# Appendix — Lake Lawrence, Inc. v. Thurston County

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 802

## Text

‘Bupreme Court, U.
FILED

Staalesg 1980
OCTOBER TERM 1979 MICHAEL RODAK, JR.. CLERR.

no. %¥O-1880

——

IN THE
Supreme Court of the Unit

LAKE LAWRENCE, INC., et al.,

Appellant,

V.
THURSTON COUNTY, et al.,

Appel lees.

APPEAL FROM THE SUPREME COURT OF WASHINGTON

APPENDIX TO JURISDICTIONAL STATEMENT

PHILIP P. MALONE
Attorney for Appellant

Office and PO Address:
P.O. Box 443
Poulsbo, Washinaton 98370

ABCD AT CRAFTSMAN PRESS. SEATTLE

SUBJECT INDEX

APPENDICES:

Appendix A - Record

1. Lake Lawrence, Inc. Response prior to
Pivet Gecision 2. s wc ee ewe wwe

2. Appellee's First Decision. .....-.-.

3. Appellee's ‘Petition & Affidavit for
Review and Prohibition .......-.

4. Superior Court Show Cause Order and
Weit of Review... «sec eee eee

5. Court Minutes, Prohibition Order
eee 6 a “sg Gb we ee ee ee

6. 4/5/78 Appellee's Motion for Obtaining

PE css be eek ee ee
7. Order Returning Record ......+-4+-s-s
8. Minutes, Returning Record to

Appellees. . 2. 2 ee we we we oe oo
9. Inspection Trip Photo. ....+-++-e-s

10. Appellant's Motion for Return of
De be 6 ee ewe ee A ee

11. Appellant's Order Granting Return of
Record, Minutes. . . . «© «© «© «© e © @ »

12. Notice of Trial Amendment. .......
13. Shorelines Hearings Board Decision...

14. Appellee's Second Decision. .....-.

Page

15.
16.

17.
18.

19.

20.
21.
22.

23.

24.

25.
26.

26-A.
27.

28.
29.

17

Application for Mandamus Relief. ... .

Stipulation and Order on Issues
| a ae a oe ae a a ee

Memorandum Opinion. ....+-+-e«e-s

Findings of Fact & Conclusions
OF GS é. % we We ee ee 8 we ow es

Adjudication Pursuant to Writs of
Mandamus & Certiorari ......-.

Note for Trial Setting (Damages) . . .
Amended Petition for Damages .....

Court of Appeals - Notice of
Appeals R.A.P. 5.3 . - «© «ee wo ow

Notice of Supersedeas
MES od) eng | ve oe Ok we

Order Temporarily Staying Proceedings
and Fixing a Hearing .....-+-.-s

Order of Stay and Certification. ...

Appellant's Motion and Memo for
Discretionary Review ......+.-s

Memorandum of Law - Appellant. .. .

Supreme Court Order Accepting
ORPCTTUGRR Ts o-c pw ee ew ee ee

Supreme Court Decision .......-

Motion for Reconsideration ......

iii

Page
30. Appellant's Motion Prohibition -
Supreme Court. . . . © 2+ eee ee A-232
31. Supreme Court Order Denying
Prohibition. . 2. 2. «eee serve e A-243
32. Supreme Court Order Denying Motions
for Reconsideration ..... oo « W245
Bes TOORS 6 8 6 ee ee 6 ee es A-246
34. Letter from Richard Pitt. ...... A-248
35. Judgment Dismissal .....+ sess A-249
36. Notice of Appeal .... «ee eee A-251
37. Certification of Service - United
States Supreme Court. ......-. A-253
Appendix B - State Statutes: Revised
Code of Washington
tn. GE Ted 6 ct et wet we wee A-255
Su. COO BOB kk 4 ck eee Ce He A-258
Do CRREEP Beets tt we ete we A-260
mG SOcEe we kw 6k we ee 8 8 ee A-266
S. Grepter SGul7. we we pe eee 8 A-274
G6. Chapter 90.56. .. - ec we eeves A-280

iv

Appendix C - Thurston County Regulations
1. Title 18, Platting & Subdivisions. . . A-301

2. Ordinance 5172, Environmental
POTTCY BOOUTECIORNS «1 ec ce te 8 A-310

3. Shoreline Master Program ....... A-352

4. Thurston County Comprehensive
Re a eee A-378

APPENDIX A - RECORD
APPELLEE'S CONS’T, ETC., RESPONSE SEPTEMBER, 1977

RESPONSE OF LAKE LAWRENCE, INC. TO THURSTON
COUNTY PLANNING DEPARTMENT STAFF REPORT AND
RECOMMENDATION OF SEPTEMBER 21, 1977 FOR HEARING
BEFORE THURSTON COUNTY BOARD OF COMMISSIONERS
SEPTEMBER 28, 1977

SUBJECT: TOTAL PROPOSAL FOR PLATTING 22 LOTS AND
CONSTRUCTION OF ONE COMMUNITY PIER ON 14
ACRES OF PRIVATE LEASE-HOLD ESTATE OF
LAKE LAWRENCE, INC. AT WOOD POINT ON
LAKE LAWRENCE.

REFERENCES: (1) Application Wood Point on Lake
Lawrence Case No. 225 and SH-TCO-
1-77, “Total Proposal". (See
Findings of Fact and Recommenda-
tions, page 28, September 8,
1977, infra.)

(2) Proposed Findings of Fact and
Conclusions to Thurston County
Board of County Commissioners,
submitted by Lake Lawrence, Inc.
September 8, 1977.

(3) Appendix of Record, with Exhibits
I and II, submitted by Lake
Lawrence, Inc. September 1, 1977.

(4) Transcription of Testimony of
Hearing of Thurston County Board
of County Commissioners, Septem-
ber 8, 1977 submitted herewith

A-2

identified in text as: "T", by
page number in () and by line in
common number without parenthet-
ical.

The Applicant, Lake Lawrence, Inc., objects to
the Thurston County Staff Report of September 21,
1977, and respectfully requests that the Board of
Commissioners of Thurston County approve the
applications of the Applicant by adoption of the
Findings of Fact and Recommendations (Section II,
pages 28 to 41 Re: (2) hereof) pursuant to submis-
sion (Section I, pages 1-28 Re: (2) hereof) of
September 8, 1977. Such request is supported and
substantiated by the records Appendix to Record and
Transcription (Re: (3) and (4) supra) and in
conformance with all laws, policies and regulations
of the State of Washington and Thurston County (See
Exhibit II of Re: (3) supra. for laws).

OBJECTIONS to the Staff Report of September

21, 1977, are made on the following ISSUES with

responses of the Applicant to each issue following:
t.

ISSUES

1. The Staff Report of September 21, 1977, is
in contradiction of the Thurston County Planning
Department's Draft Environmental Impact Statement
(DEIS) of April, 1977 and Final Environmental
Impact Statement (FEIS) of Wood Point of May, 1977.

2. The Staff Report of September 21, 1977, is
without merit and no new evidence is in the record
to be in contradiction to the Staff Report of May
27, 1977. The Staff Report of September 21, 1977
was made contrary to due process of law.

A-3

3. The Staff Report is in error in alleging
that the Total Proposal does not conform and is not
within the intent and meaning of the following:

(a) Thurston County Shoreline Master Program,
December, 1975;

(b) Comprehensive Plan and Subdivision
Ordinance;

(c) Shoreline Management Act, and
(d) State Environmental Act.

4. The Staff Report is in error in citing the
definition and classification for use of “Natural
Environment" as a criteria and guideline for
recommendation of denial of the Total Proposal to
the Applicant. By using "Natural Environment" as a
criteria and guideline for use of the property at
Wood Point it is irrelevant, immaterial, with great
prejudice and harm to the Applicant's rights and,
contrary to the laws, policies and regulations
already adopted, when Thurston County, pursuant to
guidelines adopted by the State of Washington and
Thurston County through public hearings has prior
to application made and continues to designate and
Classify the project area as a "Rural Environment"
recommending as first priority for use single
family residences in an "Urban Environment".

5. The record does not support that the
project area is or has "unique", “natural", or
valuable resources that need preserving by denying
the application of the Applicant and because of
those features, not supported by the record,
proposing the area already having been designated
"Urban Environment" be changed to “Natural Environ-
ment" prohibiting all use of the property that
otherwise would not contribute to the preservation
of the property as “Natural Environment".

A-4

6. If the recommendation of the Staff is
followed it is the opinion of the Applicant such
action would be: (1) contrary to due process of
law; (2) a denial to the Applicant of equal rights
and privileges that other citizens have of the use
of their property in the same designation and
classification of "Urban Environment", and (3) a
taking of property without due process of law by
Thurston County without just compensation. Such
action would therefore be in violation of those
rights of the Applicant guaranteed to it in the
Constitutions of the United States and of the State
of Washington. A Memorandum is submitted in
support of this issue.

Il.
RESPONSE TO ISSUES

1. THE STAFF REPORT IS WITHOUT MERIT AND
CONTRARY TO AND IN CONTRADICTION OF THE
DEIS AND FEIS.

On April 11, 1977, the DEIS was registered.
Response by public agencies expired by law on May
18, 1977. The response of all public agencies to
the DEIS in the FEIS were favorable to the Total
Proposal as then made and as set forth in the DEIS
(24 lots, 75' buffer on shoreline and 50° on sides,
common driveways, selective cutting of timber to
preserve wild life habitat). The Total Proposal as
now modified on September 8, 1977 further conforms
to the response and development recommendations set
forth in FEIS statement of the response of the
Department of Game received April 1, 1977 by
Richard L. Knight, (Appendix to Record, 113) in the
following particulars:

(a)

(b)

(c)

A-5

Place for housing units are clustered
within the interior as reasonably feasible
within the configuration of the property
area.

The shoreline buffer area is overall 75
feet and 50' on the south and west sides
(except adjacent to lot 1) restricted to
no building and minimum clearing for
safety and view. Marsh areas are totally
excluded from use or development. The
areas of lots 2, 3 and 4 are to be left in
natural state with no development for
human activity. All major large trees are
to be left standing. (See Exhibit II,
Appendix to Record, surveying and locating
34 major trees to mostly be preserved.

NOTE: Page 36, Shoreline Master Program of
Thurston County, for residential!
development in “Natural Environment"
a 10 foot buffer strip only along
the lake and a 100 foot set back
from high water mark for residential
buildings is required. In "“Conver-
sancy Environment" (pages 50 and 51)
pathways must be provided, no buffer
area required, and 100 foot building
set back is required. In "Rural
Environment" (pages 60 and 61)
there is required pathways for
upland lots to shoreline, no
buffer required, houses and build-
Ings must be set back 50' from high
water mark.

The recommendation of the State Game
Department and the Department of Natural
Resources is followed in the Total Pro-
posal by having one public pier. (Appen-
dix to Record 95 and 110).

A-6

The Staff Report ignores the lawful function
of the DEIS and the FEIS and bases its conclusion
contrary to such statements on the importance of
public opinion in accordance with guidelines used
when defining and classifying property not yet
classified but in the process of being classified
as “Natural Environment", as being a “unique”,
"natural" resource. Quite contrary- the FEIS was
prepared by the Thurston County Planning Commission
under the auspices of one qualified in the field to
which the issue relates. (Dr. Eric Davidson,
Associate PYanner: Decrees: Bachelor: Biology;
Masters: Botany; PHD: Biology). It absolutely
makes contrary conclusions to the FEIS entitled:
"Thurston County Planning Staff General Response to
Comments Received on Draft EIS." Quotations are as
follows:

"Except for the fact that the site is
adjacent to water and therefore would
attract some fishing birds and mammals,
this vegetation, habitat and wildlife
is very common to western Washington.”
(Emphasis added)

x*kwkere

"In general we consider the adverse
impacts resulting from this project to be
major relative to the site alone, but quite
minor relative to the entire area of this
habitat type” (Emphasis added)

x*xwkkr

"The unique value of this property as it
now exists lies in its interface with the
lake. The existence of the lake adds a
dimension to the rather common habitat of
second are Douglas fir forest.” (Empha-
sis added).

A-7

The Staff Report ignores the law as to the
value of the response of public agencies charged
with special expertise in making response to the
DEIS by relying on public testimony as to "Natural
Environment" when valued in the process of desig-
nating an environment, as opposed to ruling on a
Total Proposal in an environment already desig-
nated. Certainly the Department of Natural Re-
sources, the Department of Highways, Thurston-Mason
District Health Center and the Thurston County
Department of Public Works have such expertise
which the Staff Report does not have and ignores.
Under WAC 197-10-465 the Department of Natural
Resources and the Department of Highways are
mandated and: " .. . . shall be regarded as
possessing special expertise relating to those
categories of the environment under which they are
listed:. . ." In that law, among others, the
Department of Natural Resources is listed in the
category of expertise of "Natural Resources". The
Staff Report is in complete contradiction to the
response and recommendations of the Department of
Natural Resources, (See Appendix to Record, 96 and
97 and FEID). As to traffic on Pleasant Beach
Road, the Staff Report also ignores the memorandums
of Thurston County Public Works, January 21, 1977
and February 24, 1977, (Appendix to Record, 83 and
84). The Staff Report makes issue that approval of
the plat will make ingress and egress on Pleasant
Beach Road "worse" for residents of the plat and
those living off Pleasant Beach Road “during early
fishing season emergencies". The congestion is
already there; the Applicant fails to see why it
should be denied use of a public highway and that
its use or that of automobiles of 22 residential
sites, not yet constructed, shall now, or in the
future, be of any significant factor. For support
is the statement of the Thurston County Public
Works Memorandum of January 21, 1977 (Appendix to
Record, 83) which states that: "the additional
traffic on Pleasant Beach Road will be of no
significant factor".

A-8

The Staff Report states the dock is larger
than allowed by regulations. It ignores the
existence already in "Urban Environment" of adja-
cent properties where there are 65 docks on the
lake of which 17 are over 50 feet long ranging in
length from 60 feet to 500 feet on state 2nd class
shorelands without a legal right. The Report
ignores that the Shoreline Master Program for
Thurston County states a policy on page 30: "6.
Communal shoreline works and structures are pre-
ferred to the proliferation of individual shoreline
works and structures". It ignores:the same recom-
mendation of the Department of Natural Resources.
(Appendix to Record, 95). It ignores that variance
application permits such construction and was made
by the Applicant on advise of the Staff that a
variance could be granted.

2. STAFF REPORT OF SEPTEMBER 21, 1977 IS
WITHOUT MERIT AND CONTRADICTS STAFF REPORT
OF MAY 27, 1977, (MADE AFTER COMPLETION OF
FEIS), WITHOUT NEW EVIDENCE.

The Staff Report of May 27, 1977 (after
knowledge by public testimony, letters and FEIS) of
“wintering” as well as “non-wintering" eagles in
the area did not reject the project, approved a
density of 21 sites, and because of the eagles
preferred that the property was classified:
"“Conversancy Environment". (See Appendix to
Record, 76, 77, 78). At the instance of a staff
member without expertise in the field of wildlife,
ecology, botany or biology, after a field trip by
invitation and with Applicant personnel, where
eagles were cited on July 1, 1977, obtained a
letter from the Game Department after response to
FEIS had legally expired and made a new Staff
Report on July 7, 1977 (the same date for Public
Hearing before Thurston County Planning Commis-
sion), making recommendation that the site was a

A-9

feeding site, and that seeing eagles in July means
they are nesting and feeding in the vicinity of
Lake Lawrence and therefore the application be
denied and the property be re-classified to "Nat-
ural Environment".

It is the response of the Applicant that such
report of July 7, 1977 upon which the Staff Report
of September 21, 1977 is based was contrary to due
process of law in that time for response from the
Department of Game to the DEIS and FEIS had expired.
and that it was made by a member of the staff
without new evidence and outside the record already
made as to "non-wintering eagles" perching on the
site.

3. TOTAL PROPOSAL MORE THAN CONFORMS WITH ALL
LAWS, POLICIES AND REGULATIONS FOR USE OF
22 FAMILY SINGLE RESIDENCES.

Respectful attention of the Board of Commis-
sioners is directed to the Proposed Findings of
Fact and Conclusions, September 8, 1977 by Lake
Lawrence, Inc.; the Appendix to Record, and
specifically EXHIBIT 1 (pages 1 to 19, APPLICABLE
CAW. POLICIES AND REGULATIONS) submitted in back of
Appendix to Record by Lake Lawrence, Inc. on
September 8, 1977).

4. STAFF REPORT IS IN ERROR USING "NATURAL
ENVIRONMENT" AS CRITERIA AND GUIDELINE FOR
DENYING OR ACCEPTING APPLICATION BASED
UPON PUBLIC RESPONSE AND IGNORING DEIS,
FEIS AND EXPERT TESTIMONY.

It may be admitted that when in the process of
designating and classifying property to be in a
certain environment that public response is fav-
ored. But that is not the case here and to admit
so is highly prejudicial, immaterial and contrary

A-10

to law when the property has already with oppor-
tunity for public response been designated “Rural
Environment". Rather the staff is required by the
Shoreline Management Program of Thurston County in
the "Rural Environment" to abide by one: of the
primary purposes of policy set forth on page 12
hereof: "NEW DEVELOPMENTS IN A RURAL ENVIRONMENT
ARE TO REFLECT THE CHARACTER OF THE SURROUNDING
AREA". When it was designated and classified
"Rural Environment" several years ago, it is
reasonable to conclude that in those several years
no change of conditions has occurred or unique
phenomena taken place to the property to now
warrant that it be classified as unique or natural
as "Natural Environment”.

5. THE RECORD (FEIS, DEIS, TRANSCRIPTIONS OF
TESTIMONY OF PUBLIC HEARINGS: APPENDIX TO
RECORD, TRANSCRIPTION OF BOARD OF COMMIS-
SIONERS HEARING SEPTEMBER 8, 1977) SUB-
STANTIATES THAT THE PROJECT AREA HAS NO
UNIQUE NATURAL FEATURES THAT ARE NOT
COMMON TO MANY OTHER LANDS WITH SECOND
GROWTH TIMBER FACING LAKES IN WESTERN
WASHINGTON AND THE PROJECTED AREA IS ONLY
UNIQUE TO SIMILAR PROPERTIES IN THE URBAN
DESIGNATED ENVIRONMENT ON LAKE LAWRENCE BY
THE PRESENCE OF A FEW LARGE DOUGLAS FIR
TREES NEAR THE SHORELINE OF THE LAKE THAT
EMERGE ABOVE THE SURROUNDING CANOPY OF
LOWER TREES SURROUNDING THEM USED AS AN
OCCATIONAL PERCHING SITE THROUGHOUT THE
YEAR BY A FEW (LESS THAN 3 OBSERVED AT ANY
ONE TIME) WINTERING BALD EAGLES NON
NESTING IN THURSTON COUNTY AND FEEDING ON
THE CARCASES OF DEAD SALMON THAT HAVE
SPAWNED IN RIVERS AWAY FROM LAKE LAWRENCE
AND NON-WINTERING, ADULT AND JUVENILE,
NON-BREEDING AND NON-NESTING BALD EAGLES
(LESS THAN 3 OBSERVED AT ANY ONE TIME).
THE RECORD SUBSTANTIATES THAT THE FEEDING

A-11

IMPORTANCE ON DEAD LAKE TROUT AND WATER-
FOWL FROM THE PERCHING TREES IS NOT A
PRIMARY FEEDING SITE AREA FOR THOSE EAGLES
AND THE SITE IS NOT A CRITICAL SITE FOR
THE PRESERVATION OF THE HABITAT OF EAGLES
BUT HAS AN INSIGNIFICANT VALUE TO THE
POPULATION OF EAGLES IN WESTERN WASHING-
TON. THE LAST EAGLE'S NESTS OBSERVED ON
LAKE LAWRENCE WERE IN 1940 AND THERE ARE
NO NEW OR UNUSED NESTS NOW PRESENT IN THE
LAKE VICINITY AREA OF LAKE LAWRENCE. THAT
BECAUSE OF THE LEVEL OF -HUMAN ACTIVITY ON
THE LAKE AND UPLANDS OF THE LAKE AND THE
RARITY OF BREEDING NESTS IN WESTERN
WASHINGTON IT IS HIGHLY UNLIKELY THAT
EAGLES SHALL NEST IN TREES NEAR THE SHORES
OF LAKE LAWRENCE IN THE FUTURE. THE
EAGLES NOW BEING OBSERVED PROBABLY HAVE A
TOLERANCE OF HUMAN ACTIVITY AND THAT THE
CONDITIONS FOR MITIGATION OF IMPACT ON
WILD LIFE AND THE PRESERVATION OF PERCHING
TREES FOR EAGLES SET FORTH IN THE TOTAL
PROPOSAL OF THE APPLICANT CAN REASONABLY
BE FULFILLED AND SUBSTANTIATE THE CONCLUS-
IONS MADE IN THE PROPOSED FINDINGS OF FACT
AND CONCLUSIONS (PAGE 39 et sequ.) TO
THURSTON COUNTY BOARD OF COMMISSIONS,
a BY THE APPLICANT ON SEPTEMBER 8,
1977).

The above statements are made by the Applicant
from numerous references in the record that
with the limited time for response citations
to the record have been omitted.

The Staff Report of September 21, aPrrs states
the following that is in error:

"The testimony so far presented and the
record point\ directly to the value of this
site as a wildlife habitat. Information

A-12

contained in the Final Environmental Impact
Statement provides that the project site has
several attributes which make it an espe-
cially valuable wildlife habitat.

1. Large trees and snags near the lake
offer a clear view, providing feeding
and roosting sites for bald eagles, red
tailed hawks, owls and other large
raptorial birds.

2. The relative solitude of the site
contributes to its wildlife habitat
value especially for bald eagles that
do not tolerate extensive human activ-
ity.

3. Marshlands undeveloped to the south and
east, adjacent to the property increase
the value of the roosting and feeding
trees on the project site.

4. The marshland and woodland on the site
provide a habitat for a wide variety of
wildlife."

Such statements are not supported by the
record in the following particulars:

1. The large trees and snags on the site have
only been observed to be used by bald eagles as an
insignificant feeding and viewing site on the lake,
for perching only and not roosting. No testimony
has been offered of observations that those trees
and snags have been or are being used by red tail
hawks, Owls or other large raptorial birds (other
than bald eagles) and are therefore of significant
value. Cited to support such statements are
reference to the record as follows:

(a) Testimony of Dr. Felming: T-(14), lines
112, et seq.; T-(16) and (17), line 125 et
seq.; T-(18), 11ne 136.

A-13

(b) Testimony of Dr. Manuwal: Appendix to
Record, 87; T-(26) and (27), line 217 et
seq.

2. The site has little relative solitude for
wildlife habitat and the bald eagles observed
perching on trees of the site have been and prob-
ably will be more tolerant of human activity
because of their age, the present level of human
activity and observations made by the public in the
past. Cited in support is the record as follows:

(a) Present level of human activity:

Hunting on site: See DEIS, page 7, last
sentence; See Appendix to Record;

Size and number of docks, page 6;

Size and number of existing lots, page 7;
see page 22 et seq. Section III, Pro-
posed Findings, etc. September 8, 1977;
Re: (2) supra.; see transcript, Septem-
ber 8, 1977;

Boat races and water skiing, T-(31), Mr.
McDowell; Dr. Manuwal "Tolerance and age
of eagles", T-(32); Testimony of Mr.
Carpenter: T-(20), (21), (22);

Effect of human activity: Dr. Manuwal:
T-(37), line 335 and Appendix to
Record: Stalmaster page 126 et seq.

3. The marshlands undeveloped to the south
and east, adjacent to the property do not increase
the value of roosting and feeding trees on the
project site. For there is no evidence in the
record that the trees are used for "roosting" and
importance of the site and lake for feeding is of
minor significance to the eagles. Citations from
the record have already been cited above as to
distinction of "“perching" v. "roosting" and "feed-
ing" site.

A-14

4. The marshlands of the site are left
undisturbed from development and are protected by a
75 foot buffer upland from their upland borders.
The wildlife habitat of the marshlands indicate no
nesting by birds that commonly would nest in those
areas. The woodland is habitated by birds common
to many stands of second growth timber.

Citations from record: DEIS "Wild Life Study,
Exhibit V, FEIS: Thurston County Planning Staff
General Response.

III.

CONCLUSION

LAKE LAWRENCE, INC. herefore respectfully
urges the Board of Commissioners of Thurston County
to unanimously adopt by resolution the Findings of
Fact and Conclusions submitted to it by Lake
Lawrence, Inc. on September 8, 1977. The Applicant
is aware that the Total Proposal is objected to by
some members of the public who are now enjoying the
benefits of ownership and use of their property in
the same designation and classification of “Urban
Environment" for single family residence as is the
Applicant's property. Therefore it may be detri-
mental politically for such a resolution to be made
in behalf of the Applicant. However, the Applicant
is confident that a fair, reasonable and lawful
decision shall be made in it's behalf entitling it
equally with others in the same classification,
subject to the conditions imposed in its proposal,
to the rights of use of its property in accordance

A-15

with the laws, policies and regulations already in
effect to which the Total Proposal more than
conforms.

Respectfully submitted,

s/

Lake Lawrence, Inc.,

By Philip P. Malone,
its Attorney

ae

A-16
MEMORANDUM TO THE THURSTON COUNTY COMMISSIONERS
FROM: LAKE LAWRENCE, INC.
RE: WOOD POINT DEVELOPMENT

The applicant, Lake Lawrence, Inc., is provid-
ing this memorandum to the Thurston County Commis-
sioners in order to advise the Board of the applic-
able law with regard to the Wood Point subdivision
permit application. Admittedly the legal conclu-
sions contained herein are presented in the light
most favorable to Lake Lawrence, Inc., but the law
in this area is clear and the applicant is sure the
Board's staff counsel will concur.

This memorandum will not deal with the adequa-
cy of any findings made by the County Commission-
ers. Rather, this brief is directed to the Plann-
ing Staff's Supplemental Staff Report and Recom-
mendation that the application be denied, and the
project area be redesignated as "Natural Environ-
ment".

Applicant's position will be presented in the
following format. First, a brief statement of the
essential facts. Second, the pertinent Federal and
State constitutional provisions. Third, a short
discussion of the applicable law. Finally, the
relief Lake Lawrence, Inc., would be entitled to
should the Board decide to adopt the Planning
Staff's recommendations.

STATEMENT OF FACTS

The Shoreline Management Act of 1971, RCW
90.58.101 et seq., established guidelines for local

governments to regulate future development of
Washington's “wetlands”. Based upon these guide-
lines Thurston County adopted its Shoreline Master
Program, and designated the shorelands of Lake

A-17

Lawrence either “Rural Environment" or "Conversancy
Environment". All of the Wood Point site was
classified "Rural" and the other shore area on the
lake similarly designated has been subdivided or
platted as residential homesites.

Lake Lawrence, Inc., was aware of this desig-
nation, and understood that its proposed develop-
ment would be acceptable subject to the laws, rules
and regulations of Thurston County. In reliance
upon the rural residential classification, the
Applicant leased the Wood Point property from the
State of Washington for a term of 55 years.

A “pre-submission conference" was held on
September 8, 1976, between members of Lake Law-
rence, Inc., and the County Planning Department.
At this meeting the Applicant was notified that the
project area was subject to residential develop-
ment, and the development plan would be acceptable
assuming it complied with the appropriate local
ordinances. On January 12, 1977, the Applicant
submitted it's application for plat permits. There
has since ensued a series of hearings, environmen-
tal impact studies, public opposition to the
project, proposals and counter proposals culminat-
ing with the Planning Staff's recommendations that
the application be denied, and the area be redesig-
nated "Natural Environment".

In reaching this conclusions [sic] the Plan-
ning Staff reasoned: (1) “because of a lack of
information regarding the wildlife value of this
site, it was incorrectly designated ‘Rural'"; and
(2) the “local citizen opinion highly values the
resource and natural features of the site and is
desirous of having it maintained as public lands
and available to the public, not twenty-two

rivate property owners". (Emphasis added). As a
matter of law the Planning Staff's recommendations

A-18

are an unconstitutional re-designation of property,
and an unconstitutional taking of private property
for public use without compensation.

FEDERAL AND STATE CONSTITUTIONAL PROVISIONS

United States Constitution, Fifth Amendment:

No person shall * * * be deprived of life,
liberty, or property, without due process of law;
nor shall private property be taken for public use
without just compensation.

United States Constitution, Fourteenth Amendment:

No State shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States; nor shall any State
deprive any person of life, liberty, or property,
without due process of law; nor deny to any person
within its jurisdiction the equal protection of the
laws.

Washington State Constitution, Article I, Section
Twelve:

No law shall be passed granting to any citi-
zen, class of citizens, or corporation other than
municipal, privileges or immunities which upon the
same terms shall not equally belong to all citi-
zens, or corporations.

Washington State Constitution, Ninth Amendment:

* * * (N)o private property shall be taken or
damaged for public or private use without just
compensation having been first made * * *,

APPLICABLE LAW

Lake Lawrence, Inc., contends that the pro-
posed recommendations of the Planning Staff are

A-19

unconstitutional because: (1) reclassification of
the subject property as “Natural Environment" is a
taking of private property without just compensa-
tion; (2) Wood Point land must be treated like all
other property designated and classified "Rural
Environment", to do otherwise is a denial of the
equal protection of the laws; (3) redesignating the
Wood Point property "Natural Environment" consti-
tutes spot zoning and is therefore unconstitu-
tional; (4) once an application is made, or the
property owner has relied upon existing regula-
tions, the subject property cannot be redesignated
to “Natural Environment"; and (5) as a matter of
equity the ‘Board is estopped from denying the
application. :

I.

RECLASSIFICATION OF APPLICANT'S PROPERTY AS NATURAL
ENVIRONMENT IS A TAKING OF PRIVATE PROPERTY WITHOUT
JUST COMPENSATION IN VIOLATION OF THE FIFTH AND
FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTI-
TUTION, AND THE NINTH AMENDMENT OF THE WASHINGTON
STATE CONSTITUTION.

The Shoreline Management Act of 1971 empowered
local governments to zone or regulate future
development of wetlands in accordance with State
guidelines. The act was not intended to totally
prohibit the use and development of such lands. To
the contrary, the purpose of the law was to insure
that the use of shorelands would be carefully
carried out in the public interest. Dep't of
Ecology v. Ballard Elks Lodge, 84 Wn. 2d. SST, 527
P.2d isa (1974).

Any such regulatory act necessarily raises two
fundamental questions. First, the ownership of
private property and the right to the use and
enjoyment of it. Second, the authority of the
government (subject to constitutional safeguards),

A-20

to regulate the use of private property in the
public interest. At times these principles are in
conflict, and the courts are called upon to resolve
the resulting problem in human and legal relation-
Ships.

Although eminent domain and zoning are differ-
ent concepts, it does not follow that zoning may be
accomplished in all cases without just compensation
to a landowner adversely affected by a land use
regulation. It has been held in this respect that
when a governmental entity determines that the
public is served by classifying certain property at
one level, and thereafter makes a determination
that the public welfare now requires a lower level
of classification which will drastically reduce the
value of the affected property, the possibility
arises of a duty to compensate the owner. 82 Am.
Jur. 2d Zoning and Planning §6, page 391. Conse-
quently, in reviewing any property regulations
courts constantly emphasize the concepts of regula-
tion under police power, and constitutional taking
or damaging under the eminent domain power. The
Board of County Commissioners sitting as a “quasi-
judicial" body should do the same as the courts.

Where restrictions upon the ownership and use
of private property do not unreasonably interfere
with the rights of the owner, they are normally
characterized as a valid exercise of the police
' power. State ex rel. York v. Board of Count

Commissioners, 26 Wn.ed 691, 104 P.2d 577 (1947).
Nevertheless, it is also the law that a regulatory
ordinance may not be used to take property for
public use without payment or just compensation;
for such action is repugnant to the constitutional
guaranty that where private property is appropri-
ated for public use, the owner shall receive

reasonable compensation. Del., L. & R.R. Vv.
Morristown, 276 U.S. 182 (1927).

A-21

Furthermore, the fact that a regulatory
ordinance limits the use of and therefore depreci-
ates the value of property may render it unconsti-
tutional. Particularly where the limited use
imposed on the land is unreasonable in terms of
necessity, or the diminution in property value
because of the use is tantamount to a confiscation.
82 Am. Jr. 2d Zoning and Planning §13, page 405.
In other words, while property may be regulated to
a certain extent, if the regulation goes too far it
will be recognized as a taking. Pennsylvania
Coal Company v. Mahon, 260 U.S. 393 (1922). Thus
wherever the operation and effect of any land use
regulation extinguishes or destroys the property
right of the owner, it is unconstitutional and
void; and a law is considered as being a depriva-
tion of property within the meaning of the Consti-
tution if it deprives the owner of one of its
essential attributes, destroys its value, re-
stricts or interrupts Tts profitable use, or
seriously impairs its value. 16 Am.Jur. 2d
Constitutional Law $16, page 697; Inman v.
Sandvig, 170 Wash. 112, 15 P.2d 696 (1932).

Justice Holmes capsulized the problem in
the Pennyslvania Coal decision, supra at 416, when
he noted:

* * * The protection of private property
in the Fifth Amendment presupposes that it
is wanted for public use, but provides that
it shall not be taken for such use without
compensation. A similar assumption is made
in the decisions upon the Fourteenth Amend-
ment. * * * [Citing cases.] When this
seemingly absolute protection is found to be
qualified by the police power, the natural
tendency of human nature is to extend the
qualification more and more until at last
private property disappears. But that
cannot be accomplished in this way under the
Constitution of the United States.

A-22

* * * We are in danger of forgetting that
a strong desire to improve the public
condition is not enought Lsic] to warrant
achieving the desire by a shorter cut than
the constitutional way of paying for the
change. * * * (Emphasis added).

Redesignating Wood Point as a natural environ-
ment would substantially preclude the applicant
from making any use of the property. Since the
substantial value of property lies in its use, if
the right of use is denied, the value of the
property is destroyed and ownership is rendered a
barren right. Ackerman v. Port of Seattle, 329
P.2d 210 (Washington 1958); See also, State ex
rel. Smith v. Superior Court, 26 Wash. 278, 66 P.
305 (1901); Great Northern Railway Co. v. State,
102 Wash. 348, I73 P. 40 (1918). Under these
circumstances, the property in question must be
condemned before it can be reclassified. Otherwise
private property is being taken for public use in
flagrant violation of both the United States and
Washington Constitutions.

Il.

THE WOOD POINT LAND MUST BE TREATED LIKE ALL OTHER
PROPERTY DESIGNATED AND CLASSIFIED RURAL ENVIRON-
MENT,.TO DO OTHERWISE IS A DENIAL OF THE EQUAL
PROTECTION OF THE LAWS, AND CONSTITUTES SPECIAL
LEGISLATION IN CONTRAVENTION OF ARTICLE I, SECTION
TWELVE OF THE WASHINGTON STATE CONSTITUTION.

Courts, in considering the validity of any
land use regulation, must determine whether such an
ordinance is discriminatory in either its concep-
tion or application. 82 Am. Jur. 2d Zoning and
Planning, § 14, page 407. Under the equal protec-
tion clause of the United States Constitution and
Article I, Section 12 of the Washington Constitu-
tion, property use regulations must be uniform and

A-23

equal in operation and effect. That is -- they
must contain reasonable classifications, and cannot
be enacted upon the sole basis that certain indi-
viduals desire them. State ex rel. Smilanich
v. McCollum, 62 Wn.2d 602, . re
Obviously then, land use ordinances must not only
be reasonable and nondiscriminatory, but they must
also be applied in a nondiscriminatory and reason-
able manner. 82 Am. Jur. 2d Zoning and Planning §
253, page 788; Matthews v. Fayette County, 233 Ga.
220, 210 S.E. 2d /58 (19/4).

In the present situation Wood Point is being
treated differently than all other similarly
situated rural environment property on Lake
Lawrence. Such discriminatory treatment is un-
reasonable and therefore a violation of both the
United States and State Constitutions.

III.

REDESIGNATING THE WOOD POINT PROPERTY NATURAL
ENVIRONMENT CONSTITUTES SPOT ZONING AND IS VIO-
LATIVE OF FEDERAL AND STATE CONSTITUTIONAL PROVI-
SIONS.

Zoning ordinances are sometimes enacted
whereby a small area is placed, or permitted to
remain, in a more restrictive use classification
than the surrounding property. This is known as
“spot zoning", and in most instances such discrim-
inatory ordiances have been held unconstitutional.
82 Am. Jur. 2d Zoning and Planning § 79, page 519.

In reviewing these redesignations courts may
inquire as to whether these laws are unreasonable,
oppressive or discriminatory. Kissinger v. Cit
of Los Angeles, 327 P.2d 10 (California toSBy- The
Washington Supreme Court has gone so far as to say

that spot zoning is arbitrary, capricious and
unreasonable; and it is not only subject to review

A-24

but void ab initio. Pierce v. King County, 62
Wn.2d 324, 382 P.2d 628 (1963).

Applicant's property does not differ mate-
rially from any other portion of the Lake Lawrence
shoreline currently classified as rural environment
suitable for single family residences. Given these
facts, an attempt to place the Wood Point land ina
natural environment classification would be a clear
violation of the constitutional prohibitions
against spot zoning.

IV.

ONCE AN APPLICATION IS MADE, OR THE PROPERTY OWNER
HAS RELIEF UPON EXISTING REGULATIONS, THE SUBJECT
PROPERTY CANNOT BE REDESIGNATED TO NATURAL ENVIRON-
MENT.

Where a property owner, relying in good faith
on the absence of any regulation which would
prohibit his proposed project, has made substantial
construction on the property or has incurred sub-
stantial liabilities relating directly thereto, he
acquired a vested right to complete his project in
spite of subsequent changes in the land use ordi-
nances. 82 Am. Jur. 2d Zoning and Planning §
168, page 672; State v. Pagels, Wis. , 43
N.W. 2d 349 (1950). Likewise, where an application
is made for a permit the applicant's rights are
vested, and the governing body is required to issue
the permit upon compliance with the existing use
standards for the property involved. 82 Am.
Jur. 2d Zoning and Planning § 167, page 6/70.

The Washington Supreme Court addressed this
very same issue in State ex rel. Ogden v. Bellevue,
45 Wn.2d 495, 275 P.2d 889 (1954). Ogden's proper-
ty was classified for business use and he applied
for a permit to construct. The City of Bellevue
attempted to deny the application by redesignating

A-25

the land agricultural. Ogden sued and the Supreme
Court held that his rights vested when he applied
for the permit, and the city was required to issue
the permit upon compliance with the applicable law.
In reaching its decision the Washington Court
reasoned:

"The discretion permissible in zonin
matters is tnat which 1s exercised in
adopting the zone classifications with the
terms, standards, and requirements pertinent
thereto, ail of which must be Dy general
ordinance applicable to all persons alike.
The acts of administering a zoning ordinance
do not go back to the questions of policy
and discretion which were settied at the
time of the adoption of the ordinance.
Administrative authorities are properly
concerned with questions of compliance with
the ordinance, not with its wisdom. To
subject individuals to questions of policy
in administrative matters would be unconsti-
tutional." (Emphasis added)

In Vine v. Zabriske, 122 N.J.L. 4, 3 A.2d 886,
887 (1939), a property owner applied for a permit
under existing use regulations, due to public
opposition the ordinance was changed and the
application denied. That Court, in no uncertain
language, stated:

"Clearly this was an eleventh-hour attempt
to prevent this relator [sic] from using her
property for its highest use and for which
it had been zoned for seven years, during
which time its assessed value had been
substantially increased because it was so
zoned. Such action was ill-advised, capri-
cious and unreasonable. It was doubtiess
precipitated because of pubi.c excitement
and clamor. Some of this opp sition was

A-26

likely based upon misinformation as to the
plan of development contemplated.

However, that may be, we are satsified
[sic] that the result was an arbitrary
interference with the lawful and legitimate
use of private property." (Emphasis sup-
plied)

Applicant concedes that Vine is a New Jersey case
and not controlling as to Washington law. Never-
theless, the reasoning of the New Jersey Court is
sound, and likely to be adopted by the Washington
courts.

Perhaps the Wood Point property should have
been designated natural environment, but this was
not done. Instead, the land was classified rural
and consequently subject to development. In
reliance upon this classification Lake Lawrence,
Inc. entered into a 55 year lease with the State
and incurred additional costs in anticipation of
the project. The permit application was filed
while Wood Point was classified rural, and this
designation cannot now be changed. In addition,
upon compliance with the requirements applicable to
such development of rural environments, approval of
the plat becomes a ministerial act, and the permits
must issue. 82 Am. Jr. 2d Zoning and Planning §
167, page 670.

V.

AS A MATTER OF EQUITY THE BOARD IS ESTOPPED FROM
DENYING THE APPLICATION.

As a general rule a mun‘cipality does net have
the authority to enact ordinances affecting proper-

ty owned by the state. State Highway Commissioner
v. Redford Township, 4 Mich. App. O35, 144 W.W.2d

690 (1960). but this is not the case with the
Shoreline Management Act of 1971, for the statute

A-27

specifically provides that tWe State shall be
subject to regulations promulgated under that law.
RCW 90.58.280.

Municipal corporations are agencies of the
state designed to assist in civil government and
the regulation and administration of local affairs.

Columbia Irr. Dist. v. Benton County, 149 Wash.
734. 270 P. O13 (1900). In short, municipalities

stand in the shoes of the state.

Estoppel is defined as "an impediment or bar,
by which a man is precluded from alleging, or
denying, a fact, in consequence of his own previous
act, allegation or denial to the contrary." 2
Jacob, Law Dictionary, 1811, 439. It is a doctrine
of equity that arises where a party stands by and
allows another to incur some liability toward him
without informing the other of his mistake. Thus a
person may not stand silent when he sees someone
incur some obligation to him in reliance upon his
silence.

In the present situation the State and County
are part of the same governmental entity, and each
one's action is binding upon the other. The State
of Washington was aware that Lake Lawrence, Inc.,
intended to develop the Wood Point property when it
signed the lease. Now the County, as an agency of
the State, cannot as a matter of equity reclassify
the subject land. To do so would be a manifest
injustice, and the principles of equitable estoppel
may be invoked against either a municipality or a
state in such instances. State v. O'Connell, 83
Wn.2d 797, 523 P.2d 872 (1974); Shafer v. State,
83 Wn.2d 618, 521 P.2d 736 (1974).

CONCLUSION

For the foregoing asons applicant respect-
fully submits that the Board should not adopt the

A-28

Planning Staff's recommendations. However, should
the Board reach a contrary conclusion, Lake
Lawrence, Inc., is prepared to seek either of the
following remedies.

First, the applicant feels that the Planning
Staff's recommendations could be enjoined as
unreasonable, arbitrary and capricious, and a
denial of the equal protection of the laws as
guaranteed by the Fifth and Fourteenth Amendments
of the United States Constitution, and Article I,
Section Twelve of the State Constitution.

Second, such a deniai of the application and
reclassification is in effect a condemnation or
taking of applicant's property without just compen-
sation as provided for by the Fifth and Fourteenth
Amendments of the United States Constitution, and
the Ninth Amendment of the Washington Constitution.
Lake Lawrence, Inc., could bring an inverse condem-
nation suit, and require the County to condemn the
land. See Martin v. Port of Seattle, 64 Wn.2d 324,
391 P.2d 540 (1964).

It is well established that a tenant for years
under a written lease is an owner of property and
is entitled to be compensated when all or any part
of the leased property is taken by condemnation
proceedings. 27 Am. Jur. 2d Eminent Domain § 250,
page 21. Moreover, it is generally acknowledged
that in concemnation proceedings the property taken
is to be valued at its highest and best use under
existing zoning regulations. State v. Motor
Freight Terminals, 57 Wn.2d 442, 357 P.2d 861
CIS6OT- And the Tand cannot be rezoned to a lower

use to depress its value. Kissinger v. City of

Los Angeles, 327 P.2d 10 (Cal. 1958).

A-29

Applicant further submits that the highest and
best use of the Wood Point acreage is as proposed
in the application; single family residences.
Hence, the applicant would be entitled to keep the
property and sue for compensation for the loss of
developmental use.

Respectfully submitted,

s/

Lake Lawrence, Inc.,

By Philip R. Malone,

its Attorney

Prepared by: Jesse Trentadue
Associate Counsel

APPENDIX A - RECORD
APPELLEE'S SEPTEMBER, 1977, FIRST DECISION

THURSTON COUNTY COMMISSIONERS
Olympia, WA 98501 September 30, 1977 206-753-8031

Mr. Art O'Neal

Thurston Regional Planning
Courthouse Annex

Olympia, WA 98501

Dear Mr. O'Neal:

At their meeting on September 28, 1977, the Board
of County Commissioners passed a motion to deny the
preliminary plat and shoreline permit for Woodpoint.
The reasons for that decision are as follows:

1. There has been substantial evidence that this
area provides a habitat for eagles.

2. The Comprehensive Plan for Thurston County,
under Natural Resources Wildlife section,
speaks to the actions that should be taken to
preserve the natural resource of wildlife and
it includes:

1. "Cluster development should be encouraged
so that the County can remain in its
natural condition;

2. Where development occurs, clustered
buildings with open space designed for
wildlife should be encouraged;

3. And all projects should be evaluated for
their impact on fish, fowl and mammals."

It further states "Rare and endangered animals in
Thurston County are . . . significant or endangered
birds are: western goshawk, eagles, osprey, hawks,
valley quail...

A-31

3. The Game Department's response to the Environ-
mental Impact Statement, in part, was that in order
to preserve the proposed site's value of the bald
eagle habitat, a buffer strip of 200' or more would
be required.

The Board also referred the matter of the designa-
tion of this property to you. Based on the find-
ings of the decision made regarding this area, the
Board would like your office to consider redesigna-
tion of this area.

Very truly yours,
C. WESLEY LEACH, County
Auditor and Ex Officio
Clerk of County
Commissioners
ec: Arden Olson - DNR by/s/Gerry Kunkel, Deputy

Appellee's First Decision

FILED:
10/27/1977

APPENDIX A - RECORD
SUPERIOR COURT, APPELLANT'S PETITIONS-
REVIEW AND PROHIBITIONS, NO. 586023, OCTOBER, 1977

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF THURSTON
STATE OF WASHINGTON, DEPARTMENT

OF NATURAL RESOURCES and LAKE
LAWRENCE, INC., a Washington

)
)
)
Corporation, ) NO. 58623
Petitioners, )
) PETITION FOR
vs. ) WRITS OF RE-
) VIEW AND
THURSTON COUNTY, GEORGE BARNER, JR.,) PROHIBITION

DEL PETTIT and MARJ YUNG, Constitut-)
ing the BOARD OF THURSTON COUNTY )
COMMISSIONERS, and ART O'NEAL, )
DIRECTOR OF THE THURSTON COUNTY )
REGIONAL PLANNING COMMISSION, !

)

Respondents.

APPLICATION FOR WRIT OF REVIEW

COMES NOW the State of Washington, Department
of Natural Resources and Lake Lawrence, Inc.,
through their respective attorneys, J. Lawrence
Coniff, Jr., Assistant Attorney General and Philip
P. Malone, and petition the above-captioned court
for a Writ of Review directed to the Board of
Thurston County Commissioners and above-named
members of said Board in Case No. 225 (1532-34B-SH-
TCO-1-77), entitled Lake Lawrence, Inc., Wood Point
Preliminary Plat and Shoreline Permit Applications.
(Writ of Review: RCW 7.16 et seq.; Plats: RCW
58.17.180). That said Writ of Review requires the

A-33

above-named respondents to certify to this Court at
a specified time and place a full transcript of the
record and proceedings had in said cause for review
herein, and thereupon the Court review the same as
to a claim by said Petitioners that the Board of
Thurston County Commissioners' denial of prelimi-
nary plat and shoreline permits and recommended
redesignation of subject property in this case was
unlawful, arbitrary, capricious and violative of
the Fifth and Fourteenth Amendments to the United
States Constitution and Article I, Section Twelve
and the Ninth Amendment to the Washington State
Constitution, and also that the recommendation that
Petitioners’ Wood Point property be redesignated
Natural Environment entered in said proceedings be
stayed pending such review.

This petition is based upon the affidavit of
J. Lawrence Coniff, Jr., Assistant Attorney Gen-
eral, and Philip P. Malone, hereto attached and by
this reference made a part of this application. It
is made known that the Petitioner, Lake Lawrence,
Inc. is appealing the decision of the Thurston
County Board of Commissioners as to denial of
shoreline permits, to the Shorelines Hearing Board
and subject to the decision of the Shorelines
Hearing Board that if the decision is not in favor
of the Petitioners, that it requests leave to amend
the Petition for Writ of Review herein to review
such decision.

APPLICATION FOR WRIT OF PROHIBITION

COMES NOW the above named Petitioners through
their respective attorneys, and for their second
claim for relief petition the above-captioned Court
for a Writ of Prohibition addressed to Art O'Neal,
directing said respondent not to redesignate the
Lake Lawrence Wood Point property as Natural
Environment.

A-34

This Petition is also based upon the affidavit
of J. Lawrence Coniff, Jr., Assistant Attorney
General and Philip P. Malone, hereto attached and
by this reference made a part of this application.

s/

J. Lawrence Coniff, dJr.,
Assistant Attorney General
for the Department of
Natural Resources

s/

Philip P. Malone, Attorney
for Petitioner, Lake
Lawrence, Inc.

FILED:
10/27/1977

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF THURSTON

STATE OF WASHINGTON, DEPARTMENT )
OF NATURAL RESOURCES and LAKE )
LAWRENCE, INC., a Washington )
Corporation, ) NO. 58623
Petitioners, )
) AFFIDAVIT IN
vs. ) SUPPORT OF
) APPLICATION
THURSTON COUNTY, GEORGE BARNER, JR., FOR WRITS OF
DEL PETTIT and MARJ YUNG, Constitut-) REVIEW AND
ing the BOARD OF THURSTON COUNTY ) PROHIBITION
COMMISSIONERS, and ART O'NEAL, )
DIRECTOR OF THE THURSTON COUNTY )
REGIONAL PLANNING COMMISSION, )
)
Respondents. )

STATE OF WASHINGTON)
: SS.
COUNTY OF KITSAP_)

J. LAWRENCE CONIFF, JR. and PHILIP P. MALONE,
being first duly sworn on oath, depose and say:

I.

That Lake Lawrence is a small lake located in
Thurston County, Washington. The second class tide
lands of said lake are owned by the State of
Washington and the State also owns a substantial
portion of the uplands including a site known as
WOOD POINT.

Il.

That the Shoreline Management Act of 1971, RCW
90.58.101 et seq., empowers local governments to

A-36

regulate future development of shorelands in
accordance with State guidelines. The State of
Washington Department of Ecology Final Guidelines
for said act establishes a framework of four
categories of shoreline (extending 200 feet upland
from the shoreline, plus marshlands). In order of
increasing use permitted these categories are:
NATURAL, CONSERVANCY, RURAL AND URBAN ENVIRONMENTS.

Ill.

That in December of 1975, the Thurston County
Regional Planning Commission formulated the Shore-
line Master Program For The Thurston Region.
According to this program all the shorelands of
Lake Lawrence were designated either Rural or
Conservancy Environments.

IV.

That all of the Wood Point site was designated
Rural Environment. All other shoreland designated
Rural Environment has been subdivided or platted
into residential homesites. In reliance upon this
use designation Petitioner Lake Lawrence, Inc.
leased the Wood Point property from the State of
Washington for a term of 55 years, commencing
September 1, 1976.

V.

That Petitioner Lake Lawrence, Inc. proposed
to develop the Wood Point property into single
family residences, and the Thurston County Planning
Department notified Petitioner that said proposed
development would be acceptable subject to the
laws, rules and regulations of Thurston County.

A-37
VI.

That on January 12, 1977, Lake Lawrence, Inc.
applied to the Board of Thurston County Commis-
sioners for preliminary plat and shoreline permits
to develop the 13.5 acre Wood Point site into
twenty-seven residential homesites. Notice of the
application was given and a public hearing set.

VII.

That Lake Lawrence residents did sign a
petition to stop the proposed development. Oral
testimony was taken at the aforementioned hearing
from individual members of the public objecting to
the project. Following the public hearing a staff
report of the Thurston County Planning Commission
was submitted containing no objections to the
project by any state, county or local governmental
agencies.

VIII.

That environmental impact statements were
prepared and further hearing held. Lake Lawrence,
Inc. voluntarily revised its application for
preliminary plat downward to twenty-two single
family residences in order to mitigate any possible
or probable impact upon the environment. In these
subsequent hearings testimony in opposition to the
Wood Point project did not make known any new facts
that had not been previously made part of the
record.

IX.

That on September 21, 1977, the Thurston
County Planning Department submitted a supplemental
Staff report and recommendation to the Board of
County Commissioners. The Planning Department
recommended that the Wood Point applications be

A-38

denied and the area redesignated NATURAL ENVIRON-
MENT. In reaching its conclusions the Planning
Department reasoned: (1) that because of a lack of
information regarding the wildlife value of the
site, it had been incorrectly designated Rural
Environment; and (2) that the local residents
highly valued the resource and natural features of
the site and desired having it maintained as public
lands.

Re

That on September 28, 1977, the Board of
Thurston County Commissioners, without sufficient
evidence, contrary to ‘procedure and due process of
law and contrary to the Draft Environmental Impact
Statement and Final Environmental Impact Statement
and in denial of equal rights of the Petitioners
for development of their land in the same environ-
mental use classification: "Rural", single family
residence, as other people in the same classifica-
tion in the Lake Lawrence area, did adopt in full
the aforesaid recommendations of the Thurston
County Planning Department and thereby denied
Petitioner Lake Lawrence, Inc.'s application for
preliminary plat and shoreline permits, and recom-
mended to the Director of Thurston County Regional
Planning Commission that the Wood Point site be
redesignated Natural Environment.

XI.

That Petitioners are interested parties in the
aforementioned proceedings.

XII.

That Petitioners have no plain, speedy and
adequate remedy in the ordinary course of law.
Further, that the Thurston County Retional [sic]
Planning Commissions’ proposed redesignation of the
subject property is without or in excess of its

A-39

jurisdiction, and the matter of redesignation of
State leased property involves interests of the
State of Washington at large as well as the health
and welfare of the people of the State cf Washing-
ton.

XIII.

That the Board of Thurston County Commis-
sioners' denial of preliminary plat and shoreline
permits to Lake Lawrence, Inc. was unlawful,
arbitrary, capricious and violative of the Fifth
and Fourteenth Amendments to the United States
Constitution and Article I, Section Twelve and the
Ninth Amendment to the Washington State Constitu-
tion.

XIV.

That this is a proper case for the issuance of
Writs of Review and Prohibition pursuant to RCW
58.17.180, RCW 7.16.040 and RCW 7.16.290 et seq.

XV.
Wherefore, the Petitioners pray:

1. That a Writ of Review issue out of the
above-captioned Court directing the Board of
Thurston County Commissioners to certify its record
in said proceedings to such Court, so that the
reasonableness and lawfulness of its action therein
may be inquired into and determined, or, in the
alternative requiring said Respondents to show
cause why such Writ should not issue.

2. That a Writ of Prohibition issue out of
said Court directing Art O'Neal, Director of
the Thurston County Regional Planning Commission to
desist and refrain from redesignating the Wood

A-40

- Point property to Natural Environment, or, in the
alternative requiring said Respondent to show cause
why such Writ should not issue.

3. For such other and further relief as this
Court may deem just.

s/

J. Lawrence Coniff, dr.,
Assistant Attorney General
for the Department of
Natural Resources

s/ ;
Philip P. Malone, Attorney
for Petitioner Lake
Lawrence, Inc.

SUBSCRIBED AND SWORN to before me this 27 day of
October, 1977.

s/

Doris Jane Snyder

Notary Public in and for
the State of Washington,
residing at Paulsbo.

FILED:
10/27/1977

APPENDIX A - RECORD
SUPERIOR COURT - SHOW CAUSE ORDER
OCTOBER, 1977, REVIEW AND PROHIBITION

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF THURSTON

STATE OF WASHINGTON, DEPARTMENT
OF NATURAL RESOURCES and LAKE
LAWRENCE, INC., a Washington
Corporation, NO. 58623

Petitioners,

)
)
)
)

)
) ORDER TO
VS. ) | SHOW CAUSE
) WHY A WRIT
THURSTON COUNTY, GEORGE BARNER, JR.,) OF REVIEW
DEL PETTIT and MARJ YUNG, Constitut-) SHOULD NOT
ing the BOARD OF THURSTON COUNTY }- (RE
COMMISSIONERS, and ART O'NEAL, )
DIRECTOR OF THE THURSTON COUNTY
)
)

REGIONAL PLANNING COMMISSION,

Respondents.

THIS MATTER coming on for hearing this 27th
day of October, 1977, upon motion of State of
Washington, Department of Natural Resources and
Lake Lawrence, Inc., supported by affidavit exe-
cuted by J. Lawrence Coniff, Jr., Assistant Attor-
ney General and Philip P. Malone, for a Writ of
Review directed to George Barner, Jr., Del Pettit
and Marj Yung, constituting the Board of Thurston
County Commissioners, and Thurston County, requir-
ing said Respondents to certify to this Court at a
specified time and place a full transcript of the
record and proceedings had in Case No. 225(1532-34B
-SH-TCO-1-77), entitled Lake Lawrence, Inc., Wood
Point Preliminary Plat and Shoreline Permit Appli-
cations, before said Board of County Commissioners,

A-42

and that thereupon this Court review the same as to
the claim by said Petitioners that the denial of
preliminary plat and shoreline permits and recom-
mended redesignation of subject property in this
case was unlawful, arbitrary, capricious and
violative of the Fifth and Fourteenth Amendments to
the United States Constitution and Article I,
Section Twelve and the Ninth Amendment to the
Washington State Constitution; and also that the
recommendation that Petitioners’ Wood Point prop-
erty be redesignated Natural Environment entered in
said proceedings be stayed pending such review. It
further appearing to the Court that there may be
sufficient grounds for such writ to issue, and the
Court being fully advised in the premises, now
therefore,

IT IS HEREBY ORDERED that said members of the
Board of Thurston County Commissioners appear
before the Honorable Hewitt A. Henry, a Judge of
the above-entitled Court, Room , Olympia,
Washington, at the hour of 9:00 a.m. on the 14th
day of November, 1977, and then and there show
cause, if any they have, why the writ prayed for
should not issue.

s/
Hewitt A. Henry, JUDGE

Presented by:

s/

J. Lawrence Coniff, dr.,
Assistant Attorney General
for the State of Washington,
Department of Natural Re-
sources and for Lake
Lawrence, Inc., whose
attorney is Philip P.
Malone, P.C. Box 443,
Poulsbo, Washington

98370

APPENDIX A - RECORD
SUPERIOR COURT, NOVEMBER 14, 1977, CLERK'S MINUTE
’ N A
GRANTED, NO. 58623

MONDAY, NOVEMBER 14, 1977

TITLE OF NATURE OF
CASE NO. ATTORNEYS ACTION ACTION

7.58623 J. LAWRENCE CONIFF, ST. OF TRIAL
JR., A.A.G. WAN.[Csic] SETTING
PHILIP P. MALONE DEPT. OF
ALEXANDER W. MACKIE NATURAL
RESOURCES

Vv.
THURSTON
COUNTY,
et al

SECONDARY APRIL 17-20, 1978 - 9:30 - Dept. 1

MINUTES OF NOVEMBER 14, 1977
Continued

HONORABLE HEWITT A. HENRY
JUDGE PRESIDING
COURT CLERK: MARIANNE KENNEDY

58623 WASHINGTON STATE DEPARTMENT OF NATURAL
, et al. V. , et

al

This matter came on before the Court on a
motion of Show Cause. J. Lawrence Coniff, Jr.
AGG and Philip P. Malone were present for Peti-
tioner; Alexander W. Mackie represented Thurston
County. Court will grant the temporary writ of
prohibition, also treated as a writ of certiorari,
and will allow 30 days for filing of transcript.

FILED:
4/5/1978

APPENDIX A - RECORD
SUPERIOR COURT - APPELLEE'S APRIL 5, 1978

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF THURSTON

STATE OF WASHINGTON, DEPARTMENT
OF NATURAL RESOURCES and LAKE
LAWRENCE, INC., a Washington

)
)
)
Corporation, ) NO. 58623
Petitioners, )
) MOTION TO
VS. ) RETURN THE
) RECORD ON
THURSTON COUNTY, GEORGE BARNER, JR.,) CERTIORARI

DEL PETTIT and MARJ YUNG, Constitut-)
ing the BOARD OF THURSTON COUNTY )
COMMISSIONERS, and ART O'NEAL, )
DIRECTOR OF THE THURSTON COUNTY )
REGIONAL PLANNING COMMISSION, )

)

)

Respondents.

LI

THE BOARD OF THURSTON COUNTY COMMISSIONERS, by
and through its undersigned Deputy Prosecuting
Attorney, ALEXANDER W. MACKIE, hereby respectful ly
requests the Court to return the record in the
above-captioned matter to the Board of County
Commissioners to permit reconsideration of the
Board's denial of the Plat of Wood Point.

On March 23, 1978, the Shorelines Hearings
Board ruled in SHB 77-37 finding that the devel-
oper's proposal would not have a significant
adverse effect on eagles and ruling that the
proposal was, therefore, consistent with the
Thurston County Shoreline Master Program. (See
copy attached.) The Board of Thurston County

A-45

Commissioners has called a public hearing for April
18, 1978, at 3 p.m. to reconsider the case in view
of the record and decision of the Shorelines
Hearings Board. The Board of County Commissioners
will consider the following alternatives:

(1) Whether to approve the plat and issue the
shoreline substantial development permit in accor-
dance with the decision of the Shorelines Hearings
Board; or

(2) Whether to continue to deny the plat and
appeal the decision of the Shorelines Hearings
Board as clearly erroneous or contrary to law.

Any appeals from the action of the Board of
County Commissioners or the decision of the Shore-
lines Hearings Board could be heard by this Court
on the 5th, 6th, or 7th of July.

This request has been approved by Mr. J.
Lawrence Coniff, Attorney for Petitioner, DEPART-
MENT OF NATURAL RESOURCES.

Respectfully submitted,

PATRICK D. SUTHERLAND
PROSECUTING ATTORNEY

By :s/

Alexander W. Mackie
Deputy Prosecuting Attorney

FILED:
4/10/1978

APPENDIX A - RECORD
SUPERIOR COURT - APRIL 10, I578, ORDER
RETURNING RECORD TO APPELLEES: APPELLEE'S

RECEIPT OF RECORD RECEIVED ON APRIL-10—1978

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF THURSTON

STATE OF WASHINGTON, DEPARTMENT
OF NATURAL RESOURCES and LAKE
LAWRENCE, INC., a Washington
Corporation, NO. 58623

Petitioners,

)
)
)
)
)
) MOTION TO
VS. | ) RETURN THE
) RECORD ON
THURSTON COUNTY, GEORGE BARNER, JR.,) CERTIORARI
DEL PETTIT and MARJ YUNG, Constitut- )
ing the BOARD OF THURSTON COUNTY )
COMMISSIONERS, and ART O'NEAL, )
DIRECTOR OF THE THURSTON COUNTY )
REGIONAL PLANNING COMMISSION,
)

Respondents.

THIS MATTER having come before the Court upon
‘ petition of Respondents; Respondents represented by
Alexander W. Mackie, Petitioner LAKE LAWRENCE,
INC., represented by Philip Malone and and [sic]
DEPARTMENT OF NATURAL RESOURCES, represented by J.
Lawrence Coniff; and the Court having considered
the request and comments of Counsel, finds that it
is in the best interest of all parties to permit
the Board of Thurston County Commissioners to
reconsider their decision in the light of the
decision of the Shorelines Hearings Board.

NOW, THEREFORE, BE IT HEREBY ORDERED, ADJUDGED
AND DECREED that the record in said matter he
returned to the Board of Thurston County Commis-
sioners for reconsideration and that any appeals in

A-47

this matter, either from the denial of the plat or
the decision of the Shorelines Hearings Board be
consolidated and heard by this Court on July 6 and
7, 1978.

DATED THIS 10 day of April, 1978.

s/
Frank E. Baker, JUDGE

PREPARED AND PRESENTED BY:

PATRICK D. SUTHERLAND
PROSECUTING ATTORNEY

By: s/

Alexander W. Mackie
Deputy Prosecuting Attorney

APPENDIX A - RECORD
SUPERIOR COURT - CLERK'S MINUTES APRIL 10, 1978
APPELLANT'S ATTORNEY ABSENT, APRIL 10, 1978-HEARING

58623 STATE OF WASHINGTON D.N.R. vs. THURSTON
COUNTY ET AL

This matter came on before the court for
hearing motion to return record on certiorari.
Plaintiff represented by counsel Larry Coniff
A.A.G. Defendant County through counsel Alexander
W. Mackie. Lawrence Lake represented by counsel
Philip Malone who was not present. The court being
advised in the matter and reviewing the file signed
order to return the record on certiorari and if
counsel for Lawrence Lake Inc. is opposed to the
order he may reopen.

FRANK E. BAKER
Dept. 2
Apr. 10, 1978

COMMISSIONERS SURVEY
LAKE LAWRENCE EAGLE HABITAT

The Daily Olympian
April 11, 1978

About 30 persons wanting to save the eagle
roosting grounds at Lake Lawrence yesterday after-
noon met with county commissioners to voice their
opposition to a Shoreline Management Board decision
that possibly could result in destruction of area
trees.

Commissioners Marj Yung, George Barner and Del
Pettit went to Lake Lawrence to survey the area
where the Department of Natural Resources has
agreed to lease 14 acres for a 22-lot subdivision.
An eagle habitat lies in the area.

To protect the habitat, the commissioners had
ruled a 200-foot setback from the lake would be
needed before the preliminary plat was approved.
But the Shorelines Management Board overturned the
commissioners’ decision. by stating a 75-foot buffer
zone and 50-foot shoreline setback would suffice.

The commissioners yesterday went to Lake
Lawrence property to measure where the trees would
be from the setback.

As it turned out, one of the eagle-roosting
trees would either have to be chopped down,
placed in the center of someone's house or be
part of three lots set aside for public access.

Although commissioners refused to comment on a
decision to appeal the Shoreline Management Board's
finding, they all appeared highly concerned the
shoreline board may have acted too hastily in
overturning the 200-foot setback ruling.

A-50

"They (Shoreline Management Board members) cut
it awfully ticht," said Commissioner Pettit. "Our
original decision was right."

Commissioner Barner not only was concerned
about the eagle habitat, but was worried about
other forms of wildlife near the eagles’ roosting
trees, especially a beaver lodge situated about 10
feet from shore.

Commissioner Yung refused to comment on her
ideas about appealing the board's decision because
of a court case involving the plat.

Most of those who met the commissioners at
Lake Lawrence's public access area were in favor of
preserving the habitat. A couple of persons there
explained to commissioners they would help financew
attorney fees to appeal the Shoreline Management
Board decision.

In a general announcement, commissioners told
the crowd the issue will be brought up in a commis-
sion meeting April 18.

APPENDIX - RECORD

Superior Court

Newspaper Article

Appellee's Site Investigation
4.10.80

FILED:
4/12/1978

APPENDIX A - RECORD
SUPERIOR COURT - APRIL 12, 1978
APPELLANT'S MOTION FOR RETURN OF RECORD

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF THURSTON

STATE OF WASHINGTON, DEPARTMENT )
OF NATURAL RESOURCES and LAKE ) NO. 58623
LAWRENCE, INC., a Washington )
Corporation, ) MOTION FOR
Petitioners, ) RECONSIDER-
) ATION THAT
vs. ) ORDER RE-
) | MANDING
THURSTON COUNTY, GEORGE BARNER, JR.,) ACTION TO

DEL PETTIT and MARJ YUNG, Constitut-) | THURSTON
ing the BOARD OF THURSTON COUNTY ) COUNTY
COMMISSIONERS, and ART O'NEAL, ) | BOARD OF
DIRECTOR OF THE THURSTON COUNTY ) COUNTY
REGIONAL PLANNING COMMISSION, ) COMMISSION-
) ERS BE RE-
VIEWED AND

REVOKED

Respondents.

MOTION IS HEREBY made by PHILIP P. MALONE,
attorney for Petitioner, Lake Lawrence, Inc., that
the Court review its Order remanding this action to
the Thurston County Board of Commissioners and
revoke such Order on this matter heard on the
petition for review as stated in the file on April
10, 1978.

This motion is made upon the affidavit of the
Secretary of Philip P. Malone attached hereto and
incorporated herein.

s/

Philip P. Malone

Attorney for Lake Lawrence,
Inc. ;

STATE OF WASHINGTON)
> SS.
COUNTY OF KITSAP )

DORIS JANE SNYDER, being first duly sworn on
oath, deposes and says:

1. That affiant is the Secretary for Philip P.
Malone, attorney for Petitioners Lake Lawrence,
Inc. herein;

2. That this affidavit was dictated to me by
Philip P. Malone over the telephone while Mr.
Malone is on vacation, this date;

3 That Respondent's Motion to Return the Record
on Certiorari and copy of Order to Return the
Record on Certiorari were received in this office
on April 6, 1978;

4. That Notice of hearing on Motion to Return the
Record on Certiorari was received in this office on
Friday, April 7, 1978;

5. That Philip P. Malone did not have an oppor-
tunity to be heard and he is being denied judicial
process of the Court having remanded this matter to
Thurston County Board of Commissioners without
adequate notice to Philip P. Malone of the hearing
thereon, and further that there is before the Court
on April 17, 1978 through April 20, 1978, a deci-
sion of whether the Thurston County Commissioner's
action is either arbitrary, capricious or erron-
eous, to substantiate findings and conclusions to
be made by the Court and to have remand by Order of
the Court after such evidence and review to the
Thurston County Board of Commissioners in accor-
dance with its findings and conclusions.

A-53

DATED THIS 11th day of April, 1978. ,

s/
Doris Jane Snyder

SUBSCRIBED AND SWORN to before me this llth day
of April, 1978.

s/

Notary Public in and for
the State of Washington,
residing at Poulsbo

APPENDIX A - RECORD
SUPERIOR COURT, APRIL 17, 1978, CLERK'S MINUTES,
COURT'S ORDER, APPELLEE'S RETURN RECORD

— BY APRIL 27, 1978

58623 STATE OF WASHINGTON vs. THURSTON COUNTY ET
AL

This matter came on before the court for
hearing motion for reconsideration that order
remanding action to Thurston County Board of
Commissioners be reviewed and revoked. Plaintiff
counsel Mr. Coniff appearing not; Defendant counsel
Philip Malone and Alexander Mackie present. Mr.
Malone moving on the above motion. The court
hearing from counsel ordered and grant to send back
to the commissioners and to be decided within 10
days from this date then to be renoted back to the
court for hearing.

FRANK E. BAKER
Dept. 2
April 17, 1978

FILED:
4/7/1978

APPENDIX A - RECORD
SUPERIOR COURT - APPELLANT'S

APRIL 7, 1978 - NOTICE OF TRIAL AMENDMENT

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF THURSTON

STATE OF WASHINGTON, DEPARTMENT

OF NATURAL RESOURCES and LAKE NO. 58623
LAWRENCE, INC., a Washington
Corporation, NOTICE OF
Petitioners, TRIAL
AMENDMENT

VS.

DEL PETTIT and MARJ YUNG, Constitut-
ing the BOARD OF THURSTON COUNTY
COMMISSIONERS, and ART O'NEAL,
DIRECTOR OF THE THURSTON COUNTY
REGIONAL PLANNING COMMISSION,

)
)
)
)
)
)
THURSTON COUNTY, GEORGE BARNER, JR., i
)
)
)
)
)
)
)

Respondents.

TO:

THURSTON COUNTY, GEORGE BARNER, JR., DEL
PETTIT and MARJ YUNG, Constituting the BOARD
OF THURSTON COUNTY COMMISSIONERS, and
ART O'NEIL, DIRECTOR OF THE THURSTON COUNTY
REGIONAL PLANNING COMMISSION, c/o Alexander
W. Mackie, Deputy Prosecuting Attorney, 310
Thurston County Courthouse, Olympia, Wash-
ington 98501, attorney for Respondents;

STATE OF WASHINGTON, DEPARTMENT OF NATURAL

RESOURCES, c/o Lawrence Coniff, Jr., Assis-
tant Attorney General, Department of Natural
Resources, Public Lands Building, Olympia,
Washington 98504, attorney for co-Peti-
tioners:

A-56

FROM: LAKE LAWRENCE, INC., by its attorney, PHILIP
P. MALONE:

YOU ARE HEREBY NOTIFIED that at the time of
trial on this matter set for April 17, 1978 through
April 20, 1978, there shall be presented for record
and review of the Court the following, attached
hereto:

1. Final Findings of Fact, Conclusions of Law and
Order.

2. Testimony of:
(a) Petitioners:

1. Robert Anderson;
2. Dr. Richard Fleming

(b) Respondents:

1. Eric Knight
2. Mr. Carpenter

It is noted that there were no other witnesses
of record other than the testimony of James Howton
and due to expense, will not be presented on trial
amendment.

Further will be presented at time of trial
amendment all exhibits presented to the Shorelines
Management Board, copy attached.

DATED this 4th day of April, 1978.

s/
Philip P. Malone, Attorney
for Lake Lawrence, Inc.

FILED:
4/7/1978

APPENDIX A - RECORD
SUPERIOR COURT, APRIL 7, 1978 - SHORELINES BOARD,

BEFORE THE
SHORELINES HEARINGS BOARD
STATE OF WASHINGTON

IN THE MATTER OF A SUBSTANTIAL
DEVELOPMENT PERMIT DENIED BY
THURSTON COUNTY TO LAKE LAWRENCE,
INC.

SHB No. 77-37
STATE OF WASHINGTON, DEPARTMENT
OF NATURAL RESOURCES and LAKE
LAWRENCE, INC.,

FINAL FINDINGS
OF FACT, CON-
CLUSIONS OF

Appellants, LAW AND ORDER

Vv.

THURSTON COUNTY,

ee ee ee ee ee ee ee ee ee ee ee ee

Respondent.

This matter, the appeal of the denial of an
application for a shoreline substantial development
permit, came before the Shorelines Hearings Board,
Dave J. Mooney, Chairman, Robert E. Beaty, Robert
F. Hintz, and Chris Smith on February 14, 15, 16
and 17, 1978 in Lacey. Board member Robert F.
Hintz, being unable to attend the hearing on
February 17, has read the transcript for that day.

Appellant Lake Lawrence, Inc. appeared through
its attorney, Philip P. Malone; appellant, State
Department of Natural Resources (hereinafter "DNR")
appeared through J. Lawrence Coniff, Jr., Assistant
Attorney General; respondent Thurston County, was

A-58

represented by Alexander W. Mackie, Deputy Prose-
Cuting Attorney. David Akana presided.

Appellant DNR brought a motion to remand the
matter to respondent to reconsider the decision and
to render a "final decision" in accordance with the
requirements of the State Administrative Procedures
Act ("APA"), chapter 34.04 RCW. Appellant Lake
Lawrence, Inc. joined in the motion. We conclude
that the motions should be denied. The APA applies
only to "state" agencies. See League of Women
Voters v. King County, SHB No. 13; Brachvogel
vl Mason County, SHB ie. 45, 140, 189. Admini-
stration of the Shoreline Management Act is vested
in local government. RCW 90.58.050. Compliance
with "state" policy is insured by the supportive
and review capacity of the State Department of
Ecology. Id. Appellants also argue that the
County's decision was simply an unreasoned state-
ment, whereas a reasoned final order was required.
It may be that findings of fact and conclusions or
reasons will be required for permit proceedings in
the future. See Parkridge v. Seattle, 89 Wn.2d 454
(1978). But such requirement 7s not retroactively
required in the instant matter. In any event,
appellants could have conducted discovery or
brought an appropriate motion, which they have not
done. WAC 461-08-010. And since this Board
reviews each appeal de novo, appellants are not
materially prejudiced. The motion is therefore
denied.

Respondent moved that the appeals be dismissed —
on the ground that the denial of the proposed plat
by the County on grounds under chapter 58.17 RCW
renders "moot" the request for the substantial
development permit to implement the plat. The
motion should be denied. While the County may have
concerns for the proposed plats under chapter 58.17
RCW, it remains that a shoreline substantial
development permit was denied on a particular

A-59
proposal. This Board can review such denial within
the context of the Shoreline Management Act. RCW
90.58.180(1). Other requirements and approvals for
the proposal must nonetheless be met before the
proposal can proceed. RCW 90.58.360. The motion
is therefore denied.

Counsel made opening statements; the Board
viewed the site; witnesses were sworn and testi-
fied.

Having heard the testimony, having examined
the exhibits, and having considered the contentions
of the parties, the Shorelines Hearings Board makes
these

FINDINGS OF FACT
I

Lake Lawrence is a small (approximately 339
acres in area), relatively shallow (up to 30 feet
deep) lake located south of the town of Yelm in
Thurston County. The State of Washington, Depart-
ment of Natural Resources owns slightly over 14
acres of a shoreline area on Lake Lawrence known as
Wood Point (hereinafter referred to as the "site").
DNR also owns an offshore island, the bed of the
lake and the property immediately west of the site,
on which the Department of Game has a public boat
ramp.

Il

The site is presently covered with second-
growth timber and dense vegetation. Some larger
"emergent" trees, scattered over the property, rise
above the "canopy" formed by the smaller trees.
The underbrush along the shoreline provides good
cover and habitat for small animals and birds.

-_ o

A-60
III

In August of 1976, the State Department of
Ecology approved the shoreline master program for
the Thurston County region. Therein, all of the
shorelands of Lake Lawrence were designated in
either rural or conservancy environments. |

1 The Shoreline Master Program (pp. 11, 12) for
the Thurston Region describes the environments as
follows:

2. Conservancy Environment

Definition: The “Conservancy Environment”

designates shoreline areas
for the protection, conservation, and
management of existing valuable natural
resources and historic and cultural areas.
This environment is characterized by
low-intensity land use and moderate-inten-
sity water use with moderate to little
visual evidence of permanent structures
and occupancy. Sustained management of
the pastoral, aquatic and forest re-
sources, as well as rigidly controlled
utilization of nonrenewable and other
nonmineral resources which do not result
in long-term irreversible impacts on the
natural character of the environment are
permitted. Intensity of recreation and
public access may be limited by the
capacity of the environment for sustained
recreational use.

3. Rural Environment

Definition: The “Rural Environment"
designates shoreline areas in

A-61

All of the instant site was designated "rural"
in the shoreline master program. Shorelands lying
west of the site have been designated as rural;
shorelands lying east of the site have been desig-
nated conservancy. Much of the lake shore is
platted for residential development.

IV

Lake Lawrence, Inc., an appellant herein,
proposes to develop the site into single-family
residences. In reliance upon the rural use desig-
nation, Lake Lawrence, Inc. leased the site from
DNR for a term of fifty-five years beginning on
September 1, 1976. By separate agreement, it also
leased from DNR certain second class shorelands
adjacent to the uplands.

(Footnote Continued)

which land will be protected from high-
density urban expansion and may function
as a buffer between urban areas and the
shorelines proper. This environment is
characterized by low intensive land use
and moderate to intensive water use.
Residential development does not exceed
two dwellings per acre. Visual impact is
variable with a moderate portion of the
environment dominated by structures or
impermeable surfaces. Intensive cultiva-
tion and development of the renewable
soils, aquatic and forest resources, 4s
well as limited utilization of nonrenew-
able mineral resources is permitted.
Recreational activities and public access
to the shoreline are encouraged to the
extent compatible with other rural uses
and activities designated for this en-
vironment.

A-62
V

On January 12, 1977, Lake Lawrence, Inc.
applied to the Board of Thurston County Commis-
sioners for a preliminary plat and shoreline permit
to develop the site into twenty-seven residential
home sites. The proposal was amended several times
subsequently. A draft environmental impact state-
ment (EIS) was prepared, public hearings were held,
comments received, and a final EIS was completed
and filed with the Thurston County Planning Depart-
ment in May of 1977. The planning department
recommended approval of the revised proposal.

After the May 27, 1977 staff report to the
Land Use Committee and a Land Use Committee meeting
by the Planning Commission, a site visit was
arranged for all parties. The visit was held on
July 1, 1977 and three eagles were observed on the
site consisting of two adults and an eaglet. After
the trip and discussions with the State Department
of Game, the Thurston County Planning staff changed
its report and recommended that the development
proposal be denied. The staff also recommended
that the shoreline designation be reconsidered.

On July 13, 1977, the Thurston County Planning
Commission met to consider the applicant's revised
proposal and the staff recommendations. The
Planning Commission lacked a quorum to render a
decision and forwarded the proposal to the Board of
County Commissioners with no recommendation.

The Board of County Commissioners held two
public hearings on the proposal, on August 17, 1977
and September 8, 1977. On September 8, 1977, the
applicant submitted a proposal revising the buffer
zone along the shoreline for additional protection
of wildlife habitat. The revisions were made in
response to environmental concerns disclosed in the
EIS and particularly as to the trees which had been

A-63

identified as an “eagle habitat" on the site.
After the public hearing, the Board of County
Commissioners called for additional written com-
ments from the developer, the public and staff and
on September 28, 1977, denied both the application
for preliminary plat and shoreline permit. That
decision was memorialized by a letter dated Septem-
ber 230, 1977 addressed to the Director of the
Thurston County Planning Department, signed by the
ex officio clerk of the County Commissioners. The
decision, which did not include consideration of
the request for a conditional use and/or variance
permit for a community dock, was appealed to this
Board.

VI

The proposed substantial development in its
last configuration consists of creating 15 "water-
front" lots and ten upland lots. (See exhibit
A-8). Three of the waterfront lots will be set
aside for an “eagle preserve.” A 1,000-foot Tong
private road with a 60-foot wide right of way
separates the upland and the waterfront lots. Each
lot would be served by an individual septic system.
Other features of the project include common
driveways to adjacent pairs of lots, utility lines
along boundary lines and to the community dock,
common areas for picnic and walking areas and a
water well, fence protection along the southern
boundary, and an 88-foot long private community
pier with eight 24-foot long fingers located on
second class shorelands. Drainage and pedestrain
[sic] access from the development is provided
through the shoreland towards the lake. The
development is nearly surrounded by a greenbelt
area which is /5-feet wide at the shoreline and
50-feet wide at other boundaries except adjacent to
the existing public boat ramp located on the
western boundary. Additionally, there would be a
50-foot building set back from the /5-foot shore-
line buffer.

A-64

Protective covenants and restrictions are
intended which would control the removal of trees
and preserve the greenbelt buffer and marsh areas.
Hunting would be prohibited. Certain other cove-
nants and restrictions are required by the DNR
lease.

Lake Lawrence, Inc.'s upland lease with DNR
provides for no residental [sic] construction in
the buffer zone, requires written consent prior to
removal of trees in the greenbelt buffer area,
restricts clearance of vegetation and fallen trees
therein except for a walking path or for encourage-
ment of natural growth of trees and vegetation and
permits the construction of fences and gates along
the inland west and south perimeter boundaries.
The lease permits clearing of vegetation and
placement of picnic tables, benches, water and
sanitary facilities and outdoor cooking facilities
in either the west or south buffer area for the
recreational use of lot owners.

VII

Bald eagles have long been observed both in
undisturbed wooded areas and on trees near resi-
dential structures at Lake Lawrence. Sightings
have occurred during winter and summer months, and
even during portions of the year when human activi-
ties extend to the lake for fishing and recre-
ational purposes.

At the instant site, bald eagles have been
observed perched on several preferred “emergent”
trees. It is unlikely that bald eagles have used
the site for nesting. It is likely that bald
eagles use certain trees near the water on the site
for perching while feeding at the lake. However,
the lake is not a primary or critical feeding area.
Such feeding areas are more likely found at the
nearby Deschutes River and Nisqually River where

A-65

spawning salmon can be found. At Lake Lawrence,
eagle food sources include fish, which is stocked
by the Department of Game, and waterfowl.

VIII

There are two types of bald eagles. One type,
the southern bald eagle, is found south of the 40th
parallel, and has been declared to be an “endan-
gered species." Such designation indicates that a
species’ population is small or declining, or that
their habitats are being destroyed. The second
type, the northern bald eagle, is found north of
the 40th parallel, and has recently been placed in
"threatened" status, which means threatened with
"endangerment."

IX

The critical aspects of eagle habitat include
nesting, winter roosting and feeding areas.
Although Lake Lawrence is not a primary feeding
area, it is nonetheless an "incidental" perching
area for eagles. Preservation of favored perching
trees together with an adequate surrounding buffer
would be a proper requirement for the instant
development. Visual screening from ground activi-
ties is an important part of such a buffer. Noise
from normal human residential activities are not
ordinarily disturbing to some eagles. Human
activities on the water disturb the eagles the
most. According to the scientific evidence,
including exhibits (R-1; R-4) and expert testimony,
the setting aside of three waterfront lots (lots 3,
4, and 5) and buffer area in the shoreline for an
"eagle preserve" provides adequate protection
against significant adverse effect to the eagles in
this proposal.

A-66
X

Any Finding of Fact which should be deemed a
Conclusion of Law is hereby adopted as such.

CONCLUSIONS OF LAW
I

The denial of appellant Lake Lawrence, Inc.'s
application is reviewed, after the adoption and
approval: of the applicable master program, for
consistency with the master program and the provi-
sions of the Shoreline Management Act. RCW
90 .58.140(2)(b).

Il

This Board reviews de novo the action of the
County. E.g. Brachvogel, et al. v. Mason County,
SHB No. 140. The burden of proving consistency
with the Shoreline Management Act and the master
program herein is upon the appealing party. RCW
90.58.149(7). £.G. Wallingford Community Council,
et al. v. City of Seattle, No. 203.

III

The proposed substantial development (without
the community dock) is consistent with the master
program environment regulations for the rural
designation.2

2 The Rural Environment Regulations. of the
master program (pp. 60 and 61) require developers
to indicate how shoreline vegetation and erosion
will be controlled during construction. (See also
paragraph six of the master program, p. 28.) In
this matter a vegetation and tree buffer will

A-67

The proposed substantial development (without
the community dock) is consistent with the master
program policies for regulation of use activities
for residential development provided that preserva-
tion of the remaining vegetation along the water-
front in the natural buffer is made a condition of
a shoreline permit.

IV

The proposed substantial development (without
the community dock) is consistent with the general
policy of the master program and the provisions of
Chapter 90.58 RCW.

Vv
The propriety of the proposed community dock
is not here addressed inasmuch as the conditional
use or variance permit required is not now before
this Board.
VI

A permit for the project, as described herein
and when conditioned as provided for in Conclusion

{Footnote Continued)

remain along the shoreline. The regulations
require access and pathways upland from the ordi-
nary high water mark to be held for common use by
residents of the development. the instant develop-
ment provides for such. Residential density
limitations of two dwelling units per acre (28
maximum allowed herein) are met by the proposed
development. (See also paragraphs eight and nine
of the master program, p. 28.) The 125 foot total
setback (75 feet of which is in common use) from
the lake exceeds the 50-foot requirement of the
master program. (See also paragraphs two, three
and four of the master program, p. 27.)

A-68

of Law III, wil! be consistent with the master
program of Thurston County and the provisions of
the Shoreline Management Act.

VII

Any Finding of Fact which should be deemed a
Conclusion of Law is hereby adopted as such.

From these Conclusions the Board enters the
following

ORDER
The denial of a shoreline substantial develop-
ment permit is reversed and the matter is remanded
to Thurston County for further proceedings.

DATED this 23rd day of March, 1978.

SHORELINES HEARINGS BOARD

s/
DAVID J. MOONEY, Chairman

s/
CHRIS SMITH, Member

FILED:
5/31/1978

APPENDIX A - RECORD
SUPERIOR COURT-5/30/78, APPELLEE'S SECOND DECISION

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF THURSTON

STATE OF WASHINGTON, DNR, ET AL.)
)
Petitioners, } @. §€86 2 3
)
Vv. ) AFFIDAVIT OF
) MAILING
THURSTON COUNTY, ET AL. )
)
Respondents. )

STATE OF WASHINGTON )
| ) Ss,
COUNTY OF THURSTON )

Vivian Trotland, being first duly sworn, upon
oath deposes and says: That she is a secretary in
the Office of the Prosecuting Attorney, over the
age of eighteen (18) years and competent to be a
witness in the above-entitled cause; that hereto-
fore and on the 3lst day of May, 1978, your affiant
caused to be mailed copies of the Clerk's Affidavit
of Thurston County Record for Review Under Amended
Writ of Certiorari and Findings of Fact and Conclu-
sions of Law address as follows:

Mr. Philip P. Malone Mr. J. Lawrence Coniff

Attorney at Law Assistant Attorney General
153 First Street Temple of Justice
P.O. Box 443 Olympia, WA 98504

Poulsbo, WA 98370

Mr. Thomas Brucker
1411 Fourth Ave. Bldg.
#610

Seattle, WA 98101

A-70

and deposited same in the United States mail at
Olympia, Washington.

S

SUBSCRIBED AND SWORN TO before me this 31 day of
May, 1978.

s/

Notary Public in and for
the State of Washington,
residing at Olympia

FILED:
5/31/1978

APPENDIX A - RECORD
SUPERIOR COURT-5/730/78, APPELLEE"S SECOND DECISION

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF THURSTON

STATE OF WASHINGTON, DEPARTMENT
OF NATURAL RESOURCES and LAKE
LAWRENCE, INC., A Washington
Corporation,

No. 5 8 6 2 3

)

)
Petitioners, ) PRELIMINARY PLAT
) WOOD POINT
) FINDINGS OF FACT
AND CONCLUSIONS
)

)

OF LAW

Vv.
THURSTON COUNTY, et al.,

Respondents.

THIS MATTER came before the Board of Thurston
County Commissioners April 18, 1978, for public
hearing on remand from the Shorelines Hearings
Board and the Thurston County Superior Court with
direction from the Superior Court to make a deci-
sion within ten days of the hearing on remand.

The Applicant, Lake Lawrence, Inc., was
represented by PHILIP P. MALONE; the Owner, Depart-
ment of Natural Resources, was represented by J.
LAWRENCE CONIFF.

On April 24, 1978, after considering the
application, the environmental impact statement,
the record on remand, the comments and testimony at
the public hearing, anbd the briefs and arguments
of counsel, the Board discussed the alternatives in
the case and voted unanimously to deny the prelim-
inary plat of Wood Point. The Board further
determined that the denial of the preliminary plat

A-72

rendered moot the question of a shoreline substan-
tial development permit and, therefore, elected not
to appeal the decision of the Shorelines Hearings
Board in SHB 77-37. The findings of fact and
conclusions of law in support of the Board's
decision are attached.

Respectfully submitted,

s/

MARJ YUNG, Chairman
Board of Thurston County
Commmissioners

APPENDIX A - RECORD
SUPERIOR COURT-5/30/78, APPELLEE'S SECOND DECISION

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF THURSTON

STATE OF WASHINGTON, DEPARTMENT
OF NATURAL RESOURCES and LAKE

)

)
LAWRENCE, INC., A Washington ) No. 5 8 6 2 3

Corporation, )

Petitioners, )

)

Vv. )

)

THURSTON COUNTY, et al., )

)

Respondents. )

FINDINGS OF FACT

Ae Definitions

A. The Board - The Board of Thurston

County Commissioners

B. The Applicant - Lake Lawrence, Inc.

C. The Owner - Department of Natural
Resources

D. The Staff - Thurston County Planning
Department

E. The Record -

BOOK I BOARD OF THURSTON COUNTY COMMIS-
SIONERS FIRST HEARING, AUGUST
17, 1977

ITEM 1. APPLICATION: PLANNING DEPART-
MENT TRANSMITTAL CONCERNING
CASE #225 and CASE SH-TCO 1-77

ITEM 2.

ITEM 3.

ITEM 4.

BOOK II

BOOK III

BOOK IV

ITEM 1.

ITEM 2.

ITEM 3.

ITEM 4.

ITEM 5.

A-74

CORRESPONDENCE PERTAINING TO
AUGUST 17, 1977, PUBLIC
HEARING

TRANSCRIPT OF AUGUST 17, 1977,
HEARING

MINUTES OF AUGUST 17, 1977,
HEARING

ENVIRONMENTAL IMPACT STATEMENT
AND RELATED INFORMATION

APPENDIX OF RECORD; PROPOSED
FINDINGS OF FACT AND CONCLU-
SIONS TO BOARD OF THURSTON
COUNTY COMMISSIONERS, SEPTEM-
BER 8, 1977 (SUBMITTED BY
APPLICANT)

BOARD OF THURSTON COUNTY COM-
MISSIONERS FINAL HEARING AND
DECISION

TRANSCRIPTS OF SEPTEMBER 8,
1977, HEARING

MINUTES OF SEPTEMBER 8,
1977, MEETING

FINAL STAFF REPORT, SEPTEMBER
21, 1977

RESPONSE OF LAKE LAWRENCE, INC.,
TO FINAL STAFF REPORT, SEPTEM-
BER 27, 1977

TRANSCRIPT OF MEETING OF SEPTEM-
BER 28, 1977, MOTION TO DENY
PRELIMINARY PLAT AND SHORELINE
PERMIT

i.

BOOK VI

ITEM 1.

BOOK VII

ITEM 1.
BOOK VIII

ITEM 1.

BOOK IX

ITEM 1.

A-75

MINUTES OF SEPTEMBER 28, 1977,
MEETING

FINAL DECISIONS OF THE BOARD
OF THURSTON COUNTY COMMIS-
SIONERS

SUPPLEMENTAL RECORD FROM SHORE-
LINES HEARINGS BOARD

FINAL DECISION

TRANSCRIPTS FROM:
MR. ROBERT J. ANDERSON
MR. RICHARD S. FLEMING
MR. RICHARD L. KNIGHT

SUPPLEMENTAL RECORD FROM SHORE-
LINES HEARINGS BOARD

TRANSCRIPTS FROM:
MR. CHARLES E. CARPENTER
MR. STEVEN PHILLABAUM
MR. GEORGE PALLIS

SUPPLEMENTAL RECORD FROM SHORE -
LINES HEARINGS BOARD

STIPULATED EXHIBITS

SUPPLEMENTAL RECORD FROM SHORE-
LINES HEARINGS BOARD

THURSTON COUNTY COMPREHENSIVE
PLAN

SUPPLEMENTAL RECORD FROM SHORE -
LINES HEARINGS BOARD

SHORELINE MASTER PROGRAM FOR
THE THURSTON REGION

BOOK X

ITEM 1.

BOOK XI

ITEM 1.
BOOK XII

ITEM 1.

BOOK XIII

ITEM 1.

ITEM 2.

ITEM 3.

A-76

SUPPLEMENTAL RECORD FROM SHORE-
LINES HEARINGS BOARD

APPELLANT'S EXHIBITS A-1 THROUGH
A-13

SUPPLEMENTAL RECORD FROM SHORE-
LINES HEARINGS BOARD

RESPONDENT'S EXHIBIT R-1

SUPPLEMENTAL RECORD FROM SHORE-
LINES HEARINGS BOARD

RESPONDENT'S EXHIBITS R-2
THROUGH R-5

BOARD OF THURSTON COUNTY COM-
MISSIONERS HEARING ON REMAND

TRANSCRIPT OF APRIL 18, 1978,
HEARING OF THE BOARD OF THURSTON
COUNTY COMMISSIONERS ON REMAND

TRANSCRIPT OF APRIL 24, 1978,
MEETING OF THE BOARD OF THURSTON
COUNTY COMMISSIONERS FINAL
DECISION OF THE BOARD OF
THURSTON COUNTY COMMISSIONERS

CORRESPONDENCE AND MEMORANDA
FROM APRIL 18, 1978, HEARING
AND APRIL 24, 1978, CONTINU-
ATION

F. Final Decision

The decision of the Board issued April 24,
1978, stating that the preliminary plat of Wood
Point should be denied for the following reasons:

A-77

In a policy statement in the Comprehen-
sive Plan the County has identified
eagles as a rare and endangered species;
that substantial testimony exists to
show that eagles have long used Lake
Lawrence and the Wood Point site for
feeding and perching. Testimony relat-
ing to eagles’ use of this site is
substantially more testimony than any
other site considered by the Board for
development. Therefore, a finding is
made that the public interest is best
served by assuring the continued use and
availability of the Wood Point site for
perching and feeding by eagles.

All who have testified agree that
residential development will have some
effect on the eagles' use of the site
and that eagles are disturbed by human
activities. Substantial testimony was
entered to the effect that the devel-
oper's proposal provided adequate
protection against significant adverse
effect to the eagles. However, the same
experts indicate that eagle tolerance to
human activity apparently varies based
upon age, activity, number of eagles,
and nature of disturbance. Residential
development will necessarily require
clearing for roads, driveways, drainage,
sanitary facilities and water, homes and
yards. Construction disruption of a
temporary nature will exist. Following
construction, the area will have daytime
human activity and nighttime residents,
presumably during all seasons, with
artificial illumination. What is
apparent from the record is how very

A-78

little is known about eagles feeding and
perching in the lakes in the State of
Washington. And with respect to residen-
tial subdivisions, how much human
activity is tolerated before the eagles
leave the area, and finally what the
cumulative effect is. That finding is
that we simply do not have as much
information as we would need.

Substantial testimony indicates that at
Lake Lawrence, the eagles fly from the
developed areas to this site and other
undeveloped areas when disturbed.

Much has been.made that the Lake
Lawrence, Inc., group has a vested right
to develop the property as Lessee from
the Department of Natural Resources.
The Department of Natural Resources
advised us that their criteria for the
decision was economic, to make money for
the University of Washington Trust and
that the property was not suitable for
economic forest management. The deci-
sion to lease the property was without
an EIS and apparently with no knowledge
that eagles used the site or any consid-
eration of the value of the property
given its more than occasional use by
eagles. Under the State Environmental
Protection Act the Board is required to
consider the alternatives to a project,
including the alternative of no develop-
ment. SEPA requires a balancing of
interests in this case between the
continued use of the site by eagles and
the development of the site for residen-
tial recreational purposes. Given the

Il.

A-79

protected status of the eagles under the
Comprehensive Plan and the acknowledged
effect of residential development, the
balance must be to assuring the con-
tinued use by eagles. I find the
assurance lacking and find the public
interest would be best served by no
development of this site until more is
known about the importance of inland
lakes on non-nesting eagles during both
summer and winter.

By permitting the development and taking
the risk of an irretrievable loss in an
area regularly used by eagles, the
public interest would not be served.
See Transcript Volume XIII, Pages 13-15,
18, 19.

The Proposal

A.

The proposal before the Board is for
preliminary plat approval for the develop-
ment of 22 single-family lots on approxi-
mately 14 acres of land located on Lake
Lawrence in Thurston County, Washington.
The proposal is detailed on the amended
application as modified by Exhibit A 8.
(Volume X, Item 1 A 8)

Permits required from Thurston County for
the proposal are:

1. Preliminary plat approval, Chapter
58.17 RCW; Title 18 Thurston County
Code.

2. Shoreline substantial development
permit for the development together
with a variance or conditional use
permit for a private dock exceeding
maximum length and width permitted on

A-80

rural lakes, all under Chapter 90.58
RCW and the Thurston County Shoreline
Master Program approved August, 1976.

III. The Modified Proposal

A. l.

The Board requested staff to indicate
the modifications and conditions they
would recommend to the plat to implement
the findings and recommendations of the
Shorelines Hearings Board.

The Board of County Commissioners finds
that the modified plat as described in
staff letter dated April 24, 1978,
together with attachments, (Volume XIII,
Item 3) is consistent with the decision
of the Shorelines Hearings Board and is
the plat which offers the maximum
protection to the continued use of the
site by eagles given the developer's
desire to retain 22 single-family
detached residential dwelling sites at
this development.

. The Board finds that disturbance between

the eagle and the water is the most
disruptive direction for disturbance to
the perching eagles and that the pres-
ence of the dock proposed by the appli-
cant is an unreasonable interference
with the continued use of the site by
eagles.

. The Board finds that the dock proposed

by the applicant substantially exceeds
the docks permitted on rural shorelines

III.A. The

A-81

in Thurston County under the Thurston
County Master Program. The Board finds
adequate boat access exists through the
Game Department boat ramp adjoining the
plat; and that the dock as proposea is
contrary to the policies of the Shore-
line Master Program and the Shoreline
Management Act; and further, that
appellant has failed to satisfy the
conditions of the Shoreline Master
Program and the Washington Administra-
tive Code for a variance or conditional
use.

Property

A.

IV.

The Board acknowledges that Lake
Lawrence, Inc. has a lease on said
property and leased said land from the
Department of Natural Resources without
apparent knowledge that eagles used the
site. The Board also recognizes tnat
many, in fact most, developments are
originally proposed without full know!-
edge of the facts and further that many
subdivisions are not developed as
originally proposed.

The Board finds the fact that this
subdivision has a public owner (Depart-
ment of Natural Resources) does not give
it a special license to develop as the
State wishes without regard to public
interest.

The Preliminary Plat

A. The Board finds the modified proposal is
consistent with all specific regulations

A-82

for preliminary plat development under
Chapter 58.17 RCW and Title 18, Thurston
County Code, including open space, drain-
age ways, streets, public ways, water
supplies and sanitary sewers; and further
finds that additional provisions in this
plat for playgrounds, school sites or
parks are not required.

The Board finds that the public interest
in Thurston County is to assure protection
of natural habitats which are actively
used by eagles for feeding and perching.

1. The eagle was identified as a rare or
endangered species in the Thurston
County Comprehensive Plan.

2. The eagle has been identified as a
threatened species in the State of
Washington under the Endangered Species
Act.

3. Substantial local public interest has
been expressed through testimony and
petitions to assure the continued use
of the site by eagles.

4. Substantial testimony indicates that
the Wood Point site is actively used by
bald eagles both during winter and
during the summer and that, at times,
as many as three to five and even more
eagles at one time use Lake Lawrence
and the adjacent marsh for feeding and
perching purposes. The attractiveness

A-83

of the site for perching purposes is
supported by the fact that bald eagles
were observed several times by staff
and other personnel visiting the site
during the application process. No
other site considered by this Board for
development purposes has shown such a
history or intensity of use by bald
eagles.

. The Wood Point site is the best remaining

site on the lake for eagles perching and
feeding activities considering the
present level of development on the lake
due to the relative isolation and natural
state of the site, the presence of a
large dense understory or canopy to
protect eagles from disruption and
several emergent trees above the canopy
from which eagles can view the lake or
the marsh.

The Wood Point site appears to be the
preferred site on the lake for perching
eagles and that when disturbed from other
locations, they fly to the protection of
Wood Point.

. The only similar site on the lake with

respect to densely wooded cover and
protection and access to undeveloped
marsh lands is across the lake to the
east with approximately one-half the
emergent trees identified on the Wood
Point site.

The inter-relationship between the Wood
Point site and the surrounding areas is a

10.

A-84

vanishing if not unique environment in
Thurston County in that the site is dense
wooded affording protection from ground
disturbances; the site is surrounded to
the east and north by a shallow well-
stocked lake; to the west by undeveloped |
woodlands; and to the south by a marsh.
The site has tall emergent snags or trees
for use as perching sites. The lake in
front of the site is relatively shallow
and the marsh area to the southeast of
the property has abundant water fowl and
other bird populations which eagles use
as a source of food.

The Board finds that very little is known
about the overall importance of inland
lakes to the eagle populations in Western
Washington and Thurston County. The
record shows that the site certainly may
be important as a feeding and perching
site to nonbreeding eagles. Nonbreeding
eagles include all eagles for the first
four or five years and the proportion of
the adult eagles each year which are
capable of breeding but which for one
reason or another do not breed or locate
nest sites.

The Board finds that the site is important
to those eagles which do use the site
regularly during the summer or use the
Site as a winter/ feeding and perching
site. As sites such as this become
developed or otherwise unsuitable for
continued use, the eagles presently using
the habitat are forced to find a less
suitable habitat or to increase the
pressure on the remaining suitable habi-
tats. If the remaining habitats are

ll.

A-85

saturated or are also in the process of
dwindling, the eagles will be forced to
leave Thurston County. Such an event
would be a significant environmental
loss to Thurston County.

The Board finds that the public interest
to be served requires the preservation of
preferred perching and feeding habitat
which is presently and has historically
been actively used by eagles for perching
and feeding and that such a public inter-
est may only be served by permitting such
development as will not adversely affect
the usefulness of the site for its con-
tinued use as an active feeding and
perching site by eagles.

The Board finds that the proposed plat as
offered by applicant or as modified by the
staff consistent with the findings of the
Shorelines Hearings Board will be disrup-
tive to the feeding and perching activi-
ties of eagles using the site and will not
assure the continued availability of the
site as an active feeding and perching
site on Lake Lawrence.

The best way to assure continued use of
the site as an active feeding and
perching site is to keep development as
low as possible and minimize the oppor-
tunity for eagles to view or be affected
by human activity within 100 to 200 feet
of the perching and feeding sites.

The proposed development contemplates 22
residential lots with 12 lots on the
water side of the dirve and 10 lots on
the upland side of the drive.

A-86

The applicant and staff have identified
many of the larger trees or snags which
have been identified as trees which are
most suitable for use by eagles. These
trees are shown on Exhibit A 8. (Volume
X, Item 1 A 8) The trees identified as
most favorable are located in the
rearward portions of the lots set aside
as a preserve.

The Board finds that during construction
of the site, improvements, roads,
utilities, pathways, community area, the
site would be affected by ordinary
construction activity including clearing
trees for roadway and site improvements,
grading and road building. The Board
finds that such activity is noisy and
has high levels of human activity which
during the time of construction would
adversely affect the use of the site by
eagles for perching and feeding pur-
poses.

The Board finds that during construction
of individual homes the site will
further be affected by construction
activities including clearing and
building activities. Clearing may
involve up to 5,600 square feet for
septic tank, drainfield, house, parking
and driveway.

The Board find that once the site is
fully developed and occupied, the lots
will be a source of residential activity
including noise, human activity, light
and glare.

The Board finds that the clearing for
roads, houses, driveway, septic tanks

A-87

and drainfields will remove a substan-
tial portion of the understory or
protective canopy on each of the lots;
that if 5,600 square feet is in fact
cleared more than 25-50 percent of the
shoreward lots and approximately 25
percent of the rearward lots would be
cleared not counting the clearing for
roads and driveways. The Board further
finds that with respect to the shoreward
lots, the clearing and building activi-
ties will be between the water and most
of the trees which have been identified
as the favored perching sites. (For
example, from the favored perches in
lots 3, 4 and 5, the eagle must 100k
across the cleared areas of lots 1 and 2
in a northerly direction, and the
cleared areas of lots 6, 7 and 8 in a
southeasterly direction which is the
direction of the marsh and the primary
waterfowl habitat adjacent to the site.
Eagles in the protected trees in lots 6,
7, 8, 9, 20, 21 and 22 must also look
across the areas cleared for residential
and human activity to view the lake or
the marsh.

The protective canopy is important in
shielding eagles from human activity
which is disruptive to eagles' feeding
and perching activities. When such
activity falls within a certain distance
of the eagle, the eagle will stop feed-
ing or perching and fly away; this
distance known as the the flight dis-
tance.

The Board finds that the work by Victor
Stahlmaster (Volume XII, Item 1 R 2) is
the best work made available to the

10.

hs

12.

A-88

Board on the issue of flight distances
and disruption to perching and feeding
eagles, and while the work was done on
wintering eagles along a river, the
conclusions reached appear to be appli-
cable to inland lakes and are supported
by other works and testimony in the
record. The Board finds that such work
is applicable and may be used for
reference purposes along with the study
by Mr. Kraus which supports Mr.
Stahlmaster's observations on flight
distance.

The Board finds that human activity
within 200 feet of a perching or feeding
eagle may be disruptive to the eagles
depending upon the age and number of the
eagles, the density of the understory
and the nature of the human activity.

The Board finds that visual disturbances
or visual and audio within 100 to 200
feet of perching and feeding eagles is
disturbing to eagles and that a substan-
tial number of eagles, more than one-
half of the eagles, will be disturbed to
flight at the approach of a human
within 100 to 200 feet if the human
activity is partially concealed. If the
activity is in plain view, the percent-
age of eagles disturbed to flight will
be even higher.

The Board finds that ordinary residen-
tial activity on lots 1, 2, 6, 7, 8, 9,
10, 19, 20, 21 and 22 is likely to be
within 100 to 200 feet of the identified
perching trees and snags on the site and
is likely to be seen by eagles perching
on the Wood Point site.

13.

14.

15.

16.

17.

A-89

The Board finds that clearing for
residential septic or roadway purposes
on lots 1, 2, 6, 7, 8, 9, 10, 18, 20, 22
and 22 will remove a significant amount
of the understory or protective canopy
within 100 to 200 feet of the identified
perching trees and snags on the site
permitting eagles to see and, therefore,
be disturbed by the human activity on
such lots.

The Board finds that an unknown number
of trees may be removed under the DNR
criteria to permit the removal of trees
for purposes of safety or to remove view
blockage and that tree cutting regula-
tions will be difficult to administer
and enforce in an residential area once
the plat is fully developed.

The Board finds that the plat posed by
the developer when fully developed and
in use will have a substantial likeli-
hood of creating visual and audio
disturbances which will be disturbing to
perching or feeding eagles.

The Boards finds that full development
of the plat as proposed by the developer
or as modified by staff recommendations
when fully developed, will change the
character of the site from that of an
active feeding and perching site, a
preferred site, which offers a degree of
refuge from human intrusion to a devel-
oped site which may be used occasion-
ally, just as many other sites are in
the developed portion of the lake, only
when human activity is at a minimum.

The Board finds that the loss of the
Wood Point site as an active feeding

18.

19.

20.

21.

A-90

and perching site is a significant
environmental impact on bald eagles in
Thurston County and on balance an impact
that is not outweighed by the need for
the type of development offered by the
applicant and an impact which cannot be
feasibly mitigated and retain 22 build-
ing sites in the configuration desired
by the developer.

The Board finds that the difficulty of
protecting the continued usefulness of
the site for large raptors, including
eagles, was identified as a need to be
addressed in the EIS and the effective-
ness of the mitigation offered was
questioned in the Environmental Impact
Statement.

The Board finds that the subdivision of
the Wood Point site in the manner
proposed by the applicant or as modified
by staff to conform the plat to the
recommendations of the Shorelines
Hearings Board, does not meet the
criteria of assuring the continued use
of the site as an active feeding and
perching site and, therefore, the
approval of the preliminary plat of Wood
Point is not in the public interest.

The Board finds that the potential
effect of this plat on the continued use
of the site by eagles was a specific
adverse environmental impact identified
in the environmental documents prepared
pursuant to the State Environmental
Policy Act.

The Board finds that none of the alter-
natives offered by the Applicant

22.

A-91

adequately mitigate the impact of the
proposed development on the continued
usefulness of the site as an active
feeding and perching site for eagles.

The Board finds that the impact of a
22-unit single-family residential
development on the site's use and
availability as an active perching and
feeding site cannot be mitigated.

CONCLUSIONS OF LAW

The Board of Thurston County Commissioners hereby
finds:

i.

II.

Platting Chapter 58.17 RCW

l.

That the Board has jurisdiction to approve
or deny preliminary plats of the type
requested by applicant under Chapter 58.17
RCW.

That the Board has the authority to
consider the public interest in approval
or denial of a preliminary plat.

That given the finding that the public
interest will not be served by the pro-
posed preliminary plat, the Board has the
authority to deny the preliminary plat.

State Environmental Policy Act, Chapter

43.210 RCW

l.

Alternatively and in addition to the
Board's authority under Chapter 58.17 RCW,
the Board finds that the Board is required
to consider alternatives under the State
Environmental Policy Act, including the
alternative of no action.

Ill.

A-92

The alternative of no action is appropri-
ate when the Board finds that a strong
public interest exists in retention of a
particular interest and no feasible means

of mitigation is acceptable to the applicant.

That given the finding that the signifi-
cant impact was identified in environ-
mental documents and stated in these
findings, the Board has the authority to
deny the proposal on environmental
grounds.

Other Permits

l.

The Board finds that the issuance of
development permits, including shoreline
substantial development permits, for
roads, septic tanks, wells, and other
construction of physical improvements in a
preliminary plat is premature and should
not be issued unless and until the prelim-
inary plat has been approved as required
by Chapter 58.17 RCW.

The Board finds that the preliminary plat

A-93

is not approved and, therefore, that the.
other permits above shall not issue.

Respectfully submitted,

s/

MARJ YUNG, Chairman
BOARD OF THURSTON COUNTY
COMMISSIONERS

APPROVED by the Board of Thurston County
Commissioners in open session this 30 day of May,
1978.

s/

County Auditor and Ex
Officio Clerk of the Board
of County Commissioners

PREPARED AND PRESENTED BY:

PATRICK D. SUTHERLAND
Prosecuting Attorney

By: s/
ALEXANDER W. MACKIE
Deputy Prosecuting Attorney

FILED:
5/8/1978
APPENDIX A - RECORD
SUPERIOR COURT, NO. 59965, APPELLANT'S APPLICATION
~ AND AFFIDAVITS FOR PEREMPTORY MANDAMUS WRIT,

~ 5/8778 DAMAGES, FEES AND COSTS

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
FOR THURSTON COUNTY

IN THE MATTER OF:

A SUBSTANTIAL DEVELOPMENT
PERMIT DENIED BY THURSTON

COUNTY TO LAKE LAWRENCE,
INC.;

STATE OF WASHINGTON, DEPART- NO. 59975

MENT OF NATURAL RESOURCES

AND LAKE LAWRENCE, INC., APPLICATION FOR
WRIT OF MANDAMUS,

DAMAGES, ATTORNEYS'

FEES AND COSTS

Petitioners,
Vv.

THE BOARD OF THURSTON COUNTY
COMMISSIONERS; COMMISSIONER
MARJ YUNG; COMMISSIONER GEORGE
BARNER, JR.; COMMISSIONER DEL
PETIT,

ee re ee ee ee ee ee ee ee ee ee eee ee eee ee See

Respondents.

I
PETITION FOR RELIEF

Come the petitioners, Lake Lawrence, Inc., a
Washington corporation, which has paid its annual
license fees and dues and is represented by its
attorney, Philip P. Malone, of Poulsbo, Washington,
and The State of Washington, Department of Natural
Resources, which is represented by J. Lawrence
Coniff, Jr., Assistant Attorney General for t

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2451%3A2. Public record. Not legal advice.