SDP-96-86
rio. 86 023'7
BEFORE THE BOARD OF
SPOKANE COUNTY COP1riISSIONERS
IN THE MATTER OF CONSIDERIPJG A )
VARIANCE PERMIT APPLICATION OF ~
OR. JOHN SMITH, JR. WITHIN THE ) E~~SULU i IG~~ : F iNU iNGS OF
SPOKANE RIYER/UPRIVER P.ESERVOIR ) FACT, C0I4CLUSIONS OF LAW
AND/OR ITS ASSOCIATED WETLANDS ) AND DECISION
FOR FENCING )
F I LE NO : SOF-96-86
DECISION: APPROVE
DATE OF ORDER: April l, 1986
Thi s matter bei ng the consi derati on by the Board of Spokane Cour)ty
Comnissioners of a Variance Permit in conjunction with the location and
construction of a series of 6-foot high nonsi ght-obscuringchain link fences,
and pursuant to the Spokane County Shoreline Program granting the Board the
authority and responsibility to hear and decide such matters, and after
conducting a public hearing on Flarch 18, 1986 to receive public testimony and
after reviewing the public record, examining all available information,
including a report from the Shoreline Administrator, the Board hereby makes
the following:
FINDINGS OF FACT
I.
That Dr. John Smith, J r., hereinafter referred to as the "applicant,"
filed an application on January 23, 1986 at the Spokane County Planning
Department for a Yariance Permit to authorize fencing on property described as
follows and as generally located as on attached map Exhibit "A":
Located at E. 7710 Hodin Drive; Parcel Nos. 06542-9100 and
06542-0815.
II.
That approval of this application is an action which is exempt from the
provisions of the State Environmental Policy Act, Chapter 43.21C RCW, pursuant
to WAC 197-11-800(2)(d).
III.
That the following is true with regard to the provisions of the Shoreline
Management Act, Chapter 90.58 and the Spokane County Shoreline Program:
A. The application has been duly advertised pursuant to WAC 173-14-0709
Notice of Public Hearing being advertised on February 5, 1986 and
February 12, 1986 in the Valley Herald and posted on or in the
vicinity of the proposed project location on February 7, 1986.
B. The project site is located within the Conservancy and Rura1
Designation and is located within a Shoreline of Statewide
Si gni fi canceo
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RESOLUTION: FItJDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION SDP-96-86
C. Pursuant to Section 8.06 of the Spokane County Shoreline Program,
technical review comments relating to the advisability of issuing a
permit have been solicited and are as reported in the Staff
Analysis, Section IX, as herewith attached.
D. The Spokane County Shoreline Program sets forth various applicable
goals, policies, general regulations and use regulations for
activities. In review of these, the Board finds, takes note of and
adopts by reference the following:
1) Applicable Goals for Shorelines of Statewide Significance:
Staff Analy sis, Section IV.
2) Applicable Policies (for the Conservancy and Rural
Designations):
Staff Analy sis, Section V.
3) Applicable Regulations for all Shoreline Areas:
Staff Analysis, Sec tion VI.
4) Applicable Use Regulations (for the Conservancy and Rural
Designations):
Staff Analysis, Section VII.
E. The proposed project i s an appl i cati on to perii» t avari ance flr(-)4-,i t.he
Spokane County Shoreline Program and additionally from the
Washington State Shoreline Wianagement Act. The Board has read and
concurs with the analysis in VIII of the Staff analysis.
Consequently the Board makes a s i ts own Fi ndi ngs those 1 i s te d unt_;e r
VIII of the Staff Analysi,, a copyo uf w~Jch i s hereto attached ancI
adopted by reference.
IV.
That the proposed project will have neither probable significant adverse ~
impacts upon the physical environment nor be detrimental to the public health,
safety, and welfare.
Ve
That the proposal is exempt from the provisions of SEPA, Chapter 43.21C
RCW, pursuant to WAC 197-11-800(2)(d).
UT.
Any Conclusion of Law hereinafter which is deemed a Finding of Fact is
adopted as the same.
From these Findings, the Board comes to these:
CONCLUSIONS OF LAW
T,
Tridt the Goard of Spokane County CoriTi-iii ssi oners has j uri sJi cti on over the
issuance of the Variance Permit pursuant to the provisions of Chapter 90e58
RCW and the Spokane County Shoreline Program.
II.
That proper legal notice has been established, a required public hearing
has been held.
2
• . .
RESOLUTIOfJ: FINDINGS OF FACT, COfJCLUS.ONS OF LAW AND DECISION SDP-96-86
III.
That pursuant to the above cited provisions of law, Findings of Fact
hereinabove substantiate approval of the application and the issuance of a
Vari ance Permi t.
IV.
Any Finding of Fact stated hereinabove which is deemed to be a Conclusion
of Law is adopted as the same. ,
From the Findings of Fact and Conclusions of Law, the Board of Spokane
County Commissioners hereby enters this:
DECISION
APPROVE with the conditions and in compliance with the Shorel~ine,
Management Act and rules and regulations promulgated therefrom, the
applicant's request for a Variance Permit which would allow fencing consistent
with the conditions listed hereinafter. The Shoreline Administrator is
directed to issue a Variance Permit.
Conditions of Approval:
I.
The applicant is not authorized to construct fencing on property to which
he does not hold clear title.
II.
The applicant shall check with the Department of Building and Safety to
see if any of the fence structures to be constructed require the issuance of
building permits.
III.
The fence shall be without any sigh-obscuring fabric, and shall not be
topped with barb wire.
IV.
In the event that any portion of the installed fence structure is
inundated, at ordinary high water mark, by any future raised reservoir levels
(even at the fence base), said fence shall be removed to a point judged to be
at or above the ordinary high water mark.
V.
All or portions of fence segments A-C, B-C, C-D and D-F are authorized
for construction. The fence fabric shall not exceed a height of 6'-0". The
accompanying approved site development plan shows the various approved fence
segments. Point "A" is to be considered at the waterward base of the
bulkhead. Fence segment A-C (at its more southerly location) shall ~:roceEd or
top of the bulkhead.
VIe
The appl icant shal l secure any necessary Hydraul i cs Project
Permit(s) from the Washington State Department of Game.
VII.
The applicant shall notify the City/County Historic Preservation Officer
if any historic or archaPOloaical artifacts or nhenomena are uncovered.
r f
RESQLUTION: FiNQINGS QF FACT, CONCLUSIUNS OF LAW AND DEGISIQN SDP-96-86
APPROYED AS CDNQITIONED BY THE BOARD-OF SPOKANE COUNTY CQMMISSIONERS
THIS lst DAY OF APRIL, 1986.
BOARD OF COUNTY COFIMISSIONERS OF
SROKANE COU~TY, WAS
.
C ,
ATTEST.
WILLIA . a EJAHUE
Cler of t Board
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Depu y C1 er
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SPOKANE COUNTY SHORELINE PROGRAM
YARIANCE PERMIT
PLANNING ANALYSIS
SPONSOR: Dr. John Smith FILE N0: SDP-96-86
E. 7710 Hodin Dr.
Spokane, WA 99202
I. DESCRIPTION:
The applicant presently owns the land depicted in the various attached
maps. The residence sits on Assessor's parcel 15 (lot 10 of
subdivision), has lake frontage on the south property line and almost
has frontage on a slough or lagoon on the southeast side of LotM.
This lagoon primarily occupies Assessor's parcel No. 97, the long
sliver extending northeast from the Spokane River and the Upriver
Reservoi r Proper. Assessor's parcel No. 97 i s owned col l ecti vely by
the resi dents of Hodi n Fi rst Addi ti on, those resi dences primari 1y
located on Ella Road, showing on most of the maps to be northeast of
the applicant's property. The applicant also maintains a partial
undivided interest in parcel 97. The applicant claims to have
experienced invasion of privacy and trespass problems on his own land
over the years from persons accessing the lagoon and common property
from Ella Road.
The applicant seeks permission to construct fences in a manner adequate
to protect hi s privacy and mi nimi ze hi s 1 i abi 1 i ty wi th regard to what
i s general ly referred to a s an "attracti ve nui sance" si tuati on.
Accordingly, the applicant has requested permission to construct one or
more fences, optionally topped with barb wire, all of which
possibilities are depicted on the accompanying maps as fence segments
A-C, B-C, C-D, and D-F. All of these fences would be approximately as
shown in his sketch, that is, 6-foot metal-post, chain-link fence
without any fence fabric (not sight-obscuring). (No barb wire is shown
on sketch.) The applicant may initially choose only to construct
segments C-B and C-A in an effort to first maintain the privacy
immediately surrounding his residence and spread construction costs
out.
Regarding the many possibilities, the applicant stated that he does not
intend to construct any fences that are not on his property. But in
order to proceed with some fencing during this season, and the balance
of the fenci ng over the years i n whi ch a shorel i ne permi t i s val i d( 5
years plus a possible 1 year extension possibility), the applicant is
aski ng for a vari ance permi t to bui 1 d any or al l of the fences
descri bed above.
The Shorelines personnel researched the Washington State Shoreline
Hearings Board cases with regard to fences. We also consulted with the
County's legal counsel and the administrative staff of the Department
of Ecology in Olympia. We detemined that a fence, for the purpose of
pri vacy, reducti on of trespa ss and reducti on of 11 abi 1 i ty a s rel ated to
an attractive nuisance situation, is a use considered appurtenant to a
single family residence. Single family dwelling units do not need
Substantial Development Permits, as they are exempt from that permit;
hence, the fence is also exempt from the requirements to obtain a
Substantial Development Permit. 8ecause of the generally "public"
access possible from Ella Road and the completely public access from
the water on a considerable amount of the applicant's ownership, a case
for assurance of one's privacy and reduction of both liability exposure
and trespass appears not to be of any serious question as far as a need
to and right to try to solve the problem.
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• Y
PLANNING ANALYSIS - VARIANCE PERMIT FILE N0. SDP-96-$6 PAGE 2
Hvwever, the Shoreline Act requires, in Section 5.10, that na
struttures be bui 1 t wi thi n 50 feet of the ordi nary hi gh water maric.
"Structure" i s undefi ned i n thi s Shorel i ne language, ei ther i n the
State Regul ations ar the Local Spokane Caunty 5horel i ne Program. The
di cti onary s defi niti vn of structure reads i n such a fashion that i t
i ncludes a fence; therefQre, fences are prohi bi ted wi thi n 50 feQt of
the water unless a variance is sought and obtained fram this
damensi onal standard. It i s thi s Yari ance Permit aQpl3cati on by which
the applicant seeks permissian to canstruct within 50 feet of the
ordi nary hi gh water mark.
A further compl icatian i s that the Gi ty of Spokane has made a
cvmmi tment to rai se the 1evel of the reservai r some 18 i nches so that
i t can generate more power at their Upriver Reservoi r generati ng
stati on. The Gi ty has thus far been unabl e to rai se the i evel of the
water because of the ongoing negatiation of sett1ements it must make
with variaus property owners whose praperty improvements will be
i nundated. In thi nki ng i nterms of thi s Yari ance Penmi t, i t would be
wi se ta anti ci pate a ri se i n water of some 1$ i nches and recogni ze that
i f a Vari ance Permi t i sgranted , it shoul d be conditi oned to remove any
partions of fence which end up below the new ordinary high water mark.
II. SHORELINE aF STATEWIDE SIGNIFICANCE:
Spokane River and Upriver Reservoir are desi gnated by the State as a
shoreiine statewide significance.
III. AREA DESIGNATION;
The area i n questi on i s both Rural and Cvnservancy. The 1ots in Hodi n
Addi ti on and H4di n Fi rst Addi tion are desi qnated Rural and the other
lats are designated Conservancy. This will make no difference in the
ensuing analy sis.
IY. APPLSCABLE GOALS FOR SHORELINES OF STATEWIDE SIGNIFICANCE:
Several of the goal s might ordi nari ly appear to bear on this tase and
wauld generally militate against fencing in this manner so close tv the
rvater. However, it must be painted out that the lagaon or slough area,
wh31e very definitely public waters of State is nanetheless secluded
and far the mast part not visi bl e from the mai n body of the reservvir.
Due to i ts i sol ated 1 ocati vn i t i s an area which may atcurately be
described as attractive ta persans on the lake wha► may assume that the
fai r1y i s41 ated appeari ng land on each si de of the Z agoon i s avai 1 able
for use by the publ ic; whi+ch i s n4t the case, as i t i s al l pri vately
owned. Hawever, these gvals for Shorelfines of Statewide Significance
appear to the Planning Uepartment personnel to be overshadowed by
statements i n the 1 egi sl ati ve fi ndi ngs of Secti an 90. 58. 020 RCW,
wherei n the Legi sl ature declares that ,.cvordi nated pl anni ng i s
necessary in order to protect the public interest associated with the
Shorel i nes of th+e State whi 1 e, at the same time, recv nizi ng and
ratecti r~~ri vate ri c~hts consi stent wi th the pubTi c~nterest, '
~Emphasis added.) In this case, private property rights extend ta
diminishing tre$passing, reducing bath vandalism of property and the
securing and protection of an attractive nuisance; particulariy when
the property might, in an hvnest mistake, easily be judged by.the
public to be public lands, seems tv be consistent with with the
public interest."
Y. APPLICAgLE POLICIES FROM S'POKANE COUNTY SHOREtINE PROGRAM:
Nane is applicable.
.e . . . . - . ~ . . J
.
PLANNING ANALY5I5 - YARIANCE PERMIT FILE NU. SDP-96-86 PAGE 3
YI. APPLICABLE REGULATiONS FOR ALL SHORELINE AREAS FROM SPQKANE CfJUNTY
SHQRELINE PROGRAM:
5.1 No devel opment shal l be undertaken wi thi n the shareli ne
areas of Spakane County unless these regulatians and
policies and other applicable laws and regulations harre been
campl i ed wi th an+d al i required permi ts have been obtained.
Response: Zhis is the purpose of the present examination of the
Yari ante Fermi t apQl icati an. Nv bui 1 ding permi t i s
nec+essary due to t!hi s6-foot hei ght 1 imi tati on pl anned by
the app1icant. Althaugh, barbed wire in excess of 6'-0",
may tri gger pemi ts f rom the Depa rtment of 8ui 1 di ng and
Safety.
5.4 Th+e aesthetic quai i ty of the shorel i ne area shal i be
cvnsj dered to be a publ i c resvurce, i nCl udi ng both vi ews of
the water and from the water. Every evnsideration shall be
given to pratection and enhancement of svch views in the
p3 anni ng, c4nstructivn, and mai ntenance of any development.
Response: For the mvst part, the visua►1 impact of the prapvsed fence,
whith cannot be considered to be aesthetical ly pl easi ng,
wi11 be canfined tv view only by those parties who chase to
enter the lagaon on the public waters. The argument for the
fence seems to outwetgh the adverse impacts that fts
appearance m,ay have.
5.6 Except far permi tted mari nas, pi ers, docks, and bri dges, no
aver-water structure shal l be erected i n shorel i ne areas
unl ess i tis clearjy i n the publ ic i nterest and cansistent
wi th the pol i ci es and i ntent of thi s Program.
Respanse: It is tonceivable that one or more fences, if not carefully
planned and located, may eventually exist waterward of the
ordi nary hi gh water mark at such time as the City of Spokane
compl etes its pl an to rai se the reservoi r. P1 ans shoul d be
made to remove such fenci ng as may end up bel ow the ordi nary
hi gh water mark.
5.10 No structure shal1 be erected wi thi n 50 feet of the ardi nary
hi gh-water mark, except for bridge approaches and bri dges,
marinas, piers ar docks, or buildings related to retreation
devel o,pments ar prvven to be otherwi se necessary i n the
publ i c interest and authvri zed by and cansi stent wi th thi s
Prog ram.
Response : Thi s i s the regul ati on f rom whi c h the appl i cant seek s rel i ef .
YII. APPLICABLE USE REGULATIONS FROM SPaKANE COUNTY SHORELINE PRQGRAM:
None is applieable.
YI i I, YARIANCE 4R CONDITI4NAL USE ASSESSMENT PURSUANT TO SECTION 7.03 b 1.04
OF TNE SPOKANE COUNTY SNaRELINE PRQGRAM AND WAC 173-14-50;
It shoul d be reiterated agai nthat the appl itant prnpvses to bui 1 d no
fences an property tq which he does not ho1 d 100`b cl ear, extlusi ve
title.
The appl i cant ` s pasi tian i s that i f he has to bui a d fences greater than
50 feet f rom the ordi nary hi gh water mark, a substanti al amount of hi s
praperty wi 11 be ava11 able to the trespassing publ i c and unavai 1 able to
himsel f by vi rtue of the fente, thereby thwarti ng the po1 ici es set
forth 3n Sectian 90.5$.020 RCw. As such a 50-foot fence setback wvuld
be an unnecessary hardshi p as set forth i n WAC 173-14-1500
. . .
PLANNING ANALYSIS - VARIANCE PERMIT FILE N0. SQP-96-86 PAGE 4
The standpoint of the present evaluation is one which takes into
account the present water level and its ordinary high water mark as
well as the intended water level and its accompanying high water mark,
same 18 inches higher than the present level. The discussion below
will examine each of the c riteria of the State law regarding a
variance, as these criteria are equal to or greater than the criteria
in the Spokane County Shoreline Program. Following each discussion or
ci tati on wi 11 be gi ven of the Washi ngton Admi ni strati ve Code to which
the paragraph is attempting to respond.
Strict application of the 50-foot dimensional standard would, in the
opi ni on of the appl i cant, precl ude or si gni fi cantly i nterfere wi th the
reasonabl e use of that porti on of hi s property which woul d be waterward
of a fence erected 50 feet f rom the ordinary high water mark.
Establishment of a fence landward 50 feet would not solve the alleged
trespassing and "trashing" on the property. Such a fence location
would also interfere with the applicant's use of that portion of the
land waterward of the fence. [WAC 173-14-150(2)(a)]
The hardship set forth above is specifically related to this property
and exists because of the property's shape and location immediately
adjacent to public waters in the State. It is then the application of
the master program's 50-foot setback requirement for structures which
has created thi s si tuati on from whi ch the appl icant seeks rel i ef e
[WAC 173-14-150(2)(b)]
The applicant feels that the design of these fences and his project in
general wi 11 be compati bl e wi th other perini tted acti vi ti es i n the a rea
and will not cause adverse effects to adjacent properties for the
Shorel i ne Envi ronment desi gnati on. There are several other fenc i ng
proj ects i n the vi ci ni ty uti 1 i zi ng a simi 1 ar chai n 1 i nk fence and for
similar reasons of privacy, anti-trespass and general enclosure of
private property. Most or all these apparently were installed without
variance permits and are consequently illegal. One illegal fence
exists in the lagoon and is the subject of County action to remove it.
[WAC 173-14-150(2)(c)]
The applicant feels that the requested variance does not constitute a
grant of special privilege not enjoyed by other properties in the area
and will be the minimum necessary to afford relief. The-applicant's
position is that, as mentioned above, there are other fences in the
area, although none of them appear to have been subject to a Yariance
Permit in the past. The applicant also feels that fences erected
ei ther on hi s property 1 i ne or i n such a strategic 1 ocati on as to
discourage the walking public f rom entering onto his land is the
minimum relief acceptable. [WAC 173-14-150(2)(d)]
The applicant feels that the "public interest" will suffer no
substantial detrimental effect, insofar as the applicant's only purpose
is to enclose his property and protect it f rom tresspass by the walking
public to the greatest extent possible. To the extent that children
are kept off the applicant's rocky terrain and f rom the waters' edge
(and weak ice in Winter) the applicant feels his exposure to
"attracti ve nui sance" 1 i abi 1 i ty cl aims i s greatly 1 essened. Obvi ously,
without erecting a fence actually at the water's edge, which the
applicant is not requesting to do, the applicant would neither be able
to stop anyone from trespassi ng on hi s property from the water by boat
access nor by access from Ella Road [WAC-173-14-150(2)(e)]
IX. REPORTS FROM OTHER AGENCIES AND DEPARTMENTS:
SPOKANE COUNTY ENGINEER:
The County Engi neer advi ses that a major drai nage cul vert exi sts
adjacent to and east of point E and that the project should be
conditioned to see that work in no way obstructs the water or natural i
f l ow of waters.
. . . _ ~ _ - , _ . . . . _ , ;a'~• ~'.i.'~''r.~'c:;r::~_. ~ _ _ .
. r
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F'
PLANNING AMALYSIS - YARIANCE PERMIT FILE N0, SDP-96-86 PAGE 5
SPOICCANE COUNTY BU I LD I NG ANp SAFETY ;
No response.
SPOKANE COllNTY PARKS AND RECREATIpti:
No r+esponse.
SPDKAWE COUNTY HEALTH DISTRICT:
Na response.
SPpKANE CUUNTY CONSERVATIaN DISTRICT:
Nv response.
CITY OF SPOKANE; WATER AND HYDROELECTRTC SERYICES
The C3 ty responds that the propased i ncrease i n water el evati on i s
sti11 18 i nches. The Ci ty advi ses that fi nal agreements wi th the
property owners regarding any compensation due them for potential
i nundati on of l and or improvements will mast 11 keiy not oc+cur before
the end of 1986, wi th rai si ng of the water hoped for shartly thereafter,
X. STATE ENYIRONMENfiAL PDLICY ACT:
The praposal i s exempt under the provi si ans of WaC 197-11-800(2)( d) ,
XI. STAFF RECUMMENaATYON;
Approve the issuance of a Yariance Penmit stipulated and conditioned as
foi 1 ows :
1. The appl icant shoul d receive any necessary Hydraulics Project
Pernri t fram the Washingtan State aepartment of Game/Fi sheri es,
2. The appl ieant shaul d noti fy the Ci ty/Gounty Hi storic Preservati an
af ficer at 456-4378 i f any hi stori c or archaeol ogical arti facts ar
phenomena are uncov+ered.
3. Any approval should stipulate that the applicant is not being
autharized to construet fencing on property to which he dves nat
hol d c1 ear ti t1 e.
4. 7he applicant shvuid cheCk with the Department of 8uflding and
Safety ta see i f any of tfie fence structures to be constructed
requi re the i ssuance of bui 1 di ng permi ts.
5. The fence i s to be wi thout any si ght-abscurf ng fabric, but may be
topped wi th barb rvi re.
6. In the event that any of the installed fence structure is
i nundated, at ordi nary hi gh water mark, by any future rai sed
reservoi r 1 evel s (even at the fence base sai d fencQ shoul d be
removed to a point Judged to be at or above the ordinary high
water mark. .
a215E
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