Eickhoff v. Thurston County

565 P.2d 1196, 17 Wash. App. 774, 1977 Wash. App. LEXIS 1637
CourtCourt of Appeals of Washington
DecidedJune 13, 1977
DocketNo. 4505-1
StatusPublished
Cited by1 cases

This text of 565 P.2d 1196 (Eickhoff v. Thurston County) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eickhoff v. Thurston County, 565 P.2d 1196, 17 Wash. App. 774, 1977 Wash. App. LEXIS 1637 (Wash. Ct. App. 1977).

Opinion

Callow, J.

Zittel's Marina, Inc., owns and operates an existing marina on Johnson Point in Thurston County, Washington. Good fishing areas are nearby, and five state parks are on the water within 10 miles. There has been a marina at the site since 1925.

The Zittels purchased approximately 17 acres of land on Johnson Point in 1957. At that time there was a rental, launching and storage facility for 26 small boats located thereon. In 1965, the Zittels built the present facilities, which consist of a boat landing, boat launching and takeout ramp, boat removal equipment, 40 covered and 20 open moorages, and various storage houses. Mr. and Mrs. Henry Eickhoff are owners of approximately 80 acres of unimproved land lying to the south of the marina inside Baird Cove.

On October 26, 1972, Zittel's Marina, Inc., made application to Thurston County for a development permit to construct additional facilities and make other improvements to the marina. Notice was published in the legal newspaper and public hearings of the Thurston County Planning Commission were held. A draft environmental impact statement was prepared by an engineer and presented to the Thurston County Planning Staff on July 26, 1973. The staff examined the statement and made certain modifications. At the public hearings, various residents and landowners, including the Eickhoffs, were heard, and thereafter [776]*776the planning commission recommended to the county commissioners approval of the shorelines permit for an additional 150 moorages and other improvements, including dockside facilities for the disposal of waste and the deepening of the channel. On September 3, 1973, after two public hearings, the Board of Thurston County Commissioners granted a development permit. Thereafter, within the statutory period, the Eickhoffs, the Department of Ecology, and the attorney general filed a request for review of the granting of the permit. The requests for review were consolidated for hearing and a hearing was held before the Shorelines Hearings Board on February 1, 1974.

The board, by order dated March 13, 1974, remanded the development permit granted by Thurston County back to the county to make it more definite and certain, and on May 6, 1974, the county issued an amended substantial development permit to Zittel's Marina, Inc. This permit eliminated the solid bulkhead walk which was creating a material buildup problem, eliminated a substantial landfill for additional parking facilities, and required that all dredged material be removed to a deep water disposal site under supervision of the Department of Ecology. The solid bulkhead was to be replaced by floating walkways which would permit the water to flow freely. In addition, a 60-foot open space between the walkway and the shore was provided, and the number of new moorages to be allowed was decreased from 150 to 100, which would then provide a total wet storage capacity of 160 boats. The Department of Ecology and the attorney general, upon this amended permit, withdrew from the hearing and the proceedings before the Shorelines Hearings Board were dismissed with prejudice. Exceptions to the board's findings and conclusions concerning the admission of the Thurston County master program were taken and the hearing was reconvened on April 11, 1975, for the limited purpose of hearing evidence on the Thurston County shoreline master program insofar as it could be ascertained on the date of this permit.

[777]*777The Citizen's Advisory Committee for Shoreline Management for the region began working on the shoreline master program for Thurston County on July 1, 1973. The committee held hearings throughout the county in the fall of 1973 and the proposed master program was received by the county commissioners on May 8, 1974. There was no evidence as to the master program's content or its treatment of the area in question on September 3,1973, the date of this permit.

The Eickhoffs assert that expansion of the marina will impair the aesthetic value of their property, restrict boat access to and resident use of Baird Cove, and will have an adverse effect on the fish and shellfish in the area. They claim that the proposed new facilities would increase the negative environmental impacts, and they object to the granting of the permit claiming that allowing the existing marina to increase in size would virtually close the water access to Baird Cove.

The Shorelines Hearings Board found:

Although the initial development of the marina in 1965 had an adverse effect on the fish and shellfish in the immediate area of the marina, the Department of Fisheries has determined that there would be little additional adverse effect at this time if expansion is permitted. The Department of Fisheries and the Thurston County Planning Department feel that close monitoring of construction by the U.S. Army Corps of Engineers, through its permit requirements, will greatly diminish the possibility of harm to the shellfish and fish in the area.

Finding of fact No. 12. The board further found:

There is an undeniable need for additional marina facilities and moorage in Thurston County. It is also undeniable that further marina construction will have an adverse effect on the environment in terms of noise, aesthetics, and impact on marine ecology. The total adverse impact resulting from the expansion of the existing facility is considered to be less that that which would be generated by a new facility. Evidence presented at the hearing indicates that regardless of the Zittel's development, there will continue to be a substantial unmet [778]*778demand for marina and moorage facilities in Thurston County.

Finding of fact No. 14. The board affirmed the granting of the permit by order dated April 28, 1975, with three members voting for and three dissenting.

On May 15, 1975, the Eickhoffs filed a petition in Thurston County Superior Court for review of the order of the Shorelines Hearings Board, pursuant to RCW 34.04-.130. Following a trial, the court dismissed the petition with prejudice and concluded:

The decision by the Shorelines Hearing[s] Board in affirming the issuance of the Substantial Development Permit and the action of the Thurston County Commissioners in issuing the Substantial Development Permit were based upon substantial evidence, properly considered, and were neither clearly erroneous nor arbitrary and capricious.

Conclusion of law No. 2. The Eickhoffs (hereafter referred to as "petitioners") appeal.

The issues raised on appeal are:

1. Is a 3-to-3 decision by the Shorelines Hearings Board sufficient to affirm the decision of the Board of Thurston County Commissioners?

2. Was there a proper judicial review of the Shorelines Hearings Board findings and conclusions, and did that review approve those findings and conclusions?

3. (a) Is'the decision of the Shorelines Hearings Board supported by the record?

(b) Is there sufficient evidence in the record to show that environmental harm will be minimal?

4. Were the requirements of RCW 90.58.140(2), which pertain to development permits issued before the adoption of a local master program, satisfied?

5.

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Bluebook (online)
565 P.2d 1196, 17 Wash. App. 774, 1977 Wash. App. LEXIS 1637, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eickhoff-v-thurston-county-washctapp-1977.