BEFORE THE SHORELINES HEARINGS BOARD
STATE
OF WASHINGTON
|
Appellant, v. STATE OF WASHINGTON,
DEPARTMENT OF ECOLOGY, PIERCE COUNTY, AND THE TACOMA YACHT CLUB, Respondents. |
) ) ) ) ) ) ) ) ) ) ) ) ) ) |
SHB 01-028 FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER |
A hearing was held in the above matter on March 8, 2002 on Anderson Island, Washington. The hearing was continued until March 11, 2002 and was held on that day at the Board’s office in Lacey, Washington. The Board was comprised of John Bolender, Kaleen Cottingham, Robert Jensen, Phyllis Shrauger, William H. Lynch, and Judy Wilson. Phyllis Shrauger was unable to attend the full hearing on March 8, 2002 due to inclement weather but did review the record for the portions of the hearing she missed and has participated in the decision by the Board. Deborah L. Mull, Administrative Appeals Judge, presided over the hearing. Gene Barker and Associates of Olympia, Washington provided court-reporting services.
Bill Tobin, Attorney at Law, represented the appellant, the Nisqually Indian Tribe (Tribe). Matthew L. Sweeney, Attorney at Law, represented the Tacoma Yacht Club (TYC). Jill Guernsey, Deputy Pierce County Prosecutor, represented Pierce County.
On the morning of the first day of hearing, the entire Board conducted a site visit with all parties present. The Board also received sworn testimony of witnesses, exhibits and argument on behalf of the parties.
In addition, the Board had previously considered a Motion to Dismiss brought by TYC. On March 1, 2002, this Board entered an Order Denying the Motion to Dismiss.
Having fully considered the entire record, the Board enters the following:
FINDINGS OF FACT
I.
Oro Bay is located on the south west side of Anderson Island. The shoreline below extreme low tide in Oro Bay is a shoreline of statewide significance under the Shoreline Management Act (SMA). It is designated as a rural environment in the Pierce County Shoreline Master Program (PCSMP). A portion of the shorelines encompassed by the marina facilities at Oro Bay is shorelines of statewide significance. Anderson Island is in Pierce County and is accessible by ferry from Steilacom, Washington.
II.
Three docks
currently exist on the southwest side of Oro Bay: (1) Oro Bay Marina is the
most southern dock,;
(2) the Bremerton Yacht Club facility is located north of Oro Bay Marina,;
and (3) the TYC facility is located north of Bremerton Yacht Club. The existing TYC facility extends approximately 225
feet from the ordinary high water mark into the waters of Oro Bay. Oro Bay Marina is currently authorized
to have up to 36 boats tied to its facility.
Bremerton Yacht Club is currently authorized to have 13 boats tied to
its facilities. TYC is currently
authorized to have 20 boats tied to its facilities. The TYC facility is at the mouth of the entrance into the bay and
abuts Oro Bay for 405 linear feet.
Below is a drawing that provides a visual reference of Oro Bay and the
locations of the various facilities.
The drawing is not to scale.
III.
Portions of Oro Bay
are currently experiencing water quality problems. Just to the right of the green buoy in the above drawing is
sampling station number 257. Samples
taken at this sampling station have, in recent history, exceeded health
standards for fecal coliform. Fecal
coliform rates go up after a rain event in the winter when boating is minimal
and go down in the summer when boating is at its heaviest, but rain events are
lighter. As such, this Board finds thatthe
fecal coliform problem is not related to boating activities within the
bay.
IV.
The high fecal coliform counts caused the Department of Health (Health) to close shellfish harvesting in Oro Bay. This closure occurred on September 5, 2001 and is a temporary closure for two years while Health studies and attempts to correct the problems.[1] If the problems can be corrected, then the closure will be lifted to allow shellfish harvesting. If the problems are not fixed, the closure is likely to be continued. The closure may also be reduced depending on what the studies establish.
V.
In addition to the above closure, there is also a marina closure associated with the National Shellfish Sanitation Program (NSSP). The NSSP is a federal program, administered by Health, which provides standards for water quality for the protection of shellfish harvesting for all of the states. These standards require closures on and near marinas based on computer modeling. The model requires information to be provided on the number of boats, depth of water, an assumed amount of fecal coliform contributed by each boat, a mixture path and rate, information on the current, and the number of pump-out facilities available to the boaters. Once
this information is entered into the model, it produces an expected area of contamination and requires a closure associated with that expectation. The model is based on potential degradation and not on actual degradation. Once this type of closure occurs, shellfish harvest is prohibited. The closure is permanent unless the numbers of boats decrease or one of the other parameters considered in the modeling is changed. This closure would exist even if the water quality in the bay were of high quality.[2]
VI.
On March 26, 2001, TYC filed an application with Pierce County requesting a Substantial Development Permit (SDP) to remove a restriction on the number of boats that could utilize TYC’s outstation at Oro Bay. The proposal did not include any revisions to the physical facilities, but merely wanted removal of the restriction. TYC requested unlimited boat usage in order to accommodate an increase in usage by its members. The maximum boats that have used the Oro Bay outstation are 27 boats. The highest usage for all three facilities (Oro Bay, Bremerton and Tacoma) is 81 boats. Except for holiday weekends, the boat usage by TYC at Oro Bay is minimal and sporadic (i.e. 0-2 boats).
VII.
On May 21, 2001, staff of the Pierce County Department of Planning and Land Services recommended denial of the SDP. The staff report noted that the 20-boat limitation was
appropriate based on the amount of
waterfront on the site per § 20.56.040B.8.d(3) of the Pierce County Shoreline
Management Use Regulations (Pierce County Code). The staff report noted that this
quantity could be exceeded, but did not feel that such a grant was
warranted based on concerns regarding navigation, vehicle parking, water
quality impacts, and past exceedance of the boat limitation.
VIII.
The
hearing examiner for Pierce County, Stephen K. Causseaux, Jr., considered the
staff report as well as testimony from several individuals. Mr. Causseaux determined, after hearing, that
the SDP should be granted with the following relevant condition:
The applicant shall provide dates of special club events to the Pierce County Planning Division by April 30th of each year. The applicant shall also monitor the usage of the outstation from Memorial Day weekend to Labor Day weekend each year, and will provide Pierce County Planning with a count of the boats and vehicles on Memorial Day weekend, 4th of July weekend, and Labor Day weekend. Pierce County will retain jurisdiction to evaluation [sic] the impacts of parking and boat usage.
Mr. Causseaux’s Report and Decision was issued on June 13, 2001.
IX.
The Department of Health first established a “marina closure zone” for Oro Bay in 1993. After Mr. Causseaux’s decision was issued, Health started revisiting the “marina closure zone” to see if it needed to be changed as a result of the unlimited boat usage allowed by Mr. Causseaux’s decision. Because the number of boats was not specified in the permit, it was difficult for Health to determine the appropriate size of the “marina closure zone.” This difficulty resulted in Health taking a conservative approach when running the model. Health assumed in excess of 200 boats for all three facilities as the maximum number of boats capable of being in Oro Bay. With that assumption, Health staff is recommending that the “marina closure zone” be moved in such a way that 200 meters of beach north of TYC’s facilities will be closed from shellfish harvest. The expected “marina closure zone” will not impact public beaches. A final decision by Health will not be made until after conclusion of this hearing process.
X.
The
Nisqually Indian Tribe appealed Mr. Causseaux’s decision to this Board. The Nisqually Indian Tribe is a federally
recognized tribe authorized to take shellfish in the Anderson Island area. The Tribe was a party in U.S. v.
Washington, 384 F. Supp. 312 (1974) and U.S. v. Washington,
626 F. Supp. 1405 (1981). In these
cases, the Nisqually Indian Tribe and other tribes were adjudicated the right
to take 50% of all shellfish in usual and accustomed fishing areas. The rights adjudicated included the right to
take shellfish for ceremonial, subsistence, and commercial uses on public and
private shore lands. The Nisqually
Indian Tribe’s share of the 50% is shared with three other tribesone
third. In addition, the
Nisqually Indian Tribe was also given the right to take 100% of the 50% share
in certain areas designated as “exclusive.” for the Nisqually
Tribe. Anderson Island is such
an area. As such, in the area in and
around Oro Bay, the Nisqually Tribe has the right to take 100% of the 50% right
granted by the federal court. This
“exclusive” designation makes the Anderson Island important to the
Tribe. As such, the Tribe is actively
searching for leases and purchases of tidelands in and around Oro Bay.
XI.
The
Tribe currently does not have permission to access the privately held upland portion of the a
lease for the 200 meters of beach that Health staff is proposing to be closed
under the “marine closure.” The
beach is currently in private ownership and a lease would
be required in order for the Tribe to access the property for shellfish
harvest. It is unknown
whether the particular 200 meters of potentially affected beach would support a
commercial harvest. Shellfish in the
area has been very low in the past and would not have supported a commercial
harvest without some enhancement measures being taken. The Tribe is interested in shellfish
enhancement on both private and public beaches. It is unknown whether such an enhancement program, if needed,
would be justified on the 200 meters of potentially affected beach and whether the Tribe
could obtain permission from the private landowner to access the uplands
portions of the land in order to enhance the beach.
XII.
The preferred time for shellfish harvest by Tribal members is during warmer weather when the tides are low.
XIII.
Any Conclusion of Law that is deemed a Finding of Fact is hereby adopted as such.
FROM THE ABOVE FINDINGS OF FACT, THE BOARD MAKES THESE
CONCLUSIONS OF LAW
I.
The Board has jurisdiction over the subject matter and the parties. RCW 90.58.180. The Board considers this matter on a de novo standard and scope of review. WAC 461-08-500. Since this matter involves the appeal of a substantial development permit, the appellant has the burden of proof. RCW 90.58.140(7). The appellants must meet this burden by a preponderance of the evidence.
II.
The
Tribe asserts the SDP was improperly issued because TYC failed to demonstrate a
need for unlimited moorage at its outstation on Oro Bay. TYC asserts the SDP was properly issued
because the shoreline area at issue is designated for intense recreational use
and that is exactly what is being proposed by TYC. TYC also asserts the increased use byin boats
will not cause any water quality degradation or otherwise harm the
environment.
III.
TYC
is correct in its assertions that the area at issue is designated for intense
recreational use and that its increase in use is not likely to cause any
additional water quality degradation.
TYC’s analysis is flawed, however, because it is incomplete. TYC’s analysis fails to consider whether
there is a need for unlimited boat moorage.
It is insufficient to simply want to have unlimited boat moorage. TYC must also show unlimited boat moorage is
warranted. Christoffersen et al. v.
Ecology and San Juan County, SHB 97-7 and 97-8 (1997) (subjective desires
of property owner are insufficient to prove need); Gennotti et al. v. Mason
County et al., SHB 99-011 (1999) (property owners’ desires do not
justify substantial detrimental affect to the public interest); Bellevue
Farm v. Shorelines Hearings Board, 100 Wn.App 341, 365, 997 P.2d 380 (2000)
(property owners failed to establish their need should outweigh effects of
development). This is especially true,
where here,;
such a request
has required Health to assume a very conservative approach in setting the
“marina closure zone”. This
conservative approach may result in more beach being permanently closed under
the “marina closure zone” than is warranted.
IV.
The Shoreline Management Act states:
It is the policy of the state to provide for the management of the shorelines of the state by planning for and fostering all reasonable and appropriate uses. This policy is designed to insure the development of these shorelines in a manner which, while allowing for limited reduction of rights of the public in the navigable waters, will promote and enhance the public interest. 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, while protecting generally public rights of navigation and corollary rights incidental thereto. . . .
Permitted
uses in the shorelines of the state shall be designed and conducted
in a manner to minimize, insofar as practical, any resultant damage to the
ecology and environment of the shoreline area and any interference with the
public’s use of the water.
(Emphasis added.) RCW 90.58.020.
V.
In addition, the Shoreline Management
Act gives preference to the following list of uses, in the following order, for
shorelines of statewide significance, which:
(1) Recognize and protect the state-wide
interest above 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; and
(7) Provide for any other element as defined in
RCW 90.58.100 deemed appropriate or necessary.
RCW 90.58.020.
VI.
The Pierce County Shoreline Master Program (PCSMP) contains similar policy statements. For example, the PCSMP states:
The basic intent of this Act is to provide for the management of the state shorelines by planning for and fostering all reasonable and appropriate uses and to insure, where development takes place, that it is done in a manner which will promote and enhance the best interest of the general public.
PCSMP at 1. The PCSMP also provides a policy of the SMA is to limit:
actions that would convert resources into irreversible uses or detrimentally alter natural conditions characteristic of shorelines of statewide significance by evaluating the short-term economic gain or convenience of developments in relationship to long-term and potentially costly impairments to the natural environment. . . .
Furthermore, the PCSMP
provides a policy, which reflects and refines the SMA’s policies of
preferential uses for shorelines of statewide significance. These declare as follows:
The
Act identifies special policies for these shorelines which are intended to
express the interest of all the people in Washington State. These policies are listed below in order of preference.
A)
Recognize and protect the statewide interest over local interest by
obtaining the advice and opinions from statewide interest groups, appropriate
state agencies, experts from scientific fields pertinent to shoreline management, and the general public;
B)
Preserve the natural character of the shoreline as much as possible by
designating shoreline environments and use regulations to minimize man-made
intrusions and by upgrading and redeveloping intensively developed areas to
reduce their adverse impact on the environment and to accommodate future growth rather
than allowing high intensity uses to extend to low intensity use on
underdeveloped areas.
C)
Plan for long-term over short-term benefit by preparing a master program
designed to preserve the shorelines for future generations. This should be accomplished by limiting actions that
would convert resources into irreversible uses or detrimentally alter
natural conditions characteristic of shorelines of statewide significance by evaluating the short-term
economic gain or convenience of developments in relationship to
long-term and potentially costly impairments to the natural environment. Aesthetic considerations should also be
considered when contemplating new development, redevelopment of existing
facilities or for the general enhancement of shoreline areas.
D)
Protect the resources and ecology of shorelines by leaving undeveloped those areas
which contain a unique or fragile natural resource by preventing erosions and
sedimentation that would alter the natural function of the water system and by
limiting excavations or other actions which would increase the likelihood of
erosion.
E)
Increase public access to publicly owned areas of the shorelines by
giving priority
to developing paths and trails to shoreline areas developing linear access along the
shorelines, developing upland parking, and locating development inland from the ordinary
high water mark so that access is enhanced.
F)
Increase recreational opportunities for the public on the shorelines by
planning for, and encouraging the development of facilities for recreational
use of the shorelines.
PSCMP at 2-3. It is against these policy statements this case must be evaluated. Spoelstra v. Snohomish County, SHB 99-22 (2000); accord, Gennotti et al. v. Mason County et al., SHB 99-011 (1999) (policies are substantive law to be considered by the SHB).
VII.
In
the present case, TYC is requesting this Board allow unlimited boat moorage,
which has the potential to permanently remove 200 meters of beach from
shellfish harvest. The most boats ever
used by TYC at the Oro Bay outstation are 27 boats. It is unknown what the “marina closure zone” would be if the
model had been run for 27 boats. The
model was run assuming a total of 200 boats for all three facilities. Even allowing for future growth, this board
concludes a more realistic approach (i.e. 27 boats) is likely to reduce the
amount of aeffected
beach from the “marina closure zone”.
This is especially true given the other two facilities (i.e. Bremerton
and Oro Bay) are likely to also request unlimited moorage if TYC is granted the
same. Bremerton Yacht Club has already
requested unlimited moorage from Pierce County. Pierce County has deferred ruling on that request until this
decision is issued. Clearly, if
unlimited moorage is allowed for TYC, it will be difficult for Pierce County to
then deny the same benefit to Bremerton.
VIII.
This
board is aware that no new “marina closure zone” has been set by Health that
removes 200 meters of beach from shellfish harvest. This board is also aware the Tribe can appeal any closure
ultimately set by Health. However, the
mere fact no closure hasd yet to to be
set and the Tribe can appeal does not remove the requirement under the SMA that
all uses be considered and that the resources should be preserved to the
extent possible for the long term benefits of the citizens. In the present case, the granting of
unlimited moorage where no need has been shown and where it is likely 200
meters of beach will be removed from harvest is not protective of all reasonable and
appropriate uses, nor and does it preserve the
resource or protect the natural character of the shorelines of statewide
interestnot preserve the resource.
IXVIII.
In addition, Pierce County development regulations are also not adequately addressed by the SDP. Specifically, unlimited boat moorage violates § 20.56.040(A)(7) and § 20.56.040(B)(8)(d)(3) of the Pierce County Code. Section 20.56.050(B)(8)(d)(3) provides:
Density of usage should not exceed the following: . . . (3) Private recreational pier or dock – one moorage for each 30 feet of waterfront up to 210 front feet plus one moorage for each additional front feet (e.g., a 20 boat club pier and dock would require 405 front feet).
As noted above, TYC has 405 linear feet adjacent to Oro Bay. Finding of Fact II. As such, under the above regulation, it would appear a 20-boat limitation is warranted.
IX.
In addressing the above regulation, Hearing Examiner Causseaux stated: “[e]xceeding the 20 boat guideline on occasional weekends would not appear to violate the spirit and intent of the density guidelines for private recreational piers or docks.” While some flexibility may be warranted because of the occasional nature of the exceedance, this Board concludes unlimited boat usage is not supported given this regulation. This is especially true given that § 20.56.040(A)(7) of the Pierce County Code provides: “The intensity of use or uses of any proposed dock, pier and/or float shall be compatible with the surrounding environment and land and water uses.” In the present case, an unlimited boat moorage is not compatible with reduction in harvestable shellfish beaches.
XI.
This Board has long taken a balancing approach where boating and fishing activities conflict.
Where boating and fishing activities conflict, the policy of the SMA is, where possible, to reconcile the uses by preventing the one from unreasonably obstructing or interfering with the other.
Franzen et al. v. Snohomish County et al., SHB Nos. 87-5 and 87-6 (1988), citing, Beach Mining v. Pacific County, SHB 81-50 (1984).
XII.
For
all of the reasons discussed above, this Board concludes the SDP is not
supported. The County should have
required TYC to identify a specific number of boats so the effects of such
request could be specifically identified and evaluated. Once that information is known, it will be
easier to look at all uses and determine how best to balance those
uses can be
reconciled consistent with the policies of the SMA and the PCSMP.
XIII.
Any finding of fact deemed to be a conclusion of law is hereby adopted as such.
FROM THE FORGOING, THE BOARD ISSUES THIS
ORDER
The SDP
issued by Pierce County is overturned and the permit is remanded to Pierce
County to require TYC to identify a specific number of boats it needs to bedesires
to have moored. Once that
has occurred, Pierce County should evaluate the permit in light of the
directions contained in this opinion.
SO ORDERED this 12th day of April 2002.
SHORELINES HEARINGS BOARD
ROBERT V. JENSEN, Member
KALEEN COTTINGHAM, Member
WILLIAM H. LYNCH, Member
PHYLLIS SHRAUGER, Member
JUDY WILSON, Member
JOHN BOLENDERBILL
HINKLE, Member
Deborah L. Mull, Presiding
Administrative Appeals Judge