HomeMy WebLinkAboutCOM2009-00113 HEARING EXAMINER FINAL DECISION - COM Letters / Memos 1
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8 BEFORE THE HEARING EXAMINER FOR MASON COUNTY
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RE: Squaxin Island Tribe Appeal of )
10 Commercial Building Permit ) FINAL DECISION
COM2009-00113 and related issues. )
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Summary
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16 As addressed in two prior rulings on motions to dismiss, all appeal issues filed by the
Squaxin Island Tribe'("Tribe") have been dismissed except for one. The sole issue addresse I at
17 hearing is whether Mason County("County") correctly declined to suspend a building permit is• ed
to Brendan Mahaffey ("Applicant"). The Examiner rules that the County has in fact suspended the
18 permit application and that no further clarification of the suspension is required.
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20 Testimony
The 10 items listed in the staff report exhibits were admitted. The applicant's motion fo
21 dismissal was admitted as Ex. 11 and the applicant's response was Ex. 12. The reply was Ex. 13
The applicant's second motion to dismiss was Ex. 14. The Tribe's response was Ex. 15 and th:
22 applicant's reply Ex. 16.
23 Sharon Haensley represented the Squaxin Tribe. She noted that since there was ns
environmental review and it wasn't classified as an industrial use it was placed on a fast review.
24 The Tribe's has concerns with how the waste of the facility will be drained into an on-site septi•
system and then groundwater. The waste contains increased biochemical oxygen demand, fats
25 grease, nitrogen and other pollutants that will overwhelm the septic system and end up in the
26 groundwater. The Tribe owns Snodgrass Creek and associated wetlands and the wastes woul
reach this creek through groundwater. Mason County approved the building permit on June 10.
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1 On June 18 the Tribe asked for rescission or suspension of the permit. On June 17 or June 18 th:
2 County put the permit on hold. Ms. Haensley stated that Barbara Adkins told her on June 22 tha 1
she was not willing to more formally suspend/revoke/rescind the building permit. The Tn
3 then appealed on June 23.
Ms. Haensley stated that the Examiner should remand to the building official to suspen.
4 the building permit with a date or event certain that the suspension ends and that the suspensio
acknowledge that the permit may be modified as a result of DOE requirements and that n
5 construction occur during the suspension and that the permit be reinstated when the suspensio
6 ! ends. The Tribe would also like clarification on the status of the on-site sewer permit.
Ms. Haensley stated that the standard for revoking/suspending a permit should be base.'
7 upon the standards outlined in LUPA. She noted that arbitrary and capricious was als
appropriate because revocation/suspension is a discretionary action. She argued that the mos I
8 applicable standard is clearly erroneous application of law to facts. She noted that the buildin
9 official didn't have enough information about groundwater impacts and he didn't know that DO
was going to require a state septic permit when he issued the permit.
10 Ms. Haensley noted that the building official can revoke the permit if it is in violation o'
any code provisions. 6.76.130(3)prohibits the discharge of waste products into an on-site septi
11 system. 6.76.130(4) prohibits the use of an OSS in a manner for which it was not designed.
12 6.76.130(6) provides that all 6.76 violations are nuisances and shall be abated. She also note,
that the absence of a stormwater plan is a violation and the failure to require SEPA review is .
13 violation. MCC 15.13.075 requires the building official to revoke if a permit would create
nuisance or hazard. WAC 173-221(A)-020 prohibits discharge of untreated waste waters int.
14 ground waters. WAC 173-226-020 prohibits the discharge of pollutants into waters of the stat:
15 except as authorized by DOE permits.
John Kenofsky is the environmental program manager for the Tribe. He has a bachelor'•
16 in biology and a master's degree in crop science. Mr. Kenofsky testified about an articl:
addressing seafood processing waste, Ex. 17. A very significant wetland is located at th:
17 headwaters of Snodgrass Creek and provides habitat for endangered fish. The article notes thai
18 there is a great deal of variability on what is contained in seafood waste and Mr. Kenofsky can'
comment on the quality of the project waste without further information. On cross, Mr.
19 Kenofsky acknowledged that the article doesn't address the discharge for the proposal, just th,
broad range of possibilities. Mr. Kenofsky also testified he has no knowledge on whether th:
20 County has any authority to regulate.
Monty Cobb, chief deputy Mason County Prosecuting Attorney, noted that the buildin
21 permit is on hold. He noted that the real point is whether hold is the same as suspend. He didn'
22 believe there was a relevant difference. Mr. Cobb also noted that there is no mandatory duty te
revoke/suspend the building permit — the building code just gives the building official th.
23 authority to revoke/suspend. Mr. Cobb noted that one of the conditions for issuing a buildin v
permit is issuance of a septic permit and that the building permit was put on hold once the septi
24 permit was put on hold. Mr. Cobb noted that Nykreim doesn't apply because the permit was pu 1
25 on hold, not revoked. The hold was not arbitrary and capricious because it was mandated due to
the hold place on the septic permit.
26 Mr. Eustis questioned Mark Core, Mason County Building Official. Mr. Core testifie,
{PA0805036.DOC;1113071.900000\1(KNE803742.DOC,1113009.900000\ Olbrechts and Associates,PLLC
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1 that building permits are subject to the review of several departments. On May 10, 2010 the
2 project was approved for septic design. He put a hold on the building permit when a hold w••
placed on the septic permit. The building codes don't regulate discharges of seafood waste. Ms
3 Haensley then questioned Mr. Core. Mr. Core noted he doesn't personally review the buildin
plans. He stated Ms. Waters reviewed the plans.
4 Mr. Eustis questioned Debbie Riley, the manager of the environmental health division o I
Mason County. Ms. Riley stated she placed a hold on the septic permit because DOE had tol•
5 her it would require a wastewater discharge permit. Ms. Riley noted she contacted Mr. Core t.
6 advise him of the septic hold on June 17. She based her hold on information from Cindy Waite
who is Mason County's contact with DOE. Ms. Riley acknowledged that a hold would not .:
7 ! necessary if the OSS is only used for domestic human waste (sewage) and that the wastewate
discharge permit will be used for a separate treatment process. Currently, the OSS is designed t•
8 take all the waste generated at the site, including seafood processing waste. The County can't li
9 the hold until it sees the wastewater discharge application to determine that industrial wast.
won't be going into the OSS. The WAC prohibits discharges onto the ground. Even if th:
10 industrial waste isn't going into the OSS, the County must know where the waste is going. Mr
Riley noted that a septic permit would not issue until any required wastewater discharge permi
11 had been issued. Mr. Core noted that a septic permit must be issued prior to a building permi
12 issued.
Michael Mahaffey, managing member of CrabFresh, testified that he provided all th:
13 information requested by the County in making his permit application. The proposed facility wil
provide support to the existing seafood distribution operation. He also had spoken to DOE i
14 February, 2010 about his operation and was told that he didn't need a wastewater discharg:
15 permit wasn't required because the discharge was small. The position of DOE subsequent)
changed and the agency then considered the applicant to be an industrial waste discharger
16 Currently the applicant is preparing the discharge application, which is a 110 page document an.
requires a 60 page engineering report. Mr. Mahaffey stated he had a meeting with the Tribe an.
17 thought he had worked everything out by applying for the discharge permit, whether it w.
required or not. The building would be used whether or not the discharge permit is acquired.
18 The building has many uses beyond shellfish processing that the applicant needs.
19 Ms. Haensley questioned Mr. Mahaffey and asked if he had shown Gary Lee (of DOE
what operations he was going to do when Gary Lee concluded no discharge permit was required
20 Mr. Mahaffey had told his septic designer to send his application to Mr. Lee and he found ou
later that wasn't done. Ms. Haensley asked for more detail about the uses associated with the
21 proposal. Mr. Mahaffey said that the primary use of the building would be for boxing an.
22 shipping seafood products.
Mr. Mahaffey testified that in addition to seafood processing , the building would be use.
23 for the storage of processing equipment that's currently sitting idle out in the parking lot of th:
building site. He'd like to get the building up as soon as possible to avoid weather damage.
24 In closing, Mr. Eustis argued that"hold" does not mean the same thing as "suspend". There ar:
25 procedures for stop work orders in the building codes and county code, but there are none fo
holds. The question is whether the County validly decided to not suspend the building permit.
26 The County cannot be compelled to take an enforcement action. It can only be compelled to
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1 exercise discretion. The hold is an extra-legal action because it's not recognized in the code
2 The County's decision has to be reviewed as an abuse of discretion, such as the decision by .
police officer not to cite people for various traffic violations. The County also had no legal
3 authority to hold the permit for failure to acquire a DOE discharge permit, since the DO:
discharge permit is not governed by the building permits and nothing in the building permit
4 make issuance of a building permit contingent upon issuance of the discharge permits. Mr
Eustis argued that suspension and hold are not the same. There is a recognized procedure in the
5 County Code for a hold as opposed to a suspension.
6 Exhibits
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8 1. Staff report dated August 30, 2009.
2. Building Permit Application COM2009-00113
9 3. Site plans
4. Development regulations.
10 ! 5. Environmental Policy Ord. Part 4 •
11 6. Pre-App Meeting 10/7/09
7. Email 10/14/09 &Mtg notes 10/20/09
12 8. 6/23/10 Certificate of Mailing
9. Staff's emails re: project between 10/19/09 and 6/23/10.
13 10. Tribe's Appeal, dated 6/23/10
14 11. Applicant's Motion to Dismiss, dated 8/23/10.
12. Tribe's Response and Motion for Stay(Undated).
15 13. Applicant's(Second)Motion to Dismiss, dated 9/23/10.
14. Tribe's Response,dated 9/27/10
16 15. Applicant's Reply, dated 9/29/10
17 16. Applicant's Hearing Memorandum, dated 10/8/10
17. "Seafood Processing Wastewater Treatment"article, dated 3/28/06
18 18. "Seafood Company fined for...", undated Seattle Times article.
19. 5/10/10 letter from Cindy Waite to Jim Hunter
19 j 20. 7/19/10 email string from Cindy Waite to Riley and Kirkpatrick
21. 6/17/10 email string form Mark to Debbie Riley
20 I 22. Tribe's Response to Hearing Memorandum, dated 10/18/10
21 23. Applicant's Reply, dated 10/21/10
24. Examiner's Order on Motion to Dismiss, dated 9/20/10
22 25. Examiner's Order on Authority to Revoke/Suspend, dated 9/30/10
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25 Findings of Fact
26 Procedural:
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1 ! 1. Appellant. The appellant is the Squaxin Island Tribe,represented by Sharon Haensley.
2 , 2. Applicant. Brendan Mahaffey.
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3. Hearing. The appeal hearing was originally scheduled for September 7, 2010 but w.
4 continued to October 12, 2010 by the Examiner in order to provide the parties with
opportunity to file and respond to motions to dismiss. The hearing was held on October 12,2011
5 and the record was left open through October 21, 2010 for a response and reply to th:
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Applicant's hearing memorandum.
7 4. Procedural History. The appeal has been subject to numerous prehearing motions. Th:
procedural history of these motions is incorporated by reference from the Examiner's two
8 prehearing orders,Ex. 24 and 25.
Substantive:
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11 5. Appeal Issue. The prehearing orders (Ex. 24 and 25) have reduced the Tribe's appeal to one
issue: Whether Mason County correctly decline to suspend, revoke or rescind Commercial Built ing
12 Permit COM2009-00113? At hearing, the Tribe stated that it was not requesting revocatio or
rescission of the permit. Consequently, the appeal issue is further refined to the following: Whe er
13 Mason County correctly decline to suspend Commercial Building Permit COM2009-00113?
14 6. Basis of Appeal. The applicant filed an application for Commercial Building Permi
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COM2009-00113 on November 13, 2009. The application was to construct a 2,400 square fee.
40' X 60' metal building with associated parking to be used by Crab Fresh, LLC for purpose•
16 of seafood processing, storage of processing equipment and frozen fish and other unspecifie
uses. Mason County issued the building permit on June 10, 2010. Subsequent to issuance o i
• 17 the permit County staff was advised by Gary Lee at the Washington State Department o
18 Ecology ("DOE") that a wastewater discharge permit would be required for the project due to
the byproducts associated with seafood processing. Mason County decided to place a "hold'
19 on the permit on June 17, 2010'. On June 18, 2010 the Tribe requested, apparently by phon:
call, that Mason County rescind or suspend the permit. On June 22, 2010 Barbara Adkins
20 Mason County Community Development Director, informed Sharon Haensley that the Coun
would not suspend or rescind the permit. The Tribe filed an appeal of this decision and othe
21 parts of the project on June 23, 2010. As of the hearing on October 12, 2010, the Applican I
22 was still preparing an application for a DOE wastewater discharge permit and the permit wa
still on hold.
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26 'June 17,2010 was the date that Debbie Riley advised the building official that a hold was necessary. It was uncle•
when the hold was communicated to the Applicant or when and if a more official"hold"determination was issued.
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APPEAL - 5 18833 NE 74th St
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1 Conclusions of Law
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3 Procedural:
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1. Authority of Hearing Examiner. The Examiner has the jurisdiction to hear the su•sect
5 appeal for the reasons identified in the prehearing orders, Ex. 24 and 25.
6 Substantive:
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2. Hold as a Suspension. This appeal is resolved by the fact that the Tribe already largel
8 has the remedy that it seeks. The Tribe requests that the County replace the "hold" it placed o
9 the subject building permit with a suspension. The Examiner agrees with the County that th=
hold is one and the same as a suspension. As noted by the Tribe, Section 105.6 of th=
10 International Building Code ("IBC") allows the building official to suspend or revoke buildin
permits. There is no other authority in the building codes or any other regulation to place .
11 permit on "hold". As noted by Mr. Cobb during hearing, the County's chief deputy prosecutin y
attorney, there is no difference between in the plain meaning of a "hold" and "suspension" an•
12 the County has not treated its hold any differently from a hold in processing of the Applicant'
13 building permit. Given that a hold is indistinguishable from a suspension and that the Coun
has express authority to suspend permits, the "hold" is clearly the same as a suspension from
14 regulatory standpoint. A rose by any other name would smell as sweet.
15 The Applicant argued during hearing that the hold is not the same as a suspension beca •e a
16 suspension is subject to detailed procedures under the Mason County Code, specifically M C
15.13.070 and 15.13.075. These provisions do not apply to building permit suspensio or
17 revocation. They only apply to the revocation or modification of land use permits other I an
building permits. MMC 15.13.070 and 15.13.075 set up a process whereby the Examin= is •
18 authorized to revoke or modify a land use permit after hearing and a recommendation from Col ty
19 staff. The provisions do not address the suspension of any type of permits, including built ing
permits. Even if a suspension would be classified as a revocation as argued by the Applicant, M C
20 15.13.075(b) expressly excludes building permit revocation from MCC 15.13.070 and .075 re iew
by providing that the building official, not the examiner, has the authority to revoke or mosify
21 building permits. As-with stop work orders, the authority to suspend and revoke building permi is
22 left with the building official. This delegation of authority is logical given the hyper-specialized . d
ministerial nature of building permit review. Building permit review is also usually the last stay- in
23 the development review process and the building official needs the authority to act quickly in cas- of
problems. This delegated authority also has appropriate procedural safeguards. As determine' by
24 the Examiner in the prehearing orders, Ex. 24 and 25, a decision to suspend (or not suspend) a pe it
25 is subject to appeal to the Examiner under MCC 15.11.010(a).
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APPEAL - 6 (8833 NE 74"St
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1 The Applicant has argued that the suspension of a permit violates the finality requirements of Ch:lan
2 County v. Nykreim, 146 Wn.2d 904 (2002). As noted in one of the prehearing orders, Ex. 24, the
Examiner does not have the authority to invalidate County regulations, only to interpret them n a
3 manner that is consistent with applicable law. The suspension was issued in this case within the
Nykreim 21 day period and prior to issuance of an occupancy permit. Under these conditions the e is
4 nothing further that the Examiner can do to limit the suspension authority of IBC 105.0 by
interpretation.
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6 In addition to requesting a suspension as opposed to a hold, the Tribe also requests that the Co ty
provide more clarity on the terms of the suspension. The Applicant asserts that the Examiner h.• no
7 j authority to impose these additional terms. The Examiner disagrees. As noted previously, CC
15.11.010 and 15.11.020 authorizes the subject appeal and governs its terms. These provision. do
8 not identify what authority the Examiner has to resolve appeals. Obviously, the Examiner must ave
9 .' the authority to make some decision on an appeal and it is reasonable to find implied authori for
the standard acts of sustaining, reversing or remanding for direction to comply with .ode
10 requirements. The Examiner can require the conditions requested by the Tribe if those condit ons
are mandated by the Mason County Code.
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12 The Mason County Code does not require, expressly or impliedly, the conditions/clarifica ion
requested by the Tribe. There is no code provision that requires a permit suspension to identi the
13 length or terms of suspension. There may be some due process requirement to provide s me
minimal information about the grounds of the suspension to the Applicant, but the Applicant's ri.hts
14 ! are not at issue on this appeal. Moreover, the grounds probably have been adequately conveye I to
15 the Applicant as the need to acquire a DOE discharge permit. There does not appear to be . y
similar constitutional basis for clarification of the suspension to the Tribe, even if frames as
16 providing adequate notice for filing an appeal. As demonstrated in Nickum v. Bainbridge Island, 153
Wn. App. 366 (2009), Mason County has no obligation to provide any notice to the Tribe o its
17 building permit decisions and the absence of any notice does not toll the applicable judicial ap seal
period'.
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DECISION
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21 The "hold"placed on Commercial Building Permit COM2009-00113 is a suspension as referenc:d
in IBC Section 105.6. No further clarification on the grounds or terms of the suspension is requir-d.
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23 2 The Examiner recognizes this is a debatable point. The plaintiffs in Nickum filed an untimely LUPA appeal of
building permit decision because they received no notice of the permit. The plaintiffs argued that it violated the'
24 due process rights to require a timely appeal for a decision of which they had no notice. Incredibly,the court rule.
that the due process rights could not be addressed because the appeal was untimely. The practical (and somewha
25 absurd) result of the Nickum decision is that the Tribe's due process argument would never make it to court. Th,
issue is currently and arguably not ripe for review because the Tribe has not yet been prejudiced by the alleged!
26 unclear suspension. If the Tribe files a timely appeal of the suspension the issue of due process notice is moot. If i
files an untimely judicial appeal,its due process arguments would be barred by Nickum.
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1 �
2 DATED this 5th day of November, 2010.
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Phil A. Olbrechts
5 Mason County Hearing Examiner
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7 Appeal Right and Valuation Notices
8 This appeal decision is final and subject to appeal to Mason County Superior Court as govern- by
Chapter 36.70C RCW.
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10 Affected property owners may request a change in valuation for property tax p . ses
notwithstanding any program of revaluation.
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(PA0805036.DOC;1113071.9000001){KNE803742 DOC;1113009.9000001 Olbrechts and Associates,PLLC
APPEAL - 8 18833 NE 74th St
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