Proposal and ignored the inconsistencies with policy#1 (it
24 will impact the fishing along the shoreline and water uses in the area) and Policy#3
25 (because of its impacts on aesthetics and pristine visual environment in the area).
26 During the July 27 meeting, County staff member Grace Miller mentioned that
27 Commissioner Bolender had ex-parte contact with Thom Hooper, Senior Biologist with
28 JAY A. GOLDSTEIN • LAw OFFICE
APPRLL,ANT VIAFORE'S 1800 Cooper Point Road SW, No. 8 e Olympia,WA 08502
TRIAL.MEMORANDUM-3 FAX 360-357-0844 a VOICE 360.352-1970
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MRR-21-2000 09:50 30LDSTEIN9R0STBL'JHMTIMMER 360 357 0844 P.05i13
1 National Marine Fisheries Services ("NMFS"), to determine whether they would review
2 a proposal as discussed on July 6. Commissioner Bolender reported that Mr. Hooper
3 indicated that NMFS would permit such a proposal but it was not the agency's
4 preference.
5 Consequently, the Petitioner Viafore questioned the Open Public Meeting Act and
6 Appearance of Fairness Doctrine. He pointed out that the Commissioners' Hearing was
7 a quasi-judicial hearing process and that the Petitioner's due-process had been violated
8 since there were numerous discussions outside the hearing process. In responding to
9 Viafore's objection, Commissioner Cady stated and Commissioner Bolender agreed that
10 the hearing was legislative, not quasi-judicial. In no event did the commissioners advise
11 Mr. Viafore of his right to rebut the substance of the ex-parte communication.
12 III. STATEMENT OF ISSUES
13 A. When considering and approving the Respondents Bauers' application for a
14 substantial development permit, did the Mason County Board of County
15 Commissioners violate the Appearance of Fairness Doctrine?
16 B. Is the Applicants' proposal consistent with the Shoreline Management Act,
17 the Mason County Shoreline Master Program, especially MCSMP Chapter
18 7.16.170, Piers and Docks, and the Washington Administrative Code?
19 IV. SUMMARY OF ARGUMENT
20 The approval of the substantial development permit is void because the Mason
21 County Board of County Commissioners violated the Appearance of Fairness Doctrine
22 when considering and approving the Respondents Bauers' application for a substantial
23 development permit.
24 Furthermore, the Shoreline Hearings Board should deny the Bauers' proposal
25 because it is inconsistent with the Shoreline Management Act, the Mason County
26 Shoreline Master Program, especially, MCSMP Chapter 7.16.170, Piers and Docks, and
27 the Washington Administrative Code.
28 JAY A. GOLDSTEIN• LAW OFFICE
APPELLANT VIAFORE'S 1800 Cooper Point Road SW, No.8.Olympia,WA 98502
TRIAL MEMORANDUM-4 FAX 360-357-0844 a VOICE 360-352.1970
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1 V. ARGUMENT
2 A. Mason County Commissioners violated the appearance of fairness doctrine.
3 RCW 42.36.060 prohibits members of the decision-making body from engaging,
4 during the pendency of a quasi-judicial proceeding, in ex parte communications with
5 opponents or proponents with respect to the proposal which is the subject of the
6 proceeding unless; (1) the member places the substance of the ex parte communications
7 on the record; and (2) publicly announces the content of the communications and the
8 parties' right to rebut the substance of the communication at each hearing to which the
9 communication is related.
10 In the instant case, an ex-parte communication occurred with respect to the
11 proposal because Commissioner Bolender discussed the proposal with Thom Hooper,
12 Senior Biologist with National Marine Fisheries Services. Mr. Hooper indicated that
13 NMFS would permit such a proposal but it was not the agency's preference. Further,
14 Commissioner Bolender failed to place the substance of the ex parte communications on
15 the record, or announce the content of the communication. It was staff person Grace
16 Miller who brought the issue up during the hearing.
17 Besides, the only information Grace Miller provided was that National Marine
18 Fisheries Services would likely approve such a proposal. The information fails to include
19 the reasons or justifications for approving such a proposal. Thus, the disclosure was
20 insufficient and provided neither the substance nor the content of the communication.
21 As a result, Mr. Viafore was kept in the dark as to why National Marine Fisheries
22 Services would approve such a proposal, and Mr. Viafore was deprived of an
23 opportunity to rebut the proposal.
24 Moreover, Commissioner Bolender failed to advise Mr. Viafore of his right to
25 rebut the substance of the communication. Rather, Commissioners Bolender and Cady
26 insisted otherwise, stating that the hearing was not quasi-judicial but legislative. In
27 effect, Mr. Viafore was discouraged to challenge or to inquire as to the content of the
28 JAY A. GOLDSTEIN• LAw OFFICE
APPELLANT VIAFORE'S 1800 Cooper Point Road SW,No. 8 0 Olympia.WA 98502
TRIAL MEMORANDUM-5 FAX 3W357-0844 a VOICE 360.352.1970
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MAR-21-2000 09:51 30LDSTEIN6R0STBLJHMTIMMER 360 357 0944 P.07/13
4
1 communication. Therefore, the Board of Commissioners violated RCW 2.36.060.
2 B. The shoreline nermit nted b v Mason County is not c nsistent with the
0 lcies and re uireme the bhoreline Zaanagem nt Act and the
3Mason Couritv Shorelineaster r am
4
1. Jurisdiction and Standard of Review
5
RCW 90.58.180 states that any person aggrieved by the granting, denying or
6
rescinding of a permit on shorelines of the state may seek review from the Shoreline
7
Hearings Board. Therefore, the Shoreline Hearings Board has jurisdiction over this case.
B
In addition, the Shoreline Bearings Board reviews applications for shoreline permit de
9
novo. In the Matter of a Shoreline Substantial Development Denied by Mason County to
10
Robert and June Donero v Mason County, SHB No, 87-1 (1987).
11
12 2. The In nsistencies with the Shoreline Mann ement Act and the
Mason-C-gunty Shoreline Master
13
14 The major policies of the SMA are set forth in RCW 90.58.020. It states that "the
15 public's opportunity to enjoy the physical and aesthetic qualities of natural shorelines of
16 the state shall be preserved to the greatest extent feasible consistent with the overall best
17 interest of the state and the people generally." It further states that "permitted uses in the
18 shorelines of the state shall be designated and conducted in a manner to minimize,
19 insofar as practical, any resultant damage to the ecology and environment of the
20 shoreline area and any interference with the public's use of the water."
21 The Mason County Shoreline Master Program 7.16.170 establishes the County's
22 policies and use regulations for piers and docks,pursuant to the Shoreline Management
23 Act. The applicable policies in the MCSMP relating to piers and docks are stated as
24 follows:
25 (a) Piers and docks should be designed and located to minimize
obbstruction of views and conflicts with recreational boaters and fishermen;
26 (b) Cooperative uses of piers and docks are favored, especially in tidal
waters;
27 (c) The type, design and location of docks and piers should be compatible
28 JAY A. GOLDSTEIN•LAW OFFICE
APPELLANT VIAFORE'S 1600 Cooper Point Road SW,No.8• Olympia.WA 98502
TRIAL MaIORANDLM-6 FAX 360.357.0844 •VOICE 360.352-1970
CAMyFilulVi&fbrc\oul mt=r4ndum.wpd E-MAIL:jaglaw@uaweet.not
MAR-21-2000 09:52 GOLDSTEINBROSTBLJHMTIMMER 360 357 0944 P.09i13
1 with the shoreline area where they are located. Consideration should be
given to shoreline characteristics, tidal action, aesthetics, adjacent land
2 and water uses.
3 The Applicable use regulation states:
4 (1) Docks and piers shall be located, designed: and operated
to not significantly interfere with the rights of adjacent
5 property owners or ad-acent water uses. Structures shall be
located a minimum of five feet from side property lines.
6 Community use orloint use facilities may be located on the
property line.
7
a. Policy #1: Obstruction of Views and Conflicts with
8 Recreational boaters and Fishermen
9 The proposed project is not consistent with Policy #1 because the proposal would
to obstruct views. The adjacent neighbors are in the best position to determine whether or
11 not their views will be altered. All the adjacent neighbors, including Viafore, testified
12 that the proposal would greatly diminish their northerly view. The staff report also states
13 that "the adjacent property owners' views of the water will be significantly altered."
14 Contrary to the testimony and the finding of the staff, the Board of Commissioners
15 found the contrary. The Board relied solely on its discretion to arrive at the conclusion
16 that "the views that are impacted are not substantially impacted and still afforded those
17 property owners very nice views." However, overwhelming evidence exists that the
18 adjacent neighbors' views will be significantly obstructed.
19 The proposed project is also inconsistent with Policy#1 because the proposal
20 would cause conflicts with recreational boaters and fishermen. The evidence exists to
21 show that the pier will no longer allow near-shore trolling by the fishermen, a use that is
22 currently available during medium to high tide.
23 b. Policy#2: A Single Use Pier in Tidal Waters
24 Policy #2 requires that cooperative uses of piers and docks be favored, especially
25 in tidal waters. The proposal is a single-use pier in tidal waters; Pickering Passage is in
26 Tidal Reference Area 2. The Board of Commissioners made no efforts to encourage the
27 construction of a joint pier, rather than a single-use pier as proposed. Nor did the
28 JAY A. GOLDSTEIN• LAW OFFICE
APPELLANT VIAFORE'S 1800 Cooper Point Road SW,No.8.Olympia,WA 98602
TRIAL MEMORANDUM-7 FAX 360-357.0344 o VOICE 360-352-1970
C;WyPilaMsf=Ns ialmemonndumWvd E-MAIL:jaglawpuswest.aot
MAR-21-2000 39:53 5OLDSTEIN18R1DST8LJH1TIMMER 360 357 0944 P.09i13
1 Applicants consider a joint pier. Thus, the approval of the permit violated Policy #2.
2 C. Policy #3: Comlatibili with the shorelin"rea
3 The project is not consistent with Policy #3 that it be designed and located in a
4 manner compatible with the shoreline area where it would be located. The project is not
5 compatible with the area. The area is pristine and currently void of any large structure
6 protruding out into the water. This pier would be the only structure in this area. The
7 SHB recently determined in an analogous case that a similar project was incompatible
s with the area because the project would be the only structure. This Board stated:
9 We conclude that the project is not consistent with the policy that it be
designed and located in a manner compatible with the shoreline area where
10 it would be located. This pier-dock-float would be the only such structure
for several miles in either direction. We recognize that the cove and gentle
11 beach at issue are not 'pristine"or unaltered due to the residential
development along the shoreline. Nevertheless, the area is currently devoid
12 of any large structures protruding out into the water. If allowed, the
proposed pier-dock-float would not be compatible with the shoreline area
i 3 where it would be located.
14
Gennotti, Shirk, and Ruff v. Mason County and Shearer, SHB No,99-011.
15
16 Thus, the approval of the permit violates Policy #3.
d. Regulation # 2: Siznificant
interference with-the rights of
17 adjacent property owners an a jacent water._uses.
Is The proposed structure fails to comply with the use Regulation #2. Regulation #2
19 requires that the location, design and operation of docks and piers be such that
20 significant impacts and unnecessary interference with the rights of adjacent property
21 owners or adjacent water uses do not result. It is clear that many adjacent and nearby
22 property owners oppose this project because it would intrude into views and interfere
23 with passage along the beach and with small boats in shallow water. Whether these
24 concerns constitute significant impact or unnecessary interference is a matter of
25 judgment. However, in a case with almost identical facts, the Shoreline Hearings
26 Board's judgment was that these concerns constituted significant impact. Gennotti,
27 Shirk,-and Ruff v. Mason County and Shearer, SHB No. 99-011.
28 JAY A. GOLDSTEIN• LAW OFFICE
APPELLANT VIAFORFS 1800 Cooper Point Road SW,No.8•Olympia,WA 98502
TRIAL MEMORANDUM-8 FAX 360-357.0844 •VOICE 360.362-1970
CAMyFi1eslVisfontoi&1rmmonndumwpd E-NWL:jaglawpuswest.net
I Furthermore, the construction will significantly and negatively affect the
2 neighbors because the construction of the proposed pier will open the door to more
3 constructions of its kind. The view will be further obstructed, and motorboat activities
4 will drastically increase. The neighbors will lose the pleasing natural setting and the
5 lifestyle it affords. They will lose the natural pristine beauty, the privacy, and quietness.
6 They may lose property value.
7 This Board has also expressed concerns that approval of-'the proposed structure
8 would pave the way for similar projects in the area, thus encouraging a cumulative
9 negative impact on the shoreline. Gennotti Shirk and Ruff v. Mason County and
to Shearer, SI IB No. 99-011 ("Additional structures, like the one proposed, could only
t i exacerbate impact and alter the character of the immediate vicinity.") While the fact that
12 the proposed project would be the first of its kind is not the determinative factor, this
13 Board relied mostly on that fact in deciding whether Regulation#2 has been met.
14 The construction of the proposed structure will also unnecessarily interfere with
15 the neighbors. It is undisputed that the construction will negatively affect the neighbors.
16 The question is whether the interference is necessary for the Applicants to use their
17 property. The property at issue is a low bank front lot that has access to the beach from
18 the Applicants' private boat ramp on the north side. The Applicants currently have a
19 buoy that provides ample access to the water.
20 Also, because of the summer low- tides, the Applicants will not be able to use the
21 structure a good part of the time even if constructed. Thus, the construction of the
22 structure is unnecessary. Accordingly, the approval of the permit violates Regulation #3.
23 C. The project fails regulatory req iu rements regarding fish habitat.
24 The Washington Administrative Code requires that piers, docks, and floats shall
25 incorporate mitigation measures as necessary to achieve no net loss of productive
26 capacity of fish habitat. WAC 220-110-300. However, the proposal will create habitat
27 for predator fish that feed on juvenile salmon. The current conditions at the site, with no
28 JAY A. GOLDSTEIN • LAW OFFICE
APPELLANT VIAFORE'9 1800 Cooper Point Road SW,No.8 •Olympia,WA 98502
TRIAL'NMMORANDUM-9 FAX 360.357.0844 a VOICE 360.352.1970
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MAR-21-2000 09:54 50LD5TEI'ZR05T8LJHMTIMMER 363 357 0944 P.11i13
i shoreline structures, create a refuge for the juvenile salmon. Construction of the in-water
2 structure will cause the schools of juvenile salmon to disperse. The juvenile salmon
3 typically swim in schools for protection. The in-water structure will cause the juvenile
4 salmon to disperse into deeper water, where they will likely suffer predation from larger
5 fish. This net loss of productive capacity of fish habitat will put the local juvenile
6 salmon populations at risk.
7 The subject proposal violates the Washington Administrative Code, as follows.
8 1 The Baue ' float will groundo rf 5melt and Pacific sand lance
spawning beds.
9
The Washington Administrative Code requires that floats not ground on surf
10
smelt and Pacific sand lance spawning beds. WAC 220-110-300(1). The Bauers' float
it
will likely ground on the spawning beds more than twenty percent of the time, especially
12
during the summer when lower tides can be expected. Even though the Applicants plan
13
to put blocks down to mitigate the grinding, moored boats without blocks will not be
14
Protected: boats will ground on the spawning beds.
15
2. The structure fails to avoid adverse impacts So juvenile sal nid
16 mizration routes-and rearing habitats.
17 The Washington Administrative Code requires that in-water structures be
18 designed and located to avoid adverse impacts to juvenile salmonid migration routes and
19 rearing habitats. WAC 220-110-300(7). The subject structure will have adverse impacts
20 to these routes and habitats.
21 The juvenile salmon migrate along the shallow inter-tidal zones in schools
22 to feed and to avoid predators. When these schools encounter shoreline structures such
23 as docks and piers, the schools disperse, and the fish move to deeper water rather than
24 going under the structures.
25 The juvenile salmon become more vulnerable to predation because their
26 protective schools are broken up, and they move to deeper water where there are more
27 predators.
28 JAY A. GOLDSTEIN a LAw OFFICE
APPELLANT VIAFORE'S 1800 Cooper Point Road SW,No.8 o Olympia.WA 98S02
TRIAL MEMORANDUM- 10 FAX 360-357-0844 *VOICE 360-352.1970
QWyaaaWidowirial mwmmnaum.wpa E-MA.M jaglaw@ueweat.net
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2
3
4 BEFORE THE SHORELINE HEARINGS BOARD
5 STATE OF WASHINGTON
6
7 DAVID VIAFORE,
No. SHB 99-033
8 Appellant,
V. SUBPOENA FOR TRIAL
9 MASON COUNTY; and HOWARD
10 BAUER and NANCY BAUER, husband
and wife,
11 Respondents.
12
13 The State of Washington to: Grace Miller
Mason County Dept. of Community Development
14 YOU ARE COMMANDED to appear before the Shoreline Hearings Board,
15 Robert Jensen presiding, at the trial in this matter at the Grant School in Shelton,
16 Washington, on Monday, July 24, 2000 at 9:00 a.m., and there remain until discharged
17 by the Board, to testify in the above-captioned action for Appellant.
18 DATED: June 12, 2000.
19 JAY ArG ?DT7E =WOFFIC-
20
21 JAY . GO IN; WSBA #21492
22 Attorn y for i tiff
23
24
25
26
27
28 JAY A. GOLDSTEIN• LAW OFFICE
1800 Cooper Point Road SW, No. 8 • Olympia,WA 98502
SUBPOENA FOR TRIAL- 1 FAX 360-357-0844 •VOICE 360-352-1970
CAMyFiles\Viafore\subpoena for trial-Grace Miller.wpd E-MAIL:jaglaw@uswest.net
MAR-21-2000 09:55 G0LDSTEIN8R3ST8LUJHMTIMMER 360 357 0944 P.12/13
1 VI. CONCLUSION
2 In conclusion, the proposed pier-ramp-float structure fails to comply with the
3 SMA and the MCSMP. Furthermore, the Mason County Board of County
4 Commissioners has violated the Appearance of Fairness Doctrine. Moreover, the
5 proposal fails the requirements of the Washington Administrative Code. Accordingly,
6 this Board should vacate the permit approved by the County.
7
8 RESPECTFULLY SUBMITTED this 21" day of March, 2000.
9
JAY A DST E L W OFFICE
10
I1
12 J D T ;
13 Atto r Appellant Viafore
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 JAY A. GOLDSTEIN•LAW Oli'ncE
APPELLANT VIAFORE'S 1800 Cooper Point Road SW, No.8.Olympia,WA 98502
TRIAL MEMORANDUM- 11 FAX 360.357.0844 •VOICE 360-3$2.1970
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CERTIFICATE OF TRANSMITTAL
C ; On this day the undersi se Attorneys (' Y
0 or t op
doc . Mail prepaid or by nom
ce nder penalty perjury �EB ' 2000
1 un er t e Laws of the State of Washington that the
foregoin is true corrga
2 Date Pldce Signed
3
4 BEFORE THE SHORELINE HEARINGS BOARD
5 STATE OF WASHINGTON
6
7 DAVID VIAFORE,
No. SHB 99-033
8 Appellant,
V. NOTICE OF DEPOSITION UPON
9 ORAL EXAMINATION OF GRACE
MASON COUNTY; and HOWA D MILLER
10 BAUER and NANCY BAUER, husband
and wife,
11 Respondents.
12
13 TO: GRACE MILLER and MICHAEL CLIFT, her attorney
HOWARD and NANCY BAUER, and ROBERT H. RAYMOND, their attorney
14 NOTICE IS HEREBY GIVEN that a deposition upon oral examination will be taken as follows:
15 WITNESS: GRACE MILLER
16 DATE: March 1,2000
17 TIME: 1:30 p.m.
18 PLACE: Office of Mason County Prosecutor
Mason County Courthouse
19 521 North 4`h
20 Shelton,WA 98584
21 DATED: February 16, 2000.
22 JAY A. GOLDSTEIN LAW OF ICE
23
24 JAY A. GOLDSTEIN; WS A# 21492
Attorney for Appellant Viafore
25 _ .
26
27
28 NOTICE OF DEPOSITION- 1 JAY A. GOLDSTEIN• LAW OFFICE
Ct\MyFiles\Viafore\dep notice-millecwpd
1800 Cooper Point Road SW, No. 8 • Olympia,WA 98502
FAX 360-357-0844 •VOICE 360-352-1970
E-MAIL:jaglaw@uswest.net
CERTIFICATE OF TRANSMITTAL
On this day the undersi ned a Attorneys
of R or cop is
UIFocument b S. Mail prepaid or by, '
essen er ervic ce i under penalty o perjury
un aws of the State of Washington that the
1 foregoin Is true=conv�t ��/, _ JL
.2 ate! Pig a SignedFEB 1 $ �000
2
BEFORE THE SHORELINE HEARINGS BOARD
3 STATE OF WASHINGTON
4
5 DAVID VIAFORE,
No. SHB 99-033
6 Appellant,
7 V. SUBPOENA DUCES TECUM FOR
DEPOSITION OF GRACE MILLER
S MASON COUNTY; and HOWARD
BAUER and NANCY BAUER, husband
9 and wife,
10 Respondents.
11 TO: GRACE MILLER and MICHAEL CLIFT, her attorney
12 HOWARD and NANCY BAUER, and ROBERT H. RAYMOND,their attorney
13 YOU ARE HEREBY COMMANDED to appear as follows:
14 Please take notice that the testimony of Grace Miller will be taken on March 1,2000, at
15 1:30 p.m., on oral examination before a Notary Public, or some other official authorization by law to
16 administer oaths, at Office of Mason County Prosecutor,Mason County Courthouse, 521 N. 41h,
17 Shelton,Washington. This oral examination will be subject to continuance or adjournment from time
18 to time or place to place until completed.
19 You shall then and there testify in the above-entitled cause and remain until discharged.
20 YOU ARE FURTHER COMMANDED to bring with you at that time and place the following:
21 Any and all documents, correspondence, notes,memoranda, or any ether item in any way
22 related or pertaining to the subject Application herein.
23 FAIL NOT AT YOUR PERIL
24 DATED: February 16, 2000.
JAY A. GOLP9TE LAW OFFICE
25
26
27 JAY A. LDST ; WSBA#214
Attorney for Appe ant Viafore
28 SUBPOENA DUCES TECUM FOR DEPOSITION- 1 JAY A. GOLDSTEIN• LAW OFFICE
C:WyFila\Viafore\sdt for dep-millempd 180 doper Point Road SW,No.8 0 Olympia,WA 98502
FAX 360-357-0844 •VOICE 360-352-1970
E-MAIL:jaglaw@uswest.net
Pollution Control Hearing Board ��STAr£o (360)459-6327
Shorelines Hearings Board £ FAX(360)438-7699
Forest Practices Appeals Board ° E-Mail:EHO®EHO.WA.GOV
Hydraulics Appeals Board ; - i INTERNET.http://www.eho.wa.gov
m �
,yy py
STATE OF WASHINGTON
ENVIRONMENTAL HEARINGS OFFICE �` ''FIVED
4224 - 6th Avenue SE, Bldg. 2, Rowe Six NOV o 3 lgn^
P.O. Box 40903, Lacey, WA 98504-0903 ,t�p��y �yi���
i�IH�1V1Y GLI.`� DEt'1,
November 1, 1999
David Viafore Gary P. Burleson
1120 Paradise Parkway Prosecuting Attorney
Fircrest WA 98466 Mason County
521 N. Fourth St
PO Box 639
Howard and Nancy Bauer Shelton WA 98584
155 E. Community Club Road
Shelton WA 98584
RE: SHB NO. 99-033
DAVID VIAFORE v. MASON COUNTY & HOWARD & NANCY BAUER
Dear Parties:
Enclosed is a Pre-Hearing Order resulting from the conference on October 29,1999.
Do not hesitate to contact this office if you have procedural questions.
Sincerely yours,
Robert V. Jense
Presiding
RVJJg/S99-033 ltr
cc: Don Bales— Shorelands
Mason County Dept of Community Development
Leann Ryser
CERTIFICATION
On this day,I forwarded a true and accurate copy of
the documents to which this certificate is affixed via
United States Postal Service postage prepaid to the attorneys
of record herein.
I certify under penalty of perjury under the laws of the
State of W ' -ton t t the foregoing is true and correct.
DATED I"�--F--t-,at Lacey,WA.
1 BEFORE THE SHORELINES HEARINGS BOARD
STATE OF WASHINGTON
DAVID VIAFORE, )
3 )
Appellant, ) SHB 99-33
4 )
V. ) PRE-HEARING ORDER
5 )
MASON COUNTY; and HOWARD )
6 And NANCY BAUER, husband and )
wife; )
7 )
Respondents. )
8 )
9
On September 29, 1999, David Viafore ("Viafore") tiled a request for review with the
10
Shorelines Hearings Board ("board"), contesting Mason County's ("County") issuance of a
11
substantial development permit to Howard and Nancy Bauer ("Bauers") for the construction of a
12
56-foot long by 6-foot wide pier, a 40-foot long by 4-foot wide aluminum ramp, and a 10-foot by
13
20-foot float.
14
A pre-hearing conference was held on October 29, 1999. Robert V. Jensen, FAX (360)
1 �
438-7699, presided for the board.
16
17 Present for the parties:
18 Appellant:
19 David Viafore, representing himself
20
PRE-HEARING ORDER
SHB 99-33 1
I Respondents.-
2 County:
3 David St. Pierre, Deputy Prosecuting Attorney for the County
Grace Miller, County Planning
4
Applicant:
5
Robert H. Raymond, attorney for the Bauers
6
Based on the conference, the following pre-hearing order is entered:
7
8 I. HEARING
9 The hearing has been continued to Tuesday, March 28, 2000, at 9:30 a.m., at the Grant
10 School Community Center, 150 East Community Club Road.
11 The parties shall file with the board a joint status report, setting forth settlement
12 possibilities in the case, by Wednesday, January 5, 2000.
1 II. LEGAL ISSUES
14 1. Is the applicant's proposal consistent with the Shoreline Management Act ("SMA") and
the Mason County Shoreline Master Program("MCSMP"), especially, MCSMP Chapter
15 7.16.170, Piers and Docks?
16 2. Does the board have jurisdiction over the petitioner's allegations the Mason County
Board of Commissioners violated the appearance of fairness doctrine?
17
3. If so, did the commissioners violate that doctrine?
18
19
20
PRE-HEARING O RD E R
SHB 99-33
1 III. WITNESSES
2
PROPOSED WITNESSES:
3
Appellant:
4
5 Grace Miller, County planner
Gary Yando, Community Development Director
6 Mary Jo Cady, County Commissioner
John Bolander, County Commissioner
7 Larry Faulk, Shorelines issues
Ralph Boomer, wildlife biologist
8 Roxanne Silverthome, neighbor
David Viafore, appellant
9
Respondents:
10
County:
11
Howard Bauer, applicant
12 Nancy Bauer, applicant
Linda Gilbreath
13 Tim Zech
Grace Miller
14 Ecology, shorelines manager
Department of Fish and Wildlife biologist
15
The Bauers shall file and serve preliminary witness lists by Friday,November 12, 1999.
16
Final lists of witnesses shall be served on the parties and filed with the board by
17
Friday,January 21, 2000. Telefax is allowed,provided that the original is mailed the same
18
day. Any witness listed herein or in final lists may be called by any party. The party calling a
19
witness has the responsibility to ensure his/her attendance at the hearing.
20
A witness' expertise shall be established by resume offered as an exhibit.
PRE-HEARING ORDER
SHB 99-33 3
1 IV. EXHIBITS
2 PROPOSED EXHIBITS:
3
4 Appellant:
July 6 and Jul 27 transcripts of Board of County Commissioners'
5 A-1 June 8 J ty
Y Y P
meetings
6 A-2 Staff Report and file of Jolly Shoreline application(1991)
A-3 Letters received in response to application
7
Respondents:
8
Coun
9
RC-1 County Department of Community Development ("DCD") Staff
10 Reports of June 7 and July 27, 1999
RC-2 Determination of Nonsignificance("DNS")
11 RC-3 MCSMP, Ch. 7.16.170, Piers and Docks
RC-4 County Board of Commissioners minutes of proceedings
12 RC-5 County Board of Commissioners Findings of Fact
RC-6 Ecology approval
13 RC-7 Maps
RC-8 Photos
14
Final exhibit lists shall be served on the parties and filed with the board by Friday,
15
January 21, 2000. Telefax is allowed, provided that the original is mailed the same day. The
16
parties shall exchange exhibits by Friday,January 28. The parties shall endeavor to stipulate in
17
advance of hearing to exhibits' authenticity and admissibility. . Parties are encouraged to offer
18
only those exhibits, or portions they intend to rely upon in their case. Even though the parties
19
may stipulate to the admissibility of exhibits, the exhibits must be offered through a witness at
20
the hearing.
PRE-HEARING ORDER
SHB 99-33 4
I The County shall submit to the board a certified copy of its current shoreline master
2 program by Friday, November 12, 1999.
3 When meeting with the presiding officer on the first hearing day, each party shall have
4 available for the board, an original and (3) three copies of its exhibits and exhibit lists which
5 shall identify those admissible by stipulation of the parties. An original or one copy of any
6 exhibit which cannot be conveniently copied due to size,bulk, reproduction difficulty, etc., need
7 be available for the board at the hearing.
8 Each exhibit shall be pre-marked by tab for identification (A-1, A-2, etc., for appellant
9 and R-1, R-2, etc., for respondent, respectively) and so identified on the exhibit lists. The
10 number given to an exhibit does not limit the order of its introduction at hearing.
11 Any exhibit listed by one party may be introduced by another party.
12 The board will take a brief view of the property encompassed in the appeal, for the
13 purpose of better understanding the evidence. The board will not take testimony during the view.
14 The parties are encouraged to coordinate the view, so that each party has an opportunity to point
15 out important physical features. For this purpose, each party shall designate a representative.
16 V. DISCOVERY
17 Discovery deadline: Friday, January 14, 2000.
is If any of the parties anticipate engaging in discovery, that party shall advise the presiding
19 officer, so he may establish a discovery deadline.
20
PRE-HEARING ORDER
SHB 99-33 5
1 Any party filing discovery motions shall also file a proposed order and shall accompany
2 such filing with an affidavit reciting efforts to resolve the discovery dispute.
3 An original and (1) one copy of discovery motions and supporting documents must be
4 filed with the board.
5 Depositions, interro:7atories, requests for production or inspection, requests for admission
6 and the responses shall not be filed. It is the initiating party's responsibility to maintain the
7 original together with answers to interrogatories and to make them available for proceedings.
g VI. DISPOSITIVE MOTIONS
9 Any motion which would be dispositive of the case or any legal issue shall be filed and
10 served by Tuesday, February 22, 2000. An original and (3) three copies of motion pleadings
11 shall be filed with the board and served on opposing parties. Opposing parties shall have until
12 Friday, March 3, or 10 calendar days, from the date of receipt of the motion, to file and
13 serve a response,whichever is earlier. Rebuttal is due Friday, March 10, or 7 days after
14 receipt of the response,whichever is earlier The board will consider the argument on the
15 record, unless a party requests and the presiding officer sets a hearing on the motion under WAC
16 371-08-450.
17 Note: Service and filing of motion, answer, and reply (if 10 pages or less) may be by
18 telefax; provided that the original and required number of copies are mailed the same day.
19
20
PRE-HEARING O RD E R
SHB 99-33 6
1 Motions will be decided based on the written record, unless oral argument is requested by
2 a party and granted by the board. At the parties' request, argument may be held by telephone
with the parties arranging the connections.
4 VII. BRIEFS
5 Pre-hearing briefs are optional. If submitted, they shall be filed and served no later than
6 Tuesday, March 21, 2000 with an original and(3) three copies for the board. Telefax of 10
7 pages or less allowed, provided that the original is mailed the same day.
8 Briefs are limited to 15 pages in length, absent an order granting a motion to lengthen. If
9 a citation is made to other than a Wn. App. or Wn.2d case, a complete copy of the referenced
10 citation must be filed and served.
11 VIII. COMMUNICATION
12 All correspondence and filings with the board shall be sent to the attention of the
13 presiding officer with copies sent at the same time to all other parties.
14 Parties are encouraged to engage in mediation or settlement discussions with each other
15 at any time without the presence of the presiding officer of the board or with his/her presence if
16 all parties and the presiding officer agree. If the parties wish to engage the services of an
17 administrative appeals judge for mediation, they shall contact Phyllis Macleod, Administrative
18 Appeals Judge, in writing at the board's office.
19 Telefax may be used to communicate with the board and the parties, limited to 10 pages
20 in length.
PRE-HEARING ORDER
SHB 99-33 7
I IX. MISCELLANEOUS
2 "Filed and "served" means the date received by the board.
3 The parties may by agreement modify recited dates without further board order except for
4 paragraphs I, VI, and VII.
5 The parties have waived the deadline of RCVG 90.58.180(3).
6 ORDER
7
This order shall govern the proceedings, unless subsequently modified by order of the
8
board for good cause upon a party's motion or the board's volition.
9
SO ORDERED this' day of November 1999.
10
POLLUTION CONTROL HEARINGS BOARD
11
12
R BERT V. JEtIIN, presiding
13 S99-33P
14
15
16
17
18
19
20
PRE-HEARING ORDER
SHB 99-33 8
1 BEFORE THE SHORELINES HEARINGS BOARD
2 DAVID VIAFORE,
3 SHB No. 99-033
Petitioner, )
4
V. ) RESPONDENT MASON C OUNTY'S
s
6 MASON COUNTY, ) PROPOSED LEGAL ISSUE, WITNESS
AND EXHIBIT LISTS
7 and )
8
HOWARD AND NANCY BAUER, )
9 )
10
Respondents, )
)
11 )
12 COMES NOW Respondent, MASON COUNTY, by and through GARY P. BURLESON,
13
Mason County Prosecuting Attorney, and DAVID B. ST.PIERRE, his deputy, and files this
14
proposal of the legal issue to be addressed and the proposed list of witnesses and exhibits to be
15
16 presented at hearing to be held on the above-captioned matter.
17 PROPOSED LEGAL ISSUE
18 1. Whether the applicant's proposal is consistent with the Shoreline
19
Management Act (SMA); and the Mason County Shoreline Master
20
21 Program (MCSMP), especially MCSMP Chapter 7.16.170, Piers and
22 Docks?
23 PROPOSED WITNESS LIST
24
1. Howard Bauer
25
26 2. Nancy Bauer
27 3. Linda Gilbreath
28
RESPONDENT MASON COUNTY'S Mason County Prosecuting Attorney
PROPOSED LE6AL ISSUE,WTINESS AND EXHIBIT LISTS 521 N.Fourth Street
P.O.Box 639
Page 1 of 2 Shelton,WA 98584
(360)427-9670 ext.417
(360)427-7754 FAX
1 4. Tim Zech
2
5. Grace Miller, Mason County Shoreline Planner �y 3 _ 1-'��7lVE2UL4LN�
4 6. DOE Shorelines Manager
5 7. WDFW Fisheries Biologist
6 PROPOSED EXITS LIST
7
1. Complete application packet, including the relevant:
8 &/7
9 a) Mason County Department of Community Development (DCD) StaffReportS—
10 b DeAration ofN n-Significance (DNS);
11
c) MCSMP Ch. 7.16.170, Piers and Docks;
12
13 d) RCW 90.58.320;
14 e) Mason Cou ty Boarq of County Commissioner Minutes of Proceedings;
15
CF/fS 4, -9/r & s 7/9-) ✓aba&.
f) Mason County Board of County Commissioner relevant Findings of Fact;
16
17 g) DOE approval;
18 h) Maps;
19
i) Photos.
20 t�/Z
21
22 DATED this; day of October, 1999.
23
24 Respectfully submitted,
25
26 '
27 David B. St. Terre, WSBA# 27888
Deputy Prosecuting Attorney
28 Attorney for Respondent
RESPONDENT MASON COUNTY'S Mason County Prosecuting Attorney
PROPOSED LEGAL ISSUE,WITNESS AND EXHBTT LISTS 521 N.Fourth Strcet
P.O.Box 639
Page 2 of 2 Shelton,WA 99584
(360)427-9670 ext.417
(360)427-7754 FAX
1
2
3
a BEFORE THE SHORELINES HEARINGS BOARD
OF THE STATE OF WASHINGTON
S
6 )
DAVID VIAFORE, ) NO. SHB 99-033
7 )
Petitioner, )
8 )
VS. )
9 )
10 MASON COUNTY,a Washington ) ORDER CONTINUING HEARING
political subdivision;and HOWARD and )
11 NANCY BAUER,husband and wife, )
12 )
Respondents. )
13
14 THIS MATTER having come on regularly upon motion of the Respondents Howard and
N A4.e-rk-`t t Z,poo
15 Nancy Bauer to continue the hearing in this matter presently scheduled for Fe �$,�660,
16 The Board having reviewed the files and records herein,having heard and considered statements
17
of the Parties and their counsel,and deeming itself fully apprised in these premises,it is hereby
18
ORDERED,ADJUDGED and DECREED that the hearing in this matter presently
19 mkw4+q 120m,
scheduled for be and is hereby continued
20 to 7� I Z v`9a at
21 a time and place to be set upon notice from the Board.
22
23 DONE this_day of . 1999.
24
25 Hearings Officer
26 ROBERT H. RAYMOND
Attornry at Ldw
27 ORDER CONTINUING HEARING 1800 Cooper Point Road,Suite 10
Olympia,Washington 98502
29 PAGE 1 Tel.360.754.7351 Fax.360.754.7432
I
2 Presented By.
3
4
Robe t H.fRaymond,WSBA 18723
5 Attorney for Respondents Bauer
6
7 Approved as to Form, Notice of Presentation Vaived.•
8
9
10 Deputy Prosecuting Attorney for Mason County
11
12
13
David Viafore,Petitioner
14
15
16
17
18
19
20
21
22
23
24
25
26 ROBERT H. RAYMOND
Auofwfy at Law
27 ORDER CONTINUING I IF ARING 1800 Cooper Point Road,Suite 10
Olympia,Washington 98502
28 PAGE 2 Tel.360.754.7351 Fax.360.754.7432
Pollution Control Hearing Board sae STArg o� (360)4S9-6327
Shorelines Hearings Board f FAX(360)438-7699
Forest Practices Appeals Board E-Mail:EHOOEHO.WA.GOV
Hydraulics Appeals Board `�� oZ INTERNET.http://www.eho.wa.gov
y
�y� lees�o
STATE OF WASHINGTON
ENVIRONMENTAL HEARINGS OFFICE
4224- 6th Avenue SE, Bldg. 2, Rowe Six �^F u
P.O. Box 40903, Lacey, WA 98504-0903 PIE
October 6, 1999 OCT 0 7 1999
MASON f',C1. PLANNING UEPI
David Viafore Gary P. Burleson
1120 Paradise Parkway Prosecuting Attorney
Fircrest WA 98466 Mason County
521 N. Fourth St
PO Box 639
Howard and Nancy Bauer Shelton WA 98584
155 E. Community Club Road
Shelton WA 98584
RE: SHB NO. 99-033
DAVID VIAFORE v. MASON COUNTY & HOWARD & NANCY BAUER
Dear Parties:
A Petition for Review in the above matter was filed on September 29, 1999.
A pre-hearing conference is scheduled for October 29, 1999, at 1:30 p.m. in the Board's
office in Lacey, Washington(see enclosed map). If this date poses a problem,please confer with
each other and request Ms. Judy Greear of our office for an alternative date. Failure of a party to
attend,without prior notification to the Board and for good cause, may result in "a default or
other dispositive order . . . " (RCW 34.05.440(2).
At the conference, be prepared to discuss settlement, to present your proposed legal
issues, witness and exhibit lists, and to schedule pre-hearing events, such as
motion/discovery deadlines, etc. (The Final list of witnesses and exhibits will be filed later at a
date to be determined at the Pre-Hearing Conference.) Following the conference, a Pre-Hearing
Order will issue which will govern subsequent proceedings.
Pursuant to Chapter 43.21B RCW and Chapter 461-08 WAC, the formal hearing is
scheduled for February 18,2000, at a time and place to be set by further notice. At the hearing,
parties can present witnesses, introduce exhibits, and offer other relevant evidence when stating
their case. If either party believes more time is needed,please submit your request in writing to
this office. Please recognize that an extension may result in later date(s)than the above.
The Board has mediators available to assist in negotiating a settlement of your case.
Material describing Board sponsored mediation is enclosed for your review. If you are interested
in pursuing mediation,please contact Judy Greear of our office for assignment of a mediator.
Lastly, if a party or a necessary witness requires an interpreter or qualifies for reasonable
accommodations as an individual with disabilities, that person shall notify the presiding officer at
least three weeks before the hearing or situation for which assistance is needed.
Enclosed is an informational sheet to assist in the hearing process. . This information can
also be found on our new web page which is found at http://www.eho.wa.gov/.
Parties are free to discuss settlement at any time, with or without the presence of the
Board's Presiding Member.
Do not hesitate to contact this office if you have procedural questions.
Sincerely yours,
• V '
Robert V. Je en
Presiding
RVJ/jg/S99-033 ltr
encs.
cc: Don Bales— Shorelands
Mason County Dept of Community Development
Leann Ryser
CERTIFICATION
On this day,I forwarded a true and accurate copy of
the documents to which this certificate is affixed via
United States Postal Service postage prepaid to the attorneys
of record herein.
I certify under penalty of perjury under the laws of the
State of Washin on th t the oing is true and correct.
ATED D at cey,WA.
ti
Pollution Control Hearing Board STATp (360)459-6327
Shorelines Hearings Board �4 FAX(360)438-7699
Forest Practices Appeals Board ° E-Mail: EHOOEHO.WA.GOV
Hydraulics Appeals Board �� INTERNET.hfp://www.eho.wa.gov
STATE OF WASHINGTON
ENVIRONMENTAL HEARINGS OFFICE QFrFIVIED
4224 - 6th Avenue SE, Bldg. 2, Rowe Six OCT 2 5 1999
P.O. Box 40903, Lacey, WA 98504-0903
MASON CO.PLANNING DEPT
October 22, 1999
David Viafore Gary P. Burleson
1120 Paradise Parkway Prosecuting Attorney
Fircrest WA 98466 Mason County
521 N. Fourth St
PO Box 639
Howard and Nancy Bauer Shelton WA 98584
155 E. Community Club Road
Shelton WA 98584
RE: SHB NO. 99-033
DAVID VIAFORE v. MASON COUNTY & HOWARD & NANCY BAUER
Dear Parties:
Due to the Board's calendar, the hearing date in this matter has been moved. The hearing
is now scheduled for March 9, 2000, at a time and location to be set by further notice.
The pre-hearing conference remains set for October 29, 1999, at 1:30 p.m. in the
Board's office in Lacey, Washington.
Do not hesitate to contact this office if you have procedural questions.
Sincerely yours,
lbert V. Jens
Presiding
RVJ/jg/S99-033 ltr
cc: Don Bales— Shorelands
Mason County Dept of Community Development
Leann Ryser
CERTIFICATION
On this day,I forwarded a true and accurate copy of
the documents to which this certificate is affixed via
United States Postal Service postage prepaid to the attomeys
of record herein.
I certify under penalty of perjury under the laws of the
State of W t t4t.4,he f dgoing is true and correct.
DATE O� at Lacey,WA.
ovy,- vve
Vi/Vi
Pollution Control Hearing Board sTere (360)459-6327
Shorelines Hearings Board f FAX(360)438-7699
Forest Practices Appeals Board ° _ T. E-Mail:EHOGEHO.WA.GOV
Hydraulics Appeals Board �� o? INTERNET.httpJ/www.eho.wa.gov
�y oy
� lees
STATE OF WASHINGTON
ENVIRONMENTAL HEARINGS OFFICE pr'*r- -l"i
4224 - 6th Avenue SE, Bldg. 2, Rowe Six NOV 01 1999
P.O. Box 40903, Lacey, WA 98504-0903
MASON CO.PLANNING t
October 29, 1999
Leah Holecurry Michael Clift
Attorney at Law Deputy Prosecuting Attorney
1800 Cooper Point Road SW No. 8 Mason County
Olympia WA 98502 411 North 5t'
Shelton WA 98584
Robert H. Raymond
Attorney at Law
1800 Cooper Point Road
Suite 10
Olympia WA 98502
Re: SHB NO. 99-011
DORIS GENNOTTI, ARDIS, SHIRK, & PATRICK RUFF v. MASON COUNTY
And WILLIAM & PAMELA SHEARER
Dear Parties:
Enclosed are the Findings, Conclusions and Order of the Shorelines Hearings Board.
This is a FINAL ORDER for purposes of appeal to Superior Court within 30 days,
pursuant to WAC 461-08-570 and 575, and RCW 34.05.542(2) and (4).
The following notice is given per RCW 34.05.461(3): Any party may file a petition for
reconsideration within 10 days and serve it on the other parties. The term "file" means receipt.
Sincerely,
�Ctiwt �
Ann Daley, Presiding
AD/j g/gennotti
Enc.
Cc: Mason County Dept. of Community Development
Don Bales— 7600
Leann Ryser—7615
CERTIFICATION
On this day,I forwarded a true and accurate copy of
the documents to which this certificate is affixed via
United States Postal Service postage prepaid to the attorneys
of record herein.
I certify under penalty of perjury under the laws of the
State of Wa 'ngt that the fore oing is true and correct.
DATED at Lacey,WA.
`A�
Pollution Control Hearing Board o..
(360)459-6327
Shorelines Hearings Board FAX(360)438-7699
Forest Practices Appeals Board E-Mail: EHOCEHO.WA.GOV
Hydraulics Appeals Board INTERNET. hnp://www.eho.wa.gov
STATE OF WASHINGTON
ENVIRONMENTAL HEARINGS OFFICE
4224 -6th Avenue SE, Bldg. 2, Rowe Six
P.O.Box 40903, Lacey, WA 98504-0903 EC E or
VED
March 22,2000
MAR 2 3 2000
MASON COUNTY
Jay A.Goldstein Michael Clift DEPT. COMM. DEVELOPMENT
Attorney at Law Deputy Prosecuting Attorney
1800 Cooper Point Road SW No. 8 Mason County
Olympia WA 98502 521 N.Fourth St
Shelton WA 98584
Robert H.Raymond
1800 Cooper Point Road,Suite 10
Olympia,WA 98502
RE: SHB NO.99-033
DAVID VIAFORE v.MASON COUNTY&HOWARD&NANCY BAUER
Dear Parties:
The Shorelines Hearings Board("board"),based upon the telephonic conference of March 21,2000 has
continued the hearing in this matter from March 28`h to Tuesday,May 2,2000. The parties have already submitted
pre-hearing briefs;however,in light of the continuance,the board will allow the parties to file substitute pre-hearing
briefs by Tuesday,April 25te
Amy Leitman will appear as a witness for the Bauers. Her report may be offered as an exhibit at the
hearing.
Do not hesitate to contact this office if you have procedural questions.
Since ly yours,
' r
Robert V. Jens
Presiding
RVJ/S99-033 ltr
cc: Don Bales—Shorelands
Mason County Dept of Community Development
Leann Ryser
CERTIFICATION
On this day,I forwarded a true and accurate copy of
the documents to which this certificate is affixed via
United States Postal Service postage prepaid to the attorneys
of record herein.
I certify under penalty of perjury under the laws of the
State of W ingtp at t egoing is true and correct.
DATERas — -- 0 at Lacey,WA.
MAR-21-2000 09:47 30LDSTEIN8R0ST9LUHMTIMMER 360 357 0944 P.01i13
v ' JAY A. GOLDSTEIN
LAW OFFICE
(360) 352.1970
1800 Cooper Point Road SW,No- 8 FAX(360) 357.0844
Olympia,WA 98502 E-MAIL:jaglaw@uswest.net
Suzanne M.Wilfong
Jay A.Goldstein Annie Kyburz
Ann-Marie Croy Lagal Assistants
FACSIMILE FOR IMMDIATE DELIVERY Rec�/VSD
DATE: March 21,2000
MAR 2000
NO.OF PAGES 13
2 1
PROS CpUf
(Including this sheet)
ECUTOR
TO: Michael Clift- 427-7754
FROM: Jay A. Goldstein CLIENT NO. 10446-1
CASE: Viafore v. Bauer and Mason County
IF PROBLEMS WITH THIS TRANSMISSION. PLEASE CONTACT: Sue
DOCUMENT(S)BEING TRANSMITTED:
Appellant Viafore's Trial Memorandum
ORIGINAL WILL X WILL NOT FOLLOW
COMMENTS:
NOTE: The information contained in this fax is intended only for the addressee or addressee's
authorized agent. The message may contain information that is privileged confidential, or
otherwise exempt from disclosure. If the reader of this message is not the intended recipient or
recipient's authorized agent, then you are notified that any dissemination, distribution or
copying of this message is prohibited If you have received this message in error,please notify
the sender by telephone and return the original and any copies of the message by mail to the
sender at the address stated above.
Thank you
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RECEIVED
APR 2 4 2000
MASON CO. DCD
Law Office of Robert Ho Raymond
1800 Cooper Point Road, S.W.
Suite 10
Olympia,Washington 98502
Tel.360.754.7351 Fax.360.754.7432
Apri121,2000
Ms. Grace Miller
Mason County Community Development
P.O. Bog 578
Shelton,WA. 98584
Re: Viafore v. Bauer, et aL
SHB 99-033
Dear Ms. Miller,
Enclosed please find a copy of a letter received from Jay Goldstein Attorney for
Viafore. The confusion has finally been resolved and July 24,2000 is THE date for the
hearing in the above referenced matter. If there are any questions or concerns,please do not
hesitate to contact this office.
Very truly yours,el-e-�107
,
Robert H. Raymond
Cc: File
��
.,
III
JAY A. GOLDSTEIN
LAW OFFICE
1800 Cooper Point Road SW, No. 8 (360) 352-1970
Olympia, WA 98502 FAX(360) 357-0844
jaglaw@uswest.net
Jay A. Goldstein Suzanne M. Wilfong
Ann-Marie Croy Annie Kyburz
Legal Assistants
April 7, 2000
Robert Raymond Robert Jensen
1800 Cooper Point Road SW#10 Shoreline Hearings Board
Olympia, WA 98502 P.O. Box 40903
Lacey, WA 98503
Michael Clift
Mason County Prosecuting Attorney
P.O. Box 340
Shelton, WA 98584
Re: Viafore v. Bauer, et al.
SHB 99-033
Dear Mssrs. Jensen, Raymond and Clift:
This letter is to confirm that the hearing on the above-referenced matter has been
scheduled for Mond",Jolly 24,2M lit 9s00 a.m.at the Grant School in Sheltoty. By copy of
this letter I am also confirming with Alfred Jones that the Grant School is reserved for this
hearing.
Pursuant to instructions from Judy Greear, the new deadline for submitting briefs in this
matter is Monday, July 17, 2000, at 5:00 p.m.
Thank you for your cooperation and assistance in getting this matter back on the calendar.
CA' G��DSTE
sw
cc: David Viafore
Ralph Boomer
Mr. and Mrs. Silverthorne
Alfred Jones