BOARD OF COUNTY COMMISSIONERS

ISLAND COUNTY, WASHINGTON

"Applicant must provide verification that the building was legally built and/or

BEFORE THE BOARD OF COUNTY COMMISSIONERS

WHEREAS, many buildings and structures in Island County suffered damage during the severe winter storms and their aftermath in December 1996 and January 1997; and

WHEREAS, Island County officials desire to alleviate the cost of repair and or replacement of such buildings or structures; and

WHEREAS, the reduction in fees will be limited to only that portion of the previously existing square footage and will not apply to any expansion or enlargement of said buildings; and

WHEREAS, in order to obtain the reduced fee the applicant will need to show verification of the square footage by means of a previously approved building permit; and

WHEREAS, the one-time reduction in building permit fees will be limited to fifty percent (50%) of the fee schedule currently in effect for building permits; and

WHEREAS, individuals who have received permits for storm damaged buildings prior to this Resolution may apply for a refund based on this Resolution and Policy # 1-97 until December 31, 1997; and

WHEREAS, verification will be required that the damage to the building or structure occurred in the time period from December 1996 through January 1997, NOW, THEREFORE,

IT IS HEREBY RESOLVED by the Board of Island County Commissioners that the fifty percent (50%) one-time Building Permit fee reduction for repair or replacement of buildings or structures damaged by the storm during the period of December 1996 through January 1997 is hereby approved and adopted. Expires 12/26/99.

APPROVED AND ADOPTED this 10TH day of March, 1997.

Mike Shelton, Chairman

Mac McDowell, Member

ATTEST: Art Hyland, Auditor & Tom Shaughnessy, Member

Ex-Officio Clerk of the Board

Based on the Board’s statement of decision unanimously approved at public meeting on March 3, 1997, in the matter of Appeal #049/97 by Ernest & Patricia Dire, staff prepared proposed Findings, Conclusions of Law and Decision. Commissioner McDowell proposed the Board adopt an amended version he prepared over the weekend, and read same for the record, with a copy provided to Vince Moore and Matt Nash, Senior Planner, allowing time for their review.

BEFORE THE BOARD OF COUNTY COMMISSIONERS

This matter came before the Board of Island County Commissioners on February 24, 1997, upon appeal by Ernest and Patricia Dire of the Hearing Examiner’s January 16, 1997 decision denying Use Approval Applicant No. 470/95, a proposal to fill some 900 sq. Ft. Of a 200+ acre shore-line-associated wetland for the purposes of providing access to a proposed building site for a single-family residence on an existing lot on Assessor’s Parcel No. R13124-417-2730. This is closed record appeal. The record of this appeal includes the entire record as was before the Island County Hearing Examiner including all applicable State and County codes and regulations and prior decisions of the Island County Hearing Examiner, Together with Appellants’ notice and basis of appeal filed with this Board.

Having read the Hearing Examiner’s decision, reviewed applicable application files, and having independently reviewed applicable ordinances and legislation, THEREFORE, the Board of Island County Commissioners makes the following Findings of Fact and Conclusions of Law:

The Dires are owners of a single-family residential lot abutting in the plat of Admiral’s Cove (Parcel # R13124-417-2730). The parcel consists primarily of fill, legally deposited prior to the 1976 adoption of Island County’s Shoreline Management Master Program. Much of the lot is surrounded by wetlands primarily of a meadow environment. Access to the nearest public road (Keystone Avenue) is not available except by crossing a small portion (some 75 lineal feet) of said wetland or by crossing property which is not under the Dire’s ownership. Prior efforts on the part of the Dires to obtain alternative access by easement failed.

There is no evidence in the record that an easement exists to allow the Dires to cross properties which lie between their lot and Keystone Avenue.

The Dire’s made application for Use Approval (Application No. 470/95) in 1995, proposing to place fill within said small portion of the wetland on their property in order to access the proposed building site. Island County Planning and Community Development staff recommended that the Hearing Examiner deny the application for Use Approval.

The Hearing Examiner, in his decision dated January 16, 1997, denied the application, citing a direct contravention with the provisions of the Island County Shoreline Management Master Program, specifically ICC 16.21.075(B)(2), which states that "Landfill shall not be permitted in estuaries, tidelands, marshes, ponds, swamps or similar water retention areas".

The Hearing Examiner also concluded, in the referenced decision, that even if the proposal were exempt from Shoreline Substantial Development Permit requirements, Island County could not approve the proposal due to the direct contravention with code as referenced above.

The Hearing Examiner also stated in his decision that the Dires have not submitted sufficient information to allow approval of their use approval application even if the project was not forbidden under the Island County Shoreline regulations.

The Hearing Examiner made an erroneous interpretation in Paragraph VI of Conclusion of Law thereby leading to an incorrect or erroneous conclusion and decision. Among other things, Paragraph VI cites portions of Island County Code 16.20A.020B and WAC 173-14-140(3). The Hearing Examiner did not discuss RCW 90.58.020 Legislative findings--State policy enunciated--Use Preference. Among other things the fourth paragraph states:

Use preference for alteration of the shoreline natural condition is given to single family residences. In fact, the RCW mentions single family residences ahead of all other preferences. Clearly a goal and policy of the Shoreline Management Act is for allowing Single Family Residence. One method in which the goals and policies are created is by the inclusion of various exemptions in the RCW. One exemption is the $2500 exemption that more or less states if the project cost is no more then $2500 and does not materially interfere with the normal public use of the shoreline, it is exempt. This exception has no other caveats. The Dire application has a cost of less than $2500.

The Hearing Examiner concludes in last section of Paragraph VI that:

The Hearing Examiner’s conclusion does not take into consideration the primary or preferential use of state shoreline that is being altered is for a single family home. Therefore the exemption has priority since it helps carry out a preferred use or goal of the Shoreline Management Act and

cannot be prevented by an interpretation that somehow a prohibited use takes preference over a use that is always allowed by exemption, especially when that exemption clearly supports a goal of the Shoreline Management Act. Simply put, an action that is exempted to meet the goals of the Shoreline Management Act cannot then be prohibited.

Additionally, the Hearing Examiner states, among other things in Section VII Conclusions of Law that:

"The Island County Hearing Examiner of the Island County Planning Department does not have the authority to overturn the direct prohibition contained in ICC 16.21.075(B)(1)."

Section 16.21.075(B)(1) & (2) contain the words "shall be permitted" and "shall not be permitted" where as, Section 16.21.075(B)(3) contains the words "strictly prohibited." 1 & 2 refer to the issue of after a proposal has reached the threshold of requiring a substantial development permit (SDP) (i.e. not exempted) then 1 & 2 state whether they will or will not be permitted (i.e. issued an SDP). ICC 16.21.075(B)(3) however, by use of the words "strictly prohibited" it states that it is not allowed or is prohibited (the issues of permitting or exceptions is not considered). While the Hearing examiner does not have the authority to overturn Code, however, the Hearing Examiner made an incorrect interpretation of Island County Code Section 16.21.075B (1) (2) and (3) by assuming that if an application is exempted from an SDP then section 16.21.075(B)(2) would somehow strictly prohibit an action that was exempted from SDP requirement.

The Hearing Examiner also erred in Paragraph X of preliminary information. Among other things that paragraph states:

"However the applicant has failed to provide a mitigation plan or ...".

The Hearing Examiner apparently failed to recognize a mitigation plan prepared by Shapiro and Associates, Inc. was submitted by Mr. Roehl on October 8, 1996, and is listed in the index. Among other things, the report states:

While the report is short (1 page), the impact is only on 900 sq. ft. out of a 8,712,000 sq. ft. of wetland. The report is certainly proportional in size and content to the size of the area of wetland impacted to the wetland total size.

Access is needed to a single family homesite if the applicant is going to have reasonable economic use of the property . The applicant has attempted to obtain an access easement from his neighbor to no avail. The only access controlled by the applicants is through the area that contains 900 sq. ft. of a 8,712,000 sq. ft. Category B wetland meadow. Therefore, two choices are available, a bridge or sufficient fill to cross the 900 sq. ft. The fill is less than 250 cu. yds. and less than $2500. The bridge cost would be at least a magnitude of ten, if not 30 to 50 times the cost of the fill.

A bridge would not allow reasonable economic use of the property. Therefore, application under the reasonable use section of 17.02.110 is appropriate. In addition, the applicant has met the criteria of reasonable use. A prior decision of the Hearing Examiner was made part of the record, USA 007/91 Laura Garrison. USA 007/91 was also an application under reasonable use Section 17.02.110. Under reasonable use, the Hearing Examiner in 007/91 stated in the Conclusion of Law, "Because the alteration is necessary to allow reasonable economic use, it is not necessary for the applicant to meet the other conditions for Use Approval or alteration of a wetland." In the Dire application the alteration is necessary to allow reasonable economic use, therefore, just as in the 007/91 decision and consistent with prior Hearing Examiner decisions, it is not necessary for the applicant to meet the other conditions for Use Approval or alteration of a wetland.

The Engineering Department and Health Department personnel have not provided any objection and have stated they have "no problems" with this proposal.

The Hearing Examiner made an erroneous conclusion and decision and we furthermore find that the driveway does not require a Substantial Development Permit. The applicant is not required to request an exemption as this decision as the finding finds the driveway is exempt from a Substantial Development Permit under the $2500 exemption. insofar as it has a fair market value and actual cost of less than $2500. Additionally the proposal for the entire length of the proposed driveway involves less than 250 cubic yards of material and is necessarily associated with the construction by the Dires of a Single Family Residence on their lot.

Based upon the foregoing, we find that:

a) The application of Ernest and Patricia Dire for Use Approval USA 470/95 is consistent with the goals and policies of the Shoreline Management Act and Island County Shoreline Master Program and the Island County Zoning Ordinance, and

b) Said application is hereby APPROVED and the decision of the Hearing Examiner set aside, subject to the following conditions:

1. The applicant shall meet the mitigation measures stated in Sentences 3, 4, and 5 of the Fourth Paragraph of Shapiro & Associates’ Report dated July 10, 1996.

2. the applicants are not required to apply for a Shoreline Substantial Development Permit since the proposal is a exempted action under the $2500 cost exemption.

3. The driveway will be placed to fit in the gap between the trees and the property line mentioned in the Appeal Hearing.

4. That portion of the driveway located in the approximately 900 sq. ft. of the approximately 8,712,000 sq. ft. of the wetland meadow shall be in substantial conformance with the site plan entitled "A Residential Site Plan for Patricia and Ernest Dire" prepared by T. J. Roehl & Associates and submitted with the appeal documents.

DATED this 10th day of March 1997.

ATTEST: ART HYLAND, County

Auditor & Ex-Officio Clerk of the Board

Tim McDonald, Health Services Director, presented for approval a contract between the Depart-ment of Social and Health Services and Island County in the amount of $14,570.00 to establish a family planning information and referral services through a public health nurse. The service is included within the 1997 health budget, and the administrative cost has been calculated and included at 18%.