BEFORE THE HEARING EXAMINER FOR THURSTON COUNTY

Transcription

1 COUNTY COMMISSIONERS Cathy Wolfe District One Diane Oberquell District Two Robert N. Macleod District Three HEARING EXAMINER BEFORE THE HEARING EXAMINER FOR THURSTON COUNTY In the Matter of Application of ) NO ) Harold and Shelly Goetting ) FINDINGS, CONCLUSIONS AND ) DECISION For a Shoreline Substantial Development ) Permit. ) SUMMARY OF DECISION A Shoreline Substantial Development Permit to construct a rockery within the Rural Shoreline Environment of Budd Inlet is GRANTED, subject to conditions. SUMMARY OF RECORD Request: Harold and Shelly Goetting (Applicant) requested a Shoreline Substantial Development Permit (SSDP) to construct a rockery within the Rural Shoreline Environment of Budd Inlet. The subject property is located at 3906 Country Club Drive NW, Olympia, Washington (Tax Parcel Number ). Hearing Date: An open record hearing on the request was held before the Hearing Examiner of Thurston County on November 5, Testimony: At the hearing the following individuals presented testimony under oath: Gayle Zeller, Development Services Department Harold Goetting Mark Edelbrock Dean Edenstrom Exhibits: At the open record hearing the following exhibits were admitted into the record: 2000 Lakeridge Drive SW, Olympia, Washington (360) /FAX (360)

2 EXHIBIT 1 Attachment a Development Services Planning & Environmental Section Report including the following exhibits: Notice of Hearing Attachment b JARPA Application dated May 23, 2006 Attachment c Attachment d Attachment e Attachment f Attachment g Attachment h Attachment i Attachment j Attachment k Vicinity Map Site Plan Plan and Elevation Views of Proposed Structure Landscape Plan Aerial View of the Property July 17, 2007 Geotechnical Report by Bradley-Noble Geotechnical Services June 26, 2006, from John Ward, Environmental Health Department Color Photo of Example of Finished Rockery with Vegetation Color Photos of Site Photo 1 Slope on South and North Side of Stairway Photo 2 South and Northwest Views of Slope Photo 3 Remnants of Existing Rockery Photo 4 Facing West to Subject Parcel From Shoreline EXHIBIT 2 EXHIBIT 3 EXHIBIT 4 Enlarged Site Plans Color Aerial Photo of Site Color Photo of Public Hearing Notice Posting Based upon the testimony and exhibits admitted at the open record hearing, the Hearing Examiner enters the following Findings and Conclusions: FINDINGS 1. The Applicant requested an SSDP to construct a rockery within the Rural Shoreline Environment of Budd Inlet. The subject property is located at 3906 Country Club Drive NW, Olympia, Washington (Tax Parcel Number ). Exhibit 1, Staff Report, page 1; Exhibit 1, Attachment b. Page 2of 9

3 2. The subject property is zoned Rural LAMIRD One Dwelling Unit per Acre (RL-1/1). The one-half acre parcel is developed with a single-family residence. The County considers the subject property to be a legally nonconforming lot. Exhibit 1, Staff Report, pages 1, 2 and 4; Exhibit The eastern portion of the subject property contains a marine bluff that extends down to Budd Inlet of Puget Sound. There is a concrete bulkhead along the shoreline. Exhibit 1, Attachment e; Exhibit Budd Inlet is a Shoreline of the State, and the subject property is located within a Rural Environment as defined by the Shoreline Master Program for the Thurston Region (SMPTR). Exhibit 1, Staff Report, page 2; RCW The Residential Development section of the SMPTR contains policies and regulations that are applicable to the proposal. Exhibit 1, Staff Report, pages 2 and An SSDP is needed prior to undertaking substantial development on a Shoreline of the State. RCW Substantial development is any development that exceeds $5, in cost or fair market value. WAC The proposal s fair market value is approximately $25, Exhibit 1, Staff Report, pages 2 and 5; Exhibit 1, Attachment b. 7. The marine bluff on the subject property is classified as a marine bluff hazard area, and is regulated as a critical area pursuant to the Thurston County Critical Areas Ordinance. Marine bluff hazard areas include those marine bluffs with a vertical height of 20 feet or more and the upland area within 200 feet of the top of the bluff, or those marine bluffs that are identified as unstable or intermediate stability by the Coastal Zone Atlas of Washington and the upland areas within 200 feet of the top of the bluff. The Coastal Zone Atlas of Washington identifies the marine bluff on the subject property to be of intermediate stability. Exhibit 1, Staff Report, page 2; TCC Existing development on the marine bluff includes the supports for a deck (the deck overhangs the slope); a concrete walkway and staircase leading from the residence to the back of the bulkhead; and the remnants of a rockery, which is located along the toe of the slope behind the bulkhead. In a slope stability evaluation dated July 12, 2007, the Applicant s geotechnical consultant submitted that erosion has undermined the supports for the deck, walkway, and staircase. Exhibit 1, Attachments e, h, and k. 9. The Applicant proposes to stabilize the slope by re-terracing the yard between the east edge of the deck and the level backfill of the bulkhead, constructing a new rockery to retain the soils, and installing native deep-rooted plantings around and within the rockery. 1 The rockery would consist of one to three graduated rows of rocks, and would be approximately 100 feet wide (the property width). Exhibit 1, Staff Report, page 2; 1 Although the slope stability evaluation refers to the proposed rockery as rockery walls, County staff emphasized that the County does not consider the rockery to be a retaining wall. Exhibit 1, Attachment h; Testimony of Ms. Zeller. Page 3of 9

4 Exhibit 1, Attachments h and j; Exhibit 2. The Applicant s geotechnical consultant concluded that the proposed design would arrest erosion of the slope, protect upslope structures, have no adverse effect on slope stability, and have no adverse effect on the bulkhead. However, the consultant recommended that the Applicant address the collection of surface storm water flows as part of the scope of work. Exhibit 1, Attachment h. 10. The residential development regulations of the SMPTR require a buffer of existing ground cover be maintained between the ordinary high water mark and a point twenty feet from the residence. The buffer may be disturbed for landscaping projects with an approved erosion control plan, and for construction of an access pathway. Exhibit 1, Staff Report, page 4. This requirement is similar to the buffer requirement of the CAO for marine bluff hazard areas set forth in TCC (B)(1)(a) The marine bluff is currently vegetated with some existing trees, shrubs, and various plants. Although the marine bluff had previously been covered by English ivy, a nonnative species, the Applicant has removed the ivy, and portions of the slope are exposed. The proposed landscape plan includes native plantings above, within, and below the proposed rockery. Exhibit 1, Attachments j and k; Exhibit 2. The Applicant s geotechnical consultant submitted that replacement of the ivy with native plantings is a preferred method of the use of vegetation to stabilize the slope and prevent sheet washing. Exhibit 1, Attachment h. 12. Although the Applicant submitted a landscape plan, County staff determined that the plan does not comply with TCC (G) because it does not adequately show the scale of the planting area. The County s recommended conditions of the SSDP approval address this issue. Exhibit 1, Staff Report, pages 5 and The Thurston County Environmental Health Department reviewed the proposal and in a memo dated June 26, 2006 recommended approval. The Environmental Health Department did not identify any environmental health issues that needed to be addressed. Exhibit 1, Attachment i. 14. Thurston County determined the SSDP application to be exempt from review under the State Environmental Policy Act (SEPA). Exhibit 1, Staff Report, page 2; Testimony of Ms. Zeller. 15. The County recommended approval of the SSDP application, subject to conditions. The recommended conditions address permit requirements for barging equipment and materials to the site, stormwater management, erosion and sediment control (including seeding of disturbed areas and installation of silt fences), pollution control, landscaping (including implementation of a three-year monitoring plan), and time limits for construction. The Applicant agreed to the recommended conditions. There was no public 2 The Staff Report contains a citation to the CAO buffer requirement for a landslide hazard area (50 feet from top of slope and 25 feet from toe of slope). However, this citation appears to be in error as no evidence was presented that the marine bluff is a landslide hazard area. Exhibit 1, Staff Report, page 3. Page 4of 9

5 comment on the application. Exhibit 1, Staff Report; Testimony of Mr. Edenstrom; Testimony of Mr. Goetting. 16. Notice of the open record hearing was mailed to property owners within 500 feet of the site on October 23, 2007, published in The Olympian and The Nisqually Valley News on October 26, 2007, and posted on site on October 26, Exhibit 1, Staff Report, page 2; Exhibit 1, Attachment a; Exhibit 4. CONCLUSIONS Jurisdiction: The Hearing Examiner is granted jurisdiction to hear and decide applications for Shoreline Substantial Development Permits pursuant to Section of the Thurston County Code and Section One, Part V of the Thurston County Shoreline Master Program. Criteria for Review: For a Shoreline Substantial Development Permit to be approved by the Hearing Examiner, the proposal must be consistent with: (a) The policies and procedures of the Shoreline Management Act; (b) The regulations of the Department of Ecology; and (c) The Shoreline Master Program for the Thurston Region. WAC Applicable Shoreline Master Program criteria and policies are set forth below. Regional Criteria (SMPTR Section 2(V)): B. 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. D. Residential development shall be undertaken in a manner that will maintain existing public access to the publicly owned shorelines and not interfere with the public use of the water areas fronting such shorelines, nor shall it adversely affect aquatic habitat. G. Shorelines of this Region which are notable for their aesthetic, scenic, historic or ecological 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. Residential Development Policies (SMPTR Section 3(XVI)(B)): 7. Removal of vegetation should be minimized and any areas disturbed should be restored to prevent erosion and other environmental impacts. 8. Waste materials from construction should not be left on shorelines or beaches but stored upland. Page 5of 9

6 10. Residential structures should be located to minimize obstruction of views of the water from upland areas. Residential Development General Regulations (SMPTR Section 3(XVI)(C): 3. Residential development proposals shall identify those areas of natural vegetation, retention and erosion control measures. Residential Development Rural Environment Regulations (SMPTR Section 3(XVI)(D): 3.a. A buffer of existing ground cover must be maintained in the area between the ordinary high water mark and twenty feet from the structure. The ground cover in the buffer may be disturbed only after approval of the Administrator where one or more of the following conditions apply: (2) The applicant wishes to landscape the area with other vegetation and has an erosion control plan approved by the Administrator. (3) When the construction of access pathway is proposed to the shoreline, vegetation will be removed only within the boundaries of constructed access pathway. Conclusions Based on Findings: 1. With conditions of approval, the proposed development is consistent with the policies 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 the policies and provisions of Chapter RCW. Some of the policies of RCW are to foster all reasonable and appropriate uses; protect against adverse effects to the public health, the land and its vegetation and wildlife; and give priority to single-family residences and appurtenant structures in authorizing alterations to the natural condition of the shoreline. The proposed rockery is consistent with the policies of the Shoreline Management Act because it will stop marine bluff erosion, protect existing residential structures, and add native vegetation to the shoreline area. No public health issues were identified during review of the application. Findings Nos. 7, 8, 10, and With conditions of approval, the proposal is consistent with the regulations of the Department of Ecology. Chapter of the Washington Administrative Code (WAC) contains the following applicable regulations: WAC Review criteria for all development. (1) No authorization to undertake use or development on shorelines of the state shall be granted by the local government unless upon review the use or development is determined to be consistent with the policy and provisions of the Shoreline Management Act and the master program. Page 6of 9

7 (2) No permit shall be issued for any new or expanded building or structure of more than thirty-five feet above average grade level on shorelines of the state that will obstruct the view of a substantial number of residences on areas adjoining such shorelines except where a master program does not prohibit the same and then only when overriding considerations of the public interest will be served. WAC Permits for substantial development, conditional use, or variance. (1) Each permit for a substantial development, conditional use or variance, issued by local government shall contain a provision that construction pursuant to the permit shall not begin and is not authorized until twenty-one days from the date of filing as defined in RCW (6) and WAC , or until all review proceedings initiated within twenty-one days from the date of such filing have been terminated; except as provided in RCW (5)(a) and (b). The requirement of WAC (1) is addressed by the SSDP review criteria set forth in WAC The rockery will be at the toe of the marine bluff and will not obstruct any shoreline views. The requirement of WAC (1) can be addressed through conditions of approval, as recommended by staff. Findings No. 7, 8, and With conditions of approval, the proposal is consistent with the Shoreline Master Program. A. The proposal is consistent with the Regional Criteria. The conditions of approval address water quality and habitat issues by requiring the Applicant to obtain Hydraulic Project Approval from the Washington State Department of Fish and Wildlife prior to barging materials to the site, and by requiring the use of erosion control measures. Because the rockery will be behind an existing bulkhead on private property, it will not affect public access to public shorelines. The rockery and associated landscaping will preserve the aesthetic and scenic qualities of the shoreline. Findings Nos. 2, 3, 7, 8, 9, 10, and 14. B. With conditions of approval, the proposal is consistent with the Residential Development policies. Disturbed areas will be re-vegetated, and erosion will be controlled. The rockery will not obstruct views from upland areas. The policy regarding construction debris can be addressed through conditions of approval. Findings Nos. 8, 9, 10, and 14. C. With conditions of approval, the proposal is consistent with the Residential Development general regulations. The Applicant has submitted a landscape plan depicting areas of natural vegetation, as well as proposed native plantings. However, per the conditions of approval, the Applicant will be required to submit a revised landscape plan that addresses CAO requirements. In addition, the Applicant will be required to submit an erosion control plan. Findings Nos. 8, 9, 10, and 14. Page 7of 9

8 D. With conditions of approval, the proposal is consistent with the Residential Development - Rural Environment regulations. The Applicant will landscape the disturbed area, and will have to obtain County approval of an erosion control plan. Findings Nos. 10 and 14. DECISION Based on the preceding Findings and Conclusions, the request for approval of a Shoreline Substantial Development Permit to construct a rockery within the Rural Shoreline Environment of Budd Inlet, at 3906 County Club Drive, is GRANTED, subject to the following conditions: 1. Prior to or in conjunction with the issuance of any permits for the proposed project site, all regulations and requirements of the Thurston County Environmental Health Department and Thurston County Development Services Department must be satisfied or be able to be satisfied.. 2. The Shoreline Permit is not valid until Washington State Department of Fish and Wildlife issues a Hydraulic Project Approval to barge in equipment, rock and other materials. It is the responsibility of the Applicant to obtain the Fish and Wildlife permits and forward copies to Thurston County Development Services, Shoreline Section prior to construction of the rockery. 3. Stormwater runoff shall be controlled through all phases of the project activity with facilities designed to control the quality and quantity of discharges. The construction activities shall not alter nor impact the existing drainage on the subject or other properties. A detailed erosion control plan shall be developed and submitted prior to work on the site. The plan shall address the use of the barge for fill hauling and the methods necessary to avoid water quality impacts. 4. Proper erosion and sediment control practices shall be used at the construction site and adjacent areas to prevent upland sediments from entering the water body. All areas disturbed or newly created by construction activities shall be seeded, vegetated, or given some other equivalent type of protection against erosion. Erosion control best management practices include, but are not limited to, installation of silt control fences and bank stabilization material. 5. Washington State Water Quality Laws, Chapter RCW Water Pollution Control and WAC A, Water Quality Standards for Surface Waters of the State of Washington, define quality of state waters. Any discharge of sediment-laden runoff or of other pollutants to waters of the state is in violation of these state laws and may be subject to enforcement action. 6. Prior to construction, a revised landscape plan meeting the criteria stated in TCC (G) is required for review and approval by the Development Services Department. Page 8of 9

9 7. Prior to construction, an irrevocable assignment of funds to the County is required. The assignment of funds shall be in the amount of 120 percent of the cost of the plants and installation (based on the approved cost estimate) and the three-year monitoring for the mitigation. The assignment of funds will be released when the Planning Section of the Development Services Department has reviewed and approved the final monitoring report. If the mitigation proposal, as approved, is not implemented, the County may cash the letter of credit in order to complete the installation of the vegetation. 8. Plant installation shall be fully implemented between the October 15 and May 15 planting season. 9. A monitoring report that evaluates the plant survival and success of the revegetation shall be submitted annually for a period of three (3) years from the date of installation of the plantings. The monitoring plan shall ensure an 80 percent survivability of plantings. 10. Construction must commence within two years and all construction must be complete within five years of the effective date of this permit. The effective date 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. 11. The proposed project must be consistent with all applicable policies and other provisions of the Shoreline Management Act, its rules, and the Shoreline Master Program for the Thurston Region. 12. All development shall be in substantial compliance with drawings and site plan submitted and made part of this staff report. Any expansion or alteration of this use will require approval of a new or amended Shoreline Substantial Development Permit. The Development Services Department Director or his/her assignee will determine if any proposed amendment is substantial enough to require Hearing Examiner approval. 13. Construction pursuant to the permit shall not begin and is not authorized until 21 days from the date of filing of the Hearing Examiner s decision 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). 14. Waste materials from construction shall not be stored on the beach. DECIDED this 20 th day of November James M. Driscoll Hearing Examiner for Thurston County Page 9of 9