HomeMy WebLinkAboutSHB No. 08-031 Appellant's Trial Brief-Proposal to Cut Driveway Through Bluff - SHR Letters / Memos - 3/24/2009 BEFORE THE SHORELINES HEARINGS BOARD FOR
THE STATE OF WASHINGTON
EARL IDDINGS, SHB No. 08-031
Appellant,
APPELLANT'S TRIAL BRIEF
V.
MIKE GRIFFITH,
Applicant/Respondent, and
MASON COUNTY DEPARTMENT OF
COMMUNITY DEVELOPMENT,
Respondent, and
DEPARTMENT OF ECOLOGY
Respondent.
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a
1
2 I. INTRODUCTION
3 Respondent Mike Griffith's proposal to cut a driveway through a remote bluff
4 overlooking Hood Canal Griffith's project will drastically and irreparably harm the unique
5 beauty and wildlife of the Dewatto area. Prior to submitting his proposal, Griffith failed to
6 conduct a survey of the public right-of-way, instead presuming a 30-foot right-of-way, a
7 presumption that experts and neighbors now universally believe to be false. To avoid building
8 in the right-of-way, Griffith will either have to vacate the road or completely redesign his
9 project. Furthermore, the protected nests of the unique Pigeon Guillemots will be destroyed
10 during construction of the project,thereby violating state and federal laws. Finally, Griffith's
11 project fails to protect the stability of the bluff, which is prone to serious landslides. For these
12 reasons and those that follow, Griffith's proposal should be rejected.
13 II. FACTS
14 A. The Hearing Examiner Approved the Project Against the Staffs Recommendation
15 Appellant Mike Griffith seeks to construct a 25-foot tall, "stair-stepped" ecology block
16 wall directly adjacent to Dewatto Beach Drive—a county road—for the purpose of
17 supporting a driveway through a landslide hazard area up an approximately 40-foot tall, nearly
18 vertical sand bluff 37-feet from the Ordinary High Water Mark(OHWM) of Dewatto Bay (the
19 "Project"). The Project site is located on the eastern shore of Hood Canal, which the state has
20 designated a shoreline of statewide significance. In order to construct the Project, Griffith has
21 proposed to excavate 620 cubic yards of native soil from the sand bluff, which is the seasonal
22 nesting habitat for a colony of Pigeon Guillemots, a migratory seabird federally protected under
23 the Migratory Bird Treaty Act.' The Pigeon Guillemots need a softer sandy/clay area to
24 excavate their nesting holes. See Appellant's Ex. 1 at Staff Exhibit 78, Appendix ("App.")A.
25
26
This was Griffith's estimate based upon the erroneous assumption that the right-of-way across his property was
only 30 feet. The required excavation will actually be many thousands of cubic yards.
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I Given the location of the proposed Project and the unique features of the bluff, state and
2 county regulations and ordinances require Griffith to obtain a substantial development permit, a
3 shoreline conditional use permit, and a variance before commencing construction. Because
4 Griffith failed to demonstrate that the project met the criteria for any of these permits, Mason
5 County staff(the "Staff') recommended that the permits be denied.
6 Despite the Staffs objections and recommendation, Mason County Hearing Examiner,
7 Phil A. Olbrechts, approved the project on certain conditions, including that all construction
8 comply with all Mason County stormwater control regulations,that no construction occur
9 during the nesting season or at any time the Pigeon Guillemots are present, that prior to
10 construction Griffith acquire approval from Mason County staff for an erosion control plan, and
11 that no Pigeon Guillemots,their eggs or their active nests be damaged during construction.
12 After the hearing examiner issued his decision,the Department of Ecology summarily
13 approved Griffith's application for a conditional use permit provided the project complies with
14 Mason County's conditions.
15 A. Subsequent Studies and Investigations Indicate the Project Should Be Denied
16 1. Right-of-Way
17 Mason County Development Regulations require construction projects to be set back
18 25-feet from the front yard (road right-of-way). See MCC 17.04.223. Griffith proposed the
19 ecology block wall, however, be constructed up against the county right-of-way. Therefore, he
20 applied for and received a developmental regulations variance from the hearing examiner
21 pursuant to MCC 17.05.034 A. See Appellant's Ex. 1 at Staff Ex. 1, p. 4.
22 However, when designing the project, Griffith's engineer assumed that there was a 30-
23 foot county right-of-way across Dewatto Beach Road. See Appellant's Ex. 9 at 81:10-22. That
24 assumption is unsupported and Appellant has recently learned that the assumption appears to be
25 in error. See Appellant's Ex. 3 at 2 (noting that the county right-of-way based on Mason
26 County Geodata is 45 feet and that local residents believe the right-of-way to be 60 feet). A
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I right-of-way survey has recently been performed and will be recorded shortly. Appellant's Ex.
2 3 at 2; Appellant's Ex. 9 at 78:9-17. This survey should delineate the actual, legal right-of-way
3 for the site. As Mr. Moore points out, "[t]his dimension is critical because it determines how
4 far back from the existing edge of pavement the wall will be built." Appellant's Ex. 3 at 2.
5 Because Appellant did not know about the erroneous right-of-way assumption until
6 after he had drafted his list of issues (Griffith has never disclosed that a survey is being
7 conducted on the county's right-of-way), he did not include the issue in the preliminary list that
8 was submitted to respondents and the SHB. However, Griffith's failure to survey the public-
9 right-of-way substantially impacts resolution of the issues that have been raised in this appeal.
10 For example, in order to avoid construction in a right-of-way that extends into the Dewatto Bay
11 bank, the project will require a more substantial cut into the bluff and removal of more Pigeon
12 Guillemot nesting holes than originally planned. Id. Thus,the new fact is highly relevant to
13 determine whether the project adequately protects the Pigeon Guillemots and their nests and
14 whether the project adequately controls erosion,which may occur as a result of the project.
15 The new fact also is relevant to determine whether the project avoids "substantial detrimental
16 effects to the public interest as required by WAC 173-27-160(1)(e) for approval of a
17 conditional use permit.
18 In addition, should a more substantial cut be required, the project may require an
19 increased elevation gain from the county road to the top of the bank. Id. Such a change could
20 impact the project's compliance with fire department and local building department codes,
21 again impacting the public interest. Id. In the alternative, Griffith must seek to vacate the
22 right-of-way pursuant to MCC 12.20 and RCW 36.87.
23 2. Erosion Control
24 Since the hearing, further studies have been conducted, which demonstrate that the
25 project should not have been approved as proposed. First, the geotechnical analyses conducted
26 by Griffith simply are not adequate to ensure that the project does not result in severe erosion
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I of the bluff or serious landslides. Indeed, after conducting an on-site inspection of the subject
2 property and analyzing the geotechnical reports and grading plan addendum submitted by
3 Griffith, engineering firm Krazan &Associates, Inc. ("Krazan") has concluded that the slope
4 stability analyses for the existing bluff topography and for the retaining wall, roadway, and
5 reinforced fill design were flawed because realistic soil parameters were not used. Appellant's
6 Ex. 2. In addition, Krazan concludes that the reinforced wall design will not adequately
7 prevent landslides because the safety calculations were not performed with an appropriate
8 roadway surcharge. Id. Finally, Krazan recommends that Griffith be required to set forth a
9 mitigation plan for groundwater during and after construction. Id.
10 Ryan Moore,project manager for Vector Engineering, Inc., agrees that the soil cohesion
11 values are erroneous, noting that sheet 13 of the GTL report states that the site "was modeled
12 using a gravelly sandy loam with cohesion of 200 psf'but on the first sheet of the Driveway
13 Stability Analysis portion of item (8) a cohesion value of 700 psf is used." Appellant's Ex. 3.
14 In addition, Mr. Moore notes that the report"never specifies whether a clay formation is
15 present and if so at what depth below visible soil. This is a crucial question as are the questions
16 of groundwater and seepage characteristics of the bluff. Significant competent geotechnical
17 exploration and analysis is required to speak to these issues. Strength and stability analysis
18 without this data seems rather fatuous." Appellant's Ex. 3 at 3. Mr. Moore concludes that
19 "[p]reclusion of another landslide is the paramount consideration of this design, as landslides in
20 this location can cause damage to neighboring properties, and blockage of the county right-of-
21 way." Id.
22 3. Stormwater Control
23 The project was approved on condition that it complies with the Mason County Code's
24 stormwater control provisions. However,the project contains no erosion and sediment control
25 plan as required by the Mason County Code. See Appellant's Ex. 3 at 2. According to Mr.
26
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I Moore, "[t]here should be a drawing made addressing all necessary plans and details to
2 preclude damage to any downstream or neighboring properties during construction." Id.
3 III. ANALYSIS
4 A. The Project Should Be Denied Because Griffith Failed to Survey the Public Right-of-
Way
5
Griffith's design and proposal presumes that the public right-of-way extends to the edge
6
of the road and no further. See Appellant's Ex. 9 at 81:10-22. Experts and neighbors all agree,
7
however,that the public right-of-way extends into the bluff. See Appellant's Ex. 3 at 2 (noting
8
that the county right-of-way based on Mason County Geodata is 45 feet and that local residents
9
believe the right-of-way to be 60 feet). Griffith concedes that he may not build on the public
10
right-of-way. See Appellant's Ex. 9 at 80:24-81:1. Thus, should the survey that is currently
11
underway reveal that the right-of-way extends into the bluff the project will require a more
12
substantial cut into the bluff to avoid building on the public right-of-way.
13
Given the conditions that Mason County has imposed on this project, a more substantial
14
cut into the hillside will require the project to be completely redesigned. As Mr. Moore of
15
Vector Engineering points out, a more substantial cut will require removal of more nests and
16
more fill. See Appellant's Ex. 2 at 2. It also could mean that Griffith will be required to build a
17
steeper driveway. Id. Because Griffith failed to complete this key survey, the project should
18
be denied for this reason alone.
19
B. The Shoreline Management Act Prohibits Projects That Adversely Affect Shorelines
20
Washington's Shoreline Management Act ("SMA") is to be broadly construed to
21
protect the state's shorelines as fully as possible." Buechel v. State Dep't of Ecology, 125
22
Wn.2d 196, 203, 884 P.2d 910 (1994). The SMA limits private construction on the state's
23
shorelines and adjacent uplands in order to protect the public interest in what the legislature as
24
deemed "the most valuable and fragile of its natural resources." RCW 90.58.020. "This policy
25
contemplates protecting against adverse effects to the public health, the land and its vegetation
26
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I and wildlife, and the waters of the state and their aquatic life." Buechel v. State Dep't of
2 Ecology, 125 Wn.2d 196, 203, 884 P.2d 910 (1994).
3 The SMA provides particularly strong protections for Hood Canal, designating it a
4 "shoreline of statewide significance" and thereby providing Mason County with substantial
5 planning authority over its shorelines. RCW 90.58.030(2)(e)(ii)(C). Because Hood Canal has
6 been designated a"shoreline of statewide significance,"the County must give preference to
7 uses which (1) recognize and protect the statewide interest over local interest; (2)preserve the
8 natural character of the shoreline; (3)result in long term over short-term benefit; (4)protect the
9 resources and ecology of the shoreline; (5) increase public access to publicly owned areas of
10 the shoreline; (6) increase recreational opportunities for the public in the shoreline; and(7)
11 provide for any other element as defined in RCW 90.58.100 deemed appropriate or necessary.
12 RCW 90.58.020.
13 C. A Substantial Development Permit Should Not Have Been Granted
14 A substantial development permit should not be granted when the development
15 proposal is not"consistent"with the policies of the SMA, Mason County's Comprehensive
16 Plan, and the regulations and ordinances that enforce them, including the policies listed above
17 that govern shorelines of statewide significance. WAC 173-27-150. Here, Griffith's proposal
18 runs counter to all of the SMA's policies.
19 1. The Project Fails to Protect Unique Pigeons Guillemot and Their Nests
20 First, and most importantly, the proposal undermines the statewide interest in
21 protecting the unique colony of Pigeon Guillemots, which nests in the sand bluff on Griffith's
22 property. As Greg Schirato, District Wildlife Biologist, puts it, "actions such as cutting a road
23 through a seabird colony...are never done in Washington...." Appellant Ex. 1 at Staff Exhibit
24 12. The Washington State Department of Transportation also has acknowledged the
25 importance of protecting the species. See id. at Staff Exhibit 78, App. C. And, the Washington
26
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I Department of Fish and Wildlife has designated the bluff as a"priority habitat." See id. at Staff
2 Exhibit 38.
3 Further, Washington State law provides specific protection for the Pigeon Guillemots,
4 making it a criminal offense to take the birds,nests or eggs. See RCW 77.15.130(providing
5 that"[a]person is guilty of unlawful taking of protected fish or wildlife if...[t]he person hunts,
6 fishes,possesses,or maliciously kills protected fish or wildlife,or the person possesses or
7 maliciously destroys the eggs or nests of protected fish or wildlife, and the taking has not been
8 authorized by rule of the commission");see also WAC 232-12-011 (defining protected wildlife
9 to include"[a]ll birds not classified as game birds,predatory birds or endangered species").
10 Notably, Washington's law,which is generally patterned after the federal Migratory
1 I Bird Treaty Act("MBTA"),provides additional protections for the nests of birds that the
12 statute protects. For example,the MBTA makes it unlawful to"take"a protected bird's nest.
13 See 16 U.S.C. § 703 (providing that it is unlawful to take,kill,or possess any part, nest,or eggs
14 of any protected migratory bird). A taking under the MBTA,however, does not include
15 "destroying"nests. See Griffith's Ex. 4 (explaining that"[w]hile it is illegal to collect,possess,
16 and by any means transfer possession of any migratory bird nest,the MBTA does not contain
17 any prohibition that applies to the destruction of a bird nest alone (without birds or eggs),
18 provided that no possession occurs during the destruction"). By contrast, Washington's law
19 makes it unlawful to "maliciously destroy the eggs or nests of protected fish or wildlife."
20 RCW 77.15.130(1)(a).
21 The SHB has requested that the parties address the threshold issue of whether the SHB
22 has authority to interpret the provisions of the Migratory Bird Treaty Act("MBTA")for
23 purposes of determining whether a local authority has issued a land use permit that is consistent
24 with the provisions in the Shoreline Management Act and Mason County Shoreline Master
25 Program. Not only does the SHB have the authority to interpret the MBTA to insure that a
26
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I permitting decision does not conflict with its provisions, but the SHB has a du 'to interpret
2 an
d d apply state laws to ensure that they are not inconsistent with the MBTA.
3 No statute or regulation of any State shall be construed to relieve a person from
4 the restrictions, conditions, and requirements contained in this part,however,
nothing in this part shall be construed to prevent the several States from making
5 and enforcing laws or regulations not inconsistent with these regulations and the
conventions between the United States and any foreign country for the
6 protection of migratory birds or with the Migratory Bird Treaty Act, or which
7 shall give further protection migratory game birds.
8 50 C.F.R. § 20.2(d). Notably, this regulation permits the states to provide further protections
9 for the Pigeon Guillemots and other migratory birds than the protections provided by the
10 MBTA. Thus, the provisions of RCW 77.15.130, which provide additional protections for
11 protected birds' nests, are authorized.
12 Griffith maintains the "Habitat Management Plan"presented by Beth Dahl (Dahl's Inc.)
13 mitigates any threat to the pigeons. Griffith is wrong. As an initial matter, Ms. Dahl maintains
14 that"no nests are to be destroyed for the proposed project,"yet identifies only two nesting
15 burrows "located on the northern facing bluff of the Parcel," utterly failing to address the
16 pigeon burrow sites visible at the site of the proposed access road and ecology block wall.
17 Appellant's Ex. 1 at Staff Exhibit No. 21, p. 3.
18 At the hearing and in his briefing below, Griffith attempted to characterize these
19 additional nests as "inactive,"thus warranting no protection. As a factual issue,this assertion
20 was and is strongly disputed and likely false. The Habitat Management Plan is dated October
21 2007 and Ms. Dahl apparently visited the site in September 2007, over one and one-half years
22 ago. On July 28, 2008,the Staff observed "about a dozen or more active Pigeon Guillemot
23 nesting sites in the bluff when posting the public notice." See Appellant's Ex. 1 at Staff Exhibit
24 1,p. 2. Further, Griffith's argument fails as a matter of law because the state has designated the
25 bluff(and thus inactive as well as active nests) as a priority habitat and because state law
26 prohibits the destruction of all protected birds' nests. Thus,the undisputed fact remains that the
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I project will destroy protected nests. For this reason,the project is contrary to the policies of the
2 SMA,particularly as it pertains to shorelines of statewide significance.
3 2. The Project Fails to Preserve the Shoreline's Physical and Aesthetic Qualities
4 Griffith proposes to construct a 25-foot tall ecology block wall directly adjacent to a
5 county road for the purpose of supporting a driveway up an approximately 40-foot tall, nearly
6 vertical, sand bluff that is 37-feet from the Ordinary High Water Mark of Dewatto Bay. See
7 Appellant's Ex. 1 at Staff Exhibit 1,p. 1. A 25-foot concrete wall will drastically change the
8 landscape of Dewatto Bay. The block wall,which will scar the bluff along the Hood Canal
9 Shoreline,will visually impact both the Dewatto Bay area residents and the public that uses the
10 bay. The wall will be seen from across the canal and from miles north up the canal.
11 Griffith attempts to minimize the impact by saying that individuals across the canal
12 would"have to use binoculars"to see the road and the general public"would have no
13 occasion"to view the road because Dewatto Beach Drive dead ends at Griffith's property. But
14 these assertions are disputed as a matter of fact. See Appellant's Ex. 1 at Staff Exhibit 1, p. 5
15 (noting that the block wall "is proposed 37-feet from the OHWM and will presumably be very
16 visible from Dewatto Bay"). Further, Griffith's assertions also fail to address the fact that the
17 project will irreparably scar the sand bluff that lines the Hood Canal Shoreline. Because the
18 state has designated Hood Canal as a"shoreline of statewide significance," such a visual blight
19 should not be approved, especially given the sand bluff serves as a significant nesting ground
20 for a protected shorebird.
21 In his Findings, Conclusions,and Decision,the hearing examiner failed to properly
22 consider the aesthetic impact of the project, concluding that a permit should not be denied on
23 "aesthetics alone." See DOE Ex. 2 at 10. But as demonstrated above denial of the permit
24 would not be justified on aesthetics alone. To the contrary, Griffith proposes to build his
25 driveway through the habitat of a protected shorebird. This fact, combined with aesthetics (as
26
Z The mitigation measures Griffith proposes also fail to address the issue. See Appellant's Ex. 1 at Staff Exhibit
78.
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i
I well as the erosion and right-of-way issues discussed below),demonstrates that the project
2 should be denied.
3 Further,the hearing examiner strains to minimize the aesthetic impact the project will
4 have on the surrounding area. Site photographs submitted by both Mr. Iddings and the
5 Department of Ecology demonstrate that the hearing examiner's statement that the property
6 along Dewatto Drive is"remote and undeveloped" is an understatement. See id. at 8;see also
7 Appellant's Ex. 6;DOE Ex. 5. In addition, the hearing examiner's finding that"there are other
8 driveways going up the bluffs and some homes built on fill forward of the ordinary high water
9 mark"(see DOE Ex. 2 at 8) is a red herring considering that these driveways and homes pre-
1 0 date the Shoreline Master Program and would not be approved today. See Appellant's Ex. 1 at
> > Staff Exhibit 1,p. 1. Indeed,the hearing examiner failed to consider the potential"cumulative
12 impact"that similar projects could have on the area. By permitting this driveway,the SHB
13 paves the way for other similar driving,thus running the risk that remote and undeveloped
14 Dewatto Bay will look like a suburban subdivision.
15 3. The Project Threatens the Stability of the Bluff
16 As noted above,the Dewatto Bay area gets an extraordinary amount of rain and snow.
17 While much of the bluff consists of stable hardpan soil,the portion of the bluff on which
18 Griffith proposes to build consists of soft sand. This is one reason the Pigeons Guillemot prefer
19 to nest in that area. See Appellant's Ex. 1 at Staff Exhibit 78,App.A. As a result of the soft
20 soil,the site suffers some yearly erosion,but the vegetation covering the top of the bank
21 generally protects the bank from completely washing away. See id.,App. B. Should the
22 vegetation be disturbed,however,by Griffith's massive excavation project,continual erosion
23 will occur and could kill most of the clam and oyster beds within the area. See id.
24 The hearing examiner summarily dismissed the public's concerns regarding stormwater
25 control,erosion,and slope stability, finding that"[a]ll of these issues were addressed in detail
26 in several geotechnical reports and subject to peer review by an independent engineering firm."
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I See DOE Ex. 2 at 8 (citing Staff Exhibits 28-34). But the geotechnical reports are
2 fundamentally flawed. See Section II.C,supra. In particular,the reports used erroneous soil
3 parameters for the site and failed to consider that the retaining wall would not have the same
4 soil parameters as the native soils. See Appellant's Ex.2 at 3;Ex. 3 at 3. In addition,the
5 reports failed to propose adequate measures to mitigate problems caused by stormwater runoff
6 and to control erosion. See Appellant's Ex. 2 at 3;Appellant's Ex. 3 at 2-3. Given the
7 proximity of the proposed wall to the public right-of-way as well as to neighboring properties,
8 the problems with the reports are significant. See Ex. 3 at 3.
9 4. Reasonable Alternatives to the Road Were Not Considered
10 The hearing examiner failed to consider that reasonable alternatives for access to the
11 site exist. For example, Griffith could use a stair tower or tram to access the site. See DOE Ex.
12 2 at 5 (noting that"a stair tower or other means would be a much better suited alternative given
13 the unique natural features of the property including: landslide hazard area, shoreline of
14 statewide significance,priority habitat as designated by the Washington State Department of
15 Fish&Wildlife and the presence of a nesting colony of Pigeon Guillemots"). Such alternatives
16 are reasonable even where an individual seeks to construct a residence at the top of a bluff. See
17 Ex. 1 at Staff Exhibit 1,p. 5 (noting that"[t]he applicant indicates that the lot would be
18 unbuildable if a driveway cannot be constructed. Staff disagrees and has seen other examples
19 both in Mason County and other counties where residential construction and use has occurred
20 on sites that are inaccessible by vehicle").
21 Griffith fails to demonstrate that he fully considered alternative methods of accessing
22 the bluff, instead insisting only that vehicular access is a"reasonable"means to access the
23 house. Given that the proposed road will impact protected species and cause serious erosion of
24 the bluff,these assertions are insufficient. Moreover, Griffith's complaint that he has not been
25 able to obtain an easement to his property from his neighbors falls flat considering he
26 repeatedly trespassed over neighboring properties to access his land. See Appellant's Ex. 5.
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I In sum, Griffith's proposed project is wholly inconsistent with the policies of the SMA
2 and the Mason County Comprehensive Plan. The proposed concrete wall and road will
3 irreparably scar the Hood Canal shoreline, thereby sacrificing the long-term beauty of the bluff
4 for the short-term gain of a retirement home and destroying the natural character of the
5 shoreline. Further, the proposal necessarily threatens federally-protected shorebirds and could
6 cause severe erosion to the bluff. For these reasons, Griffith fails to meet the requirements for
7 a substantial use permit.
8 D. The Application Failed to Meet the Requirements for a Conditional Use Permit
9 The Staff determined that Griffith was required to obtain a"conditional use permit"as
10 well as a substantial use permit before commencing project construction. As set forth below,
I 1 Griffith's project fails to meet any of the requirements for a conditional use permit. See MCC
12 7.28.010.
13 1. The Proposed Use Is Not Consistent with the Policies of RCW 90.58.020 and the
14 Master Plan
15 As shown above,the proposed roadway and concrete wall are not consistent with the
16 policies of the SMA and the Mason County Comprehensive Plan. The project fails to protect
17 the state-wide interest in preservation of the Pigeon Guillemot's nesting grounds, fails to
18 preserve the natural character of the shoreline, elevates short-term gain over long-term benefit,
19 and fails to protect the resources and ecology of the shoreline, including protected Pigeon
20 Guillemots and the sand bluff itself.
21 2. The Proposed Use Will Interfere with Normal Public Use of the Shorelines
22 According to the Department of Ecology, Pigeon Guillemots are easily disturbed. See
23 Appellant's Ex. 1 at Staff Exhibit 37; see also Appellant's Ex. 1 at Staff Exhibit 78, App. A.
24 Should construction destroy their nests so that they are no longer able to roost in the bluff, it is
25 highly likely that the birds will not return to the area. Even if Griffith can construct the road
26 and wall without destroying the nests, the birds may not return to nest in a bluff that is used by
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I vehicles. Therefore,the project interferes with ordinary uses of the shoreline, which include
2 bird-watching of this unique species.
3
3. The Proposed Use Is Not Compatible with Other Authorized and Planned Uses
4 While other single-family homes have been built in the Dewatto Bay area, no other
5 property contains a roadway and wall that encroaches on the Pigeon Guillemot habitat. Griffith
6 maintains that all of his neighbors have vehicular access to their homes and that he can
7 construct the house only by building a road. But all pre-existing development in the Dewatto
8 Bayarea re-dates the Shoreline Master Program and according to the Count "would not be
P g g Y
9 permitted today." See Appellant's Ex. 1 at Staff Exhibit 1, p.10. Further, no pre-existing
10 driveway in the area cuts through the sand bluff above Dewatto Beach Drive. All access to the
11 upper portion of the bluff above Dewatto Beach Drive is by stairs or other alternative means.
12 Moreover, Griffith simply has failed to provide any support for his assertion that he
13 would not be able to build without vehicular access. To the contrary, Griffith merely
14 complains generally that"it is not reasonable to request Griffith to examine an array of non-
e g Y q Y
15 vehicular access methods." Appellant's Ex. 1 at Staff Exhibit 79,p. 5. But given the protected
16 status of the Pigeon Guillemots and their nesting grounds as well as the undisputed instability
17 of the slope, Griffith's position should be rejected. Further, as set forth in the expert reports
18 submitted by appellant, it is not clear that it is possible to build the project as designed. See
19 Appellant's Exs. 2-4. Thus,permitting the project is, at best, premature.
20 Finally, Griffith knew he would have difficulty building on the site at the time he
21 purchased the property for less than $100,000 in 2006. He fully knew that there was no
22 drivable access to the upper portion of his property and that building a road would be difficult,
23 expensive, and subject to a strict permitting process. Indeed, a pre-inspection report for the
24 property filed just before the sale closed warns Griffith of these issues. See Appellant Ex. 1 at
25 Staff Exhibit 78,App. D. Furthermore, Griffith bought the property believing that he would be
26 able to acquire an easement from his neighbors to access the upper portion of his property. See
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I Appellant's Ex. 9 at 16:3-8. Had he performed a minimal amount of due diligence,he would
2 have learned that his neighbors were not interested in granting him an easement. See id. at
3 22:15-23:9. The fact that Griffith made a bad decision based on facts that he should have
4 known at the time of his purchase should not trump the policies of the SMA and the regulations
5 governing the issuance of shoreline conditional use permits.
6 4. The Proposed Use Causes Significant Adverse Effects to the Shoreline
7 As shown above,the project will alter the Dewatto Bay landscape and threatens
8 protected Pigeon Guillemots and their habitat. Appellant Ex. I at Staff Exhibit 38 (designating
9 cliffs greater than 25 feet high and occurring below 5000 ft as priority habitat). Further,the
10 project,which will import synthetic materials normally found in suburbia to a remote,rural
I I area,will irreparably scar a shoreline that the state has designated a"shoreline of statewide
12 significance." Finally,the project threatens the stability of the slope,which is prone to
13 landslides. These significant adverse effects militate against project approval.
14 5. The Project Damages the Public Interest
15 As shown in detail above, Griffith's proposed project seriously injures the public
16 interest in protecting the Pigeon Guillemots as well as the physical and aesthetic qualities of the
17 unique Dewatto Bay bluff. Griffith asserts, however,that while the Comprehensive Plan states
18 that"the public's opportunity to enjoy physical and aesthetic qualities of natural shorelines
19 shall be preserved to the greatest extent possible" it also provides that priority should be given
20 to single-family residences. But Griffith misstates this provision. The Comprehensive Plan
21 actually provides that"[a]lterations of the natural condition of the shorelines of the state,in
22 those limited instances when authorized, shall be given priority for single family
23 residences...." See Shoreline Management Plan, chapter 9 at 2;see also RCW 90.58.020.
24 Here,the alteration of the natural condition of the shoreline was not authorized,thus requiring
25 Griffith to seek a conditional use permit and a variance. See Buechel v. State Dept of Ecology,
26 125 Wn.2d 196,209, 884 P.2d 910(1994).
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1 6. Consideration of Cumulative Impacts
2 In his decision,the hearing examiner fails to consider the cumulative impact of
3 additional requests for actions like the project in the Dewatto area as required before a
4 conditional use permit may be issued. See WAC 173-27-160(2) (requiring consideration of
5 whether the"total of the conditional uses [if additional requests for actions were granted]
6 would remain consistent with the policies of RCW 90.58.020 and not produce substantial
7 adverse effects to the shoreline environment"). Had the hearing examiner conducted a
8 `cumulative impacts"analysis as required by the regulations,the project would have been
9 denied.
10 First,the hearing examiner premised his decision in part on the fact that the Pigeon
i l Guillemots can dig new nests if the active nests were destroyed. See DOE Ex. 2 at 7(citing
12 Appellant's Ex. 1 at Staff Exhibit 1). But if the sandy nature of the bluff is destroyed by the
13 construction of multiple retaining walls along Dewatto Drive,alternative nesting sites become
14 greatly reduced. Thus,the decision to permit this project sets a precedent that could result in
15 destruction of the Pigeon Guillemots entire bluff habitat. As noted above,this bluff has been
16 designated a"priority"habitat by the Washington State Department of Fish and Wildlife.
17 Appellant's Ex. 1 at Staff Ex. 38. Second,the cumulative aesthetic impact of multiple artificial
18 retaining walls along the bluff would substantially affect the pristine beauty of the protected
19 Hood Canal Shoreline. Finally,the cumulative effects of multiple projects on slope stability
20 would be substantial. As set forth in Kazan's report,the materials that Griffith proposes to use
21 to build his retaining wall are not typically used as reinforcement for"mechanically stabilized"
22 earth walls. Appellant's Ex. 2. Therefore, multiple driveways would jeopardize the slope.
23 Further,multiple cuts into the bluff would substantially increase the risk of a landslide and thus
24 jeopardize the public right-of-way and neighboring properties.
25 In sum, Griffith's request for a conditional use permit should be denied. Griffith fails to
26 meet any of the requirements for such a permit. Indeed, his proposal to cut a driveway through
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I the nesting grounds of a protected shorebird is concededly unprecedented in the state of
2 Washington and may result in a violation of the federal MBTA. Further,the scar that the
3 project would leave on the bluff of this shorelipe of statewide significance simply is not in the
4 public interest. Finally,the project increases the risk of landslides in an area already prone to
5 erosion and sloughing.
6
7 DATED this 24th day of March, 2009.
8
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11 dMJica'e1`D. Daudt, WSBA#25690
12 Jennifer Rust Murray, WSBA#36983
3600 Fremont Avenue N.
13 Seattle, Washington 98103
Telephone: 206.816.6603
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15 Attorneys for Plaintiffs
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