HomeMy WebLinkAboutSHR2022-00004 MEP2022-00003 Variance Hearing - SHR Letters / Memos - 7/27/2022 I
BEFORE THE HEARING EXAMINER FOR MASON COUNTY
Phil Olbrechts, Hearing Examiner
4 RE: Andre Rowe
FINDINGS OF FACT,CONCLUSIONS
Resource Ordinance Variance OF LAW AND FINAL DECISION
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SHR2022-00004
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9 INTRODUCTION
10 Andre Rowe has applied for a variance to the County's Resource Ordinance to
construct a single-family home 131 feet into the 165-foot buffer of a Type F (fish-
bearing) stream and 135 feet into the 150-foot buffer of a Category III wetland on a
12 parcel located on E.Trails End Drive,Belfair,WA. The variances are approved subject
to conditions.
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ORAL TESTIMONY
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Scott Ruedy, Planner for Mason County, summarized the staff report.
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EXHIBITS
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17 All six exhibits identified in"Case Index" attached to the June 28, 2022 Staff Report,
were admitted at hearing into the record.
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19 FINDINGS OF FACT
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Procedural:
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1. Applicants. The Applicant is Andre Rowe,7002 149t'St.E,Puyallup,WA
22 98575.
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24 2. Hearing. A virtual hearing on the applications was held on July 13,2022 at
1:00 pm via Zoom,Meeting ID No. 845 5904 6837. The hearing was left open through
25 5 pm July 14, 2022 for persons who may have had technical difficulties preventing
Shoreline Variance P. 1 Findings,Conclusions and Decision
them from participating virtually in the hearing. The hearing was re-opened by email
to discuss public hearing issues with the Applicant and County staff,the only parties to
the hearing. The hearing notices and staff report did not identify that the wetland buffer
encroachment was part of the variance request. However, the Applicant's habitat
management plan (HMP, Ex. 5) clearly identified the wetland encroachment variance
request and how it was fully mitigated as proposed. The Applicant agreed to assume
4 the risk of inadequate notice and to move forward on a final decision on both the
wetland and stream variance requests.
6 Substantive:
7 3. Site/Proposal Description. Andre Rowe has applied for a variance to the
County's Resource Ordinance to construct a single-family home 131 feet into the 165-
8 foot buffer of a Type F (fish-bearing) stream and 135 feet into the 150 buffer of a
9 Category III wetland on a parcel located on E. Trails End Drive, Belfair, WA. The
proposal includes establishing a 2,250 square foot footprint of permanent buffer
10 impacts for a 1,089 square-foot single-family residence. The site is currently
undeveloped.
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4. Characteristics of the Area.The property is located off Trails End Drive on
12 the shoreline of Trails End Lake. The area is dominated by residential properties and
13 this is one of the few undeveloped lots in the area.The properties adjacent to this parcel
are developed single-family homes.
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5. Adverse Impacts. No significant adverse impacts are anticipated. Specific
I issues related to the potential project impacts are addressed below.This project is SEPA
16 Exempt pursuant to WAC 197-11-800(1)(b).
17 A. No Net Loss.As determined in the HMP,as mitigated the proposal will result in no
net loss of ecological function. As outlined in the HMP,the proposed 2,250 square
is feet of buffer impacts will be offset through the proposed selective buffer plantings
of native vegetation and removal of invasive species within the wetland and stream
19 buffers. Approximately 12,990 square feet of buffer enhancement is proposed.
While the Mason County Code (MCC)does not strictly specify wetland or stream
20 buffer mitigation ratios, the proposed buffer enhancement meets and exceeds the
21 2:1 recommended mitigation ratio for impacts to native trees and shrub vegetation
that is recommended within the Mason County mitigation manual for common line
22 setbacks (Mason County, 2017). Approximately 2,690 square feet of temporary
buffer impacts will also be restored. The proposed project will therefore ensure no
23 net loss of critical area functions.
24 B. Compatibility. As shown in the aerial photograph of Ex. 4 and determined in
25 Finding of Fact No. 4, the proposal is fully compatible with surrounding uses as it
will be a new single-family residence in an area of similar uses and intensities.
Shoreline Variance p. 2 Findings, Conclusions and Decision
I C. Traffic. The project will result in the construction of a single-family residence.
2 Traffic impacts are anticipated to be minimal.
3 D. Noise/Odor/Light. Nothing about the project is anticipated to create any
unreasonable noise, light, or odor impacts. As noted in the HMP, there are no
4 known nesting sites or priority habitat species in the area and therefore the extra
noise of one home in an already developed area is not likely to create noise or light
disturbances. No vegetation will be removed in the process of construction and
6 proposed native plantings will benefit the stream and wetland by increasing shade.
7 6. Necessily. Extraordinary circumstances justify the variance. As shown in the figures
8 of the HMP,the Applicant's entire lot is encumbered with the stream and wetland buffers
subject to the variance request. The Applicant's variance request is also the minimum
9 necessary,as in particular Figure No. 3 of the HMP shows that the proposed home is built
as far from the stream and wetland as possible on the subject lot.
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1 1 CONCLUSIONS OF LAW
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Procedural:
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1. Authority of Hearing Examiner. MCC 15.03.050(I)provides the Examiner
1 with the authority to review and act upon variance applications.
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16 Substantive:
17 2. Shoreline Designation.tion. Residential.
18 3. Review Criteria and Application. The variance criteria for the stream and
19 wetland buffer variances are governed by MCC 17.50.400(C)(3)(c). This proposal
requires a variance following the requirements associated with MCC 8.52.170, Fish
20 and Wildlife Habitat Conservation Areas,which details stream buffer requirements and
MCC 8.52.110 Wetlands,which sets the 150 foot wetland buffer requirement. MCC
21 17.50.110.B.2(a)(v)(d) provides that variances for streams/wetlands in the shoreline
22 jurisdiction require shoreline variances, which are governed by MCC
17.50.400(C)(3)(c).
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24 MCC 17.50.400(C)(3)(c): Review Criteria for Variance Permits.
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Shoreline Variance p. 3 Findings, Conclusions and Decision
The purpose of a Variance Permit is strictly limited to granting relief to specific bulk,
1 dimensional or performance standards set forth in the Master Program, where there
2 are extraordinary or unique circumstances relating to the property such that the strict
implementation of the Master Program would impose unnecessary hardships on the
3 applicant or thwart the policies set forth in RCW 90.58.020.
4 i. Variance permits should be granted in circumstances where denial of the permit
would result in a thwarting of the policy enumerated in RCW 90.58.020.In all instances
5 the applicant must demonstrate that extraordinary circumstances shall be shown and
6 the public interest shall suffer no substantial detrimental effect.
7 4. Criterion met. The proposal is both a priority and preferred use under the policies
enumerated in RCW 90.58.020. RCW 90.58.020 provides that "[allterations of the
8 natural condition of the shorelines of the state, in those limited instances when
authorized, shall be given priority for single-family residences and their appurtenant
9 structures..." The Applicant proposes a small home, which fits well within this
10 shoreline priority. RCW 90.58.020 also provides that"uses shall be preferred which
are consistent with control of pollution and prevention of damage to the natural
11 environment..." The HMP prepared by the Applicant along with its recommended
mitigation will ensure that the proposal will not damage the shoreline environment,
12 thus qualifying the project as a preferred use under RCW 90.85.020. Since denial of
the proposal would prevent the construction of an RCW 90.58.020 priority and
13 preferred use that has been adequately mitigated, its denial would thwart the policy of
14 RCW 90.58.020.
15 Extraordinary circumstances justify the variance since denial would prevent any
reasonable development of the lot as detailed in Finding of Fact No. 6, which would
16 violate the constitutional property rights of the Applicant. The public will suffer no
17 detrimental effect since the proposal will not create any significant adverse impacts as
outlined in Finding of Fact No. 5.
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MCC 17.50.400(C)(3)(c)(ii)(a): That the strict application of the bulk, dimensional
19 or performance standards set forth in the Master Program precludes or significantly
interferes with a reasonable use of the property not otherwise prohibited by the Master
20 Program;
21 5. Criterion met. Single-family uses are a permitted use in the Residential shoreline
22 environment designation per Table 17.50.090-A. As determined in Finding of Fact No.
6, no development is possible under the County's wetland and stream regulations,
23 hence the Master Program precludes reasonable use of the property.
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25 MCC 17.50.400(C)(3)(c)(ii)(b): That the hardship which serves as a basis for the
granting of the Variance is specifically related to the property of the applicant, and is
Shoreline Variance p. 4 Findings, Conclusions and Decision
the result of unique conditions such as irregular lot shape, size, or natural features and
1 the application of the Master Program, and not,for example from deed restrictions or
2 the applicant's own actions;
3 6. Criterion met. As outlined in Finding of Fact No. 6,the critical area buffers of the
project site leave no option for development on the Applicant's property.
4 Consequently,the Applicant's hardship is based upon the natural features of the project
5 site as contemplated by the criterion quoted above.
6 MCC 17.50.400(C)(3)(c)(ii)(c): That the design of the project will be compatible with
other authorized uses in the area and with uses planned for the area under the
7 comprehensive plan and this program and will not cause adverse effects to adjacent
properties or the shoreline environment;
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7. Criterion met. The proposed home is surrounded by single-family homes with
9 property zoned for single-family development. Given its use,modest size and absence
of adverse impacts, the proposal is fully compatible with surrounding uses. As
determined in Finding of Fact No. 4 and 5, the proposal is fully compatible with
I I surrounding residential development and will not cause any adverse effects to adjacent
properties or the shoreline environment.
1?
MCC 17.50.400(C)(3)(c)(ii)(d): That the Variance authorized does not constitute a
1' grant of special privilege not enjoyed by the other properties in the area;
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8. Criterion met. No special privilege is involved. The Applicant simply wishes to
15 construct a reasonably sized home,a right exercised or available to all surrounding lots
within the same shoreline designation.
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17 MCC 17.50.400(C)(3)(c)(ii)(e): That the Variance requested is the minimum
necessary to afford relief; and
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9. Criterion met. The criterion is met. MCC 17.01.150E provides that the minimum
19 footprint for minimum reasonable use for a residence on a residentially zoned property
is the lesser of 40%of the area of the lot or 2,550 square feet. The staff report does not
20 identify the size of the subject lot so it is not possible to make a precise application of
21 this criterion. However,the HMP identifies that there will be over 12,999 square feet
of on-site buffer enhancement for the project. The 1,089 square foot proposed building
footprint is well below 40%of the proposed buffer enhancement alone, so the modest
sized home proposed by the Applicant clearly falls within the MCC 17.01.150E
23 reasonable use definition.
24 MCC 17.50.400(C)(3)(c)(ii)(fl: That the public interest will suffer no substantial
25 detrimental effect.
Shoreline Variance p. 5 Findings, Conclusions and Decision
10. Criterion met. As determined in Finding of Fact No. 5, the proposal would result
in no significant adverse impacts. The mitigation proposed and required from the HMP
will result in no net loss of ecological function and the proposal is compatible with
surrounding development as determined in Finding of Fact No.5. Therefore,the public
interest will suffer no substantial detrimental effect.
4 MCC 17.50.400(C)(3)(c)(iv): In the granting of all Variance Permits,
consideration shall be given to the cumulative impact of additional requests for like
actions in the area. For example, if Variances were granted to other developments in
6 the area where similar circumstances exist the total of the Variances should also
remain consistent with the policies of RCW 90.58.020 and should not produce
7 substantial adverse effects to the shoreline environment.
8 11. Criterion met. The criterion is met for the reasons identified in Conclusion of Law
No. 10. The proposal develops a very small portion of a large lot and all impacts will
9 be completely mitigated as recommended by the HMP. For these reasons,the impacts
even at a cumulative level are not anticipated to be significant.
Additional Review Criteria
12 MMC 15.09.050 Type III review
13 (1) The development does not conflict with the comprehensive plan and meets the
14 requirements and intent of the Mason County Code, especially Titles 6, 8, and 16.
15 11. Criterion met.As a project that will not adversely affect shoreline functions
and values with no corresponding adverse impacts as determined in Finding of Fact
16 No. 5, the proposal is fully consistent with the County's comprehensive plan and
17 development standards. The project is exempt from SEPA review. Subdivision
regulations do not apply as no division of land is proposed. Sanitary waste regulations
8 will be fully imposed during building permit review.
19 (2)The development does not impact the public health, safety and welfare and is in the
public interest.
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21 12. Criterion met. As determined in Finding of Fact No. 5 the proposal will not create
any significant adverse impacts. For these reasons, the project does not adversely
22 impact public health, safety and welfare and is in the public interest.
23 (3) The development does not lower the level of service of transportation andlor
neighborhood park facilities below the minimum standards established within the
24 Comprehensive Plan. The development proposal will not lower the LOS for
25 transportation or neighborhood parkfacilities.
Shoreline Variance p. 6 Findings, Conclusions and Decision
13. Criterion met. The staff report does not address this criterion and there is no
information in the record on level of service impacts. However, historically the
County's shoreline staff reports have all assessed level of service impacts and have all
found no impact by the addition of one single-family home. Given this background, it
3 is determined that the proposal will not violate County level of service standards for
parks and transportation.
4 DECISION
5 The variance application is approved for the home as proposed subject to the following
6 conditions:
7 1. Erosion control and best management practices must be incorporated during
all phases of construction for the residential development.
8 2. The applicant shall submit a cultural resources survey and report before the
submittal of any building permits.
3. The HMP prepared by Soundview Consultants shall be implemented and
10 mitigation through the planting plan must be performed.
4.A monitoring plan shall be enacted whereby a qualified biologist shall submit a
1 report detailing the condition of the restoration area. This report shall be due on
the anniversary date of the issuance of the permits and shall be submitted on years
12 1,2, 3, and 5 for five years.
5.A survival rate of 80%of plantings is required each year during the ten-year
13 monitoring period. If survival falls below 80%, the applicant shall replant to
14 restore the required survival percentage as per Department of Ecology standards.
15 Dated this 27t' day of July, 2022.
16
1 Phi :�Olbrec is
18 Mason County Hearing Examiner
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APPEAL
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21 This decision is a final decision of Mason County. This decision is subject to approval
of the Washington State Department of Ecology (DOE). The final DOE decision may
22 be appealed to the Washington State Shoreline Hearings Board as governed by RCW
90.5 8.180.
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Shoreline Variance p. 7 Findings, Conclusions and Decision
CHANGE IN VALUATION
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Notice is given pursuant to RCW 36.70B.130 that property owners who are affected by
this decision may request a change in valuation for property tax purposes
3 notwithstanding any program of revaluation.
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Shoreline Variance P. 8 Findings, Conclusions and Decision
Shoreline Management Act Local permit no.
Permit Data Sheet and Transmittal Letter State permit no.
From: SCOT` �cD�/ " Mg5Ut,1 COJ� To: DEC. OF 'ECO t-Ojr \
Transmittal Date: 7 l2 6,/22 Receipt Date: (provided by Ecology)
Type of Permit: (Indicate all that apply)
❑ Substantial Development Local Government Decision:
❑ Conditional Use Approval
Variance Conditional Approval
Revision ❑ Denial
❑ Other
Applicant Information: Applicant's Representative: (If primary contact)
Name: N t��>c Q��
Name:
Address: -70orL 1yg4:A JTil OFT 6fA 1r Address:
PcAvq 1u VJpt 5�5 Phone(s):
Phone
(s): ; a -?_ y- !0a(0-1
Email:
Email: ;Nfro`Sy.MRc- p gM/kiL,eorA
Is the applicant the property owner? N Yes ❑ No
Location of the Property: (Section, township, and range to the nearest '/4, '/4 section or latitude and longitude, and a
street address where available.) JeC ICIJ Zy '1"22N (L2vJ
TCA-K.g ENO otV -AZ Lm 20 l ac+ S 2? 12-3` 5-1-0 502 o
Water Body Name: 'T"l L.S � CP�r" Shoreline of State Significance: Yes ❑ No
Environment Designation: R-Sc OEvT I 1A,L
Project Description: (Summary of the intended use or project purpose)
Vet A\Nct J�k SST rPPM 1% — Ty f£ sT
Notice of Application Date: � � 2-7— Final Decision Date: 7 f 2-t l2d 22
By: (Local government primary! contact on this application) 1
�Q e7o U
Phone: 3(od- O X 251
A .
Email: 3'�"V P AAkSON CJLAJI� � q��
MASON COUNTY
COMMUNITY SERVICES
Building,Planning,Environmental Health,Community Health
Notice of Application and Public Hearing
Notice is hereby given that Andre Rowe,who is the applicant for the following proposal, has applied for
Shoreline Variance (SHR2022-00004)to develop a single-family residence within 40'of a stream on an
undeveloped lot within the shoreline jurisdiction.
Location:TRAILS END DIV#2, Lot 20, Block 5, Belfair WA
Parcel Numbers: 22223-51-05020
Date of complete Application:April 27,2022
The proposed development is reviewed under the applicable chapters of the Shoreline Master Program,
Resource Ordinance,Title 15,and Shorelines of Statewide Significance Regulations.The proposal
requires Hearing Examiner approval,with final approval from the Department of Ecology.
The project is SEPA exempt per WAC 197-11-800(1)(b).
Any person desiring to express their view or to be notified of the action taken on the application should
join the virtual Public Hearing via Zoom or attend the hearing at Mason County Commissioner
Chambers,Building 1,411 N 5th St,Shelton,WA 98584 on Wednesday,July 13,2022,at 1:00 p.m. or
mail comments or questions to Scott Ruedy, Senior Planner, Mason County Department of Community
Services, 615 W.Alder St.,Shelton,WA 98584. Or Email sruedv@masoncountywa.gov.
A PUBLIC HEARING will be held on Wednesday,July 13,2022, at 1:00 p.m. by the Mason County
Hearing Examiner on the proposed project at Mason County Commissioner Chambers, Building 1,411 N
5th St, Shelton, WA 98584 and via Zoom. Directions on how to access the hearing will be located on the
Mason County website at https://www.masoncountVwa.gov/hearings-examiner/index.php under the
appropriately dated agenda, or you can call the Hearing Examiner Clerk at 360.427.9670 ext. 365 for
assistance.Written and oral testimony will be accepted up to the close of the hearing.
A decision on these applications will be made within 120 days of the date of the complete application.