HomeMy WebLinkAboutHX05 ORDER Reopening Record for Rock Island Shellfish Shoreline Permit application
ORDER REOPENING RECORD FOR ROCK ISLAND
SHELLFISH SHORELINE SUBSTANTIAL
DEVELOPMENT PERMIT APPLICATION,
FILE NO. SDP2024-00006
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GARY N. MCLEAN
HEARING EXAMINER FOR JEFFERSON COUNTY
Before Hearing Examiner
Gary N. McLean
BEFORE THE HEARING EXAMINER
FOR JEFFERSON COUNTY
In the Matter of a Shoreline Substantial
Development Permit application filed by
ROCK ISLAND SHELLFISH
(ROBERT CARSON),
Applicant
SSDP File No. SDP2024-00006
ORDER REOPENING RECORD
Jefferson County’s Hearing Examiner Rules of Procedure, Sec. 6.2, captioned “Re-
Opening a Hearing”, reads as follows:
a) Prior to issuing a written decision on the hearing, the examiner may re-open the hearing
for good cause. Parties of record may submit written briefs or requests to the examiner' s
office requesting that the hearing be re-opened or the examiner may re-open on its own
initiative. For hearings held after the adoption of Chapter 2.30 JCC, the examiner at any
time may re-open the hearing if the examiner becomes aware that the decision was based
on fraudulent evidence, misrepresentation, or other misconduct by a party of record or
for any similar reason which would require reopening the hearing in the interest of justice.
b) If the hearing is re-opened and the examiner determines that another hearing is
required, the department shall provide notice, consistent with Rule2.3 and applicable JCC
sections. However, notice of such further hearing shall be given at least 10 days before
the further hearing' s date. Notice shall be provided to all parties of record from the initial
hearing.
For good cause explained below, the Examiner hereby Reopens the Record for
this pending Shoreline Substantial Development Permit application, to allow the parties
of record to submit additional evidence or information on issues detailed in this Order.
Based on unrebutted evidence in the record for this matter, there is no dispute that a
number of code violations exist and appear to remain uncorrected on the applicant’s
ORDER REOPENING RECORD FOR ROCK ISLAND
SHELLFISH SHORELINE SUBSTANTIAL
DEVELOPMENT PERMIT APPLICATION,
FILE NO. SDP2024-00006
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GARY N. MCLEAN
HEARING EXAMINER FOR JEFFERSON COUNTY
property.1 While the Staff Report proposed that a Voluntary Correction Agreement condition
should be used to address code violations on upland portions of the applicant’s property (See
proposed Condition No. 37 and Ex. 51), with violations in the tidelands to be corrected while
work would be done to install the new gear for applicant’s oyster farm operations (See
proposed Condition No. 3), and potential violations associated with applicant’s possible use
or encroachment into portions of County right-of-way [Killapie Beach Road] generally
addressed in proposed Conditions 26 and 27 (See communications re: Public Works’ issues
in DCD Exs. 6, 9, 17, and 21), the applicant has never signed any Voluntary Correction
Agreement, either before the hearing, as requested by Staff, or at any point since the public
hearing concluded, and the record does not yet include any Certificate of Correction [of code
violations on the property] from the Director (See JCC 19.10.065, re: Certificate of
Correction).
The record includes written comments and testimony requesting that the pending
Shoreline Permit application should be denied, because various and undisputed code
violations have occurred and remain uncorrected on the applicants’ property. (See for
example and without limitation, summary of activities and work undertaken by the applicant
on the property without permits, i.e. code violations, relying on correspondence between the
County and the applicant’s attorney, provided in Ex. AP18 and corrected version AP23,
written comments re: Shoreline Permit Application from Ms. Showwalter).
While the Examiner appreciates and understands Applicant’s arguments that many
code violations were caused by the previous property owner, and may take time and resources
to address, there is no dispute that the applicant himself has unclean hands and that he
undertook some work or brought various objects and materials onto his property that required
permits, and/or constitute violations of county codes given the nature of the work or
placement of items on the site. (See for example and without limitation explanation of work
and activities undertaken by the applicant after purchasing the property provided in Log Item
25). Whether this permit is eventually approved, subject to conditions, the applicant should
be fully advised and informed that code violations are subject to monetary penalties, that are
not part of this Shoreline permit process, and that such penalties may accrue up to the date
the property is brought into compliance. (See JCC 19.30.010(4)).
JCC 19.10.075, captioned “Denial of Permits” reads as follows:
The director shall not issue any permit or other development approval on a property
subject to a stop work order, notice of violation, or notice of violation and order of
1 The proposed Voluntary Correction Agreement (Ex. 51) provides a “Summary of Violations” that was not
rebutted by any evidence or substantive testimony from the applicant during the public hearing, which reads:
“Violations on the three parcels [i.e. the property at issue in this application, all owned by the applicant] include,
but may not be limited to, placement of containers on the property, installation of rock cages, placement of
gravel, installation of utility lines, and stockpiling of materials on the property. Development and uses,
including ground-disturbing activities, within shoreline jurisdiction require permits.”
ORDER REOPENING RECORD FOR ROCK ISLAND
SHELLFISH SHORELINE SUBSTANTIAL
DEVELOPMENT PERMIT APPLICATION,
FILE NO. SDP2024-00006
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GARY N. MCLEAN
HEARING EXAMINER FOR JEFFERSON COUNTY
abatement as long as the civil code violation or nuisance that is the subject of the stop
work order, notice of violation, or notice of violation and order of abatement remains
uncorrected, except that the director may issue such permits necessary to correct the
violation or permits to preserve life or property.
The applicant’s property is not legally segregated into separate parcels with upland
areas in some parcels, and tidelands in separate parcels. Instead, the applicant’s tidelands
that are proposed for use in this Shoreline permit application are all part of the same tax
parcels – i.e. “property” – that appear to include upland areas, and undisputed and ongoing
violations of various county codes. The County’s code clearly states that applications for
permits does not substitute for performing corrective work required to bring a property into
compliance with applicable county codes. (See JCC 19.10.065).
Before issuing a final Decision on this pending shoreline permit application, the
Examiner invites the parties of record to submit additional briefing and evidence addressing
the following questions:
1. Whether code violations on upland portions of the applicant’s property
have been corrected? If so, what has been accomplished since the hearing?
2. Whether JCC 19.10.075 re: “Denial of Permits” applies, or should
apply, to the pending shoreline permit application?
3. What are the specific provisions of any Voluntary Correction
Agreement that should apply to this project? (See Voluntary Compliance
Agreement requirements in JCC 19.15.015). Or, if the applicant is truly
committed to “obtaining all required permits and/or removing items as quickly
as possible” (see Applicant’s post-hearing response to comments, on page 12)
in lieu of a Voluntary Correction Agreement, what are the specific permits
that would be pursued/obtained for what specific purpose(s), and what is the
estimated timeframe such permits could be obtained and the correction work
could be completed?
4. If this Shoreline Permit is to be approved, whether the Examiner
should exercise his authority provided under JCC 18.25.610(2)2 to require the
applicant to post a bond, security instrument, or other form of financial
2 JCC 18.25.610(2) reads in relevant part as follows: The hearing examiner is vested with the authority and
responsibility to: [...] h. At his or her sole discretion, require any project proponent granted a shoreline permit
to post a bond or other acceptable security with the county, conditioned to assure that the project proponent
and/or his or her successors adhere to the approved plans and all conditions attached to the shoreline permit.
Such bonds or securities shall have a face value of at least 150 percent of the estimated development cost
including attached conditions.
ORDER REOPENING RECORD FOR ROCK ISLAND
SHELLFISH SHORELINE SUBSTANTIAL
DEVELOPMENT PERMIT APPLICATION,
FILE NO. SDP2024-00006
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GARY N. MCLEAN
HEARING EXAMINER FOR JEFFERSON COUNTY
assurance or surety, to ensure that the project proponent and/or his or her
successors adhere to the approved plans and all conditions attached to the
shoreline permit, particularly corrective actions required on the subject
property? If so, please suggest the form of such bond, or assurance device.
The applicant, the Department, and all parties of record, are invited to submit written
briefs in response to this Order, limited to addressing the four topics listed above, as follows:
1. Applicant’s Initial Response to Order due on February 13, 2026;
2. Department’s Response due on February 27, 2026;
3. Parties of Record Responses due on March 13, 2026;
4. Reply briefs from Applicant and Department due on March 27, 2026.
All filings and documents required to be exchanged shall be emailed from each party
to all other parties. Materials that must be filed with the Hearing Examiner's Office shall be
directed to the attention of the Examiner’s Clerk. Service and filing shall be accomplished
by email, with briefs and other documentary materials provided in .pdf format. The date of
service and the date of filing is the date of receipt. The parties are expected to work with one
another in good faith and demonstrate appropriate grace to address technology or
communication problems that might arise.
Depending on written submittals from the parties, the Examiner reserves the right to
set a date for possible oral arguments, or hearing testimony, limited to issues addressed in
this Order, which would be addressed in separate orders or notices, as required by applicable
County codes.
ISSUED this 30th Day of January, 2026
_____________________________
Gary N. McLean
Hearing Examiner