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 an Application of ) PROJECT NO. 2004101704 AAPL ) SEQUENCE NO 04-117861 VE ) Larry Bunn ) FINDINGS, CONCLUSIONS, ) AND DECISION An Administrative Appeal. ) ) SUMMARY OF DECISION The appeal of an administrative denial of a shoreline administrative exemption for construction of a bulkhead located at 3847 Giles Road NE in Olympia, WA is DENIED. The County s denial is upheld. SUMMARY OF RECORD Appeal: Larry Bunn, through his representative Ardell Degler (Appellant), appealed an administrative denial of a shoreline administrative exemption for construction of a bulkhead located at 3847 Giles Road NE in Olympia, WA. Hearing Date: The Hearing Examiner held an open record appeal hearing on January 18, 2005. Testimony: The following individuals presented testimony under oath at the open record appeal hearing: Gayle Zeller, Thurston County Development Services Department Mike Kain, Thurston County Development Services Department Jeff Fancher, Thurston County Deputy Prosecuting Attorney Larry Bunn, Appellant Mark Roulst, Appellant Representative Brad Biggerstaff 2000 Lakeridge Drive SW, Olympia, Washington 98502 (360) 786-5490/FAX (360) 754-2939
Exhibits: The following exhibits were admitted at the open record appeal hearing: EXHIBIT 1 Development Services Planning and Environmental Section Report including the following attachments: Attachment a Notice of Public Hearing Attachment b Zoning/Site Map Attachment c Joint Aquatic Resources Permit Application (JARPA) Attachment d Environmental Checklist dated April 30, 2003 Attachment e Site Plan Attachment f Administrative Decision dated October 29, 2004 from Gayle Zeller, Planning and Environmental Section Attachment g Appeal of Administrative Decision dated November 10, 2004 from Ardell Degler, Pacific Northwest Bulkhead Attachment h Copy of Topographical Survey of subject parcel dated August 3, 2004 Attachment i Photo of subject property Attachment j Geo-Technical Report from GeoResources dated October 25, 2003 Attachment k August 27, 1997 Administrative Variance No. AVAR970814 approval letter from Roger Giebelhaus, Planning and Environmental Section A Attachment l Approved site plan to AVAR970814 Attachment m Building Permit #73732 for garage Attachment n Approved site plan for Permit #73732 showing dogleg extension on garage EXHIBIT 2 Letter from Ardell Degler, Northwest Bulkhead, dated November 8, 2004 EXHIBIT 3 Letter from Bradley P. Biggerstaff, GeoResources LLC, dated December 28, 2004 EXHIBIT 3a Color Map of the site, submitted with Exhibit 3 EXHIBIT 4 Letter from Ardell Degler, Pacific NW Bulkhead, dated January 2, 2005 Page 2 of 6
EXHIBIT 5 Topographic Survey for Larry Bunn, dated August 3, 2004 EXHIBIT 6a, b and c Color photos of site, submitted by appellant EXHIBIT 7 Letter from Bradley P. Biggerstaff, GeoResources LLC, dated January 14, 2005 The Hearing Examiner enters the following Findings and Conclusions based upon the testimony and exhibits submitted at the open record appeal hearing: FINDINGS OF FACTS 1. On April 14, 2004, the Appellant requested a shoreline administrative exemption (SHAE) to construct a 70-foot rock bulkhead along part of the toe of the slope that runs along his waterfront property on Budd Inlet at 3847 Giles Road NE, Olympia, Washington. 1 The County reviewed the Appellant s request and issued a denial on October 29, 2004. The basis of the denial was that the circumstances of Appellant s property do not satisfy exemption criteria required for the construction of artificial protective shoreline structures. A representative for the Appellant timely filed an appeal of the administrative determination on November 10, 2004. Exhibit 1, Staff Report, page 1; Exhibit 1, Attachments c, d, f, and g. 2. The subject property, located in a Rural Residential zoning district, is allowed one dwelling unit per acre (RR 1/1). It is in an area of established shoreline residential development, bounded on the north and south by residences, on the east by Giles Road, and on the west by Puget Sound. Exhibit 1, Attachments b and j. Budd Inlet is designated a significant shoreline of Puget Sound by the Shoreline Master Program for the Thurston Region (SMPTR). The subject property is designated Rural Shoreline Environment. Exhibit 1, Staff Report, page 2. 3. The parcel has approximately 220 feet of shoreline frontage on Budd Inlet. The north 145 feet of the property s frontage is protected by an existing concrete bulkhead, which protects the single-family residence and several appurtenant structures on-site, including multiple retaining walls, patio, swimming pool, and garage. The remaining 75 feet of beach frontage contains the remnants of former concrete structures and wood pilings that have been damaged over time. If constructed, the bulkhead would result in a connection of the existing concrete bulkhead on site to a concrete bulkhead on the adjoining property to the south. Exhibit 1, Attachments e and g. 4. The Appellant purchased the northern portion of the subject property in 1977 and built the single-family residence in 1979. A walkway to the beach washed out and the Appellant built the existing concrete bulkhead in 1984. In 1993, he purchased additional adjoining land to the south. The property to the south contained the remains of a previous timber bulkhead, which had been destroyed by active shoreline processes over the years. No evidence or 1 The subject property is described as Hanna Place, Lot 1, Blk. 6 and Lot 3, Blk. 5; known as Tax Parcel No. 52500600105. Exhibit 1, Staff Report, page 2. Page 3 of 6
testimony was presented on when the timber bulkhead was destroyed. Testimony of Mr. Bunn. 5. Appellant s unprotected southern beach frontage is a marine bluff subject to the jurisdiction of the Thurston County Critical Areas Ordinance (CAO). The upper portion of the bluff, which is approximately 60 feet above Puget Sound, is densely vegetated with mature coniferous and deciduous trees. The Coastal Zone Atlas of Washington designates the onsite marine bluff as containing unstable slopes. Exhibit 1, Staff Report, page 2; Exhibit 1, Attachment d; Exhibit 3, color topographical map; Exhibit 3a. 6. The Appellant s residence is situated in the northern portion of the property, setback approximately 25-feet from the top of the slope. The existing concrete bulkhead is directly below the residence. Exhibit 1, Attachments h and j. 7. In August 1997, the County approved a variance allowing the Appellant to construct retaining walls within the required 50-foot setback from the top of the marine bluff in the southern portion of property. Exhibit 1, Attachment k. 8. On November 16, 1998, the County issued building permit #73732 for a 1,136 square foot garage in the southern portion of the property. The site plan submitted with the permit included an 18-foot by nine-foot dogleg extension added to the southwestern portion of the garage to serve as a storage shed. 2 Approximately five feet of the storage shed is located within the 50-foot marine bluff setback. Exhibit 1, Attachments h, m, and n. The edge of the garage foundation is located approximately 15-feet from the top of the bluff. Exhibit 3. The storage shed sits approximately 120 feet from the ordinary high water mark. Exhibit 1, Staff Report, page 3. 9. The Appellant s swimming pool, built in 1997, was built in the area between the residence and the top of the slope. Exhibit 3; Exhibit 1, Attachment h; Testimony of Mr. Bunn. 10. The Appellant had GeoResources, LLC prepare geotechnical reports in support of the proposed bulkhead. They determined that the Appellant s unprotected marine bluff has experienced erosion and sloughing. The geotechnical reports concluded that a bulkhead is necessary to protect appurtenant structures to the Appellant s residence, including the pool, retaining walls, patio, and a portion of the storage shed, all of which are located near the top of the slope. GeoResources determined that the slope is eroding at a rate estimated to be between 1.5 and 2.5 inches per year. Exhibit 1, Attachment j; Exhibit 3, Exhibit 7. Appellant s geotechnical engineer further noted at hearing that the estimated rate of erosion is based on normal rainfall, but a potential worse case scenario of significant storms, coupled with seismic events, could rapidly increase the rate of erosion or cause a major erosion event. Testimony of Mr. Biggerstaff. 2 It appears the County approved the building permit based on the site plan submitted with the 1997 variance application, which did not depict the storage shed extension into the marine bluff setback. The site plan submitted with the building permit application did depict the storage shed extension. Exhibit 1, Staff Report, page 3. Page 4 of 6
11. At the rate of erosion estimated by GeoResources, the shoreline will not reach the Appellant s appurtenant structures for several hundred years. Within ten years, erosion would remove approximately 2.1 feet of shoreline along Appellant s unprotected property. The worse case scenario of a 100-year storm occurring simultaneously with a seismic event is too remote to be considered. Testimony of Mr. Zeller; Exhibit 1, Staff Report, page 3. 12. The CAO contains provisions that permit construction of structural techniques along marine bluffs to protect residences and normal residential appurtenances. TCC 17.15.615(I) (1). On a statewide basis, normal appurtenances include garage, deck, driveway, utilities, fences, septic tank and drainfield, and specified grading activities. 3 WAC 173-27-040(g). Appellant s representative testified that the approximate five-foot portion of the storage shed built within the required 50-foot setback was always considered as part of the garage, rather than a separate structure, and that as a garage it should be considered a normal appurtenant structure for CAO purposes. Testimony of Mr. Roulst. The County noted that the garage as constructed with the attached dogleg storage shed was never finally inspected and approved. Because it intrudes into the required 50-foot setback from the top of the marine bluff, it may not have been approved. The garage building permit expired for failure to obtain final inspection approval. Staff also noted that the uses of the storage shed are distinct from the uses of a garage. Testimony of Mr. Kain; Testimony of Ms. Zeller; Exhibit 1, Staff Report, page 3; Exhibit 1, Attachment m. CONCLUSIONS Jurisdiction The Hearings Examiner is granted jurisdiction to hear and decide appeals of administrative decisions pursuant to Sections 2.06.010(H) and 18.10.070 of the Thurston County Code and Section 36.70.970 of the Revised Code of Washington. Issue Raised on Appeal Whether the County erred when it denied approval of a Shoreline Administrative Exemption to construct a bulkhead on property adjacent to Budd Inlet located at 3847 Giles Road NE. Criteria for Review Structural techniques may only be allowed along the toe of a marine bluff to protect a residence and normal residential appurtenances that meet the following three criteria: 1) there was an application for a building permit on file prior to February 1, 1994; 2) the structure is located within the 2:1 slope measured from the toe of the bluff; and, 3) a marine bluff geotechnical report, completed per TCC 17.15.635, finds the residence or normal residential appurtenances will be threatened within the next ten years if toe protection is not provided. TCC 17.15.615(I) (1). 3 WAC 173-27-040(g) states that local circumstances may dictate additional interpretations of normal appurtenances which shall be set forth and regulated within the applicable master program. However, Thurston County did not add to the list of normal appurtenances set forth in the WAC. WAC 173-27-040(g); Testimony of Ms Zeller. Page 5 of 6
Conclusion The CAO allows structural stabilization of marine bluffs subject to certain circumstances. One of the conditions requires that the threatened structure must have had a building permit on file in or before 1994. The Appellant purchased the southern portion of his property in 1993. He applied for a development permit for construction of retaining wall on the southern portion of his property in 1997. The building permit for the garage was issued in 1998. None of the appurtenant structures he seeks to protect with the proposed bulkhead meet the 1994 cut off date required by TCC 17.15.615(I)(1). Findings of Fact Nos. 3, 4, 5, 7, 8, and 9. The appurtenant structures the Appellant seeks to protect swimming pool, retaining wall, patio, and storage shed - do not fall within the category of normal appurtenant structures in the Shorelines Management Act. Findings of Fact Nos. 8, 9, and 12. Although Appellant s unprotected shoreline may be receding, the erosion does not create an imminent threat. The geotechnical report states that the Appellant s shoreline is receding at a rate of 1.5 to 2.5 inches per year. The Appellant s storage shed is located 120 feet from the ordinary high water mark. If the slope were to recede at the projected rate, it would not create an imminent threat of harm for several hundred years. The possibility of the 100-year storm coinciding with a seismic event is too remote to be used as a basis for justifying the requested exemption. Findings of Facts Nos. 8 11. DECISION Based on the conclusions reached from the facts of this appeal, the appeal of a denial of a shoreline administrative exemption to construct a bulkhead on property adjacent to Budd Inlet located at 3847 Giles Road NE in Olympia, WA is DENIED. Thurston County s administrative decision remains as stated. Decided this 31 st day of January 2005. James M. Driscoll Hearing Examiner for Thurston County O:\apps\track\Planning\Amanda Save File\Appeal VE\Of an Adminstrative Decision\Decisions\2004101704.decision.bunn.doc Page 6 of 6