HomeMy WebLinkAboutBlock Wall for Driveway Support Hearing - BLD Letters / Memos - 3/15/2012 1
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9 MASON COUNTY HEARING EXAMINER
10 EARL IDDINGS,
11 Appellant, Hearing Examiner Case Number:
12 HEX2009-0003 5
V.
13 APPELLANT'S OPPOSITION
MICHAEL GRIFFITH,14 TO MOTION TO DIMSISS
15 Applicant/Respondent.
16
17 Appellant Earl Iddings opposes Respondent Michael Griffith's motion to
18 dismiss.
19 I. Griffith Applied for Project Permits in 2007, and Mason County
20 Approved the Permits in 2009.
21 The project involved in this appeal is a proposed ecology block wall
22 estimated to exceed 45 feet in height, to be located immediately adjacent to
23 Dewatto Beach Drive, which runs along the shoreline of Dewatto Bay. The
24 purpose of the wall is to support a steeply inclined driveway (in excess of 30%
25 i grade) to connect Dewatto Beach Drive to the upland portion of Griffith's
26 waterfront property for a future home site.
TERRELL D1ARSRALL DAUDT&WILLIE PLLC
936 North 34th Street,Suite 400
APPELLANT'S OPPOSITION TO MOTION TO DIMSISS- 1 Seattle,Washington 98103.8869
H EX2009-00035 TEL.206.816.6603,FAX 206.350.3528
www.tmdvAaw.com
I The permits under review in this appeal are building and grading permits,
2 BLD2OO7-00906 and grading permit GRD2OO7-0002. As the numbers assigned to
3 those pen-nits indicate, Griffith filed the permit applications in 2007. In reviewing
4 those pen-nits, Mason County determined that additional permits were required,
5 including a Shoreline Substantial Development and Conditional Use Permit. Mr.
6 Griffith applied for and received the necessary SSD/CUP in 2008, under permit
7 number SHR2OO8-00012. That permit was appealed to the Shorelines Hearings
8 Board, which affirmed the SSD/CUP on June 22, 2009.
9 Having received the SSD/CUP, Griffith then requested that Mason County
10 issue his building and grading permits. Those permits were issued on December
11 3, 2009. In issuing the building and grading permits, Mason County implicitly
12 determined that those,pen-nits complied with the SSD/CUP, because the
13 SSD/CUP was a prerequisite for the building and grading permits. See Twin
14 Bridge Marine Park, L.L.C. v. State of Washington, 162 Wn.2d 825, 839, 175
15 P.3d 1050 (2008).
16 II. Iddings Timely Appealed the Building and Grading Permits,
17 Iddings timely appealed the building and grading permits on December 15,
18 2009.
19 Most of the issues identified in Iddings's appeal relate to the fact that the
20 plans approved by the SDP/CUP materially deviate from the plans approved for
21 the building and grading permit. A copy of Iddings's appeal is attached hereto as
22 Exhibit A.
23 Shortly after the appeal was filed, Mason County "suspended" the permits
24 because the County felt that further review of the location and width of the public
25 right of way was warranted. Copies of the permit files available on Mason
26 County's website are attached hereto as Exhibits B and C. In response to that
TERRELL M ARSHALL DAUDT&W ILLIE PLLC
e 400
APPELLANT'S OPPOSITION TO MOTION TO DIMSISS-2 936le,Was North Washington
9810-886
Seattle,Washington 98103-8869
H EX2009-00035 TEL.206.816.6603•FAX 206.350.3528
www.tmdWaw.com
I review, in 2010 Griffith revised the design in two respects: (1) he moved the wall
2 five feet south, which requires additional excavation (far beyond that allowed by
3 the SDP/CUP), and (2) he removed a proposed drainage ditch that had been
4 previously proposed be to located within the right of way. Iddings's appeal
5 identified both the additional excavation and drainage issues. While two details
6 of Griffith's plans changed in 2010, the fundamental flaws were present in the
7 2009 drawings, and the 2010 changes only made those same flaws worse.
8 During the time that the building and grading permits were suspended,
9 Iddings filed a lawsuit to request a judicial determination of the width of the
10 public right of way on Griffith's property. The superior court issued its decision
11 on the right of way in November 2011, and Mason County then lifted its
12 suspension of the building and grading permits on December 19, 2011. Because
13 Iddings's timely appeal of those same permits had been pending since December
14 2009, Mason County correctly recognized that Iddings had perfected his appeal of
15 the building and grading permits and set this matter for hearing. See Exhibit D
16 attached hereto.
17 III. Griffith's Motion Misstates Several Important Facts.
18 From the outset, Griffith's motion asserts as "facts" several things that are
19 false and have no support. Iddings did not file the January 6, 2012 appeal as
20 Griffith claims at page 2, lines 5-7 of his motion. That appeal was filed by Chris
21 Powell.
22 The building and grading permits have been processed in the same permit
23 files with Mason County since 2007. There was no new permit application by
24 Griffith in 2011. Furthermore, because Griffith was required to obtain an
25 SDP/CUP, his building and grading permits are necessarily tied to all of the
26 earlier designs.
TERRELL MARSHALL DAUDT&WILLIE PLLC
936 North Suite 400
APPELLANT'S OPPOSITION TO MOTION TO DIMSISS-3 Seattle,W shingtorne98103-8 69
HEX2009-00035 TEL.206.816.6603•FAX 206.350.3528
www.tmdvAaw.com
I Griffith's designs have changed several times since 2007, most recently as
2 described above, but those changes did not alleviate the problems identified in
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Iddmgs s appeal. Rather, those change made those problems worse. Griffith's
4 motion utterly fails to explain what changes were made between 2009 and 2011,
5 and this is no accident, because those changes only exacerbated the problems
6 identified by Iddings in 2009.
7 DATED this 15th day of March, 2012.
8 TERR MARSHAL DAUDT
9 & I PLLC
10
11 B : A
c e D. D t, SBA #25690
12 Ema mdaudt@tmdwlaw.com
13 936 orth 34th Street, Suite 400
Seattle, Washington 98103-8869
14 Telephone: (206) 816-6603
15 Facsimile: (206) 350-3528
16 Attorneys for the Plaintiffs
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TERRELL MARSHALL DAUDT&WILLIE PLLC
APPELLANT'S OPPOSITION TO MOTION TO DIMSISS-4 ea North shin street, 103-80o
Seattle,Washington 98103-8869
HEX 2009-0003 5 TEL.206.816.6603•FAX 206.350,3528
www,tmd W aw.com
Exhibit A
FFRREILL 3600 FREMONT Avr,4i.11E: N.
NIA KS I-i A L L SFAI ILF. WASH INGT(.)N 9 103
& DA U DT T: 206.816 h603
PLLC F: 20c;.z 0,3528
Michael Daudt
mike@tmdlegal.com
Our File No. 1026-001.A
Via Email, Facsimile and Hand Delivery
December 15, 2009
Shannon Goudy, Clerk of the Board Barbara Adkins, Program Manager
Board of Mason County Commissioners Community Development Department
411 North Fifth Street 411 North Fifth Street
Shelton, WA 98584 Shelton, WA 98584
Re: Appeal of Permits issued to Michael Griffith on December 3, 2009
BLD2007-00906 and GRD2007-00012
Parcel No. 323283100130
Dear Mses. Goudy and Adkins:
We are attorneys representing Earl Iddings in connection with the Griffith's proposed
development located next to Mr. Iddings' property at the end of Dewatto Beach Drive. Mr.
Iddings hereby appeals to the hearing examiner and requests departmental review of the
above-referenced permits issued to Mr. Griffith on December 3, 2009,
Pursuant to MCC 15.11.020, Mr. Griffith states in support of his appeal:
(1) Decision being appealed: building permit numbers BLD2007-00906 and GRD2007-00012
issued to Mr. Griffith on December 3, 2009.
(II) Name and address of the appellant and his/her interest(s) in the matter: Earl Iddings, 4791
NE North Shore Road, Belfair, WA 98528. Mr. Iddings owns property adjacent to the project
site at end of Dewatto Beach Drive. Mr. Idding's property has been and will be affected by
activities conducted by Mr. Griffith pursuant to the permits.
(III) Specific reasons why the appellant believes the decision to be wrong:
1.) The site plan recently submitted on 11/20/09 was the 3rd revision and illustrates a new
40' road right of way for Dewatto Beach Drive. Under this revision, the overall project
changes in scope far more than 10% and the permit must be resubmitted to all
government agencies for review, including Mason County Planning Department,
Department of Ecology, and also Shorelines Hearings Board. All engineering and
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biologist reports must be redone showing the design changes and project location
changes.
*The majority of the pigeon guillemot nests will now be destroyed as a result of
moving the wall 10' farther to the south. From Vector Engineering report,
"Griffith's Bird Impact Letter states that the fill will be used along the western
portion of the driveway with minimal cut to the vertical slope, but if the right of
way is moved to the south, more substantial cut will be required including
removal of the nesting holes." Now, the new design shows a huge cut with also
a graded slope surface from the toe of the hill to the top of the embankment.
This will ultimately destroy all the nests along this portion of the driveway.
*The height of the wall now increases to a height greater than 45' in order to
successfully access the top of the bank. This also increases the percent grade
needed to reach the top of the bluff as the elevation also increases by nearly 10'
but the horizontal distance stays the same. The project will be closer to a 35%
grade.
2.) There is a huge discrepancy in the recently recorded 40' right of way survey done by
Agate Land Surveying and the documentation given to both public works and the
planning department showing a 60' easement granted by Mrs. Beebe and the Hanson
family in 1957.
*This greatly changes the entire project, more than new design with the 40' right
of way, and will expand the scope of work, project size, and the taking of
guillemot nests from what was stated throughout the permitting processes.
Mason County Planning, Department of Ecology, and the Shorelines Hearings
Board ruled for the approval of a much smaller, less destructive project.
*Every pigeon guillemot nest will now be destroyed along with the natural
overhanging bluff which is the primary habitat for these birds. The project would
ultimately start 30' farther to the south from what was originally permitted. This
would create a cut of significant proportions, potentially 7,000 cubic yards or
more.
*Because the design has been done within the right-of-way there is no room for
a fire truck or other life safety personal to turn around. This could mean the
difference between a life or death situation if a fire truck has to back over 2
miles out of Dewatto Beach Drive. To make things worse, the applicant has
designed a drainage ditch in front of the proposed wall which would further limit
turn around space to under 20'.
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3.) The project has been pieced together to eliminate a storm water design under the
required impervious square feet threshold by the Department of Ecology and no erosion
control measures are in place to protect against erosion during the project.
4.) There is no road access permit granted from public works and therefore there should be
no work being done within the right of way. No permit should have been granted from
the planning department until after approval of a road access permit.
5.) The permit and design does not include any in-water work within the ordinary high
water mark of Hood Canal. Both Mr. Griffith and his neighbor to the east, Mr. Martinez,
hired the contractor to first move the rock bulked farther into the shorelines and import
hundreds of tons of rock to increase their usable land between Dewatto Beach Drive
and the ordinary high water mark of Hood Canal. This is substantially out of scope and
now must be addressed. Mr. Griffith went as far as to remove rocks from his neighbors'
bulk head to build up steps to the beach.
6.) There is no architectural engineering design of the block wall showing how the block
wall is to be built and how the wall is to be interlinked to keep from falling over.
*The wall has no footing to support the weight of the wall. The east end of the wall
will be over 20' blocks high. Each block weighs nearly 4,000 pounds. That is 80,000
pounds covering a surface area of 6 square feet. Ultimately, the wall will settle
within the sand and eventually fall over.
*There is no armoring or protection measures illustrated to prevent the 50' vertical
sand wall from falling on the construction workers below or neighbors accessing
their properties. The embankment has already started to fall as witnessed by Mr.
Allen Borden, Mason County Senior Planner.
*The design has no load calculations for static and seismic conditions of the
remaining bank behind the wall. The proposal is designed to only uphold the backfill
material. If there is an earth quake, the native bank could push the wall over
because the wall is not tied in any way to the ground or the native bank.
*The geotechnical report done by GTL does not mention anything about the seep or
spring coming out of the bank. Because the design does not show calculations to
support the ground water, the material could become over saturated and cause the
wall to blow out.
Both Mason County Department of Planning and Mason County Department of Public Works
overlooked all the recommendations made by both Krazan and Associates and Vector
Engineering. Both agencies were independently hired, unknown to each other, have
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commented how Mr. Griffith's current block wall design will fail, and discussed what else was
needed in order to issue a permit to prevent catastrophic failure. All these recommendations
were ignored.
(IV) The desired outcome or changes to the decision: revoke the existing permits and require
Mr. Griffith to resubmit his redesigned project for SEPA and shorelines review of all permits.
(V) The appeals fee as provided for in the applicable ordinance: the applicable fee for this
appeal is submitted herewith.
For the reasons set forth above, Mr. Griffith also requests departmental review of the permits
pursuant to MCC 15.13.070.
Very truly yours,
TERR RSHALL &
ichael Daudt
cc: Earl Iddings
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Exhibit B
Information for permit-. BL Pare 1 of 10D2007-00906 �
2012 Mason County Property Tax Statements
Pursuant to RCW 84.56.020, I, Elisabeth (Lisa) Frazier, Mason County Treasurer, hereby certify that
2012 tax roll has been completed and is ready for collection beginning March 7th, 2012.
Please note that 2012 tax statements are tentatively scheduled to be mailed out March 16th, 201
GovernmentMASON COUNTY IN`
Washington
r Information Ser%ftes
Mason County Horne Empkqn*M Fom&Sm&mm C*w*Cafto info. caftws
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This information may be outdated and inaccurate
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show items since April 1 st, 1992
I-:rig itonmental Health Please contact the Permit Center (360) 427-9670 ext 352 to verify any
1c°1�t information
This information was last updated: 03/14/2012 at 12:59 pm
Records Building permits are NOT ready to issue until Case Status is APP and an
activity "Approved for Issuance" is listed
Assessor / Information for Permit: DLD2007-001"
Trewasurer Case
BLD2007-00906
Illi )E'rl,ati011 Number
MICHAEL GRIFFITH
Case Status ISS Applicant 21326 NE 161 ST
Parcel 323283100130 WOODINVILLE WA 98077
Number
Project 791 NE DEWATTO BEACH DR TAHUYA
Address
Valuation $ 26,086.30
Description GEO BLOCK WALL FOR DRIVEWAY SUPPPORT
Activities
Date Date Assigned [
Description Assigned Done Status To
Documents Received 01/09/2012 DONE D
An appeal of permits, BLD2007-00906 and GRD2007-00012, has been received. See HEX2012-
00001. The appeal and e-mail to Mr. Griffith are attached to this case. do 1.9.2012
HOLD 01/14/2010 12/19/2011 DONE 7
http:i/www.CO.mason.wa.us/permits/main.php?caseno=BLD2007-00906&case type=13LD 3/15/2012
Information for permit: BLD2007-00906 Page 2 of 10
Alan Tahja engineer of record has submitted information that revises the project design to fit into
wide road easement, but legal issue about road access needs to be resolved.
This 1/14/2010 hold is added to note the concerns of Community Development Planning:
In a Dec. 30, 2009 meeting between Mike Griffith, Barbara Adkins, and myself, Mr. Griffith stated
he may pursue a road easement vacation on the south side of the road as part of the MC Public
road access permit to Dewatto Beach Dr. in order to provide a turnaround for emergency vehicle
With the issue of the road easement width and apparent changes in the wall and road design, I tr
him that he needs to confirm the location of the proposed driveway and block walls in relation to
road easement, have the engineer determine the amount of excavation and embankment of that
proposal at the confirmed location, and submit to Community Development to determine whether
changes in the proposal are greater than ten percent of what was approved in the shoreline cone
use permit. The alert brought out in the Dec. 23, 2009 letter stands, so the burden was on him ar
professionals to show these determinations and how they fit in the 40-ft. wide and/or 60-ft. wide r
easements.
HOLD 11/01/2010 12/19/2011 DONE T'
Temporary Restraining Order issued November 1, 2010 by Judge Murphy in Thurston County
preventing County from issue any permits to Mr. Griffith.
HOLD 12/19/2011 12/19/2011 DONE T'
REPRINT ALL CONDITIONS, ISSUE SUSPENDED PERMIT AS NEW.
Issue Building Permit 12/19/2011 DONE T'
Print Inspection Card 12/19/2011 DONE T
HOLD 12/11/2009 12/16/2011 DONE D
BUILDING DEPT. HAS SUSPENDED PERMIT UNTIL ALL ISSUES CONCERNING ROAD ACC
AND CONSTRUCTION PLANS ARE RESOLVED. A copy of the notice, dated 12.6.2009 is attac
Also refer ro BCC2009-00184. 12.11.2009: Notified owner that a road access permit shall be req
and work on projects shall cease until the road access permit is obtained. Survey recorded unde
AF#1948874 identifies Dewatto Beach Drive extending entire length of property to corner.
On 12.16.2011 DC was notified by County attorney, Mr. Whitehead, through a forwarded voice n
message from DCD Director Adkins, that the matter has been resolved and that the Griffith shou
allowed to continue. Notified Mr. Griffith that revised plans can be issued. DC 12.19.2011
Letter attached. See 03/25/2011 B,
documents
lit tp:11/\vkv\v.Co.mason.wa.us/permitshnain.php?caseno=B LD2007-00906&case type=B l_,D 3/15/2012
Information for permit: BLD2007-00906 Page 3 of 10
Email received March 25, 2011 from Mike Griffith indicates that he was not successful in request
that the judge provide temporary relief to the restraining order that places his building permits on
A trial is scheduled for this matter in July. Email attached.
Building Review Revision12/15/2009 10/28/2010 DONE D
12.16.2009: An e-mail requesting addition information was delivered to Mr. G. A copy of the e-m;
attached to this case.
2/26/2010: In December 2010 the building official requested that the plan review staff suspend re
of any construction plans attributed to the retaining wall system until the road access issue is res
There is a strong possibility that building plans may need to be revised when/if Public Works app
is obtained. This action added 2.26.2010 by DC
10.28.2010: Revised plan #5 dated 3/2010, approved subject to approval of building official and
planning directors.
HOLD 05/12/2010 10/28/2010 DONE D
VERIFY THAT ROAD ACCESS IS APPROVED BY PUBLIC WORKS AND THAT APPROVED F
ACCESS PLAN IS CONSISTENT WITH PROPOSED CONSTRUCTION PLANS.
RAP2010-00127 approved by Public Works 10.20.2010
Letter attached. See 10/21/2010 DONE D
documents
RAP approved. RAP documents attached to this case
Plan Revisions 03/29/2010 DONE D
Submitted
Received revised plans with updated easement width
Letter attached. See 03/02/2010 DONE D
documents
Letter prepared by PW, mailed 3,2.2010 to owner is attached to this case. RAP denied.
Letter attached. See 01/08/2010 DONE D
documents
An e-mail to Ultrablock, the wall system proposed for the project, is attached to this case.
lhttp:'' masun.wa.us/permits/main.plip?caseno=BLD2007-00906&case type=BLD 3/15/2012
I
Information for permit: BLD2007-00906 Page 4 of 10
Letter attached. See 12/30/2009 DONE D
documents
Documents attached including geo report, topo and survey received from neighbor 12.29.2009
Letter attached. See 12/22/2009 DONE D
documents
E-mail received from neighbor attorney requesting a copy of plans received on 12.21.2009. Notif
attorney that request must be received through a public records request. The e-mail, containing
request is attached to this case.
Documents Received 12/21/2009 DONE T'
DOCUMENTS RECEIVED FROM ALAN TAHUYA ROUTED TO DEBBRA COKER.
Letter attached. See 12/16/2009 DONE D
documents
Notice of permit suspension was prepared for mail. the letter will be sent certified and has been
via e-mail.
Pre-Site Inpection 12/16/2009 12/16/2009 DONE TFR TI
PHOTOED SITE STOP WORK ON 12/10/09 BY ALAN BORDEN STILL POSTED.
Miscellaneous Action 12/15/2009 D
The e-mail is attached to this case.
Per Tahja special inspections to be performed as follows:
1) preparation for foundation blocks
2) inspect at 4-6 ft ht to verify fabric installation
3) at highest elevation of wall system and cut slopes being completed and drainage features inst
Will coordinate with Geologist Cushman. The e-mail is attached to this case.
Issed in Error-Change 12/15/2009 DONE M
Status
Upon an investigation of this permit on 12-11-09, file status is required to be changed. The follovti
cicumstances cause permit# BLD 2007-00906 & GRID 2007-00007 to be suspended in accordar
IBC 105.6:
#1 ) A surveyor's report#1948874, vol.36 pg.56 depicts Dewatto Beach Dr. (County ROW) to rur
entire length of the property which requires a road access permit to be obtained prior to issuance
http://www.Co.mason.wa.us/permits/main.php?caseno=BLD2007-00906&case type=BLD 3/15/2012
Information for permit: BLD2007-00906 Page 5 of 10
permit. This was not shown on the engineers drawings and therefore staff determined a Road Ac
Permit (RAP)was not required at time of application.
#2.) When the variance for a zero setback from the ROW was applied for the applicant had the
drawings revised. These revisions were not received by the building dept. section of DCD. No re,
has been conducted for the changes to the approved plans.
#3.) Spoke to applicant in detail about theses specific requirements to let him know he could not
continue until we receive the needed information from the engineer of record. Debbera C. is in
comunication with the engineer to gather all needed documentation/construction details and mak
coreections to the approved plans.
#4.) Told owner that the plans that his contractor has are not valid because the information conte
on them is incorrect. Informed him to resubmit his changes for approval and he said he would ha
engineer work directly with our plans examiner(Debbera) to get all the needed information. Own
stressed the importance of continuing with the project because of time situation. I assured him w
would do the best we could but work must stop until we receive an approved RAP and the appro
plans are corrected.
12-14-09 Mec
Documents Received 12/15/2009 DONE M
An appeal has been filed by Earl Idings on this permit:
See HEX 2009-00035
12-15-09, Mec
Plan Revisions 12/15/2009 DONE D
Submitted
Received revised plans, referencing current plans. An e-mail requesting additional information is
attached along the notice of permit suspension
Issue Building Permit 12/03/2009 DONE G
Print Inspection Card 12/03/2009 DONE G
Planning Review 05/24/2007 12/01/2009 DONE KJM A
6/22/2009 Shoreline permit approved by HEX and SHB. AHB
11-3-2008 KJM: HEX approved Shoreline Permits and Variance on 10-22-2008. Waiting for DOE
approval or denial of the Conditional Use Permit. 21-day DOE appeal period ends on 11/20/200E
Requires Shoreline Substantial Development Permit, Shoreline Conditional Use Permit, Resourc
Ordinance Variance and Development Regulations Variance. Hold for HEX approval.
http://www.co.mason.wa.us/permits/main.php?caseno=BLD2007-00906&case_type=Bl.,D 3/15/2012
Information for permit: BLD2007-00906 Page 6 of 10
Building Plan Review 05/24/2007 03/03/2009 DONE R
To ARC with grading permit review complete sent to case manager 3-3-09 RTB
Planning Req. for More 11/14/2008 DONE K.
Info
Mason County Hearing Examiner approved a development regulations variance for a zero (0) foc
setback from the county right-of-way to construct a 25 tall ecology block wall. Given the close pri
to the county right-of-way a surveyed site plan, including location of all public and private easemi
(i.e. utilities) in relation to the proposed project shall be provided to the county.
A Road Access Permit (RAP) may be required from the Department of Public Works if the survey
shows the proposed driveway extending from any portion of the county road right-of-way.
Should you have any questions, please do not hesitate to contact me.
Letter attached. See 01/30/2008 DONE K.
documents
Letter requesting all additional permits attached as document in Activity.
Telephone Call 01/28/2008 DONE K.
Spoke with Mike Griffith regarding necessary permits. Will send letter requesting permit applicatio
associated fees and applicable regulations/policies that must be addressed prior to a public hear
Hearing will be scheduled once all applications/fees have been submitted.
Meeting 01/23/2008 DONE K•
Met with Mike Griffith, DOE, WDF&W, KJM and Calvin & Mary Beth Dahl (Griffith's consultants) c
to discuss permit issues.
Application Received 05/24/2007 N
Fee Type Amount Due Amount Paid
Building Permit Fee $ 349.25 $ 349.25
Plan Check Fee $ 227.01 $ 227.01
Additional Plan Check Fee $ 219.00 $ 219.00
Address Fee $ 154.00 $ 154.00
http://www.Co.mason.wa.us/pennits/main.php?caservo=BLD2007-00906&case type=BI-D 3/15/2012
hil'ormation for permit: BLD2007-00906 Page 7 of 10
Building Permit Fee $ 62.20 $ 62.20
Building State Fee $ 4.50 $ 4.50
Total Fees: $ 1,015.96 $ 1,015.96
Amount Outstanding: $ 0.00
Erosion Protection
Prior to final approval, all upland areas disturbed or newly created by construction activities shal
seeded, vegetated or given an equivalent type of erosion protection (silt fencing or straw mattinc
X
Shoreline Management Act
The proposed project must be consistent with all applicable policies and other provisions of the
Shoreline Management Act, its rules, and the Mason County Shoreline Master
Program.X
All Necessary Permit Required
All other necessary permits from Mason County, Washington State and/or Federal Agencies tha
required for this proposed development and construction must be obtained PRIOR TO SAME
DEVELOPMENT AND CONSTRUCTION. X
RCW 18.27
Contractor registration laws are governed under RCW 18.27 and enforced by the WA State Dep
Labor and Industries, Contractor Compliance Division. There are potential risks and monetary
liabilities to the homeowner for using an unregistered contractor. Further information can be obtz
at 1-800-647-0982. The person signing this condition is either the homeowner, agent for the owr
or a registered contractor according to WA state law. X
SHORELINE PERMIT CONDITIONS
Hearing Examiner SHR2008-00012 & DDR2008-00091 Decision Conditions: 1. Staff shall consr
with the U.S. Dept. of Fish and Wildlife to determine if migratory bird permits are available for pri
construction projects. If so, the Applicant shall either acquire approval of such a permit or a writt(
confirmation from the U.S. Dept. of Fish and Wildlife that a permit is not required for the propose
development. The permit or confirmation shall be acquired prior to any construction activities on
site. X 2. The project shall comply with all proposed mitigation
measures identified in the habitat management plan and the geotechnical reports prepared for tl
proposal. One revision to the monitoring plan is that the Director of the Mason County Departme
Community Development or his/her designee shall require the annual reporting of the monitorinc
plan for five years after constuction is commenced. If the proposal and/or subsequent use of the
proposal is found to adversely affect the Pigeon Guillemots, the Director may impose additional
reasonable mitigation measures. All mitigation and monitoring shall be subject to the approval of
Director of the Mason County Department of Community Development, or his/her designee.
X 3. All construction shall comply with all Mason County
stormwater control regulations. X 4. No construction st
occur during the nesting season, April through August, or any time the Pigeon Guillemots are
present. X 5. Prior to construction the Applicants shall acquire appr
from Mason County staff for an erosion control plan. Removal of vegetation shall be minimized
much as possible and replanting shall be as directed by Mason County staff. X 6. All
construction materials shall be properly disposed. X 7. No Pigeon
Guillemots, their eggs or their active nests shall be damaged or harmed during the construction
process. X
GRADING PERMIT CONDITIONS
This project is approved subject to the completion of all grading requirements specified in the
approved plans and conditions of permit number GRD2007-00012, including but not limited to,
inspection reports prepared and submitted by the engineer of record, Allan Tahja verifying that a
http://ww\a,.co.mason.wa.us/permits/main.php?caseno=BLD2007-00906&case_type=BLD 3/15/2012
Information for permit: 13LD2007-00906 Page 8 of 10
grading activities have been completed in accordance to engineer's specifications.
X
SCOPE OF PROJECT
This project is approved in accordance to construction plans for a retaining wall system to suppc
driveway accessing future development, identified as revision#5, dated 3/2010 and conditions
attached to this permit. All modifications shall be submitted to and approved by the Mason Coun
Building Department prior to making changes. X
ROAD ACCESS APPROVAL
This permit is approved subject to the conditions of approval for Road Access Permit number
RAP2010-00127. A copy of the approval documents, designating the drainage ditch in front of tl-
retaining wall deleted. are attached to the approved construction plans.
X
SURFACE WATER CONTROL
PROVSIONS SHALL BE MADE SO THAT ALL SURFACE WATER AND POTENTIAL RUNOFF
WILL BE CONTROLLED ON SITE AND SHALL NOT ADVERSLY AFFECT ANY ADJACENT
PROPERTIES NOR INCREASE THE VELOCITY FLOW ENTERING OR ABUTTING TO ANY
STATE OR COUNTY CULVERTING/DITCHING SYSTEM OR ROAD WAY.
X
SAFEGUARDS DURING CONSTRUCTION
Waste materials shall be removed in a manner which prevents injury or damage to persons,
adjoining properties and public-rights-of-way. Cut slopes shall not be steeper than one-unit vertic
two units horizontal (50% slope) unless determined to be stable by the licensed geologist or
engineer of record as evidenced by a written report delivered to the Mason County Building
Department. Sanitary facilities shall be provided during construction activities.
X
PLANS REQUIRED ON SITE
All approved plans are required to be on-site for inspection purposes. If an inspection is called fc
and plans are not available on site, then approval will not be granted. In addition, a re-inspection
(refer to current fee schedule, minimum 1 hour)will be charged and must be collected by the
Building Department prior to any further inspections being performed or approvals granted.
X
ADDRESS / ROAD SIGNING
Owner/Agent is responsible to post the assigned address and/or purchase and post private rot
signs in accordance with Mason County Title 14.28. X
FILL
THE FOUNDATION SYSTEM SHALL BE PLACED ON UNDISTURBED, NATIVE SOIL.
X
SITE PLAN REQUIRED ON SITE
The"approved" site plan is required to be on-site for inspection purposes. If an inspection is
requested and the "approved" site plan is not on site, then approval will not be granted. In additic
re-inspection fee (refer to current fee schedule, minimum 1 hour) will be charged and shall be
collected by the Building Department prior to any further inspections being performed or approve
granted. X
STRUCTURAL OBSERVATION
A structural observation report, as defined in Chapter 17 of the International Code, shall be prov
to the Mason County Building Department. Reports shall be prepared by the engineer of record
responsible for the structural design or another engineer or architect designated by the engineer
record. Reports shall be submitted to the Mason County Building Department within 2 weeks
following each structural observation. A final observation report shall be submitted prior to the fir
inspection of the structure. Written statements shall indicate the permit number, type of inspectic
and identify any reported deficiencies. Structural observation is defined as the visual observatior
the structural system by a registered design professional for general conformance to the approve
Imp: 13LD2007-00906&ease_typc=13LD 3/15/2012
Iniornuation for permit: BLD2007-00906 Page 9 of 10
conformance to the approved construction documents at significant construction stages and at tl
completion of the structural systern. The engineer of record. Alan Tahja, Engineering, INC. has
provided a schedule of of inspections as follows: 1) Inspect the footing area for concrete and
reinforcement installation. 2) Weekly inspections of work in progress to verify progress is consist
with design specifications. Inspection reports shall verify that installation of the wall system and
conditions conform with design specifications including, but not limited to proper compaction, ge
installation, verify adequate drainage, installation of drainage filter fabric, and drainage material.
Design changes and/or modifications recognized and approved by the the engineer of record du
construction shall be identified in written inspection reports. Inspection reports will be submitted
the Mason County Building Department, PO Box 186, Shelton, WA 98584 or via e-mail to
DLC@co.mason.wa.us. X
ENGINEERING OR ARCHITECTURE
Any changes in proposed construction shall be reviewed by the engineer or architect of record a
submitted in writing to the Mason County Building Department prior to construction. All engineer
and/or architectural documents are a part of the approved set of plans and shall remain attache(
thereto. If documents are removed, approval will not be granted. In addition, a re-inspection fee
(refer to current fee schedule, minimum 1 hour)will be charged and shall be collected by the
Building Department prior to any further inspections being performed or approvals granted.
X
ALL CONSTRUCTION
All construction must meet or exceed all local ordinances and the international codes requiremei
as adopted and amended by Mason County and the State of Washington. Occupancy is limited
the approved and permitted classification. Any non-approved change of use or occupancy woulc
result in permit revocation. X
MCPW Development Requirements
Provisions for surface/subsurface drainage control must be implemented with new construction
development on site and MUST NOT adversely impact adjacent parcels. Under the requirement
Mason County Stormwater Ordinance, either private ditches and drains will meet requirements c
stormwater ordinance or prior approval will be granted to use an existing utility and drainage
easement dedicated for that specific purpose. For further information regarding this ordinance ai
the REQUIREMENT to obtain an ACCESS PERMIT for the installation/construction of a drivewa
access connecting from a Mason County Road, Contact the Mason County Public Works
Department prior to construction at Ext 450. For any construction which is proposed to be locate
within 25' of a Mason County road right of way, it is suggested to contact that office to review fut
planned work which may affect your project. X _
CHANGES TO APPROVED PLANS
All changes to "approved" building plans that effect compliance with the international codes as
amended and adopted, or any other Mason County ordinance or regulation, must be reviewed a
approved by Mason County prior to construction. X
FIELD CORRECT
CONSTRUCTION PROCESS TO BE FIELD CORRECTED AS REQUIRED PER MASON COUI
BUILDING DEPARTMENT AND THE ADOPTED BUILDING CODE. The construction of the
permitted project is subject to inspections by the Mason County Building Department. All
construction must be in conformance with the international codes as amended and adopted by
Mason County. Any corrections, changes or alterations required by a Mason County Building
Inspector shall be made prior to requesting additional inspections.
X
Property Lines
All property lines shall be clearly identified at the time of foundation inspection.
X
FINAL INSPECTION REQUIRED
All building permits shall have a final inspection performed and approved by the Mason County
Building Department prior to permit expiration. The failure to request a final inspection or to obta
approval will be documented in the legal property records on file with Mason County as being nc
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Information for permit: BLD2007-00906 Page 10 of 10
compliant with Mason County ordinances and building regulations.
X
PERMIT EXPIRATION
All permits expire 180 days after permit issuance, or 180 days after the last inspection activity is
performed. The Building Official may extend the time for action for a period not exceeding 180 d
upon the receipt of a written extension request indicating that circumstances beyond the control
the permit holder have prevented action from being taken. No more than one extension may be
granted.
SPECIAL INSP. BY GEOLOGIST
An inspection performed by an authorized representative of the geologist, Geotechnical Testing
Laboratory of Olympia, Wa, shall be completed on-site prior to the footing installation to verify th
earthwork and preparation of the foundation comply with, and are consistent with the most curre
Geotechnical report. In addition inspection reports shall be required to verify that cuts do not exc
recommendations, fill is properly installed and compacted, drainage systems are installed as
recommended, and erosion control measures are completed as recommended prepared by a
representative of the geologist, their authorized representative, or engineer of record shall be
required to verify that erosion control, drainage and final work is completed in accordance to the
Geotechnical report or assessment recommendations. Design changes and/or modifications
recognized and approved by the Geotechnical Testing Laboratory during construction shall be
identified in written inspection reports. Reports shall be submitted to the Mason County Building
Dept.; PO Box 186, Shelton: WA 98584, or via e-mail at: DLC@co.mason.wa.us, prior to the foo
and final inspection of this project. Inspection reports shall also be available on-site for inspectio
X
This information was last updated: 03/14/2012 at 12:59 pm
Information may be inaccurate and outdated.
Please refer to the Permit Center to verify any information
http://www.co.mason.wa.us/permits/main.php'?caseno=BLD2007-00906&case type=BLD 3/15/2012
Exhibit C
Information for permit: GRD2007-00012 Page 1 of 6
2012 Mason County Property Tax Statements
Pursuant to RCW 84.56.020, I, Elisabeth (Lisa) Frazier, Mason County Treasurer, hereby certify that the
2012 tax roll has been completed and is ready for collection beginning March 7th, 2012.
Please note that 2012 tax statements are tentatively scheduled to be mailed out March 16th, 2012.
Some information / cases may not be displayed
This information may be outdated and inaccurate
Information is only for the unincoporated areas of Mason County and may only
show items since April 1 st, 1992
Please contact the Permit Center (360) 427-9670 ext 352 to verify any
information
This information was last updated: 03/15/2012 at 8:58 am
Building permits are NOT ready to issue until Case Status is APP and an
activity "Approved for Issuance" is listed
information for Permit: GRD2007-00012
Case GRD2007-00012
Number MICHAEL GRIFFITH
Case Status ISS Applicant 21326 NE 161ST
Parcel 323283100130 WOODINVILLE WA 98077
Number
Project 791 NE DEWATTO BEACH DR TAHUYA
Address
Valuation $ 0.00
Description GRADING FOR GEO BLOCK WALL FOR DRIVEWAY SUPPORT
Activities
Date Date Assigned Done
Description Assigned Done Status To By
Documents Received 01/09/2012 DONE DLC
An appeal of permits, BLD2007-00906 and GRD2007-00012, has been received. See HEX2012-
00001. The appeal and e-mail to Mr. Griffith are attached to this case. do 1.9.2012
HOLD 12/19/2011 12/19/2011 DONE TW
REPRINT ALL CONDITIONS, ISSUE SUSPENDED PERMIT AS NEW.
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Information for pennit: GRD2007-00012 Page 2 of 6
Issue Grading Permit 12/19/2011 DONE TW
Print Inspection Card 12/19/2011 DONE TW
HOLD 12/11/2009 12/16/2011 DONE DLC
BUILDING DEPT. HAS SUSPENDED PERMIT UNTIL ALL ISSUES CONCERNING ROAD ACCESS
AND CONSTRUCTION PLANS ARE RESOLVED. A copy of the notice, dated 12.6.2009 is attached.
Also refer ro BCC2009-00184.
12.11.2009: Notified owner that a road access permit shall be required and work on projects shall
cease until the road access permit is obtained. Survey recorded under AF#1948874 identifies Dewatto
Beach Drive extending entire length of property to corner. DC 12/11/2009
On 12.16.2011 DC was notified by County attorney, Mr.Whitehead,through a forwarded voice mail
message from DCD Director Adkins, that the matter has been resolved and that the Griffith should be
allowed to continue. Notified Mr. Griffith that revised plans can be issued. DC 12.19.2011
Documents Received 11/28/2011 DONE DLC
November 18,2011 Superior Court letter opinion, see document attached.
Miscellaneous Action 10/28/2010 10/28/2010 DONE DLC
bASED UPON REVISED PLAN #5, DATED 3/2010 GRADING ACTIVITY 928 CUBIC YARDS.
Valuation revised from 620 to corrected amount as a result. do 10.28.2010
Building Review 10/28/2010 10/28/2010 DONE DLC
Revised plans prepared for issue pending approval of Bldg Official and Planning Director.
Letter attached. See 12/30/2009 DONE DLC
documents
ATTACHED DOCUMENTS TO THIS CASE INCLUDING GEO REPORT, TOPO AND SURVEY
RECEIVED FROM NEIGHBOR 12.29.2009
Letter attached. See 12/16/2009 DONE DLC
documents
A notice of permit suspension has been prepared for mail to be delivered standard and certified mail.
The notice was also attached to an e-mail that also contained a request for additional information to
review plans. Both documents are attached. dc12.16.2009
Pre-Site Inspection 12/16/2009 12/16/2009 DONE TFR TFR
http:,/www.co.mason.wa.us/permits/main.php`1caservo=GRD2007-00012&case_type=GRD 3/15/2012
Information for permit: GRD2007-00012 Page 3 of 6
PHOTOED SITE STOP WORKED BY ALAN BORDEN ON 12/10/09. STILL POSTED,
Miscellaneous Action 12/15/2009 12/15/2009 DONE DLC
Per Tahja special inspections to be performed as follows:
1) preparation for foundation blocks
2) inspect at 4-6 ft ht to verify fabric installation
3) at highest elevation of wall system and cut slopes being completed and drainage features installed.
Will coordinate with Geologist Cushman. The e-mail is attached to this case.
Issued in Error-Change 12/15/2009 DONE MEC
Status
Upon an investigation of this permit on 12-11-09, file status is required to be changed. The following
cicumstances cause permit# BLD 2007-00906&GRID 2007-00007 to be suspended in accordance to
IBC 105.6:
#1.)A surveyor's report#1948874, vol.36 pg.56 depicts Dewatto Beach Dr. (County ROW)to run the
entire length of the property which requires a road access permit to be obtained prior to issuance of the
permit. This was not shown on the engineers drawings and therefore staff determined a Road Access
Permit(RAP)was not required at time of application.
#2 )When the variance for a zero setback from the ROW was applied for the applicant had the
drawings revised. These revisions were not received by the building dept. section of DCD. No review
has been conducted for the changes to the approved plans.
#3.) Spoke to applicant in detail about theses specific requirements to let him know he could not
continue until we receive the needed information from the engineer of record. Debbera C. is in
comunication with the engineer to gather all needed documentation/construction details and make
coreections to the approved plans.
#4.)Told owner that the plans that his contractor has are not valid because the information contained
on them is incorrect. Informed him to resubmit his changes for approval and he said he would have his
engineer work directly with our plans examiner(Debbera)to get all the needed information. Owner
stressed the importance of continuing with the project because of time situation. I assured him we
would do the best we could but work must stop until we receive an approved RAP and the approved
plans are corrected.
12.-14-09 Mec
Documents Received 12/15/2009 DONE MEC
An appeal has been filed by Earl Idings on this permit:
See HEX 2009-00035
12-15-09, Mec
Issue Grading Permit 12/03/2009 DONE GMM
Print Inspection Card 12/03/2009 DONE GMM
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Information for permit: GRD2007-00012 Page 4 of 6
Building Review 05/24/2007 12/02/2009 DONE DLC
Planning Review 05/24/2007 12/01/2009 DONE CMM AHB
Shoreline permit approved by HEX and SHB 6/2212009.AHB
Site visit 6/8/07 by CMM. Geo Tech sent for review 6/25/07. SEPA needs to be posted. SSDP require
with grading in excess of 250 cubic yards per WDOE SEPA comment letter. Geo Tech review letter
sent back to applicant for revision by his consulting engineer(8/13/07).
Telephone Call 01/28/2008 DONE KJM
Spoke with Mike Griffith regarding necessary permits. Will send letter requesting permit applications,
associated fees and applicable regulations/policies that must be addressed prior to a public hearing.
Hearing will be scheduled once all applications/fees have been submitted.
Letter of Incompleteness 07/18/2007 DONE CMM CMM
A Shoreline Substantial Development Permit/Conditional Use Permit applications will need to be
submitted to the County with the associated fees paid by the Applicant(please see attached comment
letter from WDOE). Conditional Use is required for non-water dependent upland landfill. A Hearing
Examiner fee will also need to be paid by the Applicant, and a date for the public hearing scheduled by
the Planning Department.
Application Received NJP
Fee Type Amount Due Amount Paid
Geotechnical Asses. Report $ 400.00 $ 400.00
Rev
Geotechnical Asses. Report $ 240.00 $ 240.00
Rev
Grading Permit Fee $ 220.31 $ 220.31
Planning Review Fee $ 170.00 $ 170.00
Geotechnical Asses. Report $ 160.00 $ 160.00
Rev
Grading Permit Fee $ 81.45 $ 81.45
Geotechnical Asses. Report $ 80.00 $ 80.00
Rev
Building Plan Check Fee $ 73.00 $ 73.00
Grading Plan Check Fee $ 57.41 $ 57.41
Building State Fee $ 4.50 $ 4.50
Total Fees: $ 1,486.67 $ 1,486.67
Amount Outstanding: $ 0.00
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_ 2 7
Information Ior permrt: GKD2007 OOOL Pale 5 of 6
PERMIT LIMITATION
This permit has been reviewed and approved for the grading and retaining wall construction shown
on the application. No vesting or explicit approval is granted for any other development that may
appear on the site plan. All additional development must obtain required permits and approval
through all County and State agencies.X
SHORELINE PERMIT CONDITIONS
Hearing Examiner SHR2008-00012 & DDR2008-00091 Decision Conditions: 1. Staff shall consult
with the U.S. Dept. of Fish and Wildlife to determine if migratory bird permits are available for private
construction projects. If so, the Applicant shall either acquire approval of such a permit or a written
confirmation from the U.S. Dept. of Fish and Wildlife that a permit is not required for the proposed
development. The permit or confirmation shall be acquired prior to any construction activities on the
site. X 2. The project shall comply with all proposed mitigation
measures identified in the habitat management plan and the geotechnical reports prepared for this
proposal. One revision to the monitoring plan is that the Director of the Mason County Department of
Community Development or his/her designee shall require the annual reporting of the monitoring
plan for five years after constuction is cornmenced. If the proposal and/or subsequent use of the
proposal is found to adversely affect the Pigeon Guillemots,the Director may impose additional
reasonable mitigation measures. All mitigation and monitoring shall be subject to the approval of the
Director of the Mason County Department of Community Development, or his/her designee.
X___...______ _ 3.All construction shall comply with all Mason County
stormwater control regulations. X 4. No construction shall
occur during the nesting season, April through August, or any time the Pigeon Guillemots are
present. X 5. Prior to construction the Applicants shall acquire approval
from Mason County staff for an erosion control plan. Removal of vegetation shall be minimized as
much as possible and replanting shall be as directed by Mason County staff.X 6. All
construction materials shall be properly disposed. 7. No Pigeon Guillemots,their eggs or their active
nests shall be damaged or harmed during the construction process.X _
SAFEGUARDS DURING CONSTRUCTION
Waste materials shall be rernoved in a manner which prevents injury or damage to persons,
adjoining properties and public-rights-of-way. Cut slopes shall not be steeper than one-unit vertical in
two units horizontal (50% slope) unless determined to be stable by the licensed geologist or
engineer of record as evidenced by a written report delivered to the Mason County Building
Department. Sanitary facilities shall be provided during construction activities.
X
Access Roads
Access Roads to the site must not be degraded as a result of work.X
Erosion Protection
All upland areas disturbed or newly created by construction activities shall be seeded,vegetated or
given some other equivalent type of protection against erosion.
X
Shoreline Management Act
'The proposed project must be consistent with all applicable policies and other provisions of the
Shoreline Management Act, its rules, and the Mason County Shoreline Master Program.
X
Site Plan and Topographic Section
Approved per site plan and topographic cross-section. X
FILL COMPACTION
All fills shall be compacted to a minimum of 90 percent of maximum
density.X___ �_,
CHAPTER 14.44
ALL.CLEARING,CUTTING, GRADING, EXCAVATING, TERRACING, FILLING AND SIMILIAR
WORK WILL BE REGULATED BY THE REQUIREMENTS PURSUANT TO THE MASON COUNTY
littp:''vv,ww.co.mason.v�ia.us/permits/main.plip?caseno=GRD2007-00012&case type=G}ZD 3/15/2012
lnl'ormation for permit: GRD2007-00012 Page 6 of 6
GRADING PERMIT STANDARDS ADOPTED BY RESOLUTION 141-96 and MASON COUNTY
CODE, TITLE 14, CHAPTER 14.44. X
SURFACE WATER CONTROL
ALL SURFACE WATER AND POTENTIAL RUNOFF WILL BE CONTROLLED ON SITE AND
SHALL NOT ADVERSLY AFFECT ANY ADJACENT PROPERTIES NOR INCREASE THE
VELOCITY FLOW ENTERING OR ABUTTING TO ANY STATE OR COUNTY
CULVERTING/DITCHING SYSTEM OR ROAD WAYx
INSPECTION REPORTS
The owner/applicant shall provide to Mason County inspection reports prepared by the engineer
record,Alan Thaja, complying with the requirements as noted in Chapter 14.44, section 14.44.220
through 14.44.230 prior to contacting Mason County for inspections. A copy of the referenced code
section(s)are attached to the approved documents/plans. No additional development permits will be
approved or issued by this department if associated with the grading activities.
X
SETBACKS
Cut and fill slopes shall be setback from site boundaries in accordance with Section 14.44.190.
X
ADDRESS / ROAD SIGNING
Owner/Agent is responsible to post the assigned address and/or purchase and post private road
signs in accordance with Mason County Title 14.28. X
This information was last updated: 03/15/2012 at 8:58 am
Information may be inaccurate and outdated.
Please refer to the Permit Center to verify any information
httix, \y'%%,w.Co.mason.",a.usipermits/main.plhp?caseno=GRD2007-00012&case_type=GRD 3/15/2012
Exhibit D
ON
C MASON COUNTY
Shelton (360)427-9670
DEPARTMENT F COMMUNITY DEVELOPMENT
DEP 0 C Belfair (360) 275-4467
Planning
Mason County Bldg. 1 411 N.5th Elma (360)482-5269
_i P.O.Box 279 Shelton,WA 98584
/85f
January 11, 2012
Michael D. Daudt, Esquire
TERRELL, MARSHALL, DAUDT&WILLIE PLLC
936 N. 341h Street, Suite 400
Seattle, WA 98103
Re: Appeal of Permits
BLD2007-00906/G RD2007-00012
Dear Mr. Daudt,
I received your letter dated January 9, 2011 on January 6, 2012 representing an appeal
to the above-referenced permits by your client, Mr. Chris Powell. The issuance of this
permit occurred on December 19, 2011 and the appropriate 14-day appeal period as
outlined under MCC Title 15,Section 15.11.020 expired on January 2, 2012. Therefore,
we cannot accept your letter as a valid appeal and will not be scheduling it for hearing. I
have enclosed a Request for Refund for you to complete so that we may refund you
fees.
Please note, however,that your original appeal filed on December 15, 2009 was timely
and, by our records, is still an open case. Therefore, we have scheduled the 2009 appeal
(HEX2009-00035) for a public hearing on March 20, 2012 at 1:00 p.m. before the Mason
County Hearings Examiner.
If you have any questions or comments at this time, please do not hesitate to reach me
at (360) 427-9670, ext. 286 or at BarbarA@co.mason.wa.us.
Sin ely,
Barbara A. Adkins, AICP
Director
1
BEFORE THE HEARING EXAMINER FOR MASON COUNTY
2
3
4 RE: Earl Iddings Findings, Conclusions and Decision and
Order regarding Subsequent Review
5 Administrative Appeal
HEX2009-00035
6
7
8 The Appeal is sustained and the building permit and grading permit applications are
denied without prejudice. The Appellants established by a preponderance of evidence
9 that the project design is based upon inaccurate topographical data. With inaccurate
topographical data it is not possible to determine whether changes to the project
10 design that the Applicant made subsequent to approval of shoreline permits were
significant enough to trigger formal shoreline revision review. The inaccurate
11 topographical data further brings into question the accuracy of project design. Due to
grade restrictions on the driveway, the location of the driveway and accompanying
12 location and design of its retaining wall is highly dependent upon the topography of
the project site. Since project design is based upon inaccurate topography, more
13 likely than not the Applicant submitted an inaccurate project design as well.
14 The primary reason the Applicant failed to prevail on this appeal was that he did not
provide any meaningful expert rebuttal to the Appellant's evidence on inaccurate
15 topographical data. The Appellants demonstrated by expert engineering testimony
that the Applicant's topographical survey of the project site did not align with the
16 elevations used for the driveway design and excavation computations. With this
17 evidence in the record, the Applicant should have either presented evidence that the
topographical data was in fact accurate or that any inaccuracies in the topographical
18 data did not result in any substantial inaccuracies in the project design. The Applicant
did neither and the Applicant's engineer even testified that on the Appellants' report
19 addressing topography, he"had no reason to criticize their work".
20
TESTIMONY
21
Note: This hearing summary is provided as a courtesy to those who would benefit from a
22 general overview of the public testimony of the hearing referenced above. The summary is
not required or necessary to the decision issued by the Hearing Examiner. No assurances are
23 made as to completeness or accuracy. Nothing in this summary should be construed as a
24 finding or legal conclusion made by the Examiner.
25 Michael Daudt, representing Earl Iddings, stated that the community is greatly
concerned with this project. He noted the items 1 and 6 of the appeal statement are
Administrative Appeal P. 1 Final Decision
will be the focus of this appeal. In a letter dated December 21, 2009 from Allan
1 Borden (exhibit 18), Mr. Borden said the submitted plans were revised, and this
revision was too different (under 15.09.055) than what was approved in the shoreline
2 permit in order to allow the applicant to proceed. No notice of revision was given out
to parties of record, and it appears the county did not follow a proper revision process
3 for the application. When Mr. Griffiths first applied for his shoreline and building
permits (in 2006 and 2007) no survey of the driveway width was completed and none
4 was required at that stage. In 2009, a survey was completed after the shoreline permit
5 was already issued. The 2009 survey found that the width was 40ft (instead of the
expected 35ft) which results in intrusion upon the bank. According to Mr. Daudt, Mr.
6 Tahja's design and calculations to resolve this issue were inappropriate and
inaccurate. The plans that have been approved are unreliable. He also stated that Mr.
7 Tahja relied on GIS information (which is not precise), rather than on-site survey
work. Thus, more excavation will occur than was approved in the original shoreline
g permit. Also, the pigeon nesting sites will have further damage than originally
expected. All of these changes are significant enough to require a new shoreline
9 permit.
10 Calvin McCaughan, 1015 East 4th Ave Olympia, stated he is a professional
geotechnical engineer. He has a professional engineering license in Washington and
11 Oregon. He has worked for geotechnical engineering firms for nine years and in
college took graduate level classes in geotechnical engineering. He received his
12 degree from the University of Wyoming. He became licensed in the state of
13 Washington in 2008. He was first contacted about the project in January 2012. He
was asked to review the Mason County files regarding the applications for the
14 retaining wall. He received a Geotechnical report from 2006, an addendum from
2007, 2007 design plans, and revised design plans from 2012 from the county. He
15 stated that the wall design has not been engineered yet except for some slope analysis.
The county provided no wall structural analysis. The analysis of the slope of the
16 driveway and weight bearing ability does not provide sufficient analysis for the
retaining wall. He believes the wall design is very aggressive. The site has a steep
17 slope and is not somewhere one would typically see a retaining wall. Bearing
capacity of the foundation, internal stability of the wall backfill, the potential for the
18 wall to pull away, and the eccentricity of the wall are all factors that need to be
analyzed for the wall. Software for designing walls is readily available. The design
19 does not meet industry standards. The length of the geo-grid is 6-8ft, which is
atypical. The proposed geo-grid is extremely short (only 20% of the wall when
20 typical is 60-80%). Referencing exhibit 20, he noted that the section "cut and fill
slopes" recommends temporary cut slopes be cut no steeper than 1.5 horizontal to 1
21 vertical. The design approved by the county (in exhibit 7) would end up cutting the
22 entire bluff. There is no grading plan provided in the designs. Clarification needs to
be given on the plans to show temporary cut slopes can be accomplished in
23 accordance with the geotechnical recommendations. The plans do not clearly
demonstrate the wall height. The slope stability analysis needs to be redone once the
24 wall height is clarified. Based on the plans, the wall could potentially reach a height
of 42ft, but the previous analysis has used a height of 25ft. Slope and stability
25 analyses were not done for the most critical case (42 ft) even though that is standard
engineering practice. A single stability analysis is not sufficient enough for a 75ft
Administrative Appeal p. 2 Final Decision
wall. He believes it is likely the wall could fail based on the geo-grid length and lack
1 of analysis.
2 Under cross-examination by Mr. Morriss, Calvin McCaughan stated that Insight Inc.
provides geotechnical, groundwater, and environmental engineering consultation
3 services. He has served as an expert witness in the past. He stated he has never had
4 to defend his firm's designs. Not all of his past testimony from other hearings is
critiquing other designs. The wall is cutting into the existing slope based on exhibit
5 7. The wall is cutting into the slope at what appears to be 1:1. The upper portion of
the slope (the near vertical portion) has some of the road cutting into the slope based
6 on page 7 of 9 (exhibit 7). Construction of the wall will cut the toe of the slope (the
1:1 section). The stability of the 1:1 slope is marginally stable. Material has been
7 pushed up against the bank of the slope. This area of the slope is not geo-technically
sound; he would not recommend building a home or road in this area. The road that
8 would exist behind the wall would have a class A compaction which is a high level of
compaction. The bottom of the wall, elevation, and the topography line all suggest
9 the wall could be as high as 42 ft. (based on figure 4 of 9, exhibit 7). He has not seen
of the Baseline Engineering plans. The temporary cut slopes have not been shown on
10 the plans. The vertical slope above the road isn't inherently free-standing; there has
been some movement. The slope is being held up by cohesion. Currently, there is
11 deep stability, but slough has occurred and will continue to occur. There is no
structure holding the slope. The slough is not holding up the bottom slope, but it is
12 keeping the portion of the slope behind it from sloughing more. In some cases,
13 removing the toe of the slope can result in undermining the stability of the slope.
Analysis needs to be done to better understand the effects of removing the toe of the
14 slope in this case. If the slope was undercut, a larger amount of material could fall.
Placing a structural fill will have temporary issues based on cutting into the slope in
15 order to build the structure. There is also increased hazard to workers from overhead
debris. Some slopes are recognized as geotechnically sound in the state. The wall
16 could possibly be temporary cut without the slope failing.
17 Under questioning by Mr. Daudt, Mr. McCaughan testified that the Geotech report
evaluated a concept where the wall was shorter. Typically, a plan review and update
18 would have been done based on the changes made.
19 Terry Ferguson, 1910 64th Ave W Tacoma, stated he is employed by Baseline
Engineering. He is a professional land surveyor and has been practicing since 1985.
20 He is a licensed land surveyor in Washington and Oregon. He has a degree in
engineering from the University of Washington. He was asked to review the project
21 in January, 2012. He reviewed the survey aspects of the project in correlation to the
22 civil design. He evaluated several road access designs and a survey by Agate Land
Survey. After examining the material, he wrote a report (exhibit 21). The Agate
23 Survey was reviewed in order to establish the consistency of land contours with field-
generated land contours. The Agate Land Survey (dated March 2010) was provided
24 by Mr. Iddings, according to Mr. Ferguson. He assumed the Agate survey was very
accurate and should have been the basis for the design. The Agate design and Alan
25 Tahja design had references to property lines, right-of-way locations, and similar
graphical representations of end of pavement. The civil plans do not make any
reference to a framework. Baseline used the right-of-ways as a framework. In the
Administrative Appeal p. 3 Final Decision
Tahja design, the northeast corner of the Upland property has a contour of 10 ft. The
1 Agate survey found a 10 ft. discrepancy (finding the contour to be 20ft.). Baseline
Engineering found that the Tahja design could not be relied upon. Baseline attempted
2 to use the Agate survey with Mr. Tahja's road design (depicted in exhibit 21,
attachment 4). In exhibit 1 (of exhibit 21), the road right-of-way lines were held as a
3 frame of reference for the two surveys. There was a 4ft. vertical difference found. In
4 exhibit 2, the far northwest corner of the site was used a frame of reference. The
features determined as edge of pavement and the area of the rockery varied by as
5 much as 40ft. in location. He is not sure what caused the discrepancy. The elevations
matched on this analysis. These discrepancies were surprising to him because the
6 civil engineering is normally based on sound surveys. The process was done
backwards with a design first and then a hard survey. Mr. Ferguson stated his task
7 was to establish reliability and confidence within the design and surveys. He
concluded that the data used by Mr. Tahja do not faithfully adopt the Agate Land
g Survey information.
9 Under cross-examination by Mr. Morriss, Terry Ferguson testified that he was paid
by Jose Vera. He stated that he has not spoken to members of the Dewatto Beach
10 community before today. His review was done impartially. He is not qualified under
RCW to speak on engineering standards. He was unaware that Mr. Tahja did any
11 mapping for the project prior to his road design. Under Washington law, Mr. Tahja is
allowed to do topographic mapping in relation to his engineering projects. Mr. Tahja
12 does not describe from where his information originated, according to Mr. Ferguson.
13 Mr. Tahja did not give a frame of reference for his work, according to Mr. Ferguson.
Mr. Ferguson stated that Mr. Tahja merely referenced the Agate Survey and did not
14 give specific frame of reference details. He further noted that Mr. Tahja's design
does not match the Agate Survey. If the road design was moved 1Oft to match the
15 Agate survey data, it would be considered a grading plan. Mr. Ferguson's drawings
show the road in the middle or on-top of the steep vertical slope. He is unaware
16 where the grading plan would be based on this location of the road. He made
assumptions based on the previous assumptions by the county. Baseline Engineering
17 used data from the approved plan and applied it to where they interpreted the location
of the roadway. The firm would design the road based on information from
18 geotechnical and civil engineers. All of the designs show the steep vertical slope on
the non-water side of the driveway,but Mr. Ferguson's shows the opposite.
19
Under re-direct from Mr. Daudt, Terry Ferguson stated that, in exhibit 1 (of exhibit
20 21), he provided information based on analysis from the Agate survey. The contour
lines in some cases do not match the civil plans. If Mr. Tahja used the Agate survey,
21 he did not use it correctly, according to Mr. Ferguson. There can be no confidence in
22 the road design because the surveys lack frames of reference. If the designs were
matched,the wall would end up being placed in the middle of the road.
23 Jerry Waldron, 1910 64th Ave Tacoma, stated he is employed by Baseline Engineers
24 as a project manager. He is a licensed professional civil engineer in Washington. He
has worked for Baseline Engineering for eight years. He reviewed files provided by
25 Mr. Iddings which consisted of Mr. Tahja's design, files from Agate survey, and the
county's approved plans. He oversaw the creation of exhibit 21. He noted that he is
qualified to comment on the accuracy of engineering reports under Washington law.
Administrative Appeal p. 4 Final Decision
1 1
He said that Baseline had to make some assumptions such as the fact that the Agate
1 Survey was accurate. He also assumed that the approved plan set was the actual
alignment of the roadway and used correct grading. The approved plans do not state
2 the basis of bearings. On Mr. Tahja's engineering plans, there was a vertical data
skew, according to Mr. Waldron. Exhibit 3 (of exhibit 21) used the property lines as
3 a horizontal control. The Agate Survey showed the road alignment cut through the
4 50ft contour line. Typically, when dealing with steep slopes, a professional land
survey would be requested. In exhibit 4 (of exhibit 21), the road alignment was
5 overlaid to create a proposed grading plan. A template of the driveway was placed
with daylight lines (with a 1:1 slope). This demonstrated that a portion of the
6 embankment would be encroached upon along with neighboring properties.
According to Mr. Waldron, Mr. Tahja's design showed the wall as having constant
7 footing. Based on the topographic survey, an additional wall would be required in
order to avoid entering neighboring properties. The additional wall would have to be
8 located in the zone of construction. The approved plan set does not show a wall on
the southern half of the road. The SEPA conditions required the nesting area to be
9 protected, but, without a wall, the nesting area will be wiped out. He is not
commenting on the construction limits of the vertical slopes, but merely the required
10 slopes for building the road. In regard to exhibit 23, Debbera Coker noted the same
issue of supporting slopes on the southern half of the road, according to Mr. Waldron.
11 Mr. Tahja never responded to this issue, and the approved plan sets also give no
answer. Based on the overlays and 3D modeling completed by Baseline, the actual
12 excavation quantities are estimated to be 5,500 cubic yards and fill of 300 cubic
13 yards. The original design indicated a lower amount of excavation. Baseline also
estimated the wall height to be around 45 ft. He has seen Mr. Tahja's excavation
14 quantities. He concluded that there is an error in the calculations. At station 114.38,
it is labeled as 40.01 elevation, but in the corresponding station in the approved plans
15 the elevation is labeled as 42.10 (a 2ft. difference). This is where the road is no
longer 27 percent longitudinal grade (the road is steeper here), resulting in incorrect
16 calculations. He is unaware what the quantities would be after correct calculations
were made.
17
Under cross-examination by Mr. Morris, Jerry Waldron testified that he cannot
18 comment on the accuracy of all of his firms engineering projects. The quantities he
created were based on the Agate Survey. He believes his firm spent close to three
19 working days on the project. Currently, he is unaware of where the baseline slope is
located. He is making assumptions based on the Agate Survey using Autocad. He
20 has been working with Autocad for over 20 years. There is a discrepancy in the
Tahja Autocad file. It is possible for the 3D feature on Autocad to be turned off, but
21 is not typical practice, according to Mr. Waldron. The entire Autocad file is off by
22 14ft, not just one portion of the file. He cannot comment on the origination of the
error. There is a 14ft vertical bust. He has assumed the base of the wall is at the
23 same elevation throughout. In exhibit 7, the wall is shown at 12-13ft elevation on
page 4 of 9. The down-slope slide of the wall is being shown at 30ft on the approved
24 plan set. It is unclear how the wall will be built at these elevations. Mr. Waldron
used a 1:1 template in Autocad to create his excavation quantities. In Autocad, the
25 user has the ability to use a different template from 1:1, resulting in different
quantities. As an engineer, he has reviewed geotechnical work previously. He has
never seen a road that does not use 1:1 slope, and that is most common in the
Administrative Appeal p. 5 Final Decision
industry. The vertical slope appears to have been left alone based on the approved
1 drawings. A design team would need to be consulted in order to decide what the best
solution is for building on the slope. The approved plans do not show the finished
2 grade clearing plans. If an existing slope was used, proposed contours would not
3 necessarily be shown.
4 Under re-direct by Mr. Daudt, Mr. Waldron stated that the 14ft discrepancy is noted
in exhibit 21 which used the Autocad file created by Mr. Tahja. If the Tahja Autocad
5 file had 14ft added to the design, the data would not be reconciled with the Agate
Survey because the horizontal contours would still be incorrect. If the two data sets
6 were reconciled, Mr. Waldron would be able to identify where the slope bank is
located. Mr. Waldron stated that his job was to complete a peer review. It was not
7 his job to redo the design, but instead catch possible errors. This design has more
errors than is typical in the industry. He has never reviewed an engineering design
g with this many pure engineering flaws.
9 Earl Iddings, 4791 NE Belfare, stated he is an adjacent property owner. His boundary
line is immediately west of the Griffith's property. Over the past six years, there have
10 been issues over creating greater access to the Griffith's property. In 2007, Mason
County originally recommended denying this project because of areas of concern
11 which are still being addressed today. In a 2008 hearing, Mr. Iddings raised concern
over the lack of the topographic framework for the design. Through that hearing
12 process, there were many renditions to the original permitted design. Originally,
13 there was 300 cubic yard cut and 320 fill. The county planner recommended
rejecting the original plans, but they were overruled and the designs were made to
14 move forward. A shoreline substantial development permit was granted with
conditions. One of the conditions was that there would only be one taking of the
15 migratory bird, the pigeon guillemots. Mr. Iddings noted that in his work as a
contractor he has never seen a project of this magnitude approved with so many
16 different renditions. He does not understand how the wall can be built without
encompassing thousands of yards of excavation and the removal of the pigeon
17 guillemots. The Shoreline Hearings Board gave the county the responsibility of
addressing these issues with the building permit. The permit has been revised over
18 eight times. Through this process, the 2008 Shoreline Permit was revised beyond the
10 percent threshold, but fell under MCC15.09.05512 (referencing exhibit 18). The
19 designs have changed since the original shoreline permit. Even if the county had
placed these changes under the 10 percent threshold,the project still needed to appear
20 before the hearing examiner for re-approval. Parties of record have not been
informed of the revisions. There are many uncertainties with this project. His
21 property will be 10-15ft away from a 55ft vertical cut under the current design plans
22 and the Agate Survey. The planned wall is being pushed out into the historic (and
only) right-of-way on the Dewatto Beach Road. There is no consistent understanding
23 of how Mr. Tahja has made his calculations. There have either been errors or
manipulation. The wall height under the current proposed plan varies. Mr. Tahja's
24 noted the wall height as 35 ft, while the design plan gives 25 ft., according to Mr.
Iddings. The county has been ignoring Mr. Idding's requests for third-party review of
25 these calculations. The sand in the area has a lateral cohesion resistance of 37
percent. The planned 55ft cut embankment would allow Mr. Idding's property to be
sloughed off. Under the previous, original design, the Dewatto community and Mr.
Administrative Appeal p. 6 Final Decision
Iddings hired two independent geotechnical firms to review the GTL report and
1 review the soil stability analysis for the Griffith driveway and wall. These reports
(exhibit 25-Krazen report) identified a large spring which was not identified by the
2 county geotechnical assessment. The conditions of the design has changed even more
since the two geotechnical analyses completed by Krazen. All three of the
3 independent reports that Mr. Iddings commissioned were done without knowledge of
4 one another. Krazen could not represent Mr. Iddings today because Krazen bought
the company that completed Mr. Griffith's geotechnical report (GTL). Mason
5 County has not properly reviewed the project and allowed the community to raise
their concerns throughout the process. The Shoreline Hearings Board deferred
6 decisions to the Mason County buildings department about the issues raised during
that hearing.
7
Under cross-examination by Mr. Morriss, Mr. Iddings is hoping this will be the last
8 time he has to contest the county's decisions for this project. He has hired Baseline
Engineering, AE Consulting, along with several independent surveyors for the
9 project. He has hired Geotechnical Insight, Krazen, and Vector as geotechnical
engineers. He has hired one civil engineer for the project.
10
Sid Bechtolt stated he is a professional land surveyor. He has been a surveyor for 35
11 years. He produced a topographic and boundary survey for the project. He produced
the topographic survey in two stages. The initial focus was from the top of the bank
12 and 10-15ft beyond. Additional information was gathered later to extend the analysis
13 150ft from the bank. The initial information was provided to Mr. Griffith's engineer,
according to Mr. Bechtolt. Standard methods were used to complete the topographic
14 survey.
15 Under cross-examination from Mr. Daudt, Mr. Bechtolt testified that he completed
the initial analysis in January, 2009. This analysis was topographical as well as a
16 map-boundary. He determined there were conflicting reports about the county right-
of-way. Initial indications suggested the right-of-way was 30ft, but further research
17 revealed the right-of-way was 40ft. He is unaware of how Mr. Griffiths was issued
permits giving the right-of-way as 30ft after he provided the 40ft information in early
18 2009. Mr. Bechtolt submitted his work to Mr. Tahja, not the county. He cannot
comment on the accuracy of the approved plans in exhibit 7.
19
Alan Tahja stated that he is a professional engineer. He worked in the public works
20 department for Mason County and has a degree in civil engineering. He is licensed to
engineer in Washington. He has worked for Earl Iddings in the past (3-4 times). He
21 was initially contacted by Mr. Griffith and was provided with a survey map with a
22 30ft right-of-way. The right-of-way width has been bantered from 30-60ft throughout
the process. This project is more difficult than the average residential driveway. Mr.
23 Tahja believes he has the qualifications to design a project of this magnitude.
24 Under cross-examination by Mr. Daudt, Mr. Tahja stated he hadn't looked at the
Baseline reports before the day of the hearing, although he had received them before
25 the hearing. He used the information readily available to him when creating his
design, including the 30ft right-of-way width. He redesigned the project when the
right-of-way width changed. He was able to change the design without exceeding the
Administrative Appeal p. 7 Final Decision
10-percent change threshold. He completed the redesign in a couple of weeks. In
1 exhibit 26, when speaking of"sticking his neck out," he was referencing the many
times he had to change the original design because of the right-of-way changes. His
2 designs were constantly being objected in some way. Initially, he and Mr. Griffith
had a disagreement about whether or not a survey was needed, and Mr. Tahja refused
3 to continue work until a survey was completed. After Agate Survey was hired, Mr.
4 Tahja felt confident with continuing to work on the design of the project. He needed
the driveway to proceed further than where the applicant wanted to end it in order to
5 create an appropriate design. Mr. Tahja said at no point is the wall more than 25ft,
and other engineers have misinterpreted the design (referencing exhibit 4 of exhibit
6 21). The wall can be built differently in order to stay at 25 ft. He affirmed that he
sent Mike Griffith a plan set on November 10, 2010 (exhibit 27). Public works had
7 asked for a planned ditch to be eliminated so Mr. Tahja redesigned the project. The
plans were still being revised after the issuance of the building permit in December,
8 2009. Minor adjustments from the county were still being requested, according to
Mr. Tahja. In regard to exhibit 28, he noted that many of the plans accepted by the
9 county did not have his signature on them. He does not remember this particular
email (exhibit 28). The designs completed by Mr. Griffith were conversational pieces
10 and did not have Mr. Tahja signature. All of the Autocad work completed for the
project was done by Mr. Tahja; he stated that he did not sub any of the work out. He
11 is not a geotechnical engineer. GTL completed the geotechnical engineering aspect
of the project. GTL determined the soil stability and other geotechnical issues. Mr.
12 Tahja can determine some aspects of slope for projects along with the geotechnical
13 area. Exhibit 20 does note that the cut-slope recommendation by the geotechnical
engineer was 1:1. Nowhere is it in written in the design plans that Mr. Tahja gave
14 approval for vertical cutting outside the 1:1 slope approval. However, Mr. Tahja
commented that as a licensed engineer he can give his approval at any time on site.
15 The plan review shows the limit of excavation. In Mr. Tahja's opinion, the wall
would stand without the use of fabric, but the fabric is an "insurance policy." He
16 completed computer-generated analysis including a slip-plane analysis that was not
turned into the county. He also completed a bearing-resistance analysis, but it also
17 was not provided to the county. He did not complete an eccentricity analysis. The
grading quantities are located on the design plans (exhibit 7). He asks the contractor
18 to establish the method of laying the fabric on an even surface.
19 Under re-direct from Mr. Morriss, Mr. Tahja stated that the geotechnical report is a
recommendation for the engineer. The engineer can make decisions regarding
20 temporary cuts. The cover of the geotechnical report states that the findings are
recommendations. This is not the first difficult project Mr. Tahja has completed, and
21 Mr. Griffith is not the only client with which he has had disagreements. At no point
22 did Mr. Tahja deceive the county.
23ichael Griffith,, applicant, stated he bought in his property in May, 2006. He began
the process for building the access road immediately upon purchase. He hired the
24 county to do a pre-site inspection in order to ensure he would be able to build on the
property. He has hired an engineer, a biologist, lawyers, contractors, and various
25 other people to work on this project. He has spent 15-16 days in hearings on this
matter. He revised an engineer's drawings by crossing out a ditch and sent it to the
Administrative Appeal p. 8 Final Decision
county. He was not attempting to deceive the county and was just following county
1 recommendations. He does not wish to comment on geotechnical issues.
2 Upon cross-examination by Mr. Morriss, Mr. Griffith stated that over the course of
the project he has had many discussions with Mr. Tahja. He had to have a survey in
3 order to obtain the building permit.
4 Allan Borden, Senior Planner for Mason County, prepared a staff report to address
5 the issues raised by the appellant(exhibit 29). In December, 2009, Mr. Borden wrote
a letter to Mr. Griffith statinghis concern about the differing excavation quantities
g
6 (exhibit 18). The point of the letter was to note this significant change seen in
drawings submitted on December 10, 2009. The letter noted that the excavation
7 amounts exceeded what was previously approved. Mr. Borden received new
drawings in March 29, 2010 from Mr. Tahja that used the geo-grid technique (exhibit
8 d of exhibit 29). When the new plans were reviewed, the cut and fill was almost
identical to that of what was approved by the Shoreline Hearings Board. This led Mr.
9 Borden to allow the permits to move forward. He interpreted the previous permits as
allowing plan revisions as long as they were in the scope of the original permits. He
10 noted that he had not reviewed the structure changes and that the wall heights differ
from what was approved. The rest of the issues raised by the appeal have been
11 addressed. The road easement has been reviewed. The erosion control and
stormwater design were included in the grading permit reviews based upon the
12 March, 2010 drawings. The new plans were reviewed to ensure they were consistent
13 with the original design.
14 Upon questioning by the hearing examiner, Mr. Borden stated that he has not
previously dealt with Shoreline Permit revisions. He noted that if revisions exceed
15 the scope of the original permit, then a new hearing and permit is required. He did
not believe he needed to make an official determination on revision for the excavation
16 quantities. Staff bases revision criteria on the scope of the changes. Staff believes
there was a change in the wall height, and the change is more than was approved
17 previously. Staff needs to prepare a revision statement to accommodate the wall
changes.
18
Debbera Coker, Building Inspector for Mason County, stated that staff received
19 revised plans beginning in early March until March 29, 2010. Staff relied on Mr.
Tahja's design calculations and professional judgment. Staff agreed to allow Mr.
20 Tahja to perform all of the structural observations. The design calculations are used
to verify the numbers provided on the design plans. She submitted a copy of the
21 Washington guidelines for building inspectors assessing plan revisions (exhibit 30).
22 Ms. Coker noted that, because she is not an engineer, she relied upon a design
professional using the criteria outlined in the white paper.
23 Upon questioning by the hearing examiner, Ms. Coker testified that staff would like
24 to see the topography corrected in order to ensure design plans provide an accurate
wall height. In the conditions of the permit, Mr. Tahja and Mr. Griffith agreed to
25 notify the county of any revisions.
Administrative Appeal P. 9 Final Decision
Upon questioning by Mr. Morriss, Mr. Borden stated he based his reassessment of the
1 wall height on the March 29, 2010 design plans. Page 3 of 9 (exhibit 8) gives the
highest elevation of the road as 42. Mr. Borden noted that the wall is higher than the
2 road by at least a couple of feet because of a slope. If the wall was 12ft high, it would
be less than the 25ft height regulation. Until accurate drawings are provided, Mr.
3 Borden stated he cannot state whether revisions are necessary.
4 Upon questioning by Mr. Daudt, Mr. Borden testified that he did not include the
5 Baseline information in his staff report. He prepared the staff report before the
motion to dismiss was submitted. The Baseline information was not considered in
6 developing the staff opinions. He would like to know the points of reference used by
the engineer to render the design calculations.
7
Upon questioning by Mr. Daudt, Ms. Coker stated that the conditions of the permit
g required structural observation throughout the project. Modifications were expected
to be necessary during the construction process. The permit does not allow temporary
9 land modifications that are vertical. Staff recognizes Mr. Tahja as a design
professional, and he is expected to give modifications in writing to staff (except in
10 emergency situations). Staff does not ignore the Geotech report recommendations.
She noted that Mr. Tahja is licensed in the state of Washington, and the licensing
11 division allows an engineer to take over the design observation process. It is common
for staff to receive revisions from engineers, but the revisions are generally not for
12 geotechnical purposes. In regard to condition 24, staff wishes to be informed of
13 revisions and know that safety has been taken into consideration. There is no code in
Mason County dictating the use of exhibit 30. The white paper was written by the
14 Structural Engineers Association of Washington. It was written so jurisdictions
would have some guidance in performing reviews when they do not have engineering
15 expertise. As a plan reviewer, Ms. Coker stated she uses the white paper as guidance
to justify the level of building inspection review. Chapter 1 of the building code
16 gives building inspectors the power to evaluate buildings to the best of their ability.
The use of the white paper guidelines has been effective in the past. There has been
17 no county-level law or approval of the use of the white paper.
18 Upon questioning by Mr. Daudt, Mr. Borden testified that the bulkhead was expanded
on Mr. Griffith's property without regard to ordinary high-level markings. There are
19 erosion control standards in Mason County (typically 5,000sq ft of area requires a
stormwater plan). The stormwater review threshold has changed since this
20 application was submitted in 2007. Section h of 15.09.055 (permit revisions of the
Mason Count Development Code) states that if changes are above the 10 percent
21 threshold a new permit is necessary. If the 10 percent threshold is not exceeded,
22 regulations state that the revisions must be reported to the hearings examiner and the
parties of record. If the revisions are approved, the department of ecology and
23 various other parties are required to be notified. This process was not followed for
this revision, and this was an oversight.
24 Laurie Iddings stated she is a property owner on Dewatto Beach Drive. She is
25 representing a large number of concerned citizens from the Dewatto Beach
Community. The proper procedures for surveying, engineering, and design have not
been followed for the project. County policies have been ignored and manipulated
Administrative Appeal P. 10 Final Decision
throughout the process. Mason County officials have stated they do not have the
1 expertise or resources to properly review the permit and have relied upon outside
professionals. There are over 60 residents concerned about this situation. She
2 submitted comment letters from various residents giving testimony to the upstanding
character of Earl Iddings (exhibit 31). There has been limited engineering design for
3 the wall. There is also a lack of grading plans. The community is left not knowing
4 how the slope and other critical land areas will be affected by the project. Mason
County does not have the information needed to mitigate the impact to the area. The
5 County relied too much on the applicant to provide necessary information. There has
been no standard engineering design for the height of the wall, despite the wall being
6 placed in a critical slope area. It is unclear why there has been such lack of analysis
on the County's part. The applicant has manipulated their design plans many times
7 without proper review. The community should not have the responsibility of
questioning the applicant's design and mitigating the various issues. However, the
8 citizens have given their time and money to deal with the poorly reviewed project.
The project has exceeded the 10 percent change-threshold in critical areas including
9 the wall height change, the driveway grade, the excavation quantities, and pigeon nest
protection. A new permit application needs to be submitted, and a proper review
10 process needs to be followed.
11 EXHIBITS
12 Exhibits 1-14 are identified in Pre-Hearing Order II of this case. In addition to
13 Exhibits 1-14,the following exhibits were admitted during the hearing:
14 Exhibit 15 Applicant's Motion for Dismissal
15 Exhibit 16 Appeal Letter dated 12/15/09
16 Exhibit 17 Appellant's Hearing Brief
17 Exhibit 18 12/23/09 letter from Allan Borden to Michael Griffith
18 Exhibit 19 4/24/12 Insight Geologic report
19 Exhibit 20 5/16/06 Geotech Report by Geotech Testing
20 Exhibit 21 2/29/12 Technical report from Baseline Engineering
21 Exhibit 22 Agate Land Survey
22 Exhibit 23 Email from Debbera Coker dated Dec 16, 2009
23 Exhibit 24 Iddings v. Griffith, SHB No. 08-031 (June 22, 2009)
24 Exhibit 25 Krazen and Associates Report
25 Exhibit 26 Email from Alan Tahja, December 29, 2009
Administrative Appeal P. 11 Final Decision
I Exhibit 27 Email from Griffith to Tahja dated November 10, 2010
2 Exhibit 28 Email from Alan Tahja to Michael Griffith dated 11/10/10
3 Exhibit 29 3/20/12 Staff Report by Allan Borden w/Ex. A-H
4 Exhibit 30 White Paper 1-2006, Design Guidelines
5 Exhibit 31 Comments from Appellant's Neighbors (4 letters)
6 Exhibit 32 Applicant's Closing Argument
7 Exhibit 33 Appellant's Rebuttal Memorandum
8
FINDINGS OF FACT
9
10 1. Applicant/Appellant: The Appellant is Earl Iddings. The Applicant is Michael
Griffith.
11
2. Hearing. A hearing on the appeal was held on March 20, 2012. On that date
12 argument was heard on a motion to dismiss from the Applicant. The motion was
taken under advisement and the hearing was continued to April 25, 2012. The motion
13 to dismiss was denied by Prehearing Order II dated April 6, 2012. The verbal portion
14 of the hearing was completed as scheduled on April 25, 2012. At the April 25, 2012
hearing the Appellant and Applicant agreed to present their rebuttal in writing. The
15 Applicant's written rebuttal was due May 2, 2012 and the Appellants written rebuttal
was due May 9, 2012.
16
3. Appeal. The Appellant's Appeal, Ex. 16, was filed on December 15, 2009. The
17 Appellant appeals the approval of Building Permit BLD2007-00906 and Grading
18 Permit GRD2007-00012. The Appeal was placed on hold apparently for pending
litigation over the width of right of way that adjoins the project. Upon resolution of
19 the right of way litigation County staff commenced scheduling the hearing of the
appeal in January, 2012. Due to the results of the right of way litigation and other
20 circumstances, at hearing and in prehearing briefing the Appellant focused its appeal
on only two of the six issues identified in its Appeal, specifically 111(1) and 111(6).
21 I1I(1) asserts that the County failed to process modifications to the subject building
22 and grading permits as a shoreline revision as governed by WAC 173-27-100. 111(6)
asserts design defects in the construction of a retaining wall. This decision sustains
23 the Appeal and addresses 111(1) only. 111(6) may be rendered moot by the submission
of corrected/revised plans submitted in a re-application. Further, resolution of IIl(6)
24 may be germane to meeting the criteria for a shoreline revision that may be required
for the project. Complications to the shoreline revision process caused by collateral
25 estoppel are best avoided by not making any determinations on I11(6) at this time.
Administrative Appeal p. 12 Final Decision
4. Project Description. The development project subject to the Appeal is a
I residential driveway and associated retaining wall that will cross the face of a bluff.
2 The Applicant acquired a shoreline substantial development permit and a shoreline
conditional use permit for the project from Mason County by Hearing Examiner
3 decision dated October 8, 2008. The Washington State Shoreline Hearings Board
upheld the issuance of the shoreline permits in Iddings v. Griffith, SHB No. 08-031
4 (June 22, 2009). The findings of fact in Iddings provide a detailed description of the
project as approved by the Shoreline Hearings Board and those findings are adopted
5 for that purpose. Subsequent to the Shoreline Hearings Board decision, a survey of
6 DeWatto Beach Drive was prepared and it was discovered that the right of way for
DeWatto Beach Drive was 40 feet, not 30 feet as depicted in the construction
7 documents for the building and grading permits. As a result, the Applicant had to
submit revisions to the construction documents of the subject building and grading
8 permits in order to remove encroachments in the right of way. The subject appeal was
filed on December 15, 2009. Mason County responded to the revisions by letter dated
9 December 23, 2009, Ex. 18, concluding that the proposed revisions would necessitate
10 new shoreline permits. On March 29, 2010 the Applicant submitted additional
revisions and information that demonstrated that the project modifications did not
11 necessitate new shoreline permits. The County agreed no new shoreline permits were
necessary and approved the March 29, 2010 revisions on October 28, 2010. See Ex. 6
12 and 7. Prehearing Order II ruled that the Applicant's March 29, 2010 revisions would
13 be subject to the Appellants December 15,2009 appeal.
14 5. Agate Topog_raphical Survey does not align with Tahja Engineering Design.
More likely than not, the 3/8/10 topographical survey prepared by Agate Surveying
15 PLLC does not align and/or is not accurately incorporated into the construction
documents (Ex. 6 and 7) prepared by Tahja Engineering. The construction
16 documents reference the Agate survey and Mr. Tahja did not deny that the
topographical information for the project design was based upon the Agate survey.
17 Ex. 21, a report prepared by Baseline Engineering and authored by a professional
18
engineer, Jerry Waldron, identifies several significant and material discrepancies
between the elevations on the Agate survey and the construction documents.
19 Dependent upon what physical features in the design drawings were used as a
reference point, the superimposition of the Agate survey upon the design drawings
20 resulted in contour lines that were off by as much as 30 feet and the proposed
retaining wall located in the middle of DeWatto Drive. The findings in the Baseline
21 report were further elaborated upon in the April 25, 2012 hearing by Jerry Waldron
22 and Terrell Ferguson. At hearing Mr. Tahja testified he "had no reason to criticize
their work"when asked about the Baseline report, Ex. 21. The Applicant provided no
23 other expert testimony to dispute the conclusions of the Baseline report and only
suggested during cross-examination that contour lines identified in the engineering
24 drawings could serve as a grading plan if they were shifted over ten feet.
25 6. Inaccurate Excavation Quantities. More likely than not, the amount of excavation
required for the project as reported in the building and grading permit applications
Administrative Appeal p. 13 Final Decision
(specifically the "quantities" sheet dated 3/23/10 in Ex. 6 and 7) is substantially and
1 materially inaccurate. As determined in Finding of Fact No. 5, the Applicant's
topographical survey was inaccurately incorporated into the Applicant's engineering
2 design documents. This means that the elevations of the proposed driveway depicted
on the engineering design documents are inaccurate and in turn any excavation
3 quantities derived from those inaccurate elevation points would also be inaccurate. It
4 is possible that Mr. Tahja did not use the construction documents submitted to Mason
County to determine the elevation points of the driveway. Indeed, as testified by
5 Baseline Engineers, at least one elevation point in the "quantities" sheet, Station
114.38, does not have the same elevation as that shown on the engineering design
6 documents. However, if Mr. Tahja did use elevations that were more accurate than
those he showed in his own drawings, it was incumbent upon him explain this at the
7 hearing once the inaccuracies in his construction documents were made known to
him.
8
Given the fact that the project revisions are caused by a greater encroachment into the
9 bluff (which would necessitate more excavation) and Baseline's estimates of 5,500
cubic yards of excavation, it is concluded that more likely than not the inaccuracies of
10 the engineering design documents are inaccurate and substantially underestimate
excavation quantities. Staff's approval of the excavation computations is not
11 significant since staff testified that they relied upon the expertise of the Applicant's
engineer in reviewing construction documents and there is no evidence in the record
12 of any more critical review of the computations.
13 7. Inaccurate Retaining Wall Height. More likely than not, the height of the
14 Proposed retaining wall is not accurately represented in the Applicant's construction
documents. As approved in the shoreline permits, the retaining wall had a maximum
15 height of 25 feet. See Iddings v. Griffith, FOF No. 4, SHB No. 08-031. The
engineering design documents for the approved 10/28/10 revisions show, at sheet 4 of
16 9, a retaining wall anchored somewhere between the 10 and 20 contour lines along
the eastern portion of the wall and extending up to approximately 50 feet in elevation
17 on the eastern portion of the wall. The maximum height of the wall is unclear from
the engineering drawings since the ground level increases in height as the retaining
18 wall extends south along the eastern portion of the wall. Mr. Waldron testified that
Baseline estimates the height of the wall to be a maximum of 45 feet. Mr. Tahja
19 testified that the wall is no more than 25 feet in height and that Baseline has
misinterpreted the engineering drawings. If Baseline is basing its height estimates on
20 Mr. Tahja's construction documents it very well could be misinterpreting them by
failing to take into account the rising elevation of ground level as the wall turns
21 south. Unfortunately, Mr. Tahja did not explain how he came to the conclusion that
22
23 1 Page 4 of 9 shows the bottom elevation of the retaining was as below a ten foot
elevation, which could be substantially below ground level on the eastern end. The
24 Applicant's written "closing argument" suggests that Page 4 of 9 is in error in failing
to show that the wall "steps up" on the eastern end. If wall height is measured from
25 ground level as opposed to foundation level the height of the wall would be the same
with or without the plan correction.
Administrative Appeal p. 14 Final Decision
his construction documents show a wall height limited to 25 feet so that remains an
1 unresolved question of fact. However, it is also possible the Baseline based its
estimate on its own evaluation of the needs of the project. The basis of Baseline's
2 analysis is also not clear from the record. What is clear, as previously determined in
FOF No. 5, is that the topographical data used for the construction documents is
3 inaccurate. Without accurate topographical data, it is not possible to ascertain the
4 height of the retaining wall from the construction documents. For this reason, it must
be concluded that more likely than not the construction documents do not accurately
5 portray the height of the retaining wall.
6 8. Accuracy of Driveway Length and location. More likely than not, the
construction documents do not accurately portray the length and location of the
7 proposed driveway. The Baseline report concludes that a driveway built at or below a
1:1 slope as recommended in the Applicant's geotechnical report cannot be limited to
g the confines of the Applicants' property or avoid the pigeon nests required to be
protected by the SEPA conditions of approval. Mr. Tahja testified that the project can
9 in fact be built as designed within the 1:1 slopes and that he has the authority to build
at a steeper slope if necessary. As with all the other factual issues of this case, the
10 critical factor is that Mr. Tahja bases his project design upon inaccurate topographical
information. Without accurate topographical information the length and location of a
11 driveway along a steep slope cannot be accurately determined when the driveway is
12 subject to grade restrictions.
13 CONCLUSIONS OF LAW
14 Procedural:
15 1. Authority of Hearing Examiner. MCC 15.03.050(7) provides the
Examiner with the authority to review and issue a final decision upon all appeals of
16 administrative decisions.
17 Substantive:
18
2. Grading/Building Permit Applications Denied Because of Inaccuracies in
19 Topographical Data. In order to prevail on appeal, the Appellants must establish by a
preponderance of evidence that Mason County approved the building and grading
20 permits contrary to law. The Appellants met that burden by establishing that the
21 issuance of the permits was based upon inaccurate information that prevented the
County from determining whether a shoreline revision was required for the project
22 modifications approved on October 28, 2010. The County may not issue building and
grading permits prior to the review and approval of any shoreline revisions.
23
The requirement for approval of a shoreline revision prior to building and grading
24 permit approval is not immediately evident from applicable development regulations,
but no alternative conclusion can be reasonably reached. MCC 15.09.055(a)provides
25 that no person may undertake substantial development or exempt development
without applying for a shoreline substantial development permit or a statement of
Administrative Appeal p. 15 Final Decision
exemption. This requirement to apply necessarily implies that no development may
1 proceed without approval of the permit or the granting of a statement of exemption.
WAC 173-27-100 creates an approval process for revisions to shoreline permits. As a
2 revision by definition is not authorized by the original shoreline permit, approval of
the revision is also a pre-requisite to construction. IBC 105.3.1 provides that the
3 building official shall only approve an application for a building permit if it conforms
4 to the requirements of the IBC as well as the "laws and ordinances applicable
thereto". For grading permits, MCC 14.44.070(6)(A) specifically requires that any
5 project involving excavation must comply with the Shoreline Master Program. The
requirements for a shoreline revision are part of the "laws and applicable ordinances"
6 that apply to building permit development and they also constitute part of the
Shoreline Master Program that applies to grading permits. The requirements for a
7 shoreline revision include the requirement that no construction commence on the
revision until the revision is approved. Since grading and building permits are the
g last step in development review and their approval authorizes construction, the
approval of any required shoreline revisions is a pre-requisite to grading/building
9 permit approval.
10 MCC 15.09.055(h) incorporates the revision process requirement of WAC 173-27-
100 into the MCC. MCC 15.09.055(h)(1) requires that in order to approve a
11 shoreline permit revision, the revision shall be "within the scope and intent of the
original permit as set forth under WAC 173-27-100". WAC 173-27-100 actually sets
12 up a two tiered level of review for determining scope and intent. The first tier
13 requires a determination whether a project modification involves substantive changes
to the project, defined as modifications that "materially alter the project in a manner
14 that relates to its conformance to the terms and conditions of the permit, the master
program and/or the policies and provisions of chapter 90.58 RCW." Changes that are
15 not substantive do not require a revision.
16 In the second tier, if the changes are substantive the revision can only be approved if
they meet the criteria of WAC 172-27-100(2). There are three criteria that are of
17 particular relevance to this case. The first is WAC 172-27.100(2)(b), which provides
that a revision may not include any modification to height that exceeds 10% of the
18 approved height.
19 Two other relevant criteria are WAC 172-27.100(2)(c) and (d), which require that a
revision not create any adverse environmental impact and also that the revision be
20 consistent with the shoreline master program.
21 As determined in the findings of fact, the construction documents do not accurately
22 identify the height of the proposed retaining wall, the amount of excavation proposed
or the location of the driveway. The staff needs accurate information in order to
23 determine whether the proposed modifications are substantial under the first tier of
revision analysis. If any of the changes are substantial, they will require a shoreline
24 revision application. The need for accurate information on the retaining wall height is
particularly g acute. A height increase of more than 2.5 feet wouldn't even meet the
25 criteria for a revision and the applicant would be required to re-apply for a shoreline
substantial development permit.
Administrative Appeal p. 16 Final Decision
3. Approval not Appropriate. As an alternative to denial, the project could be
1 allowed to move forward with the caveat already in place that only authorizes
development as proposed. The project is only approved for a retaining wall that is 25
2 feet high, for excavation quantities totaling 928 cubic yards and so on. If site
3 conditions necessitate any substantial revisions to project design,the Applicant would
have to cease construction or apply for new permits and/or permit revisions.
4 However, it is unlikely that the County has the resources to monitor all of the soil
excavated from the project. Further, once the aesthetics of the bluff have been
5 destroyed by a significant amount of costly construction work it is too late to abandon
the project because it is "discovered" that the project design is not compatible with
6 site constraints. Allowing a project to proceed with significant known inaccuracies in
project plans under these conditions is not in the public interest and would defeat the
7 policies and regulations of the Shoreline Master Program.
8 4. Denial Without Prejudice and Order for Peer Review. The denial of the building
and grading permits of this case is without prejudice. The project most likely can
9 conform to the County's development standards if designed properly. Further, there
is a substantial chance that the project already did comply with the County's design
10 standards but the Applicant simply did not present sufficient evidence to defend its
11 design.
However, in order to avoid a needless expenditure of public resources with another
12 application, re-application will be conditioned on the opportunity for the County to
13 conduct independent peer review of the Applicant's engineering at the Applicant's
expense. The Applicant will bear the burden of proof in any reapplication for a
14 building permit or shoreline revision. With this burden and the complications of the
project it will be difficult to determine if the Applicant meets design requirements if
15 the Applicant's experts are again pitted against the Appellant's experts. All engineers
involved in this case are highly qualified and an independent third party engineer is
16 necessary to weigh and evaluate the technical aspects of their respective positions.
17 The legal basis for conditioning subsequent permit review is well founded from the
recent case of King County v. King County Dept. of Development and Environmental
18 Services, 273 P.3d 490 (2012). In the King County case the Court of Appeals
sustained the Hearing Examiner's conditioning of subsequent permit review because
19 County enabling regulations authorized the hearing examiner to condition approval of
development permits. MCC 15.11.020(C)provides that appeals before the Examiner
20 shall be subject to procedures adopted by the Examiner. The Rules of Practice and
Procedure adopted by the Examiner, in place at least since 2004, provides at Rule
21 2.29( c)that an examiner decision"may also include an order disposing of contested
22 issues and/or directing parties to take actions consistent with the decision." This
decision includes an order granting County staff with the authority to require peer
23 review at the expense of the Applicant should that prove necessary in the review of
the building and grading permits and/or review of a shoreline revision.
24 DECISION AND ORDER
25
Administrative Appeal p. 17 Final Decision
The Appeal is sustained; the building and grading permit applications are denied
1 without prejudice. Should the Applicant wish to re-apply for a building and grading
2 permit, the parties are ordered as follows:
1. Any re-application shall address and, if any errors exist, correct any errors in
3 topographical data presented in the construction documents.
4 2. The engineering design of the project shall be subject to independent third party
5 peer review as determined necessary by staff to both ensure accuracy and to
ensure that any approvals are sufficiently credible to merit another round of public
6 hearings. The Applicant shall provide a deposit covering the estimated costs of
peer review before any peer review work is done and shall pay any cost overruns
7 within ten days of invoicing from the County. The peer review shall be
conducted by a qualified engineering consultant hired by and subject to the
8 direction of the County.
9
DATED this 22nd day of May, 2012.
10
11
12
13 Phil A. Olbrechts
14 Mason County Hearing Examiner
15
APPEAL
16
The decision of the Hearing Examiner is final and may be appealed to superior court
17 as outlined by the Washington State Land Use Petition Act, Chapter 36.70C RCW.
18 CHANGE IN VALUATION
19
Notice is given pursuant to RCW 36.7013.130 that property owners who are affected
20 by this decision may request a change in valuation for property tax purposes
21 notwithstanding any program of revaluation.
22
23
24
25
Administrative Appeal p. 18 Final Decision
c
1
Hearing Examiner Phil Olbrechts
2
3
4
5
6
7
8
9
MASON COUNTY HEARING EXAMINER
10
11 EARL IDDINGS,
12 Appellant, Hearing Examiner Case Number:
13 V. HEX2009-00035
14 APPELLANT'S REBUTTAL
MICHAEL GRIFFITH, MEMORANDUM
15
Applicant/Respondent.
16
17
18 I. Introduction.
19 The Applicant's key witness, engineer Alan Tahja, candidly admitted
20 during his testimony at the April 25, 2012 hearing that "I think I made some
21 [math] mistakes," in his approved plans for the Applicant's retaining wall.1
22 Applicant's own counsel also took issue with Mr. Tahja's plans, referring to the
in n n h 4 of which shows a total wall height exceeding 40 feet
draw o la sheet 9, c g g ,
23 g p
24 as a "mistake." Senior Planner Alan Borden also candidly admitted that he
25 "overlooked" the requirements of MCC 15.09.055(h) with respect to the revisions
26 1 The only official record of proceedings currently available is an audio recording. Attached hereto as Exhibit C is
a partial transcription of the audio recording.
TERRELL MARSHALL DAVDT&WILLIE PLLC
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I proposed in Mr. Tahja's final approved plans. These statements, along with all of
2 the other evidence admitted at the hearing, make clear that the permit decisions
3 must be reversed.
4 II. Violations of MCC ch. 14.44.
5 A. Tahja's Plans Call for Prohibited Vertical Cuts and Other Cuts
6 Exceeding Code Limits.
7 MCC 14.44.170(b) provides:
8 The slope of cut surfaces shall be no steeper than is safe for the
9 intended use and shall be no steeper than two horizontal to one
vertical unless the permittee furnishes a soils engineering or an
10 engineering geology report, or both, stating that the site has been
1 1 investigated and giving an opinion that a cut at a steeper slope will
be stable and not create a hazard to public or private property.
12 (Emphasis added.)
13 The only supporting geotechnical report in the record supporting a cut
14 steeper than 2:1 is the May 16, 2006 Geotechnical Report by Geotechnical
15 Testing Laboratory (the "GTL Report"), which was incorporated into both the
16 building and grading permit files (Exhibits 6 and 7), and was separately admitted
17 as Exhibit 20. The GTL report states:
18 Temporary cut slopes will likely be necessary during grading
19 operations. As a general guide, temporary slopes of 1.5 to 1
(horizontal to vertical) or flatter may be used for temporary cuts in the
20 upper 3 to 4 feet of the glacially consolidated soils that are weathered
21 to a loose/medium-dense condition. Temporary slopes of 1 to 1 or
22 flatter may be used in the unweathered dense to very dense sands and
gravel. (GTL Report at p. 16.)
23
In the "Limitations" section at the end of the GTL report, it states:
24
If there are any changes in the loads, grades, locations, configurations
25 or types of facilities to be constructed, the conclusions and
26 recommendations presented in this report may not be fully applicable.
If such changes are made, we should be given the opportunity to
TERRELL MARSHALL DAUDT&WILLIE PLLC
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•
1 review our recommendations and provide written modifications or
verifications, as appropriate. (GTL Report at p. 20.)
2
The Building Permit, at condition 24, and the Grading Permit, at condition
3
13, also reference the default 2:1 maximum slope limitation under MCC
4
14.44.170(b): "Cut slopes shall not be steeper than one-unit vertical in two units
5
horizontal (50% slope) unless determined to be stable by the licensed geologist or
6
engineer of record as evidenced by a written report delivered to the Mason
7
County Building Department." (Exhibit 1 at p. 6 of 6; Exhibit 3 at p. 3 of 5.)
8
Although not explicitly called out, Mr. Tahja's plans show several
9
permanent cuts that are far steeper than the maximum 1:1 slope allowed by the
10
GTL Report. For example, page 5 of 9 calls for a cut running more than 18 feet
11
down the face of the slope from the top of the bank, roughly parallel to the
12
steepest part of the existing slope. The excavation in that area would be at a slope
13
steeper than 1:7. The calculations showing this extraordinarily steep cut are set
14
forth in the sheets attached hereto as Exhibit A,2 which were prepared by Baseline
15
Engineering after the hearing to illustrate this point. (See sheet C-2 in Exhibit A
16
attached hereto.) Indeed, Baseline Engineering's analysis shows that almost every
17
cut called for in Mr. Tahja's plans greatly exceed 1:1 in steepness (See sheets C-2
18
and C-3 in Exhibit A attached hereto.)
19
Furthermore, Mr. Tahja's testimony at the hearing, and the statements of
20
Applicant's counsel at the hearing, made plain that Mr. Tahja's plans called for
21
vertical cuts. If the 1:1 limitation were followed, the project would require
22
excavation of more than 5,500 cubic yards of material, as set forth in the report
23
from Baseline Engineering admitted as Exhibit 21. However, the Shoreline
24
Substantial. Development/Conditional Use permit only allowed for excavation of
25
620 cubic yards. (Exhibit 24 at p. 4.) As a result, Mr. Tahja's plans had to
26
Appellant hereby moves for admission into the record of Exhibits A,B and C attached hereto.
TERRELL MARSHALL DAUDT&WILLIE PLLC
APPELLANT'S REBUTTAL MEMORANDUM-3 936North34thSon 98103-880
Seattle,Washington 98103-8869
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I minimize the amount of excavation by, among other things, creating cuts that are
2 nearly vertical.
3 Cuts of this steepness are prohibited by MCC 14.44.17O(b). MCC
4 14.44.090 requires that grading permit applications for"engineer gradings3
5 include engineering plans showing that the work will "conform to the provisions
6 of this code and all relevant laws, ordinances, rules and regulations." Mr. Tahja's
7 plans disclose violations, not compliance, with MCC 14.44.17O(b). Accordingly,
8 Mason County violated MCC 14.44.170 when it issued the grading permit.
9 B. Tahja's Plans Violate MCC 14.44.090.
10 MCC 14.44.090 requires that engineered grading permit applications be
11 accompanied by stamped engineering plans. MCC 14.44.090 mandates that the
12 "plans shall include the following information":
13 . . .
(2) Property limits and accurate contours of existing ground and
14 details of terrain and area drainage;
15 (3) Limiting dimensions, elevations or finish contours to be achieved
by the grading, and proposed drainage channels and related
16 construction;
17 • • .
(5) Erosion control measures to adequately prevent impacts to
18 adjoining properties or bodies of water;
19 (6) Location of any buildings or structures on the property where the
work is to be performed and the location of any buildings or
20 structures on land of adjacent owners which are within fifteen feet
21 of the property or which may be affected by the proposed grading
22 operations;
23 (10) Cross-sections of existing and graded areas, showing contour
intervals at five-foot vertical elevations, especially at the maximum
24 cut and fill.
25
3 MCC 14.44.070(2)requires engineered grading plans that comply with MCC 14.44.090 when the"proposed site
26 involves five thousand cubic yards or more of grading or is located in or adjacent to a landslide hazard critical area
in Mason County."As the GTL Report documents at page 10,the proposed site is a"landslide hazard"area.
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i
I (Emphasis added.)
2 The relevant plan sheets from Mr. Tahja's plans, pages 1-3, are reproduced
3 at sheet one of Exhibit A attached hereto. As summarized on Exhibit A, Baseline
4 Engineering's analysis shows that Tahja's plans fail to show all of the
5 information required by MCC 14.44.090. Most glaringly, Tahja's plans obviously
6 do not accurately show the site contours. The testimony and exhibits from
7 Baseline Engineering presented at the hearing made this clear. Remarkably, when
8 given the opportunity to testify at the hearing, the Applicant's surveyor and
9 engineer both declined to challenge, or even comment on, Baseline Engineering's
10 evidence. Indeed, Mr. Tahja testified that he had "no reason to criticize
11 [Baseline's] work."
12 Mr. Tahja's plans also fail to show the items listed above. Mr. Tahja's
13 excavation calculation sheet shows a cut at elevation 19.26, station 37.22, but that
14 cut is not shown on any of his drawings, and therefore is missing the "limiting
15 dimensions" required in that location. Furthermore, Mr. Tahja's excavation
16 calculation sheets are obviously missing areas that require excavation, as
17 summarized in the excavation quantities summary from Baseline Engineering
18 attached hereto as Exhibit B. Mr. Tahja's plans are devoid of erosion control
19 measures, information on structures on adjacent properties, and some of the
20 required grading cross sections.
21 As noted above, MCC 14.44.090 also requires that engineered grading
22 plans "show in detail that they will conform to the provisions of this code and all
23 relevant laws, ordinances, rules and regulations." However, the plans make no
24 effort at all to show compliance with the Washington Industrial Safety and Health
25 Act ("WISHA"). RCW 49.17.050(2) requires the Department of Labor and
26 Industries to adopt occupational health and safety standards that are at least as
effective as those promulgated by the United States Secretary of Labor under the
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1
I federal Occupational Safety and Health Act of 1970 ("OSHA"). The purpose of
2 WISHA and the regulations promulgated under it "is to assure safe ... and
3 healthful working conditions for every man and woman working in the state of
4 Washington." RCW 49.17.010. "WISHA is to be liberally construed to carry out
5 this purpose." Inland Foundry v. Dept of Labor &Indus., 106 Wn. App. 333,
6 336, 24 P.3d 424 (2001).
7 RCW 49.17.060(1) requires a workplace that is free from recognized
8 hazards that cause or are likely to cause serious injury or death. Under WAC
9 296-155-657(1)(a), adequate protective systems for excavations of 4 feet or more
10 in depth are required in order to protect workers from cave-ins and structural
11 collapses. See Express Const. Co. v. Washington State Dept. of Labor and
12 Industries, 151 Wn. App. 589, 594, 215 P.3d 951 (2009) (finding WISHA
13 violated by failing to install a trench box at an excavation site in which a worker
14 died as a result of a trench cave-in). "Protective systems include support systems,
15 sloping and benching systems, shield systems, and other systems that provide the
16 necessary protection." WAC 296-155-650(2)(m). WAC 296-155-657 (2) and (3)
17 and supporting appendices describe the requirements for shoring, sloping,
18 benching, and shielding systems that provide adequate protection for employees
19 working in excavation sites. Despite the horrendously steep cuts called for in Mr.
20 Tahja's plans, there are no measures specified whatsoever to meet these
21 requirements.
22 III. Violations of MCC 15.09.055(h).
23 Both Mason County and the Applicant concede that the building and
24 grading permits cannot be granted if the excavation quantities exceed by more
25 than 10 percent the 640 cubic yards that were authorized by the underlying
26 Shoreline Permit. However, neither Mason County nor the Applicant made any
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I iaccurate, which is
effort at the hearing to show that Mr. Tahja s calculations s were e e
2 astonishing in light of the blatant errors in those plans. The gist of Applicant's
3 position seems to be that because Mason County accepted the calculations, no
4 further review is allowed. Mason County's position seems to be that it was
5 entitled to rely on Mr. Tahja's plans because he is a licensed engineer, regardless
6 of how flawed those plans are when scrutinized. Neither of those positions is
7 supported by any legal authority whatsoever.
8 At the hearing, the Applicant also seemed to suggest that the excavation
9 quantities would be lower than the 5,500 cubic yards projected by Baseline
10 Engineer by virtue of using vertical or near-vertical cuts (which also violates
11 Code as summarized above). However, even when using vertical cuts, and
12 applying the topographical survey from Agate Land Surveying (Applicant's
13 surveyor who testified at the hearing), the cut quantities are approximately
14 double the 640 cubic yards authorized by the Shoreline Permit. In other words,
15 even when using the Applicant's proposed illegal cuts, the project still exceeds
16 the 10 percent change threshold set forth in MCC 15.09.055(h)(1). Accordingly,
17 the Applicant must reapply for a new Shoreline Permit pursuant to MCC
18 15.09.055(h)(2).
19 The increased height of the retaining wall is also a change prohibited by
20 MCC 15.09.055(h) and WAC 173-27-100. The wall height allowed by the
21 Shoreline Pen-nit is "25 feet in height at its highest point." However, the final
22 building permit design shows that the highest point of the wall at over 40 feet.
23 (Tahja Plans at p. 4 of 9.) Although Applicant's counsel suggested that this is a
24 mistake in the drawings, there is no actual evidence in the record supporting
25 counsel's argument. Not only is this change greater than 10 percent, it exceeds the
26 30-foot height limit for substantial shoreline rural residential developments under
TERRELL MARSHALL DAUDT&WILLIE PLLC
936 North 34th Street,Suite 400
APPELLANT'S REBUTTAL MEMORANDUM-7 Seatue,Washington 98103.8869
HEX2009-00035 TEL.206.816.6603.FAX 206,350.3528
www.tmdvAaw.00m
I MCC 17.50.060. As a result, the wall height change also runs afoul of WAC 173-
2 27-1OO(2)(c), which prohibits any revision that authorizes the "development to
3 exceed height, lot coverage, setback, or any other requirements of the applicable
4 master program."
5 IV. Conclusion.
6 For the forgoing reasons, the Building Permits should be revoked.
7 Alternatively, the Building Permits should be remanded with an order to comply
8 with MCC ch. 14.44 and follow the procedure required by MCC 15.O9.O55(h)(3).
9 DATED this 9th day of May, 2012.
10 TERRE ARSHALL
11 & LC
12
13 By:
h el audt,SfSBA #25690
14 Email: idaudt@tmdwlaw.com
15 936 No 34th Street, Suite 400
Seattle, Washington 98103-8869
16 Telephone: (206) 816-6603
17 Facsimile: (206) 350-3528
18 Attorneys for the Appellant
19
20
21
22
23
24
25
26
TERRELL MARSHALL DAUDT&WILLIE PLLC
400
APPELLANT'S REBUTTAL MEMORANDUM-8 ea North shi34t ton 9 suite 86
Seattle,Washington 98103-8869
HEX2009-00035 TEL.206.816.6603•FAX 206.350.3528
www.tmdwlaw.com
Exhibit A
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Exhibit B
D EWATTO PAY PEER REVIEW
EXCAVATION QUANTITIES BASED UPON TAHJA APPROVED CIVIL PLANS
DATED 3/22/10 WITH AN ASSUMPTION OF VERTICAL CUT SLOPES.
TOPOGRAPHY SHOWN PREPARED BY AGATE LAND SURVEYING DATED 3/8/10.
TOTAL EXCA VA TION OUANTIT/ES = 1, 615 CY
Exhibit C
HEX2009-00035 Alan Tahja Testimony Before Hearing Examiner on April 25,2012
QUESTIONS BY EARL MORRISS
Q: Alan,you are a professional engineer, is that correct?
A: Yes I am.
Q: And could you give me a little bit of your background?
A: I have been unloading dump trucks since I was 8 years old kinda like Earl. Both have construction backgrounds.
My resume here starts with my county employment back in the early 80s. I have done a variety of things.My father
was a contractor,had construction equipment—dump truck stuff. I've worked as a machinist,worked on a survey
crew,worked on carpentry,contractor,a myriad of things,real estate salesman.
Q: You mentioned you worked for the county. What was your employment with the county?
A: Initially I was a care-taker out at the county baseball park out at Sean's Ferry Road and I transferred over to the
public works department and went on a survey crew where I met(inaudible). And we worked together about 7 years
on the survey crew. And I worked my way into the office and I got my diploma and I got my license working for the
county and I retired so to speak from the county in 2005.
Q: And so you have a degree in civil engineering'?
A:Yes I do.
Q: And you passed the professional engineers exam?
A: Yes I have.
Q: And the conflict that Mason County has discussed,have you ever worked for Earl Iddings?
A:Yes I have.
Q: On how many occasions have you worked for Earl?
A: 3 or 4
Q:Ok. On this project, I know you have testified in trial and various places on this issue. Could you give just a brief
narrative of your involvement in this project,starting with when Mr. Griffith contacted you?
A: Brief?
Q: Very Brief. As brief as you can do.
A: I was contacted and Mike gave me a copy of the survey plan if you will,typically what I use when I am doing
this kind of project. Remember this is a residential driveway.Nothing particularly unusual about it other than well,
he provided me with a survey map. I think a 30-foot right of way with the county road ending in his property so I
felt we had the freedom to access his property off of the end of the county road.The road already continued through
his property.The county did make us get an access permit after through the course of events the right of way
through which the right of way which has been back and forth between 30,40,and 50 ft. I just revised it after one
objection after another.
i
Ok. Now in the course of doing this design,did you say this project was maybe somewhat more difficult than
Q g g � Y Y P J Y
your average residential driveway?
A: Certainly.
Q: Ok. Do you feel like you have the qualifications to design a wall a driveway of this type?
A: Yes.
Q: Ok. I am not going to ask you a lot of questions about it. What I am going to do is say that is all I have for you
and 1 know that Mr. Daudt will have a variety of questions that you answer.
QUESTIONS BY MICHAEL DAUDT
Q: Mr. TaHja, you have been here the whole hearing?
A: Yes I have.
Q: And I gather you have,you've seen before today the reports from Insight,the reports we have been discussing
today,the Insight report and the Baseline report
A: No.
Q: You have never seen them? Do you know whether Mr. Morris has...
A: They may have been available to me but I really have no interest in them.
Q: So you have no comment on any of their work I gather?
A: I have no reason to criticize their work.
Q: Well I do have some questions for you relating to some of the things that happened during the course of this. Did
you hear my line of questioning to Mr. Bechtolt about the timing of when you received the information about the 40-
foot right of way and the December 2009 permit. Were you following that?
A: Yes.
Q: So how did that happen?You had to have,you had information that the right of way was 40 feet. at least no later
than November 2009,wouldn't you agree?
A: No I agree.
Q: So how is it that plans were submitted to the county still showing a 30-foot right of way in December of 2009?
What is the right of way today? What is it?
A: I don't know what it is,out there I guess it's whatever was out there was available for my(inaudible). I moved
that road back and forth trying to meet the right of way plans and everything else. They can criticize my math. I
think I made some mistakes but I think possibly there have been some other mistakes made too so.
Q: Well I haven't heard you defend it yet so far but anyway, let me ask you some more specific questions. After the
permit was appealed,after the permit was issued in December of 09,the county suspended it?
A: Yes.
J
Q: There were some issues related to the right of way raised at that time right?
A: Yes.
Q: And did you then go about trying to redesign the project in light of the new wider right of way that you were told
had to be dealt with?
A: Yes.
Q: And is it fair to day that one of the things you needed to do was try to keep your excavation calculations within
the 10%threshold not to exceed 10%of what was permitted by the Shorelines Permit?
A: And I accomplished that.
Q: How long did it take you to do that?
A: A couple weeks. Redesigned it. Recalculated it. A couple weeks. I don't know. We're talking about a couple
years ago now.
Q: So you got a December,you recall it happened right away in December of 09,is that correct? Does that ring a
bell?Mr. Griffith was out there starting construction,the shutting down,that was all right around the time?
A: That's about all I heard was that he was shut down,equipment and materials on the sight.
Q: And so then you were already in December working on redesigning right?
A: If 1 wasn't busy doing something else,probably yes.
Q: So I would like you to take a look right now at what we have marked for identification.This is number 26,
exhibit number 26.
A: Want me to read the whole thing?
Q: Take as long as you'd like to look at it. My question is going to be do you recognize or recall these email
conversations in December of 2009 between you and Mr. Griffith and Doreen Milward?
A: This is a copy of the email between Mike and myself,yes.
Q: And you recall these emails having read it again?
A: I recall yes.
Q: So would you agree with me in reading the first sentences it says"Hello again Mike",you're referring to Mike
Griffith there, right?
A: Yes.
Q: This is your email December 9,2009. According to the survey information provided in Agate Land Survey's
drawing we're still 10+ feet in the ground when the driveway location reaches the"top"of the bank.
A: Do you want me to point that out in the drawings over there?
Q: Well if you think that would help explain it. I'm trying to figure out what that means. In other words,is what
you're saying you didn't really have designed the original driveway to actually get up over the top of the bank?
A: There's the top of the bank.
Q: For the record let's make sure you're identifying what you're saying. Exhibit 22-A5,
A: That driveway traverses across the front of the property.Now here where it turns into a bank,still 10 feet
low...40 feet elevation...like 50. So we had to go into the bank. We didn't have room to go further laterally.
Q: I see. So why did you design it that way?That is how you first designed it,initially for Shoreline permitting,
right?
A: Well that is a much later design. Anything with a 26%grade on it. . . .
Q: Well I'm referring to what you're mentioning here. We're still 10 feet into the ground when the driveway reaches
the top of the bank.
A: I had to,so to speak,excavate into the bank. Yes.
Q: Well, let me just kinda walk through the rest of this e-mail 1 guess,because I am not sure we are going to get
anywhere with this. You're next sentence says,"I am beginning to feel every time I stick my neck out for you,I get
it chopped off" What were you referring to there Mr.Tahja?
A: I developed a design based on a piece of paper he gave me and developed....then I get a claim that there's a 60 ft.
right of way. And every time I put any time and effort into it, I felt I was almost—it was a futile effort and it was
gonna be rejected too and I was gonna be redrawing it a 91h time.
Q: You say you were sticking your neck out. What does that mean?
A: It's hard to say. Some kind of slang. I don't know what I meant by it.
Q: It doesn't mean that you were cutting corners does it?
A: Initially it might. I had something of a disagreement before we got a survey involved in it. I went out there I have
a good survey instrument and I take,collect...right over the top of the bank where the features were and I wouldn't
go any further until Mike got a surveyor going.
Q: l see.
A: I was already, most projects within the county,they do not require a survey to be done and there weren't
objections to the neighbors and stuff. They probably would have proceeded as most county projects do, for private
projects,pardon me.
Q: But you felt nonetheless at some point that you needed a survey?
A: Oh it was starting to get too tight,yes.
Q: What do you mean"Starting to get too tight"?
A: When I get uncomfortable, I start shoring up,getting additional information,a survey. It became apparent that I
better needed to know where the lines,where the right of way was. When I met Mike out there,he showed me two
stakes that were essentially the sidelines of the property. I believe there is well drilled in the back right corner of the
property, the Minty's all oriented upside down. North is south and south is north. I'm not a surveyor. I quite
intentionally avoid doing anything that could be construed as surveying. You'll see a lot of my lengths but you
won't see any variance,but you won't see anything I did...or anything. All I can do is get myself into trouble for
thinking I can do surveying.
Q: Is that what happened here?Were you getting in trouble?
A: Well if I continued defending that first 30 ft. right of way on the side of the road. Ya that would get me into
trouble.
Q: What kind of trouble?
A: Probably end up in a courtroom like this or being cross-examined by somebody. I don't know.
Q: Any licensing issues you were concerned about?
A: No.
Q: Your next sentence says,"I don't feel I can just stop the driveway at some convenient location to shorten the
yardage."And then you go on to say,"This issue troubled me in my original design but to my surprise,nobody
seemed to pick up on it."Who were you referring to that nobody seemed to be picking up on? Was it the county?
A: I can't even remember what I meant in that one,so,tth,I'm definitely not remembering that one.
Q: Well I could see why you might because you wouldn't want to leave the impression that you were pulling one
over the county,right?
A: I am trying to recollect why I would say something to that effect.
Q: Your overall goal at this point and time...
A: Can I?
Q: Go ahead.
A: Mike wanted me to show a driveway that entered at the top of the hill and didn't go anywhere. I had to proceed
further with it. I had to make the grading fit with a shallower grade on the driveway. If I flagged the driveway off
then 1 had to go to the bank at a lower elevation,and then the grading quantity goes up. So I had to shorten the
driveway to lessen my cut up here and keep myself within that 600 yards or whatever that 1 was working with.
Q: So you were...Go Ahead,
A:That became my target to try and accomplish that,to match that original grading amount.
Q: So if I understand you correctly,sounds like you were getting pressure from your client to shorten that driveway
Up so you wouldn't be running up your allowed excavation rate. Is that right?
A: Can you resay that?
Q: It sounds to me what you just said,in other words,is that you were getting pressure from your client,Michael
Griffith,to shorten up your driveway design so that it didn't clear the top of the bank in order to lower your
excavation requirements?
A: I would say I, he and I had a little bit of a disagreement that I didn't want to put a driveway that ended at a
vertical stop. 1 had proceeded all the way to the top. We had some issues about where to end it. Uh,at one time I
think the driveway ended,stopped short,right at the top of the hill the way it is now. I had to go quite a bit further
up into his property to maintain a grade and get it correctly laid out and finish construction,the grading for the
driveway.
Q: So you had to,so starting in December of 09 going forward,you really had to make some pretty significant
changes,didn't you?
A:.Install an ecology blocks...wall.In my mind it was just minor tweaking trying to get,to satisfy the objection.
Q: Minor tweaking?Well it went from 25 feet to by your calculations 35 feet in height at the highest point of the
wall right?
A: That's your interpretation of it. No.
Q: That's not true?
A: It was no more that 24 feet tall.That's an interpretation on part of my opinion.
Q: I see.Your contention is that your current approved plans that are subject to this hearing show a 25-foot high
wall at its highest point.
A: You can't see a grading plan in it.The whole damn thing is a grading plan. But then you say all these things
don't stand out to you.
Q: Well
A: L..
Q: Well I'd like for you to point it out to me. I mean we can go through your plan.Where does it show it's a 25-foot
wall? In actual height.
A: I was referring to right here where it turns into a bank.This location down here. On this point in,its curving,the
roadway is coming into the property. ...May be contained through the cut-bank but not the road.
Q: Well...
A:There's still...
Q: Well...
A: ...higher footing. 1 would expect it would be prudent to make the footing for this portion of the wall taller and put
a ...footing here.
�Z
l
3
5
0
7
MASON COUNTY HEARING EXAMINER
y
Earl Iddings,
I Appellant,
Hearing Examiner Case Number:
i HEX2009-00035
12
13 CLOSING ARGUMENT
V.
14
Michael Griffith
15
16 Applicant/Respondent.
17 COMES NOW, Earl Morriss, the attorney for Applicant / Respondent Michael Griffith, and hereby
18 offers this Closing Argument related to the April 25, 2012 hearing on this matter.
19
20 Apparently the parties and the Hearing Examiner agree that the current appeal is related exclusively
to the issues listed in the 2009 appeal document as Number 1 — concerns related to the approved
21 grading and construction plans; and, Number 6- issues related to the plans and design of the proposed
22 wall. Also, the attorney for the Appellant raised in new issue in his Appellant's Hearing Brief
23 involving a supposed violation of MCC 15.09.055(H)(c) [Should be(h)(3)].
24
At the hearing the Appellant presented the opinions of a variety of"experts". It appeared from the
25 testimony and the resulting cross-examination that this new group of geo-techs, engineers and land
CLOSING ARGUMENT- 1 LAND LAW WASHINGTON,PLLC
2920 Colby Avenue,Suite 214
Everett,Washington 98201
T:425-374-3417 F:425-328-1893
I surveyors knew just enough about the issues in this matter to be able to attack the existing plans for
2 this project. In the end, they all admitted that they actually knew very little—but that they were more
3 than willing to make various"assumptions"and "guesses" regarding the issues presented. A number
of their assumptions—and the various exhibits created there from verged on the absurd: walls 45 feet
4 high, the destruction of the bird nests, grading plans which were pure fantasy and grading volumes
5 which were at least ten times the reality of the project. Obviously the entire project — and all the
6 permits and hearings — are premised on some basic requirements — a wall no higher than 25 feet
7 (actually, "approximately 25 feet"), the destruction of no more than one bird nest and very minimal
grading. And the existing plans conform to those requirements. [There is one obvious mistake in the
8
plan set—the wall cross-section on 4 of 9 fails to show a "step up" footing which would be required
9 to keep the wall at a height not to exceed 25 feet. Adding a drawing to show the step ups which
10 would follow the natural contours of the slope would be a simple addition to the plan set].
11
12 The much attacked engineer for the Applicant, Mr. Tahja, is a highly qualified and licensed engineer
who is fully qualified to design this project. Mr. Tahja has completed hundreds of projects in the
13 Mason County area — and no evidence has been provided to show that any of those projects failed.
14 Additionally, no evidence was presented to show that any complaints have ever been filed against
15 Mr. Tahja. In fact, testimony was presented which showed that Mr. Tahja had a long career with
16 Mason County — and that while in private practice he has completed numerous projects for the
Appellant, Mr. Iddings. Any set of plans which have been revised as many times as these plans can
17 be subject to attack —but Appellant has failed — over the past 5 years, and through numerous other
18 hired gun "experts" and through the course of several hearings and a Superior Court trial to
19 conclusively show a fatal problem with the plans for this project.
20
The newly raised issue—provided to the Applicant via email at 7:24 AM on the morning of the recent
21
hearing- involves the correct interpretation of MCC 15.09.055(h). The Appellant, Mr. Iddings,
22 believes that section (h)(2) applies and relies on a December 21, 2009 letter from Mason County
23 Senior Planner Mr. Allan Borden is support that contention. The Applicant, Mr. Griffith, believes
24 that even if the changes to the plans amounted to a "revision" or "modification", it is clear from the
25 actions of the county, the counties Staff Report at the recent hearing and the testimony of said Mr.
CLOSING ARGUMENT-2 LAND LAW WASHINGTON,PLLC
2920 Colby Avenue,Suite 214
Everett,Washington 98201
T:425-374-3417 F:425-328-1893
I
I Borden at the hearing that the County decided that section (h)(1) and (3) applied or that neither
applied. If the County had decided that section (2)actually did apply and that the project had in fact
3 changed beyond the ten percent threshold, the County would have used the process which they
describe in the letter. If there was a revision then the requirements of section (3) should have kicked
4 in —and the Hearing Examiner should have had the opportunity to approve the revision. But that did
5 not happen; the County proceeded as if there had actually been no revision or modification. So,
6 either there was no revision — the plans were simply changed slightly to conform to various
7 requirements from the Shoreline Hearing Board —or, the County failed to follow the steps in section
(3). In either case, the Applicant has done nothing wrong and the existing plans have been approved
8
by the County.
9
10 The Appellant has been fighting this project for several years. Testimony at the hearing showed that
11 Mr. Iddings has made basically all of the arguments presented at the hearing on numerous other
12 occasions. Nearly a dozen different experts have been hired by the Appellant over the years —all of
them have found one problem or another with the proposed plans—as hired experts are prone to do.
13 But, review by various governmental agencies, boards, hearing examiners and courts have ALL
14 found the arguments to be inconclusive at best. The Applicant asks that the current appeal be
15 DENIED.
16
17
18
19
20 DATED this 2nd day of May 2012 in Everett, Washington.
21 LAND LAW WASHINGTON, PLLC
Attorney for Applicant/Respondent,
22
23
Earl Morriss, WSBA#34969
24
2;
CLOSING ARGUMENT-3 LAND LAW WASHINGTON,PLLC
2920 Colby Avenue,Suite 214
Everett,Washington 98201
T:425-374-3417 F:425-328-1893
4L
1 Hearing Examiner Phil Olbrechts
2 Hearing Date: April 25, 2012
3
4
5
6
7
8
9 MASON COUNTY HEARING EXAMINER
10
11 EARL IDDINGS,
Hearing Examiner Case Number:
12 Appellant,
HEX2009-0003 5
13 V.
14 APPELLANT'S HEARING
MICHAEL GRIFFITH, BRIEF
15
Applicant/Respondent.
16
17
18 I. Introduction.
19 The building and grading permits issued by Mason County to Respondent
20 Michael Griffith, BLD2007-00906 and GRD2007-0002 (the "Building Permits"),
21 call for a massive ecology block retaining wall over 40 feet in height and
22 approximately 100 feet long to support a driveway that will slope at a grade
23 exceeding 30%, to be constructed within 50 feet of the Dewatto Bay shoreline in
24 a Landslide Hazard Area containing a nesting colony site for Pigeon Guillemots.
25 Griffith's radically designed project in an unstable and sensitive location has no
26 precedent in Mason County, and likely nowhere else in the state of Washington.
TERRELL MARSHALL DAUDT&WILLIE PLLC
836 Norlh 34th Street,Suite 400
APPELLANT'S HEARING BRIEF- 1 Seethe,Washington 88103.8009
TEL.206.818.6W3•FAX 206.360.3528
HEX2009-00035 www.tmdwlew.00m
I Because the proposed project is on the Dewatto Bay shoreline, Mason
2 County required Griffith to obtain a Shoreline Substantial Development/
3 Conditional Use Permit ("Shorelines Permit") before he could obtain building and
4 grading permits. However, Griffith made significant changes to the project design
5 after receiving his Shorelines Permit. The current design for the Building Permits
6 illegally increases the excavation quantities, wall height, slope, and nesting site
7 destruction beyond what is allowed under the Shorelines Permit. Mason County
8 violated Mason County Code in issuing the Building Permits with such
9 significant changes.
10 Furthermore, the geotechnical analysis and engineering supporting the
11 Building Permit design are both grossly deficient. There is no structural
12 engineering analysis for the wall, no supplemental geotechnical analysis of the
13 current design, and no analysis of the size or means and methods of temporary
14 cuts. There are also significant discrepancies between the approved design
15 drawings and the topographical survey data supplied by Griffith's surveyor. The
16 designs do not meet professional engineering standards and should be rejected.
17 H. Griffith Began His Permit Applications Without a Survey.
18 The project involved in this appeal is a proposed ecology block wall
19 estimated to exceed 40 feet in height, to be located immediately adjacent to
20 Dewatto Beach Drive, which runs along the shoreline of Dewatto Bay. The
21 purpose of the wall is to support a steeply inclined driveway (in excess of 30%
22 grade) to connect Dewatto Beach Drive to the upland portion of Griffith's
23
waterfront property for a future home site.
24 In reviewing the original building and grading permit applications, Mason
25 County determined that additional permits were required, including the Shoreline
26
TERRELL MARSHALL DAODT&WILLIE PLLC
936 North 341h Street,Suite 400
APPELLANT'S HEARING BRIEF-2 Seethe,Weehinglon 90103-8869
TEL.206.816.6803•FAX 208.360.3628
HEX2009-00035 www.tmdwlsw.com
I Permit, number SHR2008-00012. That permit was appealed to the Shorelines
I
2 Hearings Board, which affirmed the Shorelines Permit on June 22, 2009.
3 Griffith failed to conduct a survey to determine the width and location of
4 the county right of way (Dewatto Beach Drive) prior to applying for his permits.
5 He obtained his Shorelines Permit before obtaining such a survey. The design
6 used for his original'permit applications assumed that the county right of way was
7 only 30 feet wide. At the same time that he obtained his Shorelines Permit,
8 Griffith also obtained a zero-set back variance to allow construction of his project
9 up to the boundary of the right of way. The plans approved for the Shorelines
10 Permit specified excavation of native soils in the amount of only 640 cubic yards,
11 a wall height of 25 feet, and slope of 25%, and design to avoid removal of the
12 existing Pigeon Guillemot nests above the proposed driveway.
13 III. Griffith's Belated Survey Revealed a Wider Right of Way.
14 Having been informed by Mason County that a survey of the right of way
15 would be required before the Building Permits could be issued, Griffith
16 completed the required survey in 2009. The Building Permits were originally
17 issued on December 3, 2009 using designs showing a 30 foot right of way, even
18 though Griffith had previously obtained a survey showing that the right of way
19 was at least 40 feet wide. Shortly after this appeal of the Building Permits was
20 filed on December 15, 2009, Mason County "suspended" the permits because the
21 County felt that further review of the location and width of the public right of way
22 was warranted.
23 On December 21, 2009, having become aware that the right of way was 10
24 feet wider than previously assumed in Griffith's project designs, Mason County
25 Senior Planner Allan Borden wrote to Griffith to notify him that the Building
26 Permits violated Mason County Code:
TERRELL MARSHALL DAUDT&WILLIE PLLC
938 None34t Street,site 400
APPELLANT'S HEARING BRIEF-3 Seattle,Washington 8103-8868
HEX2009-00035 TEL.208.818.SW3.FAX 206.360,3528
www.tmdwlaw.com
1 �
1 This letter is regarding the proposed driveway and bank stabilization wall
at 791 NE Dewatto Beach Drive that was reviewed and approved by Mason
2 County SHR2008-00012 and the affirming decision of the State Hearings
3 Board SHB 2008-031. With newly submitted information and design, the
plans and scope of your proposed work adjacent to the face of the sandy
4 bluff has changed from the approval of these permit reviews. A new survey
5 of the county road easement . . . has increased that county road easement
width from 30 feet (as indicated during permit review) to 40 feet . . .,
6 malting the easement head into the bluff area an additional 10 feet. With
7 this shift of the easement into the bluff, the proposed driveway and
supporting walls must be shifted and the proposed embankment volume
8 increased to accommodate the driveway configuration.
9
10 Mr. Borden's letter concluded that "[w]ith this type of change in project plans,
11 Mason County DCD Planning concludes that the previously approved 2008 SHR
12 permit was revised beyond the ten percent threshold that may be considered under
13 Mason County Code 15.09.055h(2) and Washington State WAC 173-27-100,"
14 and advised Mr. Griffith that he would have to submit a new application for his
15 Shorelines Permit.
16 However, instead of submitting a new Shorelines Permit application to
17 address the change in scope of his project, Griffith directed his engineer, Alan
18 Tahja, to reconfigure the plans to make it appear that the project could still be
19 built within the limitations of his existing permit.
20 Appellant's evidence presented at this hearing will show that the
21 reconfigured plans submitted by Griffith in 2010 drastically understate the
22 excavation of native soils, wall height, slope and nest destruction that the project
23 necessitates in light of the wider right of way that was unanticipated in Griffith's
24 Shorelines Permit plans. When these items are accurately measured, it is clear
25 that the Building Permits are in violation of MCC 15.09.055(H) and WAC 173-
26 27-100 just as Mr. Borden concluded in December 2009.
TERRELL MARSHALL DAUDT&WILLIE PLLC
APPELLANT'S HEARING BRIEF-4 Seattle,Washington one98 uo3�t�
HEX2009-00035 TEL.206.816.6603•FAX 206.360.3528
wwwAmdwlaw.o=
I IV. Mason County Violated MCC 15.09.055H.
2 Although Mr. Borden's December 21, 2009 correctly identified that the
3 changed right of way width caused a "Permit Revision" as defined in MCC
4 15.09.055(H), Mason County's subsequent handling of the Building Permits
5 failed to follow MCC 15.09.055(H). Once a "Permit Revision" is identified for a
6 project that is subject to a Shorelines Permit, the County must determine whether
7 the revision "is within the scope and intent of the original permit set forth under
8 WAC 173-27-100." MCC 15.09.055(H)(a). If the revision exceeds the "scope and
9 intent of the original permit, a new a complete permit application shall be made."
10 MCC 15.09.055(H)(a). If the revision is "within the scope and intent of the
11 original permit," the proposed revision must be approved by the hearing examiner
12 and submitted to the Department of Ecology for approval.MCC 15.09.055(H)(c).
13 Mason County did not submit the revisions to the hearing examiner or the
14 Department of Ecology. Mason County's failure to follow this procedure would
15 require remand regardless of the magnitude of the revision.
16 V. Conclusion.
17 For the forgoing reasons, the Building Permits should be revoked.
18 Alternatively, the Building Permits should be remanded with an order to follow
19 the procedure required by MCC 15.09.055(H)(c).
20 DATED this 25th day of April, 2012.
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TERRELL MARSHALL DAUDT&\VILLIE PLLC
APPELLANT'S HEARING BRIEF-5 eat North 34ih Street,sous 400
Seat North
Washington 88103.8888
HEX2009-0003 5 TEL.206.816.6803•FAX 206.350,3628
www.tmCWaW.00m
1 TERRELL MARSHALL DAUDT
& WILLIE PLLC
2
3
4 By:
Michael D. Daudt, WSBA #25690
5 Email: mdaudt@tmdwlaw.com
936 North 34th Street, Suite 400
6 Seattle, Washington 98103-8869
7 Telephone: (206) 816-6603
8 Facsimile: (206) 350-3528
9 Attorneys for the Appellant
10
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TERRELL MARSHALL DAUDT&WILLIE PLLC
APPELLANT'S HEARING BRIEF-6 936 North 34th Street,Style 400
Seattle,Washlnplon 98103-8889
HEX2009-00035 TEL.206.816.6603•FAX 206.350.3528
www.tmdwiaw.com
i
1
BEFORE THE HEARING EXAMINER FOR MASON COUNTY
2
Phil Olbrechts, Hearing Examiner
3
4 RE: Earl Iddings PREHEARING ORDER II
5
Administrative Appeal
6 HEX2009-00035
7
8 SUMMARY
9 Respondent Michael Griffith's Motion to Dismiss is denied. The appeal will continue,
limited to the grounds identified in the Appellant's appeal statement applied to the
10 subject grading and building permits as currently revised.
11 Respondent's prehearing Motion to Dismiss was largely premised upon the contention
that the pen-nits subject to this appeal had been replaced by new permits issued on
12 December 19, 201 L At the conclusion of briefing on this issue a glaring material
question of fact remained as to whether the "permits" issued on December 19, 2011
13 were in fact new building permits or were simply documents related to the permits
14 subject to this appeal. iiy a prehearing order issued March 19, 2011 the Examiner
ordered the parties to present evidence on the status of the December 19, 2011
15 "permits". Evidence presented on March 20, 2011 made it clear that the 2009 permits
subject to this appeal had not been replaced by new permits on December 19, 2011.
16 Rather, Mason County had suspended the 2009 permits by a suspension order admitted
17 as Ex. 14. The December 19, 2011 "permits" operated to lift the suspension and
reinstate the 2009 permits.
18
19 TESTIMONY
Michael Daudt,representative of appellant, stated that the question before the hearing
20 examiner is whether the two perrnits issued in 2011 for building and grading are new
project permits that apply to a project that is wholly different than what preceded it or
21 merely adjustments to previously issued permits. He noted that he believes the
22 evidence will demonstrate they are overwhelmingly merely amendments to a previous
pennit. The applicant took many measures to ensure that the permits were fully
23 reviewed by Mason County.
24 Mr. Daudt submitted the residential building permit from 12/19/2011 (Exhibit 1).
The document notes the received date as 5/24/2011 which is a reference to when the
25 pennit application was received. There is handwriting on the permit that indicates
the permit was reissued after suspension was lifted. Exhibit 1 lists the fees paid for
the permit beginning in 2007. In 2009, subsequent to the 2007 permit, the county
determined a shoreline substantial development conditional use permit would be
ORDER P. 1
required for the project. In Fall of 2008, there was a detennination issue for the
1 project, followed by an appeal of the hearing examiner's decision in June 2009 which
2 resulted in an affirmation of the conditional use permit. The next fee submitted was
October 28, 2010 which was for additional plans and adjustments. IIe noted that in
3 exhibit the square footage is given as 1,125.
4 Mr. Daudt submitted the 2009 permit issued 12/3/2009 (Exhibit 2) which reflects the
same permit fees as Exhibit 1. He noted that this document demonstrates that this is
5 the same, ongoing project. The square footage remained the same (1,125 sq ft.).
6 This permit (Exhibit 2) was the first for the project, and identical information is
tracked for both permits.
7
Mr. Daudt submitted the grading permit issued on 12/19/2011 (Exhibit 3). The
8 document notes initial application fees from 2007, and, ultimately, the building plan
9 check fee submittal from 10/28/2010.
10 Mr. Daudt submitted the grading permit issued on 12/3/2009 (Exhibit 4). In
comparison to exhibit 3, the number of area graded (20,000 sq ft.) is identical. The
11 only difference - besides adjustment fee changes - is an increase in cubic yards to be
excavated: 620 in 2009 to 928 in 2010.
12
Mr. Daudt submitted the approved plans for the building permit issued on 12/2/2009
13 (Exhibit 4). The plans contain additional details about the amount of excavation and
14 dimensions. The plan sets (page 5 of 6) reflect an excavation quantity of 620 cubic
yards (also shown on Exhibit 4).
15
Mr. Daudt submitted the design packet for the grading permit dated 10/28/2010
16 (Exhibit 6). Within the packet, there is a page which bears a stamp signed by Mr.
Tahja on March 23, 2010. This signed page is a series of cut and Lill calculations and
1 gives an excavation total of 650 ft.
18
Mr. Daudt submitted the design drawings for the building permit dated 10/28/2010
19 (Exhibit 7). The same calculation sheet from Mr. Tahja is included within this design
packet. This document completes the record lrom the county for the project. The
20 original permit application was tracked on the shoreline conditional use permit. He
21 stated that the county issued a permit in 2011 because it was connected to the
previous permits.
22
Mr. Daudt submitted an email exchange between Mr. Tahja and Debbera Coker dated
23 12/16/2009 (Exhibit 8). The email was a response from Mr. Tahja to Ms. Coker in
response to questions about the 2009 permit. The email was converted to a pdf file,
24 but no other changes were made. On the bottom of Exhibit 8, he said that Mr. Tahja
25 notes there will be an additional 100 cubic yards in regard to the moving of the wall.
It is unclear if this number is completely accurate, but it is in line with what was
permitted for excavating. The shoreline's permit was submitted for around 500 cubic
ft., and the county is given a 10 percent threshold change limit on this number. Mr.
ORDER p. 2
f'ahja attempted to reassure the county in the email that the excavation would not
1 exceed this 10 percent change. The wall was being moved because the initial permit
2 assumed a 30-ft right of way at this location, but a 2009 survey done showed a
variation that resulting in an increase to a 40-ft right of way. Ultimately, the resulting
3 5-ft shift of the wall to accommodate this boundary increase was the only change
made in the building permit. He concluded that this is one permit, one project, with
4 just a minor modification.
5 Upon questioning by the hearing examiner, Mr. Daudt slated that he could not find
6 any process for the reissuance of a building permit without a reapplication in the
Mason County Code. If the revisions of the plans were significant enough for Mason
7 County to require a new permit application, the County should have asked for a new
shoreline conditional use permit; however, staff did not do require this. The county
8 treated the reissuance as the same permit.
9 Earl Morriss, representing Michael Griffiths, testified that MCC 15.11.010(b)
10 (Appeals Chapter) states that appeals shall be considered and decided within 90 days
of application which can be extended provided that the parties agree. According to
11 him, the appeal in question is time dated 12/15/2009, and Mr. Griffith has never
agreed to an extension of this time period. By law, this decision and appeal should
12 have been decided 90 days after 12/15/2009, and is no longer valid.
13 Mr. Morriss noted that MCC 14.44.140(C) subjects grading permits to the
14 administrative requirements of the IBC and IRC. 14.08.040 amends the IBC/IRC
sections governing pen-nit expiration and requires a permit applicant to acquire a new
15 permit with specified fees if a permit expires. The county has complied with this
section of the code in regard to this application.
16
17
Mr. Morriss submitted an email dated 12/13/2011 from Debbera Coker to Mr. Griffith
(Exhibit 9). The email states that the county will need to reissue the revised plans,
18 and fees due result of plan revision are $289.28. This exchange demonstrates exact
compliance with what is required in 14.44.140. He added that condition code 5610
19 (Exhibit 10)reads that all permits expire 180 days after issuance or 180 days after last
inspection is performed. The condition code further states that the building official
20 may extend the time for action for a period not exceed 180 days and no more than one
21 extension may be granted. 360 days is the limit that a pen-nit may exist. Whether the
permit in question was treated as expired or not, according to county code, it was
22 expired.
23 Mr. Morriss submitted the first page of the Mason County print-out for the project
(Exhibit 11). The page notes that the permit had been suspended and was being
24 reissued as new on 12/19/2011. Whether suspended or expired, the permit was being
25 issued as new by the county. Mason County Code allows for the reissuance of
permits with the same pen-nit number under certain conditions and that is what
occurred here.
ORDER p. 3
Upon questioning by the hearing examiner, Mr. Morriss noted that Mason County
I Code does not require a new application for the reissuance of a pen-nit.
2 Allan Borden, Department of Community Development, stated that pen-nits were
3 issued in 2009, then factual information on the permits came into question in
December, 2009. According to Mr. Borden, the project engineer, Mr. Tahja,
4 provided additional information in March, 2010 which addressed issues concerning
the grading permit. In reviewing the new application, staff found that most issues
5 were adequately addressed including whether there would be similar amounts of
6 excavation and fill.
7 Deberra Coker, Department of Community Development, stated that permits are not
commonly suspended; however, on December 10, 2009, staff received a complaint,
8 notifying them that the plans they received for the project were incorrect mainly clue
to the right-of-way. Consequently, she sent an email to Mr. Griffith on December 11,
9 2009 (exhibit t 3), notifying him that the permits were suspended in accordance with
t0 the building code, section 105.6 (Exhibit 12). On December 16, 2009, a notice of
suspension (exhibit 14) was sent which referred to the building code in justifying the
11 suspension. The notice gave instruction to the applicant about what needed to be
done to correct the problem in accordance with building code section 1208 and
12 RCW36.75: apply for and obtain an approved road access pen-nit from Mason
County Public Works and submit plans for each project reflecting correct plans
13 proposed for the project. The notice states that, when the new plans are received, the
14 building department will review the proposed plans to ensure compliance to code
requirements.
15
Ms. Coker testified that she worked with the engineer on the project, Mr. Tahja, in
16 creating plans to correct the issues for a long time. On October 28, 2010, she was
17 directed by the building official to proceed with the plan review. The project review
was postponed on several occasions because of the on-going legal issues. Activity
18 dates for permits are limited, she noted. She noted that terns used on the reviews
included"reissued" and"new,"but these were incorrect as no new permit was issued.
19 Instead, the suspension was just lifted off the previously approved permit. In regard
to the permit being expired, she said staff felt activity was occurring on the project
20 throughout the process, and staff never acknowledged the permit as being expired.
21 Even after the issuance of a building permit, revisions are common when processing
them (around 70 percent). If there is a significant amount of change, staff will
22 require a new permit application; however, staff has allowed complete new building
plans without requiring new applications.
23
Upon questioning by Mr. Morris,Ms. Coker stated that on October 28, 2010 the plans
24 were reviewed and approved. She was notified on October 21, 2010 that the road
25 access permit had been approved. She testified that, on December 19, 2011, she was
notified by the Mason County prosecutor that there was no reason why the project
could not move forward, and the suspension was lifted. On November 1, 2010, a
temporary restraining order was issued against Mason County preventing the county
ORDER p. 4
from issuing any firm of permit. She stated that the suspension was not removed on
1 October 28, 2010 because of this restraining order.
2 Earl Iddings stated he filed the appeal in December 2009. He noted that he has been
3 subject to revisions and building code, and, in his experience, there has always been a
threshold of how much you can modify your permit. In 2009, he identified multiple
4 issues with the original building pen-nit which resulted in the permit's suspension.
His appeal was still pending when the permits were reissued. The permits were
5 issued on December 19, 2011 without notice to him, despite him being a party of
6 record. He concluded that he feels they are the same permits, but they are not valid.
7 Mr. Morriss stated that the appellant's representative has not addressed whether or
not the permits were "reissued," "renewed," "expired," or "suspended." On Exhibit
8 1, the note "reissued after suspension lifted," is not on Mr. Morriss' copy which he
received previously. This suggests this note was added recently, according to him.
9 On Exhibit 2, an expiration date is shown as 6/3/2010 (180 days after the permit
10 expired). On Exhibit 3, there is verbiage that is not on Mr. Morriss' previously
obtained copy. He further noted that the plans from Exhibit 6 are very different than
11 the original plans having numerous changes, yet the county did not require a new
application at that time. After October 28, 2010 the plans were approved, and there
12 was no legal basis for continued suspension. Mr. Morriss' said that his client was
never made aware of a new suspension after October 28, 2010. The county does not
13 have the ability to keep suspended permits from expiring. The plans were suspended,
14 and the revisions were made as requested. At that time, the county should have lifted
the suspension,but they did not.
15
Mr. Daudt stated that the county did not intend to reissue a new permit, and the term
16 "reissuance" was used only to bring attention to the new conditions on the existing
17 permit. 'There are no great differences in the two design plans, and the applicant's
representative failed to point out any specific changes, according to Mr. Daudt.
18 Exhibits 1 and 3 note the fee amounts and it is not suggested that these are one half
the amounts normally charged (as should be the case, according to 14.08.040).
19 Exhibit 1 gives the additional plan check fee as being $219, but there is no reference
to this being half the normal fee. The code does state that the half fee only applies if
20 no changes have been made,but there were changes to this design plan. According to
21 the code, in order to renew an action, the building official has the ability to require a
new application and charge fees for this process, but there is no evidence that the fees
22 paid by the applicant were based on this code requirement.
23 Mr. Daudt testified that a permit that has been suspended is different than a pen-nit
that has expired. The applicant was not allowed to proceed with the project because
24 of the suspension. The 14.08.040 code section is not addressing suspended permits,
25 but instead permits where the applicant did not proceed in a timely manner.
ORDER P. 5
i
l EXHIBITS
The following documents were admitted into the hearing. In addition the Examiner
2 considered the Respondent's Motion to Dismiss along with the associated response
3 and reply and all attachments thereto, as well as the March 20, 2012 staff report and
all of it attachments/exhibits:
4
5 Exhibit 1-Residenital Building Permit, 12/19/11
6 Exhibit 2-Residential Building Permit, 12/3/2009
7 Exhibit 3-Grading Permit, 12/19/2011
8 Exhibit 4-Grading Permit, 12/3/2009
9 Exhibit 5-Geotech report, site plans, 12/2/2009 20 pages
10
Exhibit 6-Design permit for grading project, 10/28/2010
11
Exhibit 7-Design documents for building permit, 10/28/2010
12
13 Exhibit 8-Email exchange from Mr. Tajha to Ms. Coker dated 12/16/2009
14 Exhibit 9-Email exchange from Ms. Coker to Mr. Talija dated 12/13/2011
15 Exhibit 10-building permit conditions
16 Exhibit 11-Mason County web-page printout 2012 tax statements
17 Exhibit 12-Sections of the International Building Code
lg Exhibit 13-Email from Ms. Coker to Mr. Griffith on 12/11/2009
19 Exhibit 14-Notice of suspension sent on 12/16/2009
20
FINDINGS OF FACT
21
22 1. On May 24, 2007 Michael Griffith applied for a building permit and grading
23 permit to construct a residential driveway on a steep slope along Dewatto Beach County
Road in Mason County.
24
2. Mason County issued the grading and building permits on December 3, 2009.
25 See Ex. 2 and 4.
3. On December 15, 2009 Early Iddings filed an appeal of the 2007 grading and
building permits.
ORDER p. 6
1 4. On December 16, 2009 Mason County issued a "Mason County Notice of Permit
2 Suspension", Ex. 14. The Notice advised that the permits were suspended pursuant to
Title 14 MCC and IBC and IRC 105.6.
3
5. In subsequent months the Respondent addressed the County concerns that lead to
4 the Notice identified in FOF No. 2 by revising construction drawings for the permits
5 and obtaining a favorable superior court ruling on affected Mason County right of way.
6 6. Mason County released documents identified as "Residential Building Permit",
Ex. 1, and "Land Modification Permit", Ex. 3, on December 19, 2011. Both permits
7 contained the same issue date as the 2007 permits subject to this appeal, listed the same
2007 "received" date for those permits and also kept the same permit file numbers as
8 the 2007 permits. No reapplication was made for the December 19, 2011 "issuance' of
the permits and no reapplication fees were charged for the issuance. Fees referenced by
9 the Respondent as re-application fees in Ex. 9 were fees for review and approval of
10 construction drawing revisions. Ex. 9 stated that"the fees are due as a result of the plan
revisions are $281.20". This statement clearly identified that the fees were imposed as a
11 result of changes made to the construction drawings, not because of the alleged issuance
of new permits necessitated by the expiration of the 2009 permits. Further, as noted in
12 the March 19, 2012 prehearing order of this case, IRC 106.4 contemplates the approval
of revisions to construction drawings after building permit issuance without triggering
13 the issuance of new building permits.
14
7. On January 9, 2012 Chris Powell filed an appeal with Mason County of the
15 permits released on December 19, 2011. See Powell APheal, attached to Respondent's
Motion to Dismiss.
16
17 8. By letter dated January 11, 2012, Barbara Adkins, Mason County Community
Development Program Manager, advised Mr. Powell that his January 9, 2012 appeal of
18 the"issuance" of the December 19, 2011 permits was untunely but that the 2009 appeal
filed by Mr. Iddings was still active and would be processed.
19
9. Respondent Griffith filed a Motion to Dismiss the Iddings 2009 appeal on
20 February 24, 2012. Respondent Griffith's primary argument was that the 2009 building
21 and grading permits had been replaced by building and grading peanuts issued on
December 19, 2011, the documents released on that date as identified in FOF No. 5. He
22 reasoned that the December 19, 2011 "permits" replaced those issued in 2009. He
further reasoned that since the December 19, 2011 "permits" were not timely appealed,
23 they governed the development of the property and could not be challenged.
24 10. A response to the Motion to Dismiss was filed by Appellant Iddings and a reply
25 was filed by Respondent Griffith. In a prehearing order dated March 19, 2012 the
Examiner ruled that a material question of fact existed on whether the December 19,
2011 permits constituted new permits that served to replace the 2009 permits. At that
time there was no evidence in the record on the permit suspension, on the intention of
ORDER p. 7
the County in releasing the December 19, 2011 "permits" or on whether Respondent
I Griffith had re-applied for any permits.
2 11. A hearing was held on March 20, 2012 to address the status of the December 19,
3 2011 "permits". At the conclusion of the hearing the Examiner took the Motion to
Dismiss under advisement and continued the hearing for evidence on the merits of the
4 appeal as a whole
5
12. At the March 20, 2012 hearing Debbera Coker, Mason County building permit
6 inspector, testified that she prepared the December 19, 2011 building and grading
7 permit documents identified in Finding of Fact No. 5. She testified that Mason County
does not consider the 2011 documents to constitute new building and grading permits.
g They are still the permits issued in 2009. The December 19, 2011 documents merely
served to lift the suspension of the pennits identified in FOF No. 3. She noted that
9 County permit forms did not enable her to make it clear on the December 19, 2011
10 documents that their purpose was to lift the suspensions.
11 13. It is determined that the December 19, 2011 documents do not constitute newly
issued building and grading permits. The December 19, 2011 documents merely served
12 to lift the suspension of the 2009 grading and building permits imposed by the
suspension notice identified in FOP No. 3. 'Phis determination is based upon the fact
13 that there was no reapplication for the 2011 "permits", that the same dates of
application and permit numbers were used in the 2011 "pennits" as those used in the
14 2009 permits, and finally that the grading and building pennits were suspended as
15 identified in FOF No. 3 and that as testified by Ms. Coker the County intended the 2011
"permits' to lift the suspension and not to constitute new building and grading pennits.
16 It is noteworthy that there was no other written document that formally lined the
suspension of the permits.
17
18 CONCLUSIONS OF LAW
19
I. IBC/IRC' 105.6 authorizes the County to suspend building permit applications
20 when specified circumstances are met. MCC 14.44.140(C) provides that IBC/IRC
105.6 also applies to grading permits. As determined in Finding of Fact No. 12, the
21 December 19, 2011 documents prepared by Ms. Coker were designed to lift the
22 suspensions imposed by the County under IBC/IRC 105.6. The December 19, 2011
documents did not replace and/or revoke the 2009 building and grading permits. The
23 December 19, 2011 documents served to reinstate the 2009 pennits.
24
i
25 Since the proposal at issue is a residential driveway, it is somewhat unclear whether
the IBC or IRC applies, Since 105.6 reads the same for both codes and one of them
applies here, the Examiner uses the section reference interchangeably.
ORDER P. 8
i
By the Merriam Webster definition, a suspension operates to temporarily withhold
I something. In this case the grading and building permits were withheld by the Ex. 14
2 suspension. The key term in the definition is "temporary" — the permits were only
temporarily withheld by the suspension and the permits went back into effect once the
3 suspension was lifted.
4 2. As determined in the prehearing order in this case issued March 19, 2012, any
revisions to construction drawings approved subsequent to the 2009 building approvals
5 can be considered in this appeal.
6 3. The construction drawing revisions do not automatically render affected appeal
7 grounds moot. There is still room for meaningful debate. The revisions may not
remedy the issues raised in the appeal and the Appellant should still have the
8 opportunity to make that argument. Of course, to the extent that any revisions have
remedied the Appellant's appeal issues those appeal issues are moot. The Appellant's
9 appeal will have to address the building and grading permits as currently revised.
10
11 4. At the March 20, 2012 hearing the Respondent argued that the 2009 permits had
expired, referencing a permit condition for the 2009 permits that provided they expired
12 within 180 days of issuance. See Ex. 1, Condition 12. The grading permits do not
contain an expiration condition, but the 180 expiration condition is required by the 1RC
13 and IBC and it applies to grading permits by operation of MCC 14.44.140.
14
The 180 day expiration period was tolled by the December 16, 2009 `-Mason County
IS Notice of Permit Suspension". The permits did not expire. A very similar situation was
16 addressed by the state supreme court in Kelly v. Chelan County, 157 Wn. App. 417
(2010). h-i Kelly, the approval of a conditional use permit was revoked by a superior
17 court. The court of appeals reversed that decision and the developers moved forward to
construct their project. Neighbors then attempted to stop by the project by arguing that
18 the conditions of approval provided that the conditional use permit would lapse if the
developer didn't comply with the conditions within two years of permit issuance. The
19 neighbors argued that the two years lapsed while the project was in court. The state
20 supreme court determined that the clock was not running and the conditional use permit
did not expire when the superior court revoked the permit because by virtue of the
21 superior court's revocation there was no longer any permit subject to the two year
compliance period. Similarly, in this case, there was no pen-nit subject to the 180 day
22 expiration period during the period of suspension because by definition there was no
23 permit in effect during the suspension period.
24 5. At the March 20, 2012 hearing the Respondent argued that the appeal should be
dismissed because MCC 15.1 1.010(b) requires administrative appeals to be processed
25 within 90 days. Nothing in the Masan County Code or state law authorizes the
dismissal of an administrative appeal as a remedy for noncompliance with processing
deadlines. Further, under Kelly, supra, the 90 day period arguably did not apply while
ORDER P. 9
i
the permit was suspended because there was no permit to appeal during that time
I period-
2 6. At the March 20, 2012 hearing the Respondent noted that MCC 14.08.040
3 requires reapplication if a permit expires along with the submission of new application
fees. The Respondent argued that Mason County follotived this procedure and the
4 December 19, 2011 "permits" are new permits issued by operation of MCC 14.08.040.
As previously concluded, the building and grading permits never expired so MCC
5 14.08.040 does not apply. The record also establishes that the County never intended to
6 apply MCC 14.08.040, since it did not impose any reapplication fees as required by
MCC 14.08.040. As determined in Finding of Fact No.6,the fees identified in Ex.9 by
7 Mr. Morriss as re-application fees were in fact fees charged for the review and approval
8 of revised construction drawings,not a reapplication of an expired permit.
9 ORDER
10 Respondent's Motion to Dismiss is denied. The Appellants may proceed to contest the
issues raised in their appeal issues, PROVIDED, those appeal issues are applied to the
11 grading and building permits as currently revised.
12 Dated this 6th day of April,2012.
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14 S� 0
Phil Olbrechts
15 Hearing Examiner
16 Mason County
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ORDER P. 10
L'd UM 1,69 09£ L 914oejg10 uetsla>{ d9Z:Z0 ZL 90 AV
1
BEFORE THE HEARING EXAMINER FOR MASON COUNTY
2
4 RE: Earl Iddings
5 Administrative Appeal
HEX2009-00035 PREHEARING ORDER
6
7
8 Given the limited time (one day) to respond to Appellant's motion to dismiss and
responsive pleadings and the need to maximize the time available to the parties to
9 prepare for the hearing,this prehearing order will be issued in summary fashion.
10 The hearing on March 20, 2012 will be limited to presenting evidence and hearing
argument on (1) whether BLD2007-00906 and GRD2007-00012 were re-issued on
I l December 19, 20111; and (2) if the permits were re-issued, whether the Appellants
had a duty to file a timely appeal to challenge them in order to contest their validity.
12 Under normal circumstances, the failure to timely appeal a building permit under the
Land Use Petition Act ("LUPA"), Chapter 36.70C RCW, would bar any challenge to
13 its validity. See Asche v. Bloomquist, 132 Wn. App. 784 (2006). However, this case
may be distinguishable because of the Appellant's previously filed appeal.
14
The status of the permit action on December 19, 2011 is critical to determining
15 whether the appeal should be dismissed as moot. If the permits were re-issued on
December 19, 2011 and cannot be challenged, resolving the subject appeal would
16 serve no purpose. If the Examiner were to sustain the appeal and reverse or modify
17 the 2009 permit approvals, the Respondent could ignore the Examiner's ruling by
simply proceeding with construction as authorized by the December 19, 2011
18 approvals.
19 Instead of re-issuing a permit on December 19, 2011, the County approval on that
date could be construed as limited to approving revisions to construction drawings.
20 IRC 106.4 authorizes, or at least contemplates, the approval of revisions to
construction drawings after issuance of a building permit. It appears that at least for
21 minor revisions, revision approvals are likely a fairly common occurrence in the
course of permit administration and that these approvals are issued without re-issuing
22 the underlying building permit in every instance. Although this type of situation is
not directly addressed in the case law, the Examiner concludes that these types of
23 revisions can be considered within the context of a previously filed appeal of the
building permit. To hold otherwise would place a potential litigant in the position of
24
25 ' The December 19, 2011 date is based upon the issuance date identified in the January
11, 2012 letter from Barbara Adkins to Michael Daudt.
Administrative Appeal P. 1 Pre-Hearing Order
having to monitor and appeal every revision that could potentially affect its appeal,
1 which is both problematical from a procedural due process standpoint and also
subverts the policy of judicial economy that serves as a primary basis for the doctrine
2 of finality.
3 The bulk of the documentation submitted in association with the motion to dismiss
4 and responsive pleadings suggest that the County intended to re-issue the building
and grading permits on December 19, 2011. A material question of fact still remains
5 on the status of the County's action because the County used the same permit
numbers for the December 19, 2011 permits as those subject to this appeal and the
6 County did not revoke the 2007 permits. Further uncertainty on the issue is created
by the fact that there was apparently no tl re-application involved or associated re-
7 application fees. It is also unclear whether the public notice an d documentation used
in the December 19, 2011 decision was the same as that used for a more standard
g approval of a building permit. Since the Appellant is entitled to a hearing on the
appeal, the Examiner cannot rule on any motion to dismiss involving a material
9 question of fact.
10 The County should have someone available at the March 20, 2012 hearing who can
testify on County practices and procedures involved in approving revisions to
11 building and grading permit construction drawings. The individual should also be
able to explain the County's actions specific to the building and construction permit
12 subject to appeal. The purpose of the County testimony will be to evaluate whether
13 the December 19, 2011 permit action by the County was an approval of a re-issued
permit as opposed to simply an approval of revisions to construction drawings.
14 The format of the hearing will be Appellant/Respondent/County/Respondent
15 Rebuttal/Appellant rebuttal. Parties should bring three copies of any documents they
propose to enter into the record. All persons shall have the right to cross-examine any
16 witness. If all parties agree, the hearing issues identified in this pre-hearing order can
be handled by phone conference.
17
The Examiner will take the arguments and testimony at the March 20, 2011 hearing
18 under advisement and issue a ruling on the motion to dismiss shortly thereafter. Upon
the conclusion of testimony and argument on the issues identified in this pre-hearing
19
20 2 The Asche case and its predecessors certainly raise the argument that the County has
it should be recognized that the finality
it. However, g
no authority to revoke a perm
21 doctrine applied in Asche is solely based upon the statutory requirements of LUPA.
22 The IRC also qualifies as a state statute, since it is adopted by reference by RCW
19.27.031. IRC 105.6 expressly allows for the revocation and suspension of building
23 permits issued in error or on the basis of incorrect, inaccurate or incomplete
information.. There are a variety of ways that LUPA and the IRC can be harmonized in
24 a manner that would arguably authorize the County to revoke the 2007 permits, so the
25 Examiner does not presume that the County declined to revoke because it didn't believe
it had the authority to do so.
Administrative Appeal p. 2 Pre-Hearing Order
order, the hearing will be continued to a specified date for further testimony should
1 the Examiner deny the motion to dismiss.
2 DATED this 19`h day of March,2012.
3
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P it A. Olbrechts
6 Mason County Hearing Examiner
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Administrative Appeal p. 3 Pre-Hearing Order
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8 MASON COUNTY HEARING EXAMINER
9
Earl Iddings,
10 Appellant,
Hearing Examiner Case Number:
I HEX2009-00035
12
REPLY TO APPEALLANT'S OPPOSITION
13 TO MOTION TO DISMISS
14 V.
15 Michael Griffith
16 Applicant/Respondent.
17
18 COMES NOW, Earl Morriss, the attorney for Applicant / Respondent Michael
19 Griffith, and hereby offers this Reply to Appellant's Opposition to Motion to Dismiss.
20
Appellant claims in his Response that, "Most of the issues identified in Iddings's
21
appeal relate to the fact that the plans approved by the SDP/CUP materially deviate
22
from the plans approved for the building and grading permit." Response Page 2, Line
23 19
24 Yet, the Response only notes two instances where the plans supposedly changed — a
25 five foot movement of the wall location and the removal of a drainage ditch. Both of
REPLY TO APPEALLANT'S OPPOSITION TO MOTION LAND LAW WASHINGTON,PLLC
TO DISMISS-1 2920 Colby Avenue,Suite 214
Everett,Washington 98201
T:425-374-3417 F:425-328-1893
r
1 those claims would fall under the first "Specific reason..." shown on the appeal. I
2 would note that none of the other 5 "reasons" are even discussed in the Response.
3
4 As stated in Respondents' Motion to Dismiss, issue 2 relates to the Right-of-Way
5 width and that issue was decided by the Superior Court; issue 3 involves storm water
6 design which has been approved by Mason County- the same storm water design
7 which was accepted by the Shorelines Hearing Board; issue 4 involves a Road Access
8 Permit which has also been granted by Mason County; issue 5 involves bulkhead work
9 which was permitted under Hydraulic Project Approval Control Number 119416 and,
10 finally, issue 6 involves the existence of engineering drawings for the block wall —
11 such drawing were reviewed by the county and are part of the permit package.
12
Appellants seek to go back and review the 2009 version of a 2012 project — which is
13
literally impossible to do. Even by their own comments in response they note that the
14
plans were changed in 2010 —after the current appeal was filed.
15
16 In conclusion, Respondent disagrees that the 2012 appeal was not filed by Mr. Iddings
17 —while the name on the appeal was Chris Powell (Mr. Iddings co-plaintiff in the recent
is law suit) - it is clear from the form of the document that Mr. Iddings was actually the
19 driving force behind it — in fact, the last sentence of the 2012 appeal — signed by the
20 Appellants attorney states, "For the reasons set forth above, Mr. Iddings also requests
21 departmental review..."
22
23 The appeal currently before the Hearing Examiner is without merit on its face. The
24 appeal is also frivolous, or brought merely to secure delay.
25
REPLY TO APPEALLANT'S OPPOSITION TO MOTION LAND LAW WASHINGTON,PLLC
TO DISMISS-2 2920 Colby Avenue,Suite 214
Everett,Washington 98201
T:425-374-3417 F:425-328-1893
I DATED this 15th day of March 2012 in Everett, Washington.
2 LAND LAW WASHINGTON, PLLC
3 Attorney for Applicant/ Respondent,
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5 R. Earl Morriss, WSBA 34969
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REPLY TO APPEALLANT'S OPPOSITION TO MOTION LAND LAW WASHINGTON,PLLC
TO DISMISS-3 2920 Colby Avenue,Suite 214
Everett,Washington 98201
T:425-374-3417 F:425-328-1893
1
2
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g MASON COUNTY HEARING EXAMINER
Earl Iddings,
10 Appellant,
Hearing Examiner Case Number:
11 HEX2009-00035
12
RESPONSE TO APPEAL
13 And
MOTION TO DISMISS APPEAL
14 V.
15 Michael Griffith
16 Applicant/Respondent.
17
18 COMES NOW, Earl Morriss, the attorney for Applicant / Respondent Michael
19 Griffith, and hereby offers this Response to Appeal and makes a Motion to Dismiss.
20
Statement of Facts
21
22
On December 15, 2009 the Appellant filed an appeal of permits issued to Michael
23
Griffith on December 3, 2009 —BLD2007-00906 and GRD2007-00012. The appeal in
24 this matter was stayed subject to the conclusion of litigation between the same two
25 parties related to this project. A trial was held in the Superior Court of Thurston
RESPONSE TO APPEAL AND MOTION TO DISMISS LAND LAW WASHINGTON,PLLC
APPEAL-1 2920 Colby Avenue,Suite 214
Everett,Washington 98201
T:425-374-3417 F:425-328-1893
I County and Findings of Fact and Conclusions of Law were signed by the court in
2 January of 2012. [See Attached FFCL] Based on the outcome of that lawsuit Mason
3 County issued permits for the Griffith project which was the subject of this appeal.
a Generally, the Court found that there was no legal barrier to the project related to the
> scope of the existing right-of-way. After the permits were issues based on the
6 outcome of the trial, the Appellant in this matter filed an appeal with Mason County on
7 January 6, 2012. Mason County found that said 2012 appeal was not timely and that
8 appeal was dismissed. [See attached 2012 Appeal Document] But, the 2009 appeal
which is the subject of this hearing was still arguably in effect. It must be noted that
9
all of the specific reasons listed by the Appellant in 2009 are now all moot.
10
11
1) The site plan discussed in this appeal is not the site plan which has now been
12
approved.
13
2) The issue of the right-of-way width was decided at trial.
14 3) The storm water design was redesigned and approved by the County.
15 4) A road access permit has been granted by the County.
16 5) No work related to this project involves in-water work.
17 6) Engineering drawing of the wall have been reviewed by the County.
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AND LAW WASHINGTON,PLLC
RESPONSE TO APPEAL AND MOTION TO DISMISS L2920 Colby Avenue,Suite 214
APPEAL-2 Everett,Washington 98201
T:425-374-3417 F:425-328-1893
t Authority to Dismiss
2
3 Mason County Hearing Examiner Rules of Practice and Procedure Section 3.01
4 (a) states:
5 A code enforcement action or appeal thereof may be dismissed without a hearing if the
Hearing Examiner determines that it fails to state a claim for which the Hearing
7 J
Examiner has jurisdiction to grant relief, does not comply with filing requirements, or
s is without merit on its face, frivolous, or brought merely to secure delay.
9
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The "Decision being appealed" is listed as, "...building permit numbers BLD2007-
00906 and GRD2007-00012 issued to Mr. Griffith on December 3, 2009. "
11
12
As can be clearly seen in the more recent attempt by the Appellant to appeal the
13
permits to the Hearing Examiner, the permits currently in effect are permits by the
14
same number — but permits issued on December 19, 2011. The permits which are the
15 subject of this appeal no longer have any effect and do not actually exist. The plans
16 used in the current permit process were revised numerous times over the years since
17 the 2009 appeal.
18
19 The "desired outcome or change to the decision" requested by the 2009 appeal is to
20 "revoke the existing permits". The "existing" permits were related to the project as it
21 existed in 2009. The current permits —the permits approved in 2011 — are not a part of
22 this appeal. If the Appellant wanted to appeal those permits he should have made a
23 timely appeal of them— he did not.
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RESPONSE TO APPEAL AND MOTION TO DISMISS LAND LAW WASHINGTON,PLLC
APPEAL•3 2920 Colby Avenue,Suite 214
Everett,Washington 98201
T:425-374-3417 F:425-328-1893
I The appeal currently before the Hearing Examiner is without merit on its face. The
2 appeal is also frivolous, or brought merely to secure delay.
3
4
5 Relief Requested
6
7 The Respondent/ Applicant Griffith asks the Hearing Examiner to dismiss this
8 appeal. In the alternative, the Hearing Examiner should deny the appeal as the
9 documents which were the basis of the 2009 permits are different than the documents
10 which were approved in 2011.
it
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16 DATED this 7th day of March 2012 in Everett, Washington.
17 LAND LAW WASHINGTON,PLLC
18 Attorney for Applicant/Respondent
19
R.
20 Earl Morriss,WSBA#34969
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RESPONSE TO APPEAL AND MOTION TO DISMISS LAND LAW WASHINGTON,PLLC
APPEAL-4 2920 Colby Avenue,Suite 214
Everett,Washington 98201
T:425-374-3417 F:425-328-1893
lay. 6. 20i2 2:08PM Terrell Marshall Dau�lt & 'Willie No. 0929 P. 1
.�"�-�'� ;- 43 t -- CSC-,��>>•~:.: �..i:..�r�.C�; I� — C..<..:C��',
Terrell A, r-.r .
936 N. 341h St, Ste 400
Marshall �, Seattle, WA 9e103
® u�� �� � T: 208.816.8803 F: 208.350.3528
Willie PLLC www.tmdwlvw cam
Michael Daudt
mike Qtmdle8al tom Our File No.1026.001A
r.l�srarl �r)t1r�Cy
Via Email, facslmlie and Hand Delivery „oR�t.rliC ,,�74,r
January 9, 2011
Shannon G.oudy,Clerk of the Board Barbara Adkins, Program Manager
Board of Mason County Commissioners Community Development Department
411 North Fifth Street 411 North Fifth Street
Shelton, WA 98584 Shelton,WA 98584
Re: Appeal of Permits purportely issued to Michael Griffith purportedly on December 19,
2011
BLD2007-00906 and GRD2007-00012
Parcel No. 323283100130
Dear Mses.Goudy and Adkins:
We are attorneys representing Chris Powell in connection with the Griffiths proposed
development located next to Mr,Powell's property at the end of Dewatto Beach Drive. Mr.
Powell hereby appeals to the hearing examiner and requests departmental review of the
above-referenced permits issued to Mr.Griffith on December 19, 2011,
i
Pursuant to MCC 15.11.020, Mr, Powell states in support of his appeal: l
(1) Decision being appealed: building permit numbers BLD2007-00906 and GRD2007-
00012 issued to Mr.Griffith on December 19,2011, 1
(11) Name and address of the appellant and his/her interest(s)in the matter Chris
Powell resides at 26012 SE 252hd St.,Ravensdale,'W'A 98081 and owns property adjacent
to the project site at end of Dewatto Beach Drive, Mr.Powell's property has been and will
be affected by activities conducted by Mr. Griffith pursuant to the permits.
(111) Specific reasons why the appellant believes the decision to be wrong: i
1.) The permits were issued in violation of a preliminary injunction order fi om Thurston
County Superior Court that remained in effect on December 19,2011,
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Jan. 6. 2012 2:08FM Terrell Marshall Daudt & Willie No. 0929 P. 2
Shannon Goudy
Barbara Adkins
January 6, 2012
Page 2
2.) Oil or about December 15,2009 an Administrative Appeal was filed on behalf of Mr.
Iddings representing the local community, This appeal (HEX2009-00035)was filed in
accordance with Mason County Code,but no hearing has been conducted. Mr. Iddings's
appeal is still open, and no further action should have been taken until that appeal was
resolved.
3.) The current design that has been purportedly approved on 12/19/11 is not the same
design that was submitted to the Hearings Examiner,nor to the State Shorelines Hearing
Board. The "New"permit is based on a design that has been revised over 6 times and
increases significant impacts to the conditions and mitigation requirements set forth by
the Hearing Examiner and the Shorelines Hearing Board. The original design showed a
road right-of-way 30' (15'from center line), The new design has set the actual right-of-
way being over 45'wide(22.5'from center line). This increase pushes the construction
activities farther into the embankment,changing the construction activities and Impacts
significantly.Under the new design and 6th revision,the overall project changes in scope
far more than 10%and the permit must be resubmitted to all government agencies for
review, including Mason County Planning Department. All engineering and biologist
reports must be redone showing the design changes and project location changes.
*The height of the wall now increases to a height greater than 45' in order to successfully
access the top of the bank. This also Increases the percent grade needed to reach the top of
the bluff as the elevation also increases by nearly 10' but the horizontal distance stays the I
same. The project will be closer to a 35%grade.
*The majority of the pigeon guillemot nests will now be destroyed as a result of moving the
wall 12.5'farther to the south, From the Vector Engineering report, "Griffith's Bird Impact
Letter states that the fill will be used along the western portion of the driveway with minimal
cut to the vertical slope, but if the right of way is moved to the south, more substantial cut will
be required Including removal of the nesting holes." Now,the new design shows a huge cut
and a graded slope surface from the toe of the hill to the top of the embankment. This will
ultimately destroy all the nests along this portion of the driveway.
*There are no recent biologist reports identifying any new nesting sites. The original biologist
report was filed over 3 years ago and many new nesting sites are in the construction area and
will be destroyed.
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6 2u ,2 2' '9Pi�/: Ter ell arsha
Shannon Goucly
Barbara Adkins
January 6, 2012
Page 3
4.) There is still a discrepancy In the 40' right of way survey done by Agate Land Surveying and the
documentation given to both public works and the planning department showing a 60'
easement granted by both Mrs. Beebe and the Hanson family in 1957.
*This greatly changes the entire project,and will expand the scope of work, project size, and
the taking of guillemot nests horn what was stated throughout the permitting processes.
Mason County Planning, Department of Ecology, and the Shorelines Hearings Board approved
of a much smaller, less destructive project.
*Every pigeon guillemot nest will now be destroyed along with the natural overhanging bluff
which is the primary habitat for these birds. The project would ultimately start 30'farther to
the south from what was originally permitted, This would create a cut of significant
proportions, potentially 7,000 cubic yards or more.
*Because the design has been done within the right-of-way there is no room for a fire truck or
other life safety personal to turn around. This could mean the difference between a life or
death situation if a fire truck has to back over 2 miles out of Dewatto Beach Drive. To make
things worse, the applicant has designed a drainage ditch in front of the proposed wall which
would further limit turn around space to under 20'.
5.) The project has been pieced together to eliminate a storm water design under the required
impervious square feet threshold by the Department of Ecology and minimal erosion control
measures are In place to protect against erosion during the project.
6.) The Permit is a"New" Permit and must follow the proceeding processes that the"Old" ;
Permit followed. The ruling by the State Shorelines Hearing Board and the Hearings
Examiner do not support the current design and"NEW"permit. They are significantly
i
different.
7.) The permit and design do not include any In-water work within the ordinary high water mark j
of Hood Canal. Both Mr. Griffith and his neighbor to the east, Mr. Martinez, hired the
contractor to first move the rock bulked farther into the shorelines and import hundreds of
tons of rock to increase their usable land between Dewatto Beach Drive and the ordinary high
I
water mark of Hood Canal. There were formal complaints and a "Stop Work"order went into !
effect, but no further actions have been taken to legally fill-in the shorelines of Hood Canal and
Dewatto Bay.
in. 5. 2 0'2 2:09PM Terrell Marshal ' Gaud; & 41i11 ie Ne.. 0929 P. 4
Shannon Goudy
Barbara Adkins
January 6, 2012
Page 4
8.) Civil and Mechanical Engineers are currently reviewing the Tahja.Designs to illustrate that
the design dimensions were altered from the"Actual"dimensions at the site,showing a
much larger cut into the vertical bank,contradicting the Seismic and Load Bearing
Calculations for the Block Wall, In addition,the Mechanical Engineers are reviewing the
Structural Design for failure, as the east side of the block wall has no footing or stability
and will erode and fail.
*The wall has not been properly designed by a Mechanical Engineer. The East end of the wall
will be over 20' blocks high. Each block weighs nearly 4,000 pounds and resides on native soils.
That is 80,000 pounds covering a surface area of 6 square feet. Ultimately, the wall will settle
within the sand and eventually fall over,
*There are no armoring or protection measures illustrated to prevent the 50' vertical sand wall
from falling on the construction workers below or neighbors accessing their properties.
*The design has no load calculations for static and seismic conditions of the renlaining bank
behind the wall. The design only retains the backfill material in static conditions,based on the
first design back in May of 2005. The new additional height of the wall and weight behind it
Increases drastically, and if there is an earth quake the native bank could push the wall over
because the wall is not tied in any way to the ground or the native bank,
*The geotechnical report done by GTL does not mention anything about the seep or spring
coming out of the bank. Because the design does not show calculations to support the ground `
water, the material could become over saturated and cause the wall to blow out. The Civil
Designer is not a Geotechnical 5peclalist and a "New"geotechnical report should be done to
address the water seeps,
Both Mason County Department of Planning and Mason County Department of Public
Works overlooked all the recommendations made by both Krazan and Associates and
Vector Engineering, Both agencies were independently hired,unknown to each other,
have commented how Mr. Griffith's current block wall design will fail,and discussed what
else was needed in order to issue a permit to prevent catastrophic failure. All these
recommendations were ignored, or have not been presented to the Public for Review,
a
5, 2012 2: 10PM Terrell Marshall Daudt & Willie No. 0929 5
Shannon Goudy
Barbara Adkins
January 6, 2012
Page 5
(IV)The desired ontcome or changes to the decision: revoke the existing permits and
require Mr.Griffith to resubmit his redesigned project for SEPA and shorelines review of
all permits.
(V)The appears fee as provided for in the applicable ordinance:the applicable fee for
this appeal is submitted herewith,
For the reasons set forth above, Mr. Iddings also requests departmental review of the permits
pursuant to MCC 15.13.070.
Very truly yours,
TERRELL MARSHALL DAUDT & WILLIE PLLC
Michael D. Dauclt
cc: Chris Powell
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1 �D EXPEDITE (if filing within 5 court days of hearing)
❑ Hearing is set:
2 Date:
Time;
3 Judge/Calendar: MURPHY
4
SUPERIOR COURT OF WASHINGTON
5 FOR THURSTON COUNTY
6
7 EARL IDDINGS, TIMOTHY and PAMELA
CLEMENTS, and CHRIS POWELL, NO.10.2.02395.7
s Plaintiff,
vs. (PROPOSEDI FINDINGS OF
9 'i FACT AND CONCLUSIONS OF
MICHAEL and SUE GRIFFITH, MASON COUNTY, LAW
10 MASON COUNTY DEPARTMENT OF COMMUNITY
DEVELOPMENT, and MASON COUNTY DEPARTMENT
11 OF PUBLIC WORKS,
Defendants.
12
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COMES NOW the court having examined the parties and witnesses present,
15
considered the evidence, and being fully advised in the premises, now makes the
16
17 following:
FINDINGS OF FACT
18
19
1. This matter came before the court for a bench trial on November 7, 2011.
20
21 Closing arguments concluded on November 10, 201.1.
22 2. The Plaintiffs, Earl .lddings, Timothy and Pamela Clements, and Chris
23 Powell own property on or accessed by Dewatto Beach Drive in Mason
24 County, Washington.
25 3, Defendants, Michael and Sue Griffith, own property on or accessed by
26 Dewatto Beach Drive in Mason County, Washington.
27 4. Most of the Griffith property is south of Dewatto Beach Drive beyond a steep
2B slope. Griffith sought to build a driveway off of Dewatto Beach Drive to
Fi.n6inas of Fact and 1
conclusions of Law
1 )
gain access to their property.
2 ,
5. Dewatto Beach Drive is a county road ending on the Griffith property. The
3 Griffith property along Dewatto Beach Drive contains a wide, flat area that
4 has been used in the past for vehicles to turnaround or park.
5 6. Griffith applied for a Road Access Permit from Mason County. The scope of
6 the right of way along Dewatto Beach Drive on the Griffith property became
7 an issue of dispute in the process of issuing the Road Access Permit,
8 7. In October of 2010, the Plaintiffs filed this action against the Defendants.
9 The Complaint contains the following claims of relief-
10 a, Declaratory Judgment re: Dedication of Right of Way;
11 b. Declaratory Judgment re: Prescriptive Easement;
12 c. Injunctive relief prohibiting encroachment and interference with the
13 Right of Way;
14 d. Writ of Mandamus directing Mason County to maintain the Right of
15 Way in trust for the public; and
16 e. Breach of Trust by Mason County.
17 8. The existence and scope of the Right of Way on the Griffith property along
18 Dewatto Beach Drive was a major factual issue for trial.
19 9. The Plaintiffs rely on the Beebe Waiver, admitted as Exhibit 30, claiming a
20 60-foot Right of Way, meaning that the Right of Way would be 30 feet from
21 the centerline of Dewatto Beach Drive. Beebe, a prior owner of the Griffith
22 land, signed a Waiver of Claim for Damages and Consent to Locate Road, in
23 1957,
24 10. Another Waiver of Claim for Damages and Consent to Locate Road,
25 admitted as Exhibit 32, was signed in 19I2. This Waiver, provided for a 40
26 foot Right of Way, meaning that the Right of Way would be 20 feet from the
2 V centerline of Dewatto Beach Drive.
28 11.Neither of the aforementioned Waivers were recorded.
Findings of Fact and 2
Conclusions of Law
I 20.Robert Thuring's, who was an engineer for Mason County, testimony was
2 somewhat vague and was not supported by first-hand observations or
3 measurements of the turn around.
4 21.Dave Clevenger's, Mason County Road Supervisor, testimony was similary
5 inexact.
6 22.After considering all of the evidence produced at trial, the court finds that
7 Mason County maintained the turnaround to a maximum width of 22.55 feet
8 from the centerline of Dewatto Beach Drive. Therefore,that is the extent to
which the County accepted a dedication.
9
10 23.The public may also accept a common law dedication if it uses the land for
11 purposes for which the property was dedicated. Sweeten v. Kauzlarich, 38
12 Wash.App. 163, 168 (1984).
13 24.There was no testimony that the public ever used an area wider than Dewatto
14 Beach Drive as it currently exists for a public road.
15 25.The Plaintiffs and others familiar with the turnaround area provided
16 consistent but vague testimony as to the historical public use of the
17 turnaround
is I 26.Other areas on Dewatto Beach Drive were also used for vehicles to turn
19 ' around, but those are now blocked by owner activity.
20 27.The public has consistently used a wide area on the Griffith property as a
21 turnaround for several decades.
22 28.Testimony regarding the scope of the public use of the turnaround was
23 inexact.
24 29.The Plaintiffs argue that the scope of the acceptance by the public as a
25 ; turnaround can be determined by reference to a survey prepared by Mr.
2 6 ' Ottmar, admitted as Exhibit 27. However that document was prepared using
27 ! information from Earl Iddings, one of the Plaintiffs, and significant portions
26 of that exhibit are not based on measurements.
Findings of Fact and 4
Conclusions of Law
1 30.Mr. Brush, Mason County Right of Way Manager, testified very credibly as
z
to Mason County's process for determining the scope of historical public use.
3 31.The scope of public use of the area at issue is 22.55 feet from the centerline
4 of Dewatto Beach Drive at its widest as indicated in the survey prepared by
5 Mr. Bechtold. The survey prepared by Mr. Bechtold was admitted as Exhibit
6 12, with a portion of it admitted as Exhibit 43,
7 32.Mr. Bechtold was a credible witness.
8 33.The Right of Way at the widest point in the historical turnaround is 22.55
9 feet from the centerline of Dewatto Beach Drive, based on acceptance by
10 Mason County and Public Use. This is an area which is technically larger
11 than the 1912 Waiver, but minimally so.
12 34.The slightly larger area can be within the common law dedication found by
13 the court. However, based upon the above, the court finds that the elements
14 of a prescriptive easement have also been met with regard to the additional
15 2.55 feet from the centerline of Dewatto Beach Drive at the widest part of the
16 historical turnaround.
17 35.Mason County has made no effort to eliminate or vacate the western 30 feet
18 of Dewatto Beach Drive on the Griffith property, and a vacation of Dewatto
19 Beach Drive is not imminent or planned.
20
21 From the aforementioned Findings of Fact, the Court makes the following:
22
23
24 CONCLUSIONS OF LAW
25
26 1. The Plaintiffs have not proved that the actions of the Defendants threaten
27 encroachment or interfere with the Right of Way as determined by the court.
28 2. The Plaintiffs are not entitled to injunctive relief.
Findings of Fact and 5
Conclusions of Law
3. The Plaintiffs have not proved that Mason County has breached its trust
1
duties regarding the Right of Way at issue.
2
3 4. There is no legal basis for issuing a writ of mandamus to Mason County.
4
Dated and entered this day of December, 2011
6 '
7
8 -
Honorable Carol Murphy
9 Superior Court Judge
to
11
12 Presented by:
13
14
is Timothy Whitehead, WSBA #37621
16 Attorney for Defendant Mason County
17
18
19
20 Earl Morriss, WSBA # 34969
21 !
Attorney for Defendant Griffith
22
23 ;
24
25 I'
26 Micahel Daudt, WSBA # 25690
27 Attorney for the Plaintiffs
28
Findings of Fact and E
Conclusions of Law