BEFORE THE SHORELINES HEARINGS BOARD
STATE OF WASHINGTON
This matter comes to the Board on an appeal of a Shoreline Substantial Development Permit (“permit”) issued by Mason County (“County”) on March 23, 1999, to William and Pamela Shearer, husband and wife. The permit would allow construction of a pier, ramp and float on the Shearer’s property on Hood Canal.
The Board held a hearing on August 2, 1999 in Belfair, Washington. Pursuant to RCW 90.58.185, the Board was composed of Ann Daley, Presiding; Dean Foster; and David Wolfenbarger. Board members, accompanied by the parties, visited the site on the day of the hearing.
The appellants were represented by Jay A. Goldstein, attorney. Respondents were represented by Robert H. Raymond, attorney. Michael Clift, Deputy Prosecuting Attorney, represented Mason County. Brenda F. Gunderson of Gene Barker and Associates, Inc., Olympia, Washington, recorded the proceedings.
The Board heard the testimony of sworn witnesses, admitted and examined exhibits, and heard arguments on behalf of the parties. Based on this record, and being otherwise fully informed, the Board issues the following:
I.
The Shearers applied to Mason County for a shoreline substantial development permit on November 10, 1998. The Mason County Board of County Commissioners approved the permit on March 23, 1999. The permit would allow the Shearer’s to construct a one-owner pier, ramp and float for the family’s greater utilization of the waterfront for boating, swimming and fishing.
II.
The property is located in the Clifton Beach #2 development on the North Shore of Hood Canal, approximately 3 miles west of Belfair State Park and 6 miles west of the City of Belfair. The project would consist of a 45-foot long, 8-foot wide fixed pier, a 40-foot long and 4-foot wide aluminum ramp, and a float and boat slip. A three-foot high railing would extend the length of the pier and the ramp. The pier-dock-float structure would extend water ward 100 feet from the existing concrete bulkhead. Six chemonite pilings would support the pier, and five chemonite pilings would support the float and boat slip. Chemonite is a wood treatment that is environmentally preferable to creosote. Its use is a condition of the Hydraulic Permit issued for the proposed project.
III.
The Shearers applied for a similar permit in 1997. Before final consideration, they withdrew the request and applied instead for a permit to construct a 20-foot wide by 18-foot deep float. This permit was approved, but the float has not been constructed. The Shearer’s have continued to use a much smaller float, which they now find to be inadequate.
IV.
Hood Canal is a Shoreline of Statewide Significance. The property is located within the County’s “urban residential” shoreline environment. Piers and docks are a permitted use in this environment.
V.
The north shore of Hood Canal is relatively unprotected from storms. Prevailing winds are from the Southwest. High winds are not uncommon, even in summer.
VI.
The adjacent and nearby properties are single-family homes used both seasonally and year-round. The area is well developed both along the shoreline and immediately upland. Lot widths are less than 100 feet. The Shearer’s property is approximately 50 feet in width. Eighty-five percent of the lots in the vicinity have existing homes or cabins, some with garages and boathouses. The beach is composed of pebbles and gravel. Eelgrass grows in the lower beach area approximately 190 feet from the bulkhead.
VII.
Piers and docks are common along various stretches of Hood Canal. However, they are not common on the North Shore near this proposed project. There are occasional concrete boat ramps along the shoreline and some floats in the water. Otherwise, there are no protruding structures beyond the bulkhead. Several docks and piers existed in the area in the 1970s but these have long since disappeared. There are no existing piers or docks for two miles in either direction of the Shearer’s property.
VIII.
The Shearers and their neighbors use the beach along their properties for a variety of recreational activities, including boating, sailing, fishing, water-skiing, beachcombing, and shellfish harvesting. The aesthetics of the now unobstructed view of the water are important to the adjacent property owners. The proposed pier-ramp-float structure would intrude significantly upon this view.
IX.
The beach is gently sloping. At low tide, the float and boat slip will ground. The structure would have to extend well beyond 100 feet in order to be accessible by water at all times.
X.
Hood Canal summer chum and Puget Sound fall Chinook are listed as threatened species under the federal Endangered Species Act[1]. Because both species stay in freshwater for a relatively short time, they are small when they enter saltwater. This makes them more susceptible to predation. Summer chum juveniles rear and find refuge in estuarine deltas and near shore areas along Hood Canal. Docks and piers can have adverse impacts on juvenile salmon migration by providing (1) refuge for predators, and (2) shade, which can harm the vegetation and small organisms on which the juvenile salmon rely.
XI.
Any conclusion of law deemed to be a finding of fact is hereby adopted as such. Based on the foregoing findings of fact, the board enters the following:
CONCLUSIONS OF LAW
I.
The Board has jurisdiction over this matter pursuant to RCW 90.58.180. The standard of review is de novo. We review a proposed development for consistency with 1) the applicable shoreline master program, and 2) the Shoreline Management Act, chapter 90.58 RCW.
II.
The appellants bear the burden of proof to establish by a preponderance of the evidence that the shoreline permit granted by Mason County is not consistent with the policies and requirements of the Shoreline Management Act (“SMA”) and the Mason County Shoreline Master Program (“MCSMP”).
III.
The Shoreline Management Act. The major policies of the SMA are set forth in RCW 90.58.020. Generally, “it is the policy of the state to provide for the management of the shorelines of the state by fostering all reasonable and appropriate uses.” RCW 90.58.020. “This policy contemplates protecting against adverse effects to the public health, the land and its vegetation and wildlife, and the waters of the state and their aquatic life.” Id. (emphasis ours). See also MCSMP 7.04.020.
Policies that are more restrictive apply to shorelines of statewide significance. “The interest of all of the people is paramount in the management of shorelines of statewide significance.” Id. Local jurisdictions are required to adopt use preferences for shorelines of statewide significance in the following order of preference:
(1) Recognize and protect the statewide interest over the local interest;
(2) Preserve the natural character of the shoreline;
(3) Result in long-term over short term benefit;
(4) Protect the resources and ecology of the shoreline;
(5) Increase public access to publicly owned areas of the shorelines;
(6) Increase recreational opportunities for the public in the shoreline.
Mason County has adopted these use preferences in the MCSMP 7.24.010.
IV.
Hood Canal is a shoreline of statewide significance. RCW 90.58.030(2)(e)(ii)(c), MCSMP Chapter 7.08.
V.
The Mason County Shoreline Master Program. MCSMP 7.16.170 establishes the County’s policies and use regulations for piers and docks. We first address respondent’s argument that these policies are advisory only, without force in and of themselves, citing Lund v. Department of Ecology, 93 Wn.App. 329, 337, 969 P.2d 1072 (1998). We disagree. This argument misstates the standard applied in Lund. There, the appellant wanted to build an over-water residence where such structures were specifically prohibited by the local master program. The Lund court held that the general policy in the SMA relating to protection of private property rights, on which appellant relied, was “secondary to the SMA’s primary purpose which is to protect the state shorelines as fully as possible” and that the general policy could not override a specific prohibition in the local master program. Id. at 337. Here, the MCSMP contains no specific provision that would run counter to the general policies that guide development along the shoreline. Therefore, the policies enunciated in MCSMP 7.16.170 are applicable to this proposed development. In so concluding, we are mindful that the SMA is to be “broadly construed so as to protect the state shorelines as fully as possible.” Buechel v. Department of Ecology, 125 Wn.2d 196, 203, 884 P.2d 910.
VI.
The applicable policies in the MCSMP relating to piers and docks are stated as follows:
(1) Piers and docks should be designed and located to minimize obstruction of views and conflicts with recreational boaters and fishermen;
(2) Cooperative uses of piers and docks are favored, especially in tidal waters;
(3) The type, design and location of docks and piers should be compatible with the shoreline area where they are located. Consideration should be given to shoreline characteristics, tidal action, aesthetics, adjacent land and water uses.
We hold that the proposed project is not consistent with these policies. The proposal would obstruct views and cause conflicts with recreational uses. It is a single-use dock in tidal waters where cooperative uses of docks and piers are particularly favored. We note that the Shearers did attempt to interest at least one neighboring property owner to join in their project, but a joint-use facility did not result. Finally, we conclude that the project is not consistent with the policy that it be designed and located in a manner compatible with the shoreline area where it would be located. This pier-dock-float would be the only such structure for several miles in either direction. We recognize that the cove and gentle beach at issue are not “pristine” or unaltered due to the residential development along the shoreline. Nevertheless, the area is currently devoid of any large structures protruding out into the water. If allowed, the proposed pier-dock-float would not be compatible with the shoreline area where it would be located.
VII.
The applicable use regulations state:
(1) The location and design of docks and piers, as well as the subsequent use, shall minimize adverse effects on fish, shellfish, wildlife and water quality;
(2) Docks and piers shall be located, designed and operated to not significantly interfere with the rights of adjacent property owners or adjacent water uses.
(7) The maximum length of the pier-dock and float is the lesser of (a) the length to obtain a depth of 3 feet at mean lower low water; (b) 15 percent of fetch; or (c) 100 feet from the ordinary high water mark.
VIII.
The proposed pier-ramp-float structure does not comply with the use regulation requiring that adverse effects on fish, shellfish, wildlife and water quality must be minimized. Appellants’ evidence of the adverse impact of piers and docks on the migration of juvenile summer chum was persuasive. A recent report[2] offered the following statement:
…available information suggests that shoreline development
(bulkhead and dock construction) threatens summer chum
habitat at the scale of the entire Hood Canal/SJF region (Section
III.B. p. 16, and Appendix A).
While we recognize the efforts made by the Shearers to utilize “best practice” for the treated pilings, we are not persuaded that the full impact of this project on Hood Canal summer chum will be minimal. Its mere existence will enhance shelter for predators of juvenile salmon, and hamper the growth of vegetation and small organisms on which the juvenile salmon feed. The fact that Hood Canal summer chum are now listed as a threatened species heightens our concern in this regard.
IX.
Regulation 2 requires the location, design and operation of docks and piers be such that significant impacts and unnecessary interference with the rights of adjacent property owners or adjacent water uses do not result. It is clear that many adjacent and nearby property owners oppose this project because they believe it would intrude into views and interfere with passage along the beach and with small boats in shallow water. Whether these concerns constitute significant impact or unnecessary interference is a matter of judgment. We are guided by the overall objectives of the SMA and the MCSMP that seek to promote and enhance the public interest in all shorelines, but for shorelines of statewide significance the interest of all of the people shall be paramount. RCW 90.58.020.
X.
Use Regulation 7 addresses the maximum length allowed for any pier-dock-float. There is no dispute that the proposed project is 100 feet from the Ordinary High Water Mark (OHWM), which is the lesser of the three methods allowed to calculate maximum length. However, the regulation further states:
When sufficient depth to serve a vessel is not found at this length, a recreational float, with one boat slip, may be located at a depth sufficient to serve the vessel, but not exceeding minus eight feet as measured from mean lower low water.
At the maximum allowed length for this pier-ramp-float, the float and boat slip will ground at low tide. We question whether sufficient depth is reached, in the terms of this use regulation, when the float and boat slip will be grounded with each low tide. A float, for which the Shearer’s already have a permit, would be preferred, if not required by Regulation 7.
XI.
The Shearers have found their current small float to be inadequate, citing the inconvenience of using a dinghy to access the float during the summer months when their use of the property is most intense. The Shearer’s make full use of the water for recreational purposes and naturally desire the most convenient access to the water they can achieve. However, we are not persuaded that accommodating their desire for greater convenience outweighs the public interest in protecting this shoreline of statewide significance as fully as possible. “The Legislature contemplates the protection of private property rights only if extraordinary circumstances are shown and the public interest suffers no substantial detrimental effect.” Lund at 337, citing RCW 90.58.100(5).
XII.
Finally, we share appellants’ concerns that approval of the proposed pier-dock and float would pave the way for similar projects in the area, thus encouraging a cumulative negative impact on the shoreline. Additional structures, like the one proposed could only exacerbate the adverse impact on threatened Hood Canal summer chum and alter the character of the immediate vicinity. The fact that this pier-dock-float would be the first for several miles along the North Shore of Hood Canal was not the determinative factor in our decision, however. It is possible that a joint-use dock structure of different design with less visual and environmental impacts could be approved at this site. We recently granted a permit for a dock in Horseshoe Bay, a relatively pristine bay in San Juan County with no existing piers or docks. Inskeep v. San Juan County, SHB 98-033 (1999). There, however, the proposed dock was joint-use among all the property owners on Horseshoe Bay, designed to be low-profile, constructed of nonglare materials and located against a high bank, thus reducing the view impact for passing boaters and residents across the water. As we opined in Inskeep,
Any dock will have a physical presence and alter the view of a
particular shoreline. The proposed dock minimizes this impact
by its location and design features. It is not determinative that
the dock will be the first such facility in Horseshoe Bay. More
important is the extent to which it will constitute a visual presence
on the environment and the significance of the man-made
alteration. Id. at 7.
XIII.
In conclusion, we find the proposed pier-dock-float structure fails to comply with the SMA and the MCSMP. Accordingly, the appeal should be granted and the permit approved by the County should be vacated.
XVI.
Any finding of fact deemed to be a conclusion of law is hereby adopted as such. From the foregoing findings of fact and conclusions of law, the Board enters the following:
ORDER
IT IS HEREBY ORDERED that the subject appeal is GRANTED and the Shoreline Substantial Development Permit is REVERSED.
DONE, this 29th day of October, 1999.
SHORELINES
HEARINGS BOARD
ANN
DALEY, Presiding
DEAN
R. FOSTER, Member
(see
dissent)
DAVID
WOLFENBARGER, Member
[1] 16 USC 1532 (20) defines “threatened species” as any species, which is likely to become endangered species within the foreseeable future throughout all or a significant portion of its range.
[2] Hood Canal/Easter Strait of Juan De Fuca Summer Chum Habitat Recovery Plan, Final Draft, March 23, 1999, prepared by Point No Point Treaty Council, Skokomish Tribe, Port Gamble S’Klallam Tribe, Jamestown S’Klallam Tribe and Washington Department of Fish and Wildlife.