HomeMy WebLinkAboutSHR2007-00007 Hearing - SHR Permit / Conditions - 1/13/2009 (1/30/2009) Grace Miller- FINAL Cook-Fertitta Decision - 1-29-09 (717640).DOC Page 1
1
BEFORE THE HEARING EXAMINER FOR MASON COUNTY
2
Phil Olbrechts,Hearing Examiner
3
RE: Cook and Fertitta
4 FINDINGS OF FACT, CONCLUSIONS
5 Shoreline Substantial Development OF LAW AND FINAL DECISION
Permit(SHR2007-00007)
6
7
(,: RC;l ; V JP
8
9 The applicant has requested a Shoreline Substantial Development Permit to construct
a joint use pier, ramp and float (PRF) structure along the west shore of Hood Canal.
10 The Examiner approves the request,with conditions.
11 ORAL TESTIMONY
12 See tape.
13 EXHIBITS
14
All exhibits identified in the"Case Index"submitted by staff for this application have
15 been admitted into the record. In addition,the following exhibit was admitted during
16 the hearing:
17 Exhibit 32 Applicant's Report,dated January 2,2009.
18 FINDINGS OF FACT
19 Procedural:
20
1. Applicant. The applicants are Brian Cook and Henry Fertitta. The
21 applicants' agent and representative is Amy Leitman. The complete application was
submitted on March 30, 2007, with a revised application submitted on August 20,
22 2007.
23
2. Hearing. The Hearing Examiner conducted a hearing on the application
24 on January 13, 2009, at 1:00 p.m., in the Mason County Board of Commissioners
Meeting Room.
25
Substantive:
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3. Site Description/Proposal. The applicants request a Shoreline Substantial j
1 Development Permit to construct a I I5-foot joint-use PRF that will consist of a 6-foot
2 by 60-foot graded pier with 77% functional grading, a 4-foot by 40-foot fully graded
aluminum ramp, a 6-foot by 11-foot ramp float with 32% functional grading, and a 8-
3 foot by 48-foot (T)float with 54% functional grating. The structure will be attached
to 10 ACZA pilings that are 10 inches in diameter. Float stops will support the float
4 at least 12 inches above ground. The PRF will be connected to an existing bulkhead.
5 Exhibit 4 provides more detail on the dimensions of the proposal.
6 The joint use PRF is proposed for five waterfront properties, the owners of which i
have all agreed to a restrictive covenant prohibiting them from allowing any
7 additional PRF or dock structures on their waterfront properties. The amount of
8 shoreline that will be subject to these restrictive covenants is approximately 600 feet.
The applicants will also provide access to the Mason County Sheriffs Office for
9 emergency launch operations. The restrictive covenants will expire after 20 years.
The applicants assert that in the meantime the County can update its SMP and more
10 effectively address PRF impacts. The applicants also proposed to acquire underwater
time-lapse video equipment to be used by the Hood Canal Salmon Enhancement
11 Group and Long Live the Kings in collecting data on the migration patterns of
1 , juvenile salmon. The proposed PRF will be located on the shared boundary between
the Cook and Fertitta properties.
13
4. Characteristics of the Area. The general area is characterized by clustered
14 single-family residential development to the north and south along the Hood Canal
15 shoreline. Residential use appears to be a mix of permanent and vacation homes.
There is an existing over-water structure to the south that is more than 100 feet from
16 the proposed PRF, along with pilings and a marine railway. There is also an existing
marine railway on the subject parcel and on the parcel to the north. There is a public
17 boat launch about a mile to the south in Saltwater Park. According to the applicants,
18 this launch is in high demand, and their proposal will help reduce this demand and
make it more accessible to other users. An over-water pier is also located 300 feet to
19 the north, another pier 700 feet to the north, and another PRF 1500 feet to the north.
As shown in the photographs at page 3 of Exhibit 32, the properties to the north are
20 littered with marine railways,piers,and airways.
21 5. Zoning and Shoreline Designation. The parcel is zoned Rural Residential
22 5 (RR-5). The Shoreline Master Program Environmental Designation is Urban.
23 6. Adverse Impacts of Proposed Use. The adverse impacts of PRF have been
the subject of extensive litigation before the Examiner, the Shoreline Hearings Board
24 and most recently, the Mason County Superior Court. In all of these cases, the
25 Examiner findings of both adverse aesthetic and biological impacts have been upheld.
Despite the extensive and predominantly negative case law on Hood Canal PRF
impacts, the applicants present new arguments and evidence that run counter to the
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general conclusion that PRFs in areas of relatively little over-water development
I create adverse environmental or aesthetic impacts. Given the novelty of the
2 arguments presented by the applicants and the fact that in this case there was no
opposing side to refute them, the preponderance of evidence is on the side of the
3 applicants on both aesthetic and environmental impacts. The findings of the
Examiner on these impacts may well change dramatically in future cases when PRF
4 opponents have an opportunity to address them, but the Examiner is limited to the
5 evidence presented to him and the holdings of past decisions.
6 A. Aesthetics. Due to the speculative nature of the science on adverse
biological impacts, the Examiner has focused upon aesthetic impacts in most of his
7 denials of PRFs. Although aesthetics alone has only a tenuous legal basis for the
8 denial of land use permits (see Anderson v. Issaquah), this has not slowed down the
Shoreline Hearings Board in its review of shoreline permits. See, Gennotti v. Mason
9 County, SHB 99-011, Final Findings of Fact, Conclusions of Law, and Order
(October 29, 1999); Viafore v. Mason County, SHB 99-033, Final Findings of Fact,
10 Conclusions of Law, and Order(September 14, 2000). Perhaps this emphasis upon
aesthetic impacts is more justifiable for PRFs, since the private property interest at
11 stake is less than that usually associated with development permits. PRFs are not
12 confined to private property but rather encroach into public waters. Given Gennotti
and Viafore, the Examiner concluded that aesthetics can serve as justification for
13 denial so long as "no two reasonable minds could disagree on their assessment."
Evans,(SHR2004-00006).
14
15 As discussed in the Dicks(SHR 2006-00028)and Lesley(SHR2005-00019)Examiner
decisions,PRFs that encroach into uninterrupted pockets of undeveloped(over-water)
16 shoreline create aesthetic impacts that violate applicable SMP policies and
regulations. Lesley involved a PRF within a 600-foot length of undeveloped shoreline
17 and Dicks involved a PRF within a 3,200-foot length of shoreline. In the instant case
18 the nearest PRF to the north is 1,700 feet away, and it is unclear where the nearest
PRF to the south is located. However, there is a dock about 100 feet to the south
19 along with a boat ramp and remnants of marine rail and rail pilings. The photos at
page 3 of Exhibit 32 show the shoreline to the north littered with marine railways,
20 piers, pilings, and stairs. Unlike other PRF cases, no neighbors felt compelled to
express any concerns about the aesthetic impacts of the project. The restrictive
21 covenants proposed by the applicants,which would remove 600 feet of shoreline from
22 over-water development, significantly reduce any cumulative aesthetic impacts.'
Given these factors, it is highly questionable whether the proposed PRF would create
23 any significant adverse aesthetic impacts, certainly not to the level where "no two
24 ' These type of restrictions proved determinative in the Appel decision(SHR2006-
00040). In that case a PRF was proposed to interrupt a 1000-foot stretch of
25 undeveloped (over-water) shoreline. The aesthetic encroachment was found
acceptable largely because of a deed restriction prohibiting development on a 250-
foot stretch of natural shoreline.
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reasonable minds could disagree." The Examiner finds that the PRF is consistent
1 with the aesthetic character of the surrounding shoreline and does not create any
significant adverse aesthetic impacts.
3 B. Endangered Fish. In at least two cases, the Shoreline Hearings Board has
determined that PRFs along Hood Canal shorelines adversely affect endangered fish.
4 See, Fladseth v. Mason County, SHB No. 05-026; McCauley v. Mason County SHB
5 No.06-033. As noted in Fladseth, PRFs can increase the mortality of endangered fish
as follows:
6
Shorelines consist of discrete segments, and uninterrupted sections
7 of the beach are an important part of the near shore environment.
8 Shallow water has been recognized as refuge from predation for
smaller fish, especially when there is an absence of complex
9 habitat features such as woody debris or submerged vegetation.
The Board, therefore, finds it logical to assume that the near shore
10 area of Hood Canal provides much of the refuge area for juvenile
11 fish from predators.
12 Juvenile fish will often try to avoid PRFs by swimming around
them. The increased energy for the fish to avoid the PRFs and the
13 greater potential for predation eventually leads to a decrease in
their survivability. The recovery of near shore functions is part of
14 the salmon recovery plan for this area.
15 Fladseth v. Mason County, Finding of Fact No. 18 (citations
16 omitted), SHB No. 05-026.
17 Similar findings were made in the McCauley SHB decision and upheld in a Mason
18 County Superior Court memorandum decision by Judge Foscue,Exhibit 31.
19 The findings in the decisions cited above are fairly generic and arguably apply to any
PRF. Indiscriminately applying the findings in this fashion would result in the denial
20 of all PRF applications,putting the Examiner and the Shoreline Hearings Board in the
position of creating PRF policy. The Examiner and Shoreline Hearings Board are
21 adjudicative bodies and do not have the authority to create policy. See, Viking
22 Properties,Inc. v. Holm, 155 Wn.2d 112(2005). That function belongs to the County
Commissioners. The Viking decision and the very fact that PRFs are authorized by
23 shoreline permits mandates a case-by-case review of endangered fish impacts. The
site-specific nature of endangered fish impacts is reinforced by the findings of the
24 "State of the Science"report on cumulative PRF impacts in Hood Canal, Exhibit 16.
25 The report recommends the development of a "landscape-level approach, based on
specific landscape segments, to comprehensively plan for the regulation" of PRFs."
This recommendation recognizes that some parts of the Hood Canal shoreline are
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more amenable to PRF development than others.
1
2 Mason County has apparently not had the resources to conduct the landscape analysis
recommended by the "State of the Science" study. In the absence of a formal
landscape analysis, the applicant has supplied the next best thing by a site-specific
analysis of the unique attributes of the proposed PRF location. While this analysis
4 probably does not reach the level of review that was contemplated in the"State of the
5 Science" landscape recommendation, it is the best evidence available on the subject.
As a starting point in the evaluation of the evidence presented by the applicant, the
6 record establishes that the PRFs do alter the course of fish migration. While this
conclusion was disputed by Mr. Endicott in his written (Exhibit B to Exhibit 32) and
7 verbal testimony, it has been agreed upon by all the other experts before the
8 Examiner. Perhaps more importantly, the impact on fish migration has been well
documented in the Nightingale studies and others, which is ultimately more
9 compelling than the anecdotal evidence presented by Mr. Endicott (although his logic
is admittedly very compelling).
10
Accepting as true that PRFs alter fish migration routes, the next inquiry is whether
11 this alteration in migration creates harm to the fish. The Examiner agrees with Ms.
12 Lietman that there is no study to directly support this conclusion, although scientists
have expressed concern over the potential for harm created by diverting fish into areas
13 where they are more subject to predation and other factors. As noted previously,both
the Shoreline Hearings Board and the Mason County Superior Court have found
14 sufficient evidence to conclude that this altered migration will harm endangered fish.
15 The applicant did not present any significant new evidence to refute this factual
conclusion. Mr. Boad gave examples of existing endangered salmon runs that have
16 not been adversely affected by extensive over-water development, but this general
observation is not sufficiently compelling to overcome the detailed analysis conducted
17 by the Shoreline Hearings Board and Mason County Superior Court.
18 Although the applicants' experts do not make much headway when they take on the
19 scientific findings of the Shoreline Hearings Board and Mason County Superior Court
directly, they do succeed when they counter one of the presumptions made by the
20 Board and Court. A necessary element of the Board and Court findings on adverse
fish impacts is that there are endangered fish to adversely impact. Mr. Boad claims
21 that endangered fish do not migrate in the proximity of the proposed PRF because of
22 the unique rocky and unvegetated nature of the shoreline. The preponderance of
evidence in this record supports this position.
23
In his testimony and written report, Exhibit A to Exhibit 32,Mr. Boad points out that
24 the proposed PRF is located almost entirely within a non-vegetated rocky intertidal
25 area. He states that salmon migration routes are characterized by eel grass and kelp
beds that connect stream deltas,protected lagoons, estuaries,pocket estuaries, and salt
marshes. Mr. Board asserts that the proposed location has none of these migration
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characteristics,including the absence of eel grass.
1
2 It is quite possible that a PRF opponent with sufficient expertise could identify
numerous flaws in Mr. Boad's analysis. The most obvious question one has to ask is
3 whether migrating fish would actually "choose" deep water eel grass over a "rocky"
shallow near shore area when they are less subject to predation in shallow areas. It is
4 also unclear whether an uninterrupted vegetated route is available to endangered fish
5 in all parts of Hood Canal. There may very well be segments of Hood Canal that are
completely unvegetated, and endangered fish will simply have to get through them,
6 rocky or not, to get to their spawning beds. Evidence on that and other issues may
well change the outcome of future PRF decisions, but the preponderance of evidence
7 in this case compels the finding that the proposed PRF will not adversely affect
8 migrating salmon or other endangered fish because there are no migrating endangered
fish in the subject area.
9
The preceding finding is tempered by the fact that if PRFs cause harm to endangered
10 fish, they do so only at a cumulative scale. None of the studies or testimony that the
Examiner has received on this issue assert that one PRF will create any appreciable
11 damage to endangered fish. The mitigation measures offered by the applicants
12 significantly reduce the potential for cumulative impacts. The proposed restrictive
covenants will prevent PRF proliferation on several hundred feet of shoreline. The
13 proposed underwater cameras and associated research will help Mason County more
precisely identify PRF fish impacts so they can be more effectively mitigated in the
14 future. These mitigation measures will go a long way in off-setting and preventing
15 PRF Proliferation and the adverse impacts associated with this proliferation.
16 C. Interference with Navigation. The surrounding area is already populated
with piers and pilings. The addition of the PRF will not create any significant new
17 navigation obstacle. Further, the restrictive covenants will prevent navigation
18 obstacles created by PRF proliferation. Finally,the access the applicants will provide
to public agencies and their neighbors will enhance access to the shoreline both
19 directly and indirectly by relieving use demand on the overtaxed public boat launch at
Saltwater Park.
20
21 CONCLUSIONS OF LAW
22 Procedural:
23
1. Authority of Hearing Examiner. MCC 15.03.050(9) authorizes the
24 Examiner to review and issue a final decision regarding shoreline substantial
25 development permit applications.
Substantive: j
i
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1 2. Permit Review Criteria: MCC 15.09.55(A) requires a substantial
2 development permit for any substantial development within the shoreline jurisdiction.
MCC 15.09.055(F) requires that permit applications for substantial development
3 permits be subject to review by the Hearing Examiner. MCC 15.09.055(F)(2)(c)
provides that the Examiner shall base a decision on a Shoreline Substantial
4 Development Permit application on the Shoreline Master Program for Mason County
5 and the policies and procedures of Chapter 90.58 RCW (the Shoreline Management
Act). Mason County Shoreline Master Program use regulations are codified in
6 Chapter 17.50 of the Mason County Code, and Shoreline Master Program policies are
integrated into the Mason County Comprehensive Plan. The applicable shoreline
7 policies and use regulations are quoted and addressed below.
8 SMP Piers and Docks (Policy No. 1): Piers and docks should be designed and
9 located to minimize obstruction of views and conflicts with recreational boaters and
fishermen.
10
3. As noted in Finding of Fact No. 6(A), there is no appreciable adverse
11 impact on views. As noted in Finding of Fact No. 6(C), there is also no appreciable
12 obstruction of navigation and therefore no conflicts with recreational boaters and
fishermen.
13
SMP Piers and Docks (Policy No. 2): Cooperative uses of piers and docks are
14 favored, especially in tidal waters.
15 4. The applicants are proposing five users for the PRF.
16
SMP Piers and Docks (Policy No. 3): The type, design and location of docks and
17 piers should be compatible with the shoreline characteristics, tidal action, aesthetics,
18 adjacent land and water uses.
19 5. As determined in Finding of Fact No. 6, the proposed PRF will not have
any appreciable adverse aesthetic impacts, will not encroach into public navigation,
20 and will not adversely affect endangered fish. There are no other discernible adverse
21 impacts from the record.
22 SMP Piers and Docks (Policy No. 5): Mooring buoys and floats are preferred over
piers and docks.
23
6. Although buoys and floats are preferred, PRFs are not prohibited. The
24 extensive amount of mitigation offered by the applicants, as well as the unique
25 environmental features of the site,do not compel mooring,boat buoys or floats for the
subject area.
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SNIP Piers and Docks (Use Regulation No. 1): The location and design of docks
1 and piers, as well as the subsequent use, shall minimize adverse effects on fish,
2 shellfish, wildlife and water quality.
3 7. As discussed in the Finding of Fact No. 6(B), the project will not create
any appreciable adverse impacts upon endangered fish. There are no other discernible
4 adverse impacts upon fish,shellfish,wildlife,and water quality.
5 SNIP Piers and Docks (Use Regulation No. 2): Docks and piers shall be located,
6 designed and operated to not significantly impact or unnecessarily interfere with the
rights of adjacent property owners, or adjacent uses. Structures shall be located at a
7 minimum of five feet from side property lines. Community use or joint use facilities
8 may be located on the property line.
9 8. The PRF will be located on the shared property line between the Cook and
Fertitta properties as authorized by Use Regulation No. 2 for joint use PRFs. As
10 discussed in Finding of Fact No. 6,the PRF will not interfere with public navigation,
and since the PRF will be located between the Cook and Fertitta properties, there is
11 no discernible interference with the rights of adjacent property owners.
12
SNIP Piers and Docks (Use Regulation No. 7): Maximum overall length of a
13 recreational pier dock facility including floats shall be only so long as to obtain a
depth of three feet of water as measured at mean low lower low water on a saltwater.
14 The length of any pier or dock facility shall not extend the lesser of 15 percent of the
15 .fetch or 100 feet from ordinary high water mark on saltwater.
16 9. The PRF is proposed at a total length of 115 feet from the OHWM (the
bulkhead),at which point the depth is less than 3 feet,according to the Staff Report.
17
18 SNIP Piers and Docks(Use Regulation No. 8): Only one dock is allowed per lot.
19 10. There will not be more than one dock after the proposed PRF.
20 SMP Piers and Docks (Use Regulation No. 9): The width of recreational piers and
21 docks shall not exceed eight feet.
22 11. The proposed width of the pier is 6 feet,the ramp is 4 feet, and the float is
8 feet.
23
SNIP Piers and Docks(Use Regulation No. 10): At the end of a dock or pier, afloat
24 may be attached. These floats may either be parallel to the dock or pier, or form a
25 "T" or "L". In tidal water, the float shall not exceed four hundred gross square feet
without a boat slip, or six hundred gross square feet with a boat.
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12. The proposed float configuration is a "T." The combined surface area of
1 the floats is less than 400 square feet.
2
SMP Piers and Docks (Use Regulation No. 13): The recreational pier shall be no
3 higher than eleven feet above mean higher high water. Piers and docks shall have at
least an eight foot span between pilings.
4
5 13. Per the revised drawings(Exhibit 4),the height of the proposed pier is less
than 11 feet above mean high or high water. The piling span is greater than 8 feet.
6
SMP Piers and Docks (Use Regulation No. 14): The surface of floating structures
7 shall be a minimum of eight inches above the surface of the water.
8 14. As configured and proposed, intermittent supports are greater than 8
9 inches.
10 SMP Piers and Docks (Use Regulation No. 15): All floating structures shall
11 include intermittent supports to keep structures off the tidelands at low tide.
12 15. This is included in the proposal. See conditions of approval.
13 SMP Piers and Docks (Use Regulation No. 16): All facilities shall be constructed
and maintained in a safe and sound condition. Abandoned or unsafe docks and piers
14 shall be removed or repaired promptly by the owner. Where any such structure
15 constitutes a hazard to the public, the county may, following notice to the owner,
abate the structure if the owner fails to do so within a reasonable time, and may
16 impose a lien on the related shoreline property in an amount equal to the cost of the
abatement.
17
18 16. See conditions for approval.
19 RCW 90.58.020: This policy [Shoreline Management Act policy] is designed to
insure the development of these [shorelines of the state] shorelines in a manner
20 which, while allowing for limited reduction of rights of the public in the navigable
21 waters, will promote and enhance the public interest. This policy contemplates
protecting against adverse effects to the public health, the land and its vegetation and
22 wildlife, and the waters of the state and their aquatic life, while protecting generally
public rights of navigation and corollary rights incidental thereto.
23
17. As conditioned and proposed, the proposed PRF shall improve access to
24 the shorelines by extensive joint use as well as by authorizing Sheriff and scientific
25 access. As proposed and conditioned and previously discussed, there are no
discernible adverse impacts on the environment,including impacts on water quality or
aquatic habitat. Also as previously discussed, the proposed PRF will not appreciably
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I
interfere with public rights of navigation.
1
RCW 90.58.020(1): Recognize and protect the state-wide interest over local interest.
3 18. As determined in the Findings of Fact,the proposed PRF will not have any
appreciable or discernible adverse impacts upon environmental resources, will
4 enhance access to the shorelines, and will not interfere appreciably with public
J navigation or aesthetics. Given these factors, statewide interests have been fully
protected.
6
RCW 90.58.020(2): Preserve the natural character of the shoreline.
7
19. As noted by Lee Boad in his analysis,there is no riparian vegetation either
18 19.
or offshore at the site of the proposed PRF. The extensive mitigation offered
9 by the applicants, in particular the restrictive covenants, prevent any cumulative
impact upon the natural character of the shoreline. For these reasons, the natural
10 character of the shoreline is adequately protected.
11 RCW 90.58.020(3): Result in long-term over short-term benefit. f
12
20. Because the project has been designed and conditioned to minimize
13 adverse impacts to the shoreline,it will result in long-term over short-term benefit.
14 RCW 90.58.020(4): Protect the resources and ecology of the shoreline. k
15 C
21. As noted, the project has been designed and conditioned to minimize
16 adverse impacts on the ecology of the shoreline.
17 RCW 90.58.020(5): Increase public access to publicly owned areas of the
18 shorelines.
19 22• As conditioned to provide access to the Sheriffs Department, scientific
research, and several joint users, the proposal increases public access to the
20 shorelines. Further, by providing for such an extensive amount of private use, the
21 proposal will reduce demand and thereby make the nearby Saltwater Park boat launch
more accessible to the public.
22
RCW 90.58.020(6): Increase recreational opportunities for the public in the
23 shoreline.
24 23. As noted previously, the PRF will reduce demand on the Saltwater Park
25 boat launch,thereby making it more accessible to the public.
MCC 15.09.055(C): Required Review: The Hearing Examiner shall review
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proposed development according to the following criteria:
1
2 1. The development does not conflict with the Comprehensive Plan and meets
the requirements and intent of the Mason County Code, especially Title 6, 8, and 16.
3
2. Development does not impact the public health, safety and welfare and is
4 in the public interest.
3. Development does not lower the level of service of transportation and/or
6 neighborhood park facilities below the minimum standards established within the
Comprehensive Plan.
7
8 24. Residential PRF projects of the size proposed here do not generally create
additional demand on parks or transportation facilities and therefore have no impact
9 on their respective levels of service. The project does not involve any generation of
sanitary waste, any alteration of lot lines and was subject to a SEPA MDNS;
10 therefore,the project meets the requirements and intent of MCC Titles 6, 8 or 16. As
conditioned, there is also no discernable inconsistency with any other MCC code
11 provision,and because the project, as conditioned, will have minimal adverse impact
1 on the environment and other uses, it does not impact the public health, safety, and
welfare and is in the public interest.
13
DECISION
14
15 The Examiner approves the shoreline substantial development application, subject to
the conditions recommended by staff as well as those proposed by the applicants at
16 page 13 of Exhibit 32. In addition,the applicants shall execute and record a Covenant
that may be removed or modified only with the consent of Mason County that grants
17 access to the Sheriffs Department for rescue and emergency services and allows
18 access to the underwater cameras for scientific research by the Hood Canal Salmon
Enhancement Group or Long Live the Kings or an alternative organization as
19 reasonably approved by Mason County. This Covenant shall be subject to the
approval of Mason County.
20
21
Dated this day of January,2009.
22
23 Phil Olbrechts
24 Mason County Hearing Examiner
I
25
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