BEFORE THE SHORELINES HEARINGS BOARD

STATE OF WASHINGTON

 

ROBERT GILBERT and                                  )

MASON COUNTY,                                       )

                                                                        )

                                    Appellants,                   )           SHB NO. 94-14

                                                                        )

            v.                                                         )           FINAL FINDINGS OF FACT,

                                                                        )           CONCLUSIONS OF LAW AND

STATE OF WASHINGTON,                         )           ORDER

DEPARTMENT OF ECOLOGY,                   )

                                                                        )

                                    Respondent.                 )

____________________________________)

 

            The Shorelines Hearings Board (“Board”) heard this matter on June 30 and September 15, 1994, in Tahuya and Lacey, respectively.

            Robert Gilbert was represented by Don W. Taylor of Fristoe, Taylor and Schultz.  Michael Clift, Civil Deputy Prosecutor, represented Mason County.  The Department of Ecology was represented by Rebecca E. Todd, Assistant Attorney General.

            The Board, pursuant to the Laws of 1994, ch. 254, § 2, p. 1418, was comprised of: Robert V. Jensen, presiding; Richard C. Kelley and Michael D. Morton. 

            Lenore Schatz and Kim Otis, court reporters, of Gene Barker and Associates, Inc. of Olympia, recorded the proceedings.

            The Board heard sworn testimony, reviewed deposition testimony, upon the agreement of the parties, reviewed the exhibits, viewed the site, reviewed the brief submitted on behalf of Mr. Gilbert, and listened to closing arguments.  Based on its review, the Board enters these:

FINDINGS OF FACT

 

I

            Robert Gilbert and his wife bought a single-story house on an approximately 6,800 square foot lot on the north shore of Hood Canal, in 1970.  They purchased it as a summer retreat.  He is an airline pilot.  The Gilberts own a larger house in Seattle where they reside for most of the year.  They purchased the Hood Canal home with the idea of retiring there.

II

            The original house was built originally for use as a general store and post office for a logging operation to the north.  It was built on pilings, over the waters of Hood Canal. 

III

            When the Gilberts bought the house, it was surrounded on the west, north and south by a concrete bulkhead.  By 1970, the bulkhead had been backfilled, such that the pilings were buried.  A previously constructed bulkhead laid horizontally on the beach directly in front of and on the water side (west) of the bulkhead.  The existing and previous bulkheads remain in the same location today.  The Gilberts’ bulkhead protrudes about 22.5 feet and 25 feet waterward of the southerly and northerly neighboring bulkheads, respectively.  The Gilberts’ roof protrudes about 21 and 30 feet waterward of the southerly and northerly neighbors roof lines, respectively.  The ordinary high water mark is about 2 to 3 feet above the base of the waterward bulkhead.

IV

 

            The lot has 81 feet of waterfront and is 90 feet deep.  The bulkhead is 68 feet long on the water.  It indents on the south, where the Gilberts and the neighbor to the south share a boat ramp and beach access.  The bulkhead rests on the boundary line on the easterly side of the property, until it intersects with the bulkhead of the property to the north.

V

 

            The existing house has approximately 1,000 square feet of floor area; the garage and wood shed, about 540 square feet.  The house has a deck on the west and south.  The deck extends about 3.5 feet waterward of the bulkhead on the west side.  The edge of the roof is about 3 feet landward of the bulkhead.  The roof area of the existing buildings 2,228 square feet.

VI

 

            There is a septic tank and drain field between the house and the northerly bulkhead.  The water table is about four to five feet below the surface of the ground on the Gilbert property.  To the east of the septic system, is a structure containing a garage and wood shed.  The easterly boundary of the parcel is a county road. 

VII

            The Gilberts have four adult children and five grandchildren.  They have used the Hood Canal house as a summer place for fifteen years.  About four years ago he and his wife decided to make it a permanent residence for themselves.  Three years ago he obtained a building permit from Mason County, and changed the support for the structure from piling to a concrete foundation.  At that time, he raised the house about 16-18 inches, and he had a small amount of fill placed over the septic system.  At that same time he added 18 inches to the top of the bulkhead, in order to avoid storms washing over the bulkhead.

VIII

 

            One and two years ago, respectively, Mr. Gilbert, on the advice of his consultant, Mr. Ghylin, purchased two upland lots abutting the County Road.  One of the lots is due east of the waterfront parcel; the other is about 50 feet south of the first lot.  The purpose of purchasing these lots was to accommodate possible septic system relocation or reserve area for the septic system.  Mason County has identified these tracts as suitable for septic systems and reserve.  One of these lots is about 1/4 of an acre in size; the other about one acre.  New residential development has begun to occur, in recent years, both north and south of these lots. 

IX

            Rendsland Creek and its estuary lie about 750 north of the Gilbert property.  Lower Hood Canal, and in particular, the immediate vicinity of the Gilberts’ property is rich in natural resources.  The river delta houses shellfish resources, including butter clams, native little neck clams, manila clams and oysters.  These resources are harvested recreationally.  Representatives of the Skokomish Indian Tribe and other Indian representatives also harvest these resources.  Commercial aquaculture takes place on the north side of the Creek.  The oyster resources rank (in density of harvest) second out of 34 locations surveyed by the Department of Fish and Wildlife (“DF&W”).  The manila clam population ranks eighth out of 51 beaches sampled by DF&W.  The recreational harvest is also eighth out of some 50 beaches inventoried.

X

            A salmon stream lies adjacent to Rendsland Creek and delta.  There are chum and coho salmon that spawn and are reared in that creek.  The marine areas adjacent to the site are migratory routes for salmonids, including chinook, coho and chum salmon; as well as cutthroat and steelhead trout.  A bed of eel grass lies in the low intertidal area adjacent to Rendsland Creek.  Eel grass is a most important habitat resource for fish and shellfish. 

XI

            Since the early 1990’s, there has been a considerable decline in the summer chum salmon stock in lower Hood Canal.  This past spring, a petition was submitted to the federal government to list the summer chum resources within Lower Hood Canal, under the Endangered Species Act.

XII

            The existing bulkhead adversely impacts migrating juvenile chum salmon, who utilize the most shallow water as they leave the streams searching for food.  Any time these fish are forced out into deeper water, it increases the likelihood that they will be preyed upon by predators; namely, birds and fish, including other salmonids.  During most high tide periods there is considerable water up on the Gilbert’s bulkhead, through which any migrating juvenile chum must pass.  The fallen bulkhead, lying in front of the existing bulkhead is not suitable habitat for fish and shellfish resources.  Indeed, that slab is covering up and has resulted in the loss of productive habitat.

XIII

            Over-water structures cause a shading  If the structure is over eight feet in width, the shading is detrimental to the migration of juvenile salmon.  The Gilbert deck is over 42 feet wide.  At certain times of day, it casts a large enough shadow to be detrimental to migrating juvenile chum salmon who happen to be migrating through the tidal waters in front of the Gilbert house.

XIV

 

            Effluent from the existing septic system probably reaches the water of Hood Canal within two days of discharge, due to the proximity to the Canal and the soil type.

XV

            The existing house does not conform to the applicable shoreline setback from the water.  The garage does not conform to the shoreline side yard setback.  That set back is 5 feet.  The garage now sits about 2-3 feet from the northerly property line.

XVI

 

            Mr. Gilbert, consistent with his intent to make the house a permanent living quarters for himself and his wife, on October 3, 1993, applied to Mason County for a shoreline variance to rebuild his home.  The proposed house and the garage would have two stories.  It would enclose the southwest corner of the deck, extend from 11/2 to 3 feet closer to the water, more than double thetotal footprint from 1,000 to 2,337 square feet, and be totally integrated into one unit.  The new roof line would be about 1 foot landward of the existing roof line.  He plans to raze the existing structures, with the exception of the deck down to the floor.  The total square footage of the house, if built, would be about 2,500 square feet.  Total space in the two structures would be about 4174 square feet.  The total roof area would be about 3,314 square feet.  The building would be about 30 feet above ground level.  The bulkhead would not support the any of the new structure, except for the deck. 

XVII

            There was no opposition to the project from neighbors.  Several neighbors signed a statement to this effect.

XVIII

            Over time, marine bulkheads tend to fail.  Because of the potential adverse impacts on the environment, it is necessary that failed bulkheads, that are below the ordinary high water mark be replaced no farther waterward than the previous bulkhead.  Moving the front of the Gilbert house closer to the existing bulkhead will render more difficult any such replacement of the Gilbert bulkhead. 

XIX

            On site sewage disposal systems are the major nonpoint source of pollution in the lower Hood Canal watershed.  Bacterial contamination from failing or poorly operating on-site sewage treatment systems on or near Hood Canal, is the most significant water pollution problem in the watershed.  These contaminants tend to accumulate in shellfish.  They can then be passed on to humans who consume these resources.  Drain fields located close to bulkheads are saturated with salt water during periods of high tides.  Underwater “sills” at the Great Bend (to the west of the proposal), greatly reduce flushing action of the Canal.  This slow flushing rate increases the residence times of pollutants in the Canal.  The shoreline of lower Hood Canal is densely developed in most sections.  Nearly 90 percent of the residential lots have homes.  40 percent of these are used as vacation homes.  An increasing number are being converted from seasonal to permanent occupancy.  As of 1991, approximately 324 waterfront parcels remained to be developed.  Expansion of non-conforming residential development, served by septic systems in proximity to Hood Canal, will have cumulative impacts on the water quality of the Canal.

XX

 

            The minimum lot size for on-site sewage treatment systems, under state regulation, is 12,500 square feet.  However, most local health districts allow the state regulations to be waived if all other requirements for design and location can be met. 

XXI

 

            Mason County Planner, Jason Manassee, reviewed the proposal and presented a staff report to the County Shoreline Advisory Board (“SAB”), at its meeting of November 14, 1994.  No copy of that report was presented at the hearing, but Mr. Manassee testified that he did not make specific findings in that report as to whether the project complied with the shoreline variance criteria of the Mason County Shoreline Master Program (“MCSMP”).  This practice apparently is pursuant to instructions from the County Commissioners, that the planners should not make recommendations on specific proposals. 

XXII

 

            The minutes of the SAB do not reveal that there was any discussion at that meeting of the consistency of the proposal with the variance criteria.  The SAB on November 14, 1994, voted three to two to recommend approval of the variance permit application to the County Commissioners.

XXIII

 

            Mr. Manassee prepared a written report for the County Commissioner, dated: December 9, 1994.  Consistent with his instructions, he made no specific findings on consistency of the variance application with the variance criteria.  The staff report did contain the following statement, however: “[b]ased on the topography and constraints of the subject property, staff finds that the proposal appears to be consistent with the Master Program Policies and Regulations and recommends the following conditions:”  However, when asked at the hearing before this Board why he made that statement, Mr. Manassee testified that he did not know. 

XXIV

 

            The County Commissioners approved the variance application on December 28, 1993.  The minutes of that meeting contain the same finding as quoted in paragraph XVII, above, but do not disclose any discussion on the specific variance criteria. 

XXV

 

            The permit was received by Ecology on January 7, 1994.  Ecology wrote to Mason County on January 21, 1994, that Ecology had not received a complete permit filing as required by WAC 173-14-090.  Ecology’s Permit Coordinator, K-Y Su advised the County that the review period would not begin until the complete filing was received.  Mr. Su specifically requested a scaled site plan, showing: the ordinary high water mark, the perimeter of the site and the adjacent residences; to enable Ecology to determine whether strict application of the common line setback would preclude any viable residential use. 

XXVI

 

            The site plan that ultimately was submitted led Ecology to conclude that the variance application should be denied because the proposal did not meet the variance criteria of WAC 173-14-150.  Ecology issued a denial letter on February 10, 1994.  Mr. Gilbert filed a request for review of the denial with the Board on March 2, 1994.  Ecology certified the request for review, pursuant to RCW 90.58.180(1), on March 31, 1994. 

XXVII

 

            The site plan, dated January 28, 1994, did not disclose the location of the existing septic system.  It did show a proposed new sand filter system, which was not presented to the County during its shoreline review.

XXVIII

 

            The site plan also did not disclose the Gilberts’ intent to place a “mother-in-law” apartment over the garage.  This intent was likewise not revealed to the County in its shoreline review process. 

XXIX

 

            The Board ruled, during the course of the hearing to not consider the proposal for a mother-in-law apartment to be before it during its deliberations, on the ground that such proposal had not been included in the application, as required by WAC 173-14-110(8).

XXX

            Any conclusion of law deemed to be a finding of fact is hereby adopted as such.  From these findings of fact, the Board makes the following:

CONCLUSIONS OF LAW

 

I

            The Board has jurisdiction over the parties and the issues.  RCW 90.58.180.

II

            The burden of proof is upon the party requesting review.  RCW 90.58.140(7).

III

            Hood Canal is a shoreline of state wide significance, under the Shoreline Management Act (“SMA”).  RCW 90.58.030(2)(e)(ii)(C) and RCW 90.58.030(2)(e)(vi).

IV

 

            The proposal lies in an Urban Residential Environment, under the MCSMP, Appendix II. 

V

            We conclude that the proposal for a sand filter system is not properly before the Board for review.  Ecology’s regulations require that all shoreline permit applications, including those for variance, at a minimum, shall contain a site plan, drawn to scale, which shows the location of proposed utilities, such as septic systems.  WAC 173-14-110(11)(a)(10).  The regulations also require the application to confirm whether any proposed septic system complies with local and state regulations.  WAC 173-14-110(11)(a)(11).  Mr. Gilbert’s application, as submitted to the County failed to comply with either of these requirements.

VI

 

            We conclude that the Gilbert residence is a non conforming structure, under the MCSMP.  It is non conforming because it does not conform to the shoreline setbacks. 

VII

 

            Mason County correctly applied the common setback formula from its master program to the proposal.  That formula requires the Gilbert house to be set back from an imaginary line drawn between the adjacent residential structures.  MCSMP, ch. 7.16.080, Use Regulation 9. 

VIII

 

            The common setback line would require the Gilbert house to be located approximately 25 feet back from the bulkhead.  The roof line of the existing garage would have to be at least 5 feet from the northerly boundary of the property.

IX

            Non conforming uses are disfavored under the law.  Jefferson Cy. v. Seattle Yacht Club, 73 Wn.2d 576, 591, ___ P.2d ___ (1994).  In reviewing a decision of this Board, the Court of Appeals declared that “the public policy of this state is to restrict such uses so that they may ultimately be phased out”.  Id.

X

            The Gilberts’ proposal invades the setback area both horizontally and vertically.  Any additional external construction on the Gilbert house (other than normal maintenance and repair), forward of the common setback line, would encroach into the setback area.  Such encroachment would be contrary to the policy against the continuance of non-conforming uses, as announced by the Court of Appeals.  In order to minimize the possibility of uncoordinated and incremental modifications to the shoreline regulations through the expansion of non conforming uses, the SMA requires requests for such alterations to pass through a variance process. 

XI

 

            Variances are designed as escape valves from imperfect land use ordinances.  3R. Anderson, American Law of Zoning 3d., § 19.10(1986).  This mechanism allows governmental entities to avoid application of a land use restriction, which literally applied, would deny a property owner all beneficial use of the property.  Id. at § 20.02.

XII

 

            Variances are exceptions to the rule.  The SMA is to be liberally construed on behalf of its purposes.  RCW 90.58.900; Clam Shacks v. Skagit County, 109 Wn.2d 91. 93. 743 P.2d 265 (1987).  Concomitantly, exceptions to its regulations must be strictly construed.  See Meed School Dist. v. Mead Education, 85 Wn.2d 140, 145, 530 P.2d (1975) (holding that the liberal construction command of the Open Public Meetings Act implies an intent that the act’s exceptions be narrowly confined). 

XIII

            The County variance criteria, except for projects located waterward of the ordinary high water mark, are identical to those of Ecology, at WAC 173-14-150.  Because the issues in this appeal pertain essentially to the area landward of that mark, the Board will apply the criteria from the MCSMP. 

XIV

 

            RCW 90.58.100(5) authorizes local governments and Ecology to grant variance permits for shoreline developments, “only if extraordinary circumstances are shown and the public interest suffers no substantial detrimental effect”.  The MCSMP allows for variances to be granted: “where there are extraordinary or unique circumstances relating to the property such that the strict implementation of the master program will impose unnecessary hardships on the applicant or thwart the policies set forth in RCW 90.58.020”.  MCSMP, ch.7.28.020 (first para.). 

XV

 

            The evidence fails to disclose any specific analysis by Mason County as to whether Mr. Gilbert’s proposal meets the variance criteria.  The applicant, at the local level, has the burden of establishing that its proposal is consistent with those criteria.  RCW 90.58.140(7).  The Board’s de novo review is not an excuse for the applicant and the permitting agency to short circuit the process.  Failure, at the local level to carefully review such projects against the specific criteria, simply protracts review by the Board.  We therefore encourage Mason County to consider requiring, in the future,  a detailed staff analysis of shoreline projects, prior to their review by the responsible decision-makers.

XVI

            Mr. Gilbert has failed to satisfy his burden of showing extraordinary circumstances or unnecessary hardship, entitling him to a variance.  He and his wife have a home on the waterfront, in which they have lived for 15 years.  A substantial number of homes on Hood Canal are still used as vacation homes.  The fact that the Gilberts now want a bigger, permanent home on the water is not justification for a variance.

XVII

            We further conclude that Mr. Gilbert’s proposal does not comply with any of the specific variance criteria from the MCSMP.

XVIII

            Strict application of the shoreline setback standards will not preclude or significantly interfere with a reasonable use of the property.  Mr. Gilbert and his wife have a home in Seattle.  Therefore, the proposal is inconsistent with criterion 1 of the MCSMP for variances.  The Gilberts can continue to use this home as a vacation home.  This alternative would at least not run counter to the policy for the phasing out of non conforming uses.  If however, they choose to make this their permanent home, they will have to abide by the limitations of the environment, which are designed to preserve the special beauty and cleanliness of Hood Canal, in the public interest. 

XIX

 

            If the Gilberts wish to expand their home, there is room to do so in the back, without encroaching on the setback requirements.  They were wisely counseled by their consultant to purchase upland area for moving their septic system a safer distance from the fragile waters and habitat of Hood Canal.  These upland areas have been approved as capable of handling the septic needs of the Gilberts.  Even if the Gilberts do not expand their house, they should consider moving their septic system to the uplands. 

XX

 

            The proposal is inconsistent with the second criterion of the MSCMP, because any alleged hardship springs not from the unique conditions of the property, but rather from the Gilberts’ desire to convert a vacation home to a year round dwelling.  Moreover the Gilberts admitted that they will be the only permanent occupants of the proposed new dwelling.  This desire is personal to them.  Entitlement to a variance does not depend upon the personal desires of the applicants, but rather upon the hardships imposed by the character of the property.  See Hoschek v. Mercer Island and Department of Ecology, SHB No. 86-53 (1987) (holding that the age and agility of the applicants was not a factor in determining whether there was a hardship due to the character of the property).  Moreover, the Gilberts have failed to demonstrate that they need to make the proposed expansion in order to have a reasonable use of the property.

XXI

 

            The Gilbert proposal will be closer to the water, taller and larger than the residences of his neighbors.  It is incompatible with the other permitted uses in the area.  We believe that this factor is especially important along Hood Canal in Mason County, where there is no existing zoning law other than the SMA, because typically single family residences are exempt from the SMA’s substantial development permit requirement. 

XXII

            The proposal will adversely effect adjacent properties and the shoreline environment.  By expanding a non conforming use, the proposal makes it more difficult to phase out a use which has already caused disturbance to the natural environment of Hood Canal.  The increased height and expanded envelope of the building will adversely effect existing views of the natural environment (both to and from the water) in the vicinity of the proposal.  Consequently, we conclude that the proposal is inconsistent with the third variance criterion of the MCSMP. 

XXIII

            This would be the first shoreline variance granted in the immediate neighborhood of the Gilbert property.  It would manifestly constitute a grant of special privilege to the Gilberts, not enjoyed by their neighbors.  Furthermore, the proposal is not the minimum necessary to afford relief.  The evidence shows that there is room to accommodate reasonable expansion to the residence, within the existing setbacks.  The Gilberts own property directly across the road, which will accommodate upgrading of the existing septic system.

XXIV

            Their is an overriding public concern in protecting the fragile environment of Hood Canal, which would be adversely affected by permitting this major conversion of a vacation home to a two-story house.  There are numerous similarly situated small lots on Hood Canal, lying between the water and a public roadway.  The policy of phasing out non conforming uses is particularly important in such an area, if we are to avoid degrading a precious resource through the continued granting of permission to violate the minimal shoreline setbacks that were established for the area.  The Gilbert proposal is inconsistent, therefore, with the fifth criterion for variances in the MCSMP. 

XXV

            Finally, the Gilbert proposal is inconsistent with the last criterion of the MCSMP, applicable to all variances; namely, that if similar variances were granted, the policies of the SMA should not be violated, nor should there be substantial adverse effects to the shoreline environment.  The granting of this variance would establish a precedent for granting variances to all of the Gilbert’s neighbors who are similarly situated.  The fact that many of them have no opposition to this variance suggests that they too would benefit from similar treatment.  In fact, it is obvious that the granting of such a variance would place more pressure on Mason County to grant variances to the setbacks to allow larger homes to be built, while maintaining septic systems that are between the narrow band of land between the Canal and the County Road.  The cumulative impact of such approvals would violate the strong policies of the SMA against adverse impacts to the waters of the state, the fish and wildlife, the public health and the aesthetics of the shorelines of our state.  RCW 90.58.020.  It would furthermore violate the policy of that act allowing only limited alteration of the natural conditions of the shoreline.  RCW 90.58.020.  Id. 

XXVI

 

            Any finding of fact deemed to be a conclusion of law is hereby adopted as such.  From the foregoing, the Board issues this:

ORDER

            Ecology’s denial of the shoreline variance application of Robert Gilbert to expand his residence, within the shoreline setback areas, is affirmed.

            DONE this 7th day of October  1994.

 

                                                                        SHORELINES HEARINGS BOARD

 

                                                            ROBERT V. JENSEN, Presiding

 

                                                            RICHARD C. KELLEY, Member

 

                                                            MICHAEL D. MORTON, Member