DEPARTMENT OF NATURAL RESOURCES

Shoreline Hearings Board affirms county decision 6-0

posted 06/19/02
San Juan County's decision to deny a setback variance for a property owner on Shoal Bay was upheld by the state Shorelines Hearings Board. The board voted 6-0 to affirm the decision. Lauren and Sharon Weston wanted to build a three-bedroom two-bath single-family residence on property they own on an .66 acre lot.

In their ruling the board stated: the cumulative impact from approval of this and similar proposals would undermine the purposes of the Conservancy designation for this rare shoreline area, would be a grant of special privilege to the Westons, and would be detrimental to the public interest. The complete ruling is posted on this page.

BEFORE THE SHORELINES HEARINGS BOARD
STATE OF WASHINGTON

LAUREN A. WESTON and SHARON L. WESTON, Petitioners

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER SAN JUAN COUNTY; CYNTHIA and ANDREW MARIN, husband and wife; and the FRIENDS OF THE SAN JUANS

Lauren and Sharon Weston, husband and wife, (Westons) filed a petition for review with the Shorelines Hearings Board (Board), contesting San Juan County's (San Juan) denial of variances for a proposed single-story single-family residence on a .66 acre lot. The Board earlier dismissed Weston's challenge to San Juan's denial of a road setback variance, because of lack of jurisdiction. There remains the Westons' challenge to San Juan's denial of a variance to the 100-foot shoreline setback requirement. The Board heard this matter on Lopez Island in San Juan County, on May 1 and 2, 2002. Robert V. Jensen, presiding; Kaleen Cottingham, Bill Lynch, Judy Wilson, Bill Hinkle and Judith Barbour comprised the Board. Karen Shipley, a court reporter affiliated with Likkel & Associates, reported the proceedings. Charles Jackson of John O. Linde Law Offices, represented the Westons. Karen E. Vedder, Deputy Prosecuting Attorney, represented San Juan. Lynn Bahrych, attorney, represented the Friends of the San Juans and Cynthia and Andrew Marin. The Board heard sworn testimony, reviewed exhibits and closing briefs, and viewed the site and vicinity of the proposal.

DISCUSSION

The Board concludes the Westons have failed to satisfy their burden of proving they are entitled to a shoreline variance to build a residence on an isthmus on Lopez Island, which is located within a Conservancy Environment, under the San Juan County Shoreline Master Program SJCSMP and the Shoreline Management Act SMA. The Board is persuaded the cumulative impact from approval of this and similar proposals would undermine the purposes of the Conservancy designation for this rare shoreline area, would be a grant of special privilege to the Westons, and would be detrimental to the public interest. Therefore, the Board affirms San Juan's denial of the variance.

FINDINGS OF FACT

I The Westons, as well as the Polleys, the Aydelottes, the Elves, the Kratz and the Morgans own small, shoreline lots on the Shoal Bay isthmus on Lopez Island. A multi-story single-family residence occupies an additional lot, belonging to Mr. Bronson, which was built prior to San Juan's establishment of shoreline setbacks in 1991. The Bronson lot lies adjacent to and south of the Westons' lot on Swift's Bay. The isthmus lies between Upright Head on the west and Humphrey Head on the east. It separates Shoal Bay from Swift's Bay.

II On the north side of the isthmus lies a wetland lagoon, which is nearly four acres in size at high water. Waters feed it from the surrounding hillsides, as well as the ground and surface of the isthmus. Another source of water to the lagoon is an adjacent wetland on the southwest. The waters from the lagoon in turn feed and are fed by the waters of Shoal Bay. Historically, much of the isthmus was a coastal marsh. The wetlands have become somewhat reduced from their original size by filling for a road and septic tanks and drain fields on the isthmus.

III In the areas above mean lower low water in both Shoal and Swift's Bay lie abundant eelgrass beds. These provide habitat and cover for Dungeness crab, Chinook salmon (a threatened species under the Endangered Species Act), surf smelt, Pacific herring and flounder. Surf smelt spawn along the beaches of Shoal Bay, to the west of the lagoon. Pacific herring spawn in Shoal Bay to the north and slightly offshore of the lagoon. The lagoon supports a large number of bird species, as well as habitat for shellfish. The lagoon is currently certified by the Department of Health as a commercial shellfish harvest area. The lagoon provides an alternative resting and feeding place for forage fish, such as smelt and herring, as well as Chinook salmon. The value of small lagoons, such as the Shoal Bay lagoon, is out of proportion to its surface area. The survival rates of small fish in these lagoons is likely much greater than in adjacent areas of unprotected shoreline. Adult Chinook salmon prey on smelt and herring. The estuarine area also is a nesting and feeding area for the Bald Eagle. The Department of Fish and Wildlife (DF&W) has mapped the lagoon wetland system and the Shoal and Swift's Bays estuarine system as priority habitat and species areas.

IV Historically, the isthmus was wider. It has narrowed over time, because it acts as a feeder bluff for other beaches on Lopez Island to the south on Swift's Bay. The sloughing of the beach banks on the Weston, Aydelotte and Polley properties evidences this erosion. All of these owners, or their predecessors have taken measures to limit the erosion of their banks, by armoring them with logs and rebar and large rocks. The erosion ranges from one to two inches in a normal year, to one to two feet in a dramatic storm year. The Bronson house and deck are close to the top of this bank. The road periodically floods during the winter. Most of the isthmus lies within the 100-year flood plain.

V River otter, as well as recreational kayakers currently cross the isthmus between Shoal and Swift's Bays. Except for the Bronson home and the seasonal recreational vehicles, the view from the road to Swift's Bay is largely unobstructed by man-made features.

VI The isolated parts of the ecosystem, the wetland lagoon area, the inter-tidal areas and the Bays themselves comprise an ecosystem, which although not pristine, remains a rare and valuable ecological resource of San Juan County and the State of Washington. The quality of this fragile environment depends upon clean water and no more than intermittent disturbances.

VII All of the six undeveloped lots and the Bronson parcel drain to the lagoon. The owners of the undeveloped lots on the isthmus historically have enjoyed the use of their lots for seasonal recreation. Several of these families or their guests have come onto the lots for these uses in recreational vehicles or trailers. The lots belonging to the Westons, the Aydelottes, the Elves and the Bronson parcel have septic tanks and drain fields located in fill. Mr. Bronson maintains a mound septic system.

VIII The Westons purchased their lot in 1977. For several years they typically came to the area in late April and would spend a couple of weeks a year in their trailer on the lot. However, they have not been back since 1995, when their daughter died. In 1993 San Juan approved a septic permit for the Westons. However, this system was not installed until 1999. On April 13, 2000, André and Tammy Souang, prospective purchasers of the Weston parcel, apparently paid a $500 fee to apply for a shoreline variance to build a home. This application was cancelled and the fee returned, when the sale was not consummated. Subsequently, Windermere Real Estate listed the lot for sale, apparently through February 2001.

IX The Westons applied to San Juan for a shoreline variance of sixty feet to permit the building of a single-story, three bedroom, and two bath single-family residence on their lot. The lot fronts on a private road, which has an easement in favor of the residents of Humphrey Head. Humphrey Head is the site of 16 full-time and 15 seasonal homes. The Weston lot is roughly rectangular in shape. It contains approximately 210 feet of waterfront on Swift's Bay. On the north it is 145 feet wide, from the edge of the road right-of-way to the ordinary high water mark, and 135 feet wide on the south. From the edge of the right-of-way to the top of the bank, the lot is approximately 108 feet wide on the north and 100 feet wide on the south. The land rises approximately eight feet from the low point on the southwest to the high point on the northeast.

X San Juan has not granted any previous variances to properties on the isthmus to its shoreline setback regulations.

XI All of the parcels in question have high water tables, especially in the winter. Although there is no direct evidence of a failure of a septic tank system in the area, septic tank failures are not uncommon on shoreline properties. They are, however, difficult to discover and document. The Department of Health Health has been monitoring the lagoon and surrounding Shoal Bay environment for a number of years, due to the shell fishery, which historically has occurred there. During the thirteen-month period from June 22, 1993 to December 31, 1997, Health took 4 samples from the lagoon, of which the 90th percentile measured 364 fecal coliform units per 100 ml. The water quality standard for fecal coliform must be based upon 30 samples and exceed 42 fecal coliform units per 100 ml. During the period July 7, 1997 to July 31, 1998, the 90th percentile, for 10 tests in the lagoon, measured 52 fecal coliform units per 100 ml. From April 29, 1997 to January 19, 2001, Health measured the 90th percentile, for 40 tests, at 23 fecal coliform units per 100 ml. Thus, although the lagoon is close to violating the standard, it has not done so yet. Equally important, this is the only site in the Shoal Bay testing area, over the years, which has shown anything close to a violation.

XIII Shortly before this hearing, but after denial of the shoreline variance, the San Juan County Health Department approved a new septic tank system for the Westons. The Westons applied to add a Whitewater Sewage Treatment Unit to their system, two weeks before the hearing in this case. This type of system is colloquially called an advanced treatment unit ATU. The unit the Westons applied for includes an ultraviolet quartz light, to combat bacteria. Their application called for a Model DF-50 system. The information materials the applicant provided were for a DF-40 system. The DF-50 system does not provide for the removal of nitrogen. The DF-40 materials claim a 75% removal rate for nitrogen. Nitrogen can be a significant source of pollution from on-site septic systems. This is particularly true of salt-water bodies, where increased nitrogen levels can result in algal growth, which may alter the food web from predominantly detritus feeders, to one dominated by phytoplankton production. The applicants, although they testified it was unlikely nitrogen would be a problem in the lagoon, due to flushing, provided no measurements of nitrogen levels in the lagoon, nor did they present any modeling to predict nitrogen levels in the event of a septic system leak or failure, from which we can make a reliable finding on this score.

XIV There are other limits to an ATU. The units are designed to be in continual use. A startup time of 30 to 45 days is required; during which the units do not adequately treat the effluent. This is particularly a problem in this area, because a large proportion of the population enjoys their property seasonally. Secondly, these systems require religious maintenance, which is out of the range of experience for most homeowners.

XV Systems, such as the DF-40 system, which treat nitrogen, in addition to components routinely tested by the Health Department, hold the promise of improved treatment. However, based upon the evidence before us, we find these units are experimental in nature. Because of their high reliance on technology, they carry with them an increased risk of hidden failure. Earlier versions of these systems have been abandoned because they did not live up to their original promise. Similarly mound systems, such as the one maintained by Mr. Bronson, which were popular in the past, are now rarely used because of their susceptibility to failure.

XVI Single-family residences bring a different level of environmental impact to this fragile shoreline, from what it now experiences. In addition to the traffic, which passes through, one would now expect more people spending more time in this area. This increased use will likely increase the toxic pollution generated by automobiles, which will be picked up by storm water, which drains to the lagoon. New homes, which tend to be permanent in nature, would increase the storm water runoff from impervious surfaces. New residences could introduce pets, which would be an additional source of fecal coliform pollution to the wetland area. Pets may increase the stress on the abundant bird life, which currently frequents the area. Finally, new residences could mean more lawns and landscaping maintained by fertilizers, herbicides and pesticides.

XVII Fertilizers, with their high concentrations of nitrates and phosphates, are conducive to oxygen depletion and increased algae blooms, which in turn lead to a loss of biodiversity and an alteration of the food web. Similarly, synthetic organics in household products, as well as lead, zinc and copper from the use of common household chemicals, are highly toxic. They accumulate in the food chain, leading to lethal and non-lethal stresses to aquatic organisms. The Westons propose to incorporate vegetated swales into their project. However, they did not demonstrate how such swales would prevent toxic metals and petroleum products from reaching the lagoon from automobiles owned by the new residents; or how the swales would intercept storm water pollutants in the winter, which is the dormancy period for vegetation and the time of the highest storm water runoff from the properties. Nor did they show the swales would have sufficient retention time to effectively absorb nutrients during even the summer months. Finally, as with the advanced septic systems, it was not shown the average homeowner would be likely to religiously maintain the swale to regularly and promptly rid the swale of accumulated pollutants.

XVIII The San Juan Planning Director recommended approval of the Westons' application for a shoreline setback variance. San Juan's Hearing Examiner remanded the matter back to the Planning Department for a cumulative environmental effects analysis to determine whether the approval of this and similar variances would endanger the purposes of the Conservancy Environment designation for the isthmus properties. The Planning Director concluded the granting of shoreline variances to the Westons, and the other undeveloped neighboring lots, would not cause a significant adverse cumulative effect on the shoreline environment. The Hearing Examiner disagreed with the conclusions of the Planning Director, and held the granting of the variance would endanger the purposes of the Conservancy Environment and would be detrimental to the public interest. Therefore, he denied the variance. The San Juan County Commissioners affirmed the Hearing Examiner's decision on appeal.

XIX Any conclusion of law deemed to be a finding of fact is adopted as such. Based on these findings, the board makes the following:

CONCLUSIONS OF LAW

I The Board has jurisdiction over this matter and the parties. RCW 90.58.180.

II The Westons have the burden of proving the denial of the variance was in error. RCW 90.58.140(7).

III The proposal lies within a Conservancy designation, under the SJCSMP and the SMA.

IV The SMA is to be construed in order to protect the shorelines of the state as fully as possible. Buechel v. Department of Ecology, 125 Wn.2d196, 203, 884 P.2d 910 (1994).

V The Conservancy Environment is governed by management policies. These include:

2. Prohibit activities and uses which would substantially degrade or permanently deplete the physical, biological or aquatic resources of the area.

3. Allow only that new development which will be compatible with the natural and biological limitations of the land and water and which will not require extensive alteration of the land-water interface.

5. Prohibit activities or uses which would cause the substantial removal of vegetative cover, cause substantial erosion or sedimentation, or adversely affect aquatic life.

6. Allow residential development only at densities which will not endanger the resource which is the basis for the Conservancy designation and ensure that development design will preserve the natural character and Conservancy values of the shoreline.

San Juan County Comprehensive Plan SJCCP, Section 3.3.E

VI San Juan concluded, as a basis for the Conservancy designation, this rare area possessed "valuable natural resources which will tolerate only minimal disturbance of the existing terrestrial or marine/freshwater environments . . ." Id., Designation Criteria (b).

VII Variances are exceptions to the rule. The SMA is to be liberally construed on behalf of its purposes. RCW 90.58.900; Beuchel, at 203. Concomitantly, exceptions to the rule are to be strictly construed. See Mead School Dist. v. Mead Education, 85 Wn.2d 140, 145, 530 P.2d 302 (1975) (holding the liberal construction command of the Open Public Meetings Act implies an intent the exceptions be narrowly construed).

VIII Any variance from an approved master program "shall be allowed only if extraordinary circumstances are shown and the public interest suffers no substantial detrimental effect." Buechel, at 125 Wn.2d 205; RCWQ 90.58.100(5).

IX The SJCSMP and the Department of Ecology's Ecology shoreline regulations contain the following relevant variance criteria applicable to this project. (iv) that the requested variance does not constitute a grant of special privilege not enjoyed by the other properties in the area, and is the minimum necessary to afford relief; and

(v) that the public interest will suffer no substantial detriment.

San Juan County Unified Development Code SJCUDC , Section 18.80.110(I)(3)(a); WAC 173-27-170(2)(d)-(f).

X Additionally, the SJCSMP and Ecology's regulations add a cumulative impact requirement, which requires: In the granting of all variance permits, consideration shall be given to the cumulative impact of additional requests for like actions in the area. For example if variances were granted to other developments and/or uses in the area where similar circumstances exist the total of the variances shall also remain consistent with the policies of RCW 90.58.020 and shall not cause substantial adverse effects to the shoreline environment. SJCUDC, § 18.80.110(I)(3)(c); WAC 173-27-170(4).

XI The granting of the variance here would establish a precedent for granting further variances to properties on the Shoal Bay isthmus. This would be contrary to the Conservancy values, which are the basis of the shoreline designation itself. Moreover, it would tend to allow residential development at densities, which will "endanger the resource which is the basis for the Conservancy designation." SJCCP, Management Policies, §3.3.E.

XII The Westons failed to demonstrate there are likely to be no adverse cumulative environmental effects from the granting of this and similar variance requests.

XIII We further conclude granting of the variance would be detrimental to the public interest. The interests of all the people are represented by the shoreline management regulations applicable to this case. The legislatively declared public interest would be harmed where the values these regulations are designed to protect would likely suffer damage. This public interest is particularly important here, because the resources being protected are part of the food chain of the Chinook salmon, which has protected status under the Endangered Species Act. Thus the protection of this isthmus and its environs is a matter of national, as well as state and local concern.

XIV Finally, we conclude the granting of a variance to the Westons would create a special privilege, enjoyed by no one else on the isthmus. San Juan has not previously granted any shoreline variances to properties on the isthmus. Granting the Westons a variance would undermine the integrity of San Juan's shoreline setbacks, which are obviously designed to protect the special values of the Conservancy Environment. We note, however, San Juan continues to allow permanent residential use on this fragile shoreline area. If their intent is to prohibit such use, which we infer from the circumstances of this case, they should seriously consider amending their land use regulations to clearly spell out that prohibition. We have not been asked to, nor do we see a need to reach any constitutional issue here. Many of the isthmus landowners have clearly enjoyed recreational use of their properties, for a number of years, without having to build single-family residences. This use is consistent with the use level, which was authorized by the Supreme Court, under the SMA, in Mason County on Hood Canal, in Buechel, at 125 Wn.2d 206-08.

XVI Any finding of fact, which is deemed a conclusion of law, is hereby adopted as such. From these conclusions, the board enters the following: ORDER

San Juan's denial of the shoreline setback variance permit to the Westons, to build a single-family residence, is affirmed. DONE this 12th day of June 2002.

SHORELINES HEARINGS BOARD
ROBERT V. JENSEN, Presiding
KALEEN COTTINGHAM, Member
BILL LYNCH, Member
JUDY WILSON, Member
BILL HINKLE, Member
JUDITH BARBOUR, Member
S 01-031 Final