BEFORE THE HEARING EXAMINER FOR THURSTON COUNTY

Transcription

1 BEFORE THE HEARING EXAMINER FOR THURSTON COUNTY In the Matter of the Application of ) NO. SSDP ) Richard O. Malin ) FINDINGS, CONCLUSIONS ) AND DECISION For Approval of a Shoreline Substantial ) Development Permit ) ) SUMMARY OF DECISION The request for a Shoreline Substantial Development Permit to construct a stairway from an existing bulkhead to the top of a 60-foot marine bluff is GRANTED, with conditions. SUMMARY OF RECORD Request Richard O. Malin (Applicant) requests approval of a Shoreline Substantial Development Permit (SSDP) to construct a wooden stairway from an existing bulkhead to the top of a marine bluff. The property is within the Conservancy Environment, as designated by the Shoreline Master Program for the Thurston Region, adjacent to Dana Passage. The stairway would be located on the property at 9743 Johnson Point Loop Northeast, Thurston County, Washington, Tax Parcel No /1300. Hearing Date An open record public hearing on the request was held before the Hearing Examiner of Thurston County on January 2, Testimony At the hearing the following individuals presented testimony under oath: Linda Whitcher, Development Services Richard Malin, Applicant

2 Exhibits At the hearing the following exhibits were admitted as part of the official record: EXHIBIT 1 Development Services Report Attachment a Attachment b Attachment c Notice of Hearing Jarpa Application Form Project Plans Attachment d Mitigated Determination of NonSignificance dated November 14, 2000 Attachment e Marine Bluff Geotechnical Report dated October 20, 2000 Attachment f October 3, 2000 Comment Letter from Ann Ulrich, Department of the Army Attachment g Hydraulic Project Approval dated November 28, 2000 Attachment h November 8, 2000 Memorandum from Bernadette Sison Clemente, Roads and Transportation Services Based upon the record developed at the open record hearing, the following Findings of Fact and Conclusions are entered in support of the decision of the Hearing Examiner: FINDINGS 1. The Applicant requests approval of a SSDP to construct a wooden stairway from an existing bulkhead up to the top of a 60-foot marine bluff. The stairway would be located on the property at 9743 Johnson Point Loop Northeast, Thurston County, Washington. Exhibit 1, Staff Report, page 1, Testimony of Ms. Linda Whitcher. 2. The subject property, zoned Rural Residential One Dwelling Unit Per Acre (RR 1/1), is located within the jurisdiction of the Shoreline Master Program for the Thurston Region (SMPTR). Single-family development is permitted subject to compliance with policies and regulations of the Residential Development Chapter of the SMPTR. The property is developed with a single-family residence with surrounding properties being single-family residential to the north and south, and Dana Passage to the west. Exhibit 1, Staff Report, page 2, Testimony of Ms. Linda Whitcher. 3. The subject property is located adjacent to Dana Passage, a Shoreline of the State, and is categorized as a Conservancy Environment by the Shoreline Master Program for the Thurston Region (SMPTR). The primary purposes of the Conservancy Environment Richard and Irene Malin, SSDP Page 2

3 designation are to protect, conserve and manage existing resources as well as valuable historic and cultural areas in order to ensure a continuous flow of recreational benefits to the public and to achieve sustained resource utilization. SMPTR, pages 28-29, and 195. Exhibit 1, Staff Report, page A SSDP is required prior to undertaking substantial development on a Shoreline of the State. RCW Substantial development is any development that exceeds $2, in cost or fair market value. (RCW (3)(e)). The stairway is not considered to be an accessory structure. Accessory structures are defined as a use customarily incidental to that of the main building. The stairway structure is not normal or customary to the shoreline. Therefore, the SSDP is required if the value of the structures is greater than $2, of the fair market value. The proposal has a fair market value that will exceed $2, Exhibit 1, Staff Report, pages 2-3; Attachment b. 5. Marine bluffs are considered a critical area under the Thurston County Critical Areas Ordinance (CAO) and are subject to special reports as necessary to evaluate the proposed project. The Applicant submitted a Geotechnical Report that addressed if the marine bluff will be impacted by the proposed structure. Based on review of sails and slopes of the site and other factors, the report concluded that the stair structure will not impact the stability of the marine bluff. Thurston County Critical Areas Ordinance: Pages through Exhibit 1, Staff Report, pages 2-3. Report on Marine Bluff Geotechnical Investigation, Attachment e, Testimony of Ms. Linda Whitcher. 6. The Residential Development Chapter of the SMPTR allows stairways and stairtowers within all shoreline environments of Thurston County subject to policies and general and specific regulations. The Conservancy Environment has specific regulations. The Environmental/Shorelines Section staff, of the Thurston County Department of Development Services, determined that this proposal conforms to the Shoreline Master Program Policies and Regulations and especially those of the Conservancy Designation. The stairway will be constructed consistent with development standards and will not adversely impact this particular state shoreline. Exhibit 1, Staff Report, page 3, Testimony of Ms. Linda Whitcher. 7. The Applicant plans to begin construction of the wooden stairway once he has obtained the proper permits. The Applicant estimates that construction will take 30 days to complete. Exhibit 1, Attachment b. 8. Pursuant to the State Environmental Policy Act (SEPA), Thurston County was designated lead agency for review of environmental impacts caused by the proposal. It determined that, with mitigation, the proposal would not have a probable significant adverse impact upon the environment. A Mitigated Determination of NonSignificance (MDNS) was issued on November 14, 2000, and became final on November 28, Exhibit 1, Staff Report, page 2, Attachment d. Richard and Irene Malin, SSDP Page 3

4 9. The application for proposed development of the subject shoreline has been closely analyzed for any impact on the aquatic environment. There will be no impact to the larger ecological system of the shoreline. Whitcher Testimony. 10. The proposed private development will not degrade the shoreline. The proposed use is an appropriate shoreline use. Whitcher Testimony. 11. Notice of the open record hearing was mailed to all property owners within 500 feet of the site, published in The Olympian on December 22, 2000, and posted on-site December 21, 2000, at least 10 days prior to the date of the hearing. Exhibit 1, Staff Report, page 2, Attachment a. CONCLUSIONS Jurisdiction. The Hearing Examiner is granted jurisdiction to hear and decide applications for Shoreline Substantial Development Permits pursuant to RCW Chapter 36.70, WAC and Section One, Part V of the Thurston County Shoreline Master Program. Criteria for Review To be approved by the Hearing Examiner, the proposal must be consistent with: (a) (b) (c) (d) The policies and procedures of the Washington State Shoreline Management Act; The Shoreline Master Program for the Thurston Region; The provisions of applicable regulations of the Thurston County Zoning Ordinance and the Thurston County Critical Areas Ordinance. Applicable Shoreline Master Program criteria, policies and regulations are set forth below. Regional Criteria (SMPTR pages 22-23): Protection of water quality and aquatic habitat is recognized as a primary goal. All applications for development of shorelines, and use of public waters, shall be closely analyzed for their effect on the aquatic environment. Of particular concern will be the preservation of the larger ecological system when a change is proposed to a lesser part of the system, like a marshland or tideland. Applicants for permits shall have the burden of proving that a proposed substantial development is consistent with the criteria, which must be met before a permit is granted. In any review of the granting or denial of an application for a permit as provided in RCW (1), the person requesting the review shall have the burden of proof. Shorelines of this Region which are notable for their aesthetic, scenic, historic or ecological Richard and Irene Malin, SSDP Page 4

5 qualities shall be preserved. Any private or public development which would degrade such shoreline qualities shall be discouraged. Inappropriate shoreline uses and poor quality shoreline conditions shall be eliminated when a new shoreline development or activity is authorized. The Residential Development Chapter of the SMPTR allows for stairways and stairtowers within all shoreline environments subject to policies, general regulations, and specific regulations of the Conservancy Environment. Conclusions Based on Findings 1. The proposed development is consistent with policies as set forth in Chapter RCW. Chapter RCW, the Washington State Shoreline Management Act of 1971, establishes a cooperative program of shoreline management between the local and state governments with local government having the primary responsibility for initiating the planning required by the chapter and administering the regulatory program consistent with the Shoreline Management Act. The Thurston County Shoreline Master Program provides goals, policies, and regulatory standards for ensuring that development within the shorelines of the state is consistent with the policies and provisions of Chapter RCW. With the conditions specified below, this project will be consistent with all policies and regulations set forth in RCW Findings of Fact Nos The proposal is consistent with the guidelines and regulations of the Department of Ecology. Department of Ecology shoreline regulations are contained in Chapter WAC. a) The construction of a stairway on a marine bluff requires that the project comply with the Thurston County Critical Areas Ordinances. Marine bluffs are considered a critical area under the CAO and are subject to special reports as necessary to evaluate the proposed project. The project satisfies the requirements of the Department of Ecology s Critical Areas Ordinance. The project has complied with the CAO by providing a Geotechnical Report which indicates that the stair structure will not impact the stability of the marine bluff. Findings of Fact Nos. 5, 6, and 8. b) Construction pursuant to a shoreline permit must commence within two years of the effective date of the permit and terminate within five years of the effective date of the permit. The effective date of a shoreline permit is the date of the last action required on the shoreline permit and all other government permits and approvals that authorize the development to proceed. Construction on the stairtower will begin when permitting is completed. The Applicant expects to complete the project within the five-year period. Findings of Fact No The proposal is consistent with the Shoreline Master Program. Richard and Irene Malin, SSDP Page 5

6 a) The project is consistent with the Regional Criteria. With the required mitigation, this proposal will not entail any negative impacts on water quality, aquatic habitat, or shoreline environment. Findings of Fact Nos b) The project is consistent with the site s Conservancy Environment designation. The Residential Development Chapter of the SMPTR allows for stairways and stairtowers within all shoreline environments subject to policies, general regulations, and specific regulations of Conservancy Environments. The proposal conforms to the Shoreline Master Program Policies and Regulations. Findings of Fact Nos DECISION Based upon the preceding Findings of Fact and Conclusions, the request for a Shoreline Substantial Development Permit to construct a wooden stairway from the existing bulkhead to the top of the marine bluff is GRANTED, subject to the following conditions: 1. Prior to or in conjunction with the issuance of any building permit, all regulations and requirements of the Thurston County Environmental Health Department, Thurston County Roads and Transportation Department, Thurston County Development Services Department, and conditions as specified by the Mitigated Determination of NonSignificance issued on November 14, 2000 and final on November 28, 2000, shall be met. 2. The Applicant shall obtain a building permit from the Thurston County Permit Assistance Center prior to construction of the stairway/stairtower structure. 3. All development shall be in substantial compliance with drawings and site plans submitted. 4. This project shall comply with the requirements of the Roads and Transportation Services as set forth in Exhibit 1, Attachment h. This document, a Memorandum from Bernadette Clemente of the Thurston County Roads and Transportation Services Department dated November 8, 2000, is hereby incorporated as a condition of this permit. 5. Construction pursuant to this permit shall not begin and is not authorized until 21 days from the date of filing with the Department of Ecology as defined in RCW (6) and WAC , or until all review proceedings initiated within 21 days from the date of filing have been terminated, except as provided in RCW (5)(a) and (b). 6. The Applicant shall be aware of risks of damage associated with stairways constructed over marine bluffs as outlined in the Geotechnical Report. 7. In particular, conditions stated in the October 11, 2000 letter from the Washington State Department of Ecology shall be met: Richard and Irene Malin, SSDP Page 6

7 a) Proper disposal of construction debris must be on land in such a manner that debris cannot enter the water body or cause water quality degradation of state waters. b) The project proponent is to ensure that adequate Best Management Practices are designed into the project and implemented during construction to comply with the Washington State Surface Water Quality Standards, WAC A, revised November 18, As recommended by the report of the Geotechnical Testing Laboratory dated October , once the proposed structure is built, exposed soil shall be planted with a fast growing grass to provide protection from sheet flow until the native plants can reestablish themselves or jute matting may be used to provide protection from erosion. The new footings will be placed in essentially the same locations as the old footings of the previous stairway. 9. Construction pursuant to this shoreline permit must commence within two years of the effective date of the permit and terminate within five years of the effective date of the permit. The effective date of a shoreline permit is the date of the last action required on the shoreline permit and all other government permits and approvals that authorize the development to proceed. The dates of construction must further comply with the time limitations set out by the Washington State Department of Fish and Wildlife in the Hydraulic Project Approval. Decided this 16th day of January James M. Driscoll Hearing Examiner for Thurston County Property owners affected by this decision may request a change in valuation for property tax purposes from the Thurston County Assessor. TCC (3)(j) K:\sepa.sh\DECISION\SSDP\ decision.doc Richard and Irene Malin, SSDP Page 7