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HomeMy WebLinkAbout15C-Decsion FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING REASONABLE ECONOMIC USE EXCEPTION FOR BROWN PROPERTY ON MARROWSTONE ISLAND – FILE NO. MLA22-00044 Page 1 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 Before Hearing Examiner Gary N. McLean BEFORE THE HEARING EXAMINER FOR JEFFERSON COUNTY Application for a Type III Reasonable Economic Use Exception, submitted by ROBERT M. BROWN, III, TRUSTEE LISA M. BROWN, TRUSTEE Applicants (Proposal: Reasonable Economic Use Exception proposed to allow about 285 sq.ft. of fill in a Category III wetland, with 3,016 sq.ft. of additional impact in the same wetland’s buffer, for purposes of facilitating construction of a driveway to serve a future single-family home on the applicants’ property, located at 413 Gybe Road, a mostly vacant 5.13-acre site outside of the County’s Shoreline jurisdiction, assigned Parcel No. 921092007 on Marrowstone Island, in unincorporated Jefferson County) _______________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) File Nos. MLA22-00044 ZON2022-00016 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION APPROVING REASONABLE ECONOMIC USE EXCEPTION I. SUMMARY OF DECISION. The applicants’ request for a Reasonable Economic Use Exception is supported by a preponderance of evidence showing that it satisfies applicable approval criteria and merits approval, subject to conditions. The proposed project is subject to compliance with all applicable development, design, building code, engineering, and other regulations, including without limitation those requiring verification of performance, inspections, monitoring, and maintenance associated with conditions or mitigation measures that might be imposed consistent with this Decision FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING REASONABLE ECONOMIC USE EXCEPTION FOR BROWN PROPERTY ON MARROWSTONE ISLAND – FILE NO. MLA22-00044 Page 2 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 or any subsequent approval, or authorization issued by any state agency or county department with jurisdiction over a particular aspect of the Project as on-site work unfolds. II. BACKGROUND. Robert M. Brown, III, and Lisa M. Brown, as Trustees, the applicant(s) in this matter, submitted application materials to request a Reasonable Economic Use Exception under JCC 18.22.260 to allow about 285 sq.ft. of fill in a Category III wetland, with 3,016 sq.ft. of additional impact in the same wetland’s buffer, for purposes of facilitating construction of a driveway to serve a future single-family home on the applicants’ property, located at 413 Gybe Road, a mostly vacant 5.13-acre site outside of the County’s Shoreline jurisdiction, assigned Parcel No. 921092007 on Marrowstone Island, in unincorporated Jefferson County. (Ex. 2, Supplemental Application materials). The Browns have owned the property since December of 2020, when they purchased the site from a prior owner (Evans) who reacquired the site just months before in October of 2020 following a Sherriff’s sale/foreclosure action brought against another owner of record (Wilkins) who appears to have had possession of the property since 2014. (See official public records on the Jefferson County Assessor’s website for the applicant’s parcel, Deed and Sales History, and Available Documents List provided after link to “Sale Affidavits). The Staff Report indicates that an un-named “previous” owner placed a driveway across wetlands on the property without permits and was required to remove the driveway and restore wetland conditions. (Staff Report, page 2). The Examiner takes official notice of official records available for review on the County Assessor’s website for the parcel at issue, including without limitation a Department of Ecology Administrative Order, Docket No. 13100, dated January 6, 2016, and a Notice on Title for this parcel, recorded by the County in February of 2017, detailing a Notice of Violation and Order, for unpermitted filling of a wetland and similar work, mandating certain restoration work, and indicating that a lien could apply to the property for abatement costs, if restoration work is not fulfilled. These enforcement measures appear to be associated with actions by a previous owner (Wilkins) and do not implicate the applicants in this matter, the Browns. This fact is highly significant, because no variance application or request for an exception from complying with otherwise applicable Critical Area/Wetland protection regulations should be approved if circumstances used to justify such request were caused by actions of the applicant.1 To do otherwise would not be in the public interest and would only serve to encourage code violations. 1 See JCC 18.22.260(3)(i), “The inability to derive reasonable economic use of the property is not the result of segregating or dividing the property or creating the condition of lack of use.” (emphasis added). FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING REASONABLE ECONOMIC USE EXCEPTION FOR BROWN PROPERTY ON MARROWSTONE ISLAND – FILE NO. MLA22-00044 Page 3 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 III. APPLICABLE LAW. Jurisdiction of Hearing Examiner. The County Code vests the Hearing Examiner with authority to hear and issue decisions on applications for all Type III land use decisions. (See JCC 18.40.040, explaining Project permit application framework, Table 8-1, types of permits, decisions required, and Table 8-2, showing final decision made by the Hearing Examiner on Type III land use matters). The unchallenged Staff Report reflects the Director/Code Administrator’s determination that the pending request for a Reasonable Economic Use Exception under JCC 18.22.260 (which is not specifically listed in Table 8-1) is a Type III land use action.2 JCC 2.30.120(6) provides the examiner with authority to impose conditions that have a nexus to the county’s interest and are roughly proportional to the impacts of the notice, order, permit, decision, determination, or other action being considered by the examiner. Reasonable Economic Use Exceptions Criteria. Requests for Reasonable Economic Use Exceptions are rare, and applicants for such exceptions must satisfy a very high burden. To obtain approval of a request for a Reasonable Economic Use Exception from otherwise applicable Critical Area/Wetland protection regulations, the applicant must demonstrate that its proposal is consistent with all of the following criteria, provided in JCC 18.22.260(3): a) There is no portion of the site where the provisions of this chapter allow reasonable economic use, including agricultural use or continuation of legal nonconforming uses; (b) There is no feasible alternative to the proposed activities that will provide reasonable economic use with less adverse impact on critical areas or buffers; (c) Activities will be located as far as possible from critical areas and the project employs all reasonable methods to avoid adverse effects on critical area functions and values, including maintaining existing vegetation, topography, and hydrology. Where both critical areas and buffer areas are located on a parcel, buffer areas shall be disturbed in 2 JCC 18.40.030, captioned “Determination of proper type of procedure,” reads in part: (1) Determination by the Administrator. The administrator shall determine the proper procedure for all development applications. If there is a question as to the appropriate type of procedure, the administrator shall resolve it in favor of the higher numbered procedure type, except as specifically authorized for discretionary conditional use permits under JCC 18.40.520(2). FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING REASONABLE ECONOMIC USE EXCEPTION FOR BROWN PROPERTY ON MARROWSTONE ISLAND – FILE NO. MLA22-00044 Page 4 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 preference to the critical area; (d) The proposed activities will not result in adverse effects on endangered or threatened species as listed by the federal government or the state of Washington, or be inconsistent with an adopted recovery plan; (e) Measures shall be taken to ensure the proposed activities will not cause degradation of groundwater or surface water quality, or adversely affect drinking water supply; (f) The proposed activities comply with all state, local and federal laws, including those related to erosion and sediment control, pollution control, floodplain restrictions, and on- site wastewater disposal; (g) The proposed activities will not cause damage to other properties; (h) The proposed activities will not increase risk to the health or safety of people on or off the site; (i) The inability to derive reasonable economic use of the property is not the result of segregating or dividing the property or creating the condition of lack of use; and (j) The project includes mitigation for unavoidable critical area and buffer impacts in accordance with the mitigation requirements of this chapter. III. RECORD. All exhibits entered into evidence as part of the record, and an audio recording of the public hearing, are maintained by the County, and may be examined or reviewed by contacting the County’s public records officer. Exhibits: Staff Report, recommending approval subject to conditions, prepared by Associate Planner Jenny Murphy, with 20 pages, listed below as Ex. 1. 1. Staff Report 2. Pre-Application Meeting 3. Critical Areas Variance Application 4. Wetland Delineation Report 5. Wetland Mitigation Plan 6. Stormwater Management Application 7. Department of Ecology-Administrative Order 8. Emails with Applicant 9. Notice of Application FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING REASONABLE ECONOMIC USE EXCEPTION FOR BROWN PROPERTY ON MARROWSTONE ISLAND – FILE NO. MLA22-00044 Page 5 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 10. Certificate of Mailing 11. Agency Comments 12. SEPA Comments 13. SEPA Determination 14. Notice of Public Hearing Testimony: The public hearing for this matter was conducted using an online audio/video platform coordinated by County staff, accessible to parties and members of the public using sign-in details provided in public notices. The following persons provided testimony under oath as part of the record during the open-record hearing held on February 15, 2023: 1. Jenny Murphy, Associate Planner, prepared Staff Report and served as the primary Staff representative through the public hearing, for Jefferson County Department of Community Development. Ms. Murphy summarized her recommendation of approval provided in the Staff Report, noted that the County received no written comments opposing the pending request, and that she determined the application satisfies approval criteria for a variance as well as a Reasonable Economic Use Exception, subject to appropriate conditions of approval. She explained that the Department of Ecology issued an Administrative Order that applies to this property, that Ecology appears to support approval of this request; that no Federal agency approval will be required for this project; and that compliance with a mitigation plan and stormwater management plan are included as conditions of approval; 2. Robert Brown, the applicant, appeared and agreed with the analysis and recommended conditions provided in the Staff Report. 3. Josh Peters, Deputy Director of the Department of Community Development, appeared and spoke briefly, offering his determination that even if the proposal cannot fully meet criteria for approval of a Variance, it can meet criteria for approval of the requested Reasonable Economic Use Exception. During the public hearing, and since the day of the hearing, no one offered any testimony, evidence, or written comments challenging or opposing the requested Exception. IV. FINDINGS OF FACT. Based on the record, and following consideration of all the evidence, testimony, codes, policies, regulations, and other information included therein, the undersigned issues the following findings of fact: 1. All statements of fact included in previous or following sections of this Decision, including without limitation those included in the Background summary, that are deemed to be findings of fact are incorporated by reference into this section as findings of fact issued by the Hearing Examiner. 2. The applicant(s) and property owner(s) in this matter are Robert M. Brown and Lisa FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING REASONABLE ECONOMIC USE EXCEPTION FOR BROWN PROPERTY ON MARROWSTONE ISLAND – FILE NO. MLA22-00044 Page 6 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 M. Brown, as Trustees of the Brown Family Revocable Living Trust, hereinafter referenced as the applicant(s) or Brown(s). (Staff Report, pages 1 and 2; Application materials). 3. The applicant owns the project site at issue in this Decision, which is approximately 5.13-acres of land located inland and outside of the County’s Shoreline jurisdiction on Marrowstone Island, in unincorporated Jefferson County. The property is addressed as 413 Gybe Ho Road, on Parcel No. 921092007. The County’s Comprehensive Plan designates the applicant’s property as Rural Residential, allowing for a density of one dwelling unit per five acres (RR 1.5). (Staff Report, pages 1-3). 4. As explained above in the Background section of this Decision, the applicant submitted the pending application requesting a Variance or Reasonable Economic Use Exception to allow for construction of a driveway on the east side of their parcel, within and over a portion of a Category III wetland, shown as Wetland A on maps and materials included with the application. 5. The applicant proposes to fill 285 sq.ft. of Wetland A, and impact 3,016 sq.ft. of the otherwise applicable buffer for such wetland, in order to construct a driveway that would serve a single-family residence to be developed on the site. (Staff Report, page 1; Application materials). 6. Consistent with County codes addressing circumstances where an applicant proposes to fill or impact regulated wetlands, the applicant engaged the services of a qualified professional to generate a Wetland Mitigation Plan that is included in the record as Exhibit 5. 7. While the applicant’s parcel is currently served by an easement through the west side of the abutting parcel to the south, placing a driveway/access route through such easement would significantly impact another Category III wetland, identified as Wetland B, most all of which is on the parcel immediately south of the applicant’s property. 8. There is no dispute that Wetland B and its buffer area that extends up into the applicant’s property, is undeveloped, and remains in a natural, mostly undisturbed condition, which is in contrast with Wetland A – a portion of which was cleared and excavated by a previous property owner to place a driveway across Wetland A without permits in or about 2015.3 3 See official records noted in Background section, available for review on the County Assessor’s website for the parcel at issue, including without limitation a Department of Ecology Administrative Order, Docket No. 13100, dated January 6, 2016, and a Notice on Title for this parcel, recorded by the County in February of 2017, detailing a Notice of Violation and Order, for unpermitted filling of a wetland and similar work, mandating certain restoration work, and indicating that a lien could apply to the property for abatement costs, if restoration work is not fulfilled. FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING REASONABLE ECONOMIC USE EXCEPTION FOR BROWN PROPERTY ON MARROWSTONE ISLAND – FILE NO. MLA22-00044 Page 7 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 9. There is no dispute that the restoration work that the previous owner was ordered to perform, in and around the impacted portions of Wetland A, is incomplete. 10. Given the choice between moving forward with an access driveway through a mostly natural, undisturbed Category III Wetland B, or an access driveway that could be placed in and through the previously-disturbed, not fully-recovered Category III Wetland A, the applicant’s proposed Mitigation Plan explains that utilizing the previously-disturbed area will be the least impactful option for constructing a driveway to serve a new home on the property. (Ex. 5, Wetland Mitigation Plan, Executive Summary on page i; Staff Report, page 2). 11. The applicant’s Wetland Mitigation Plan includes the following statement: The [proposed driveway addressed in this application] is accessed by an existing dirt road that also accesses properties to the east so there is an existing access from Gybe Ho Road and impacts are avoided. Wetland A has not fully restored from the previous impacts so constructing the driveway across this wetland will be the least impactful to the onsite critical areas and buffers. The project is minimizing impacts by crossing at the previous location where there is no significant vegetation coverage and the wetland is narrowest. The total area of wetland impact is 285 square feet and the buffer impact is 3,016 square feet. Mitigation will include 570 square feet of wetland creation adjacent to Wetland A and 5,600 square feet of buffer mitigation. (Ex. 5, page i). 12. The Staff Report summarizes site visits to the applicant’s property, by County and State (Dept. of Ecology) staff members, who verified wetland locations and ratings, and agreed that the least impactful option is to construct a driveway access through the narrowest portion of Wetland A. (Staff Report, page 7). 13. Based on the unchallenged Staff Report, testimony by County staff, a thorough review and consideration of the applicant’s wetland mitigation plan, and recognizing that the Department of Ecology reviewed and considered the applicant’s proposal to place their driveway over a portion of Wetland A, resulting in an Administrative Order issued by DOE (Ex. 7) reflecting approval of such proposal subject to strict conditions, the Examiner finds and concludes that the applicant’s proposal to place their driveway in and through a portion of Wetland A will have less impacts than developing a driveway through the existing easement and Wetland B to the south, for purposes of serving their parcel. 14. The record does not include a meaningful discussion as to any effort the applicant undertook, or could have explored, to modify the easement location across the neighboring lot to the south, perhaps to some route that avoids wetlands and still allows the neighbor to make beneficial use of their own land. A reviewing court, and other decision-makers, may find the absence of such evidence as a basis to conclude that all of the criteria to obtain a reasonable economic use exception have not been satisfied – particularly the requirement that FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING REASONABLE ECONOMIC USE EXCEPTION FOR BROWN PROPERTY ON MARROWSTONE ISLAND – FILE NO. MLA22-00044 Page 8 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 there are no feasible alternatives. (See JCC 18.22.260(3)(b)). 15. While deference is due to the recommendations and determinations made by Staff and, such deference to agency decisions is neither unlimited nor does it approximate a rubber stamp. See Swinomish Indian Tribal Cmty. v. W. Wash. Growth Mgmt. Hearings Bd., 161 Wn.2d 415, 435 n.8, 166 P.3d 1198 (2007); and Concerned Friends of Ferry County v. Ferry County, 191 Wn. App. 803, 365 P.3d 207 (Div. II, 2015). Generally speaking, where there are two plausible constructions of whether the facts fit one position or another, caselaw mandates a deferential standard of review, meaning that an Examiner is not free to simply substitute their interpretation and judgment for that of an administrative decision maker. 16. Here, Staff reasonably determined that the proposed driveway, in and through portions of Wetland A, is the best option, and that there appear to be no feasible alternatives. Through public notices seeking input from surrounding property owners and interested agencies, no one submitted evidence or information that would serve as a basis to deny the pending application. No one directed attention to a better route or more feasible option to obtain access to/from the applicant’s otherwise land-locked property. Based on this record taken as a whole, the Examiner defers to Staff’s recommendation of approval, subject to conditions intended to minimize and mitigate impacts. 17. The applicant’s “Mitigation Plan Overview” at Sheet 4 provides a detailed illustration of the applicant’s property, the location of wetlands at issue, the Proposed Driveway location, the existing easement through the adjacent parcel to the south running through Wetland B, Proposed Culverts to keep the wetland generally connected from one side to the other, Wetland and Wetland Buffer Mitigation Areas. The use of culverts to maintain existing hydrologic conditions on both sides of the proposed driveway is credibly supported by the stormwater plan prepared for the applicant by qualified professionals from Evergreen Engineering Services, a copy of which is included in the record as Exhibit 6. The complete Mitigation Plan Overview is republished below on the following page. // // // FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING REASONABLE ECONOMIC USE EXCEPTION FOR BROWN PROPERTY ON MARROWSTONE ISLAND – FILE NO. MLA22-00044 Page 9 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 (Ex. 5, Applicant’s Wetland Mitigation Plan, generated by Environmental Land Services, on page 26, Sheet 4 of 5). 18. Public notices for this application and public hearing were published, posted, and mailed in accord with applicable county practices. (Staff Report, page 4; Ex. 9, notices and confirmation materials). 19. Written comments received following issuance of public notices were considered by staff, with most summarized in the Staff Report. Some comments, particularly those from the Department of Ecology, served as a basis for conditions of approval addressing certain aspects of the applicant’s project, including without limitation stormwater, wetland mitigation, and restoration requirements. 20. Following review of all application materials, supporting professional reports and studies, and other relevant environmental information, the County’s SEPA Responsible Official issued a Mitigated Determination of Non-Significance for the applicant’s proposal, the notice for which informed the public that such threshold determination was subject to appeal. (Ex. 13, SEPA MDNS). No one appealed the MDNS issued for this matter, so it FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING REASONABLE ECONOMIC USE EXCEPTION FOR BROWN PROPERTY ON MARROWSTONE ISLAND – FILE NO. MLA22-00044 Page 10 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 stands unchallenged and unrebutted for purposes of issuing this Decision. 21. The MDNS included a single mitigation measure the reads as follows: 22. The Department of Ecology submitted written comments explaining that the applicant’s project will require a formal Administrative Order from such department, a copy of which is included in the Record as Exhibit 7. The proposed conditions of approval included in the Staff Report include most all of the substantive requirements found in Ecology’s Administrative Order addressing long-term wetland mitigation and restoration. Comprehensive Plan. 23. The unrebutted Staff Report credibly summarizes and explains how the applicant’s proposal is consistent with, or can be conditioned to, implement several goals and policies found in the County’s Comprehensive Plan. (Staff Report, analysis and findings on pages 6- 7). Critical Areas, policies and regulations. 24. The Examiner finds and concludes that the Staff Report analysis and findings explaining how the pending proposal has been designed to, or can be conditioned to, comply with applicable provisions of the County’s Critical Areas regulations was not rebutted by any credible testimony or evidence in this record. (See Staff Report, all statements of fact; Proposed Conditions of Approval). 25. There is a preponderance of credible and unrebutted evidence in the record and application materials to demonstrate that the applicant’s Mitigation Plan will compensate for wetland impacts, and restore site-conditions, so that no net loss of wetland functions or values should result from the applicant’s project. (See Staff Report, page 10; Ex. 5, Wetland Mitigation Plan, on page 10, which reads in relevant part as follows: “The overall goals of the proposed mitigation are to: 1) Achieve no net loss of wetland function by creating two times more wetland adjacent to Wetland A. 2) Enhance the buffer of Wetland A through additional plant installation.”). 26. This Decision is expressly conditioned to require compliance with the Wetland Mitigation Plan. FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING REASONABLE ECONOMIC USE EXCEPTION FOR BROWN PROPERTY ON MARROWSTONE ISLAND – FILE NO. MLA22-00044 Page 11 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 27. JCC 2.30.120(6) provides the Examiner with authority to impose conditions that have a nexus to the county’s interest and are roughly proportional to the impacts of the notice, order, permit, decision, determination, or other action being considered by the examiner. In this matter, the applicant requests a decision that would authorize filling a wetland and significantly impacting applicable wetland buffers. Under these circumstances, the County’s overwhelming interest is to ensure that wetland compensation and restoration measures are successful. As discussed above, the property at issue in this matter has been the subject of a previous environmental restoration order, issued by the Department of Ecology and County officials, for un-permitted work in and around Wetland A – by a previous property owner – and there is no dispute that Wetland A has not been fully restored as of this date. (Staff Report, page 2, discussion of Site Conditions; Ex. 5, Wetland Mitigation Plan, Executive Summary on page i). Given these facts, the Examiner finds and concludes that this project should include bond or financial surety requirements that are comparable to those used for compensatory mitigation in Shoreline areas. This would serve as an additional incentive for the current applicant/property owner to ensure that all required mitigation and restoration work for impacts to Wetland A is/are successful on a long-term basis. 28. So, consistent with other permits issued by the County for projects that include compensatory mitigation measures, the Examiner is including a specific condition of approval requiring a bond or other financial surety equal to the estimated cost of the mitigation in order to ensure the mitigation is carried out successfully. Such bond or surety shall be released/refunded to the applicant/proponent upon completion of the mitigation activity and any required monitoring period. The Director shall have authority determine if a bond or surety proposed by the applicant/proponent is satisfactory, and any legal instruments needed to effectuate such bond or surety shall be in a form as approved by the County’s Chief Civil Prosecuting Attorney. The County retains full discretion and authority to enforce its development regulations, environmental and critical areas codes, and conditions of approval through enforcement actions, liens, abatement, or other means available under applicable law. 29. While much of the Staff Report discusses whether the applicant’s project can satisfy Variance Criteria found in JCC 18.22.250, the Examiner respectfully disagrees that the proposal satisfies all of the criteria needed to obtain a variance, mostly because this proposal would not just adjust, reduce, or modify an otherwise applicable wetland buffer, but would actually fill part of a wetland to place part of the applicant’s driveway directly inside the existing wetland itself. Such an application is best processed as a Reasonable Economic Use Exception, which is addressed in this Decision. 30. Subject to the applicant’s compliance with all conditions of approval, as supplemented and modified by the Examiner, a preponderance of evidence in the record, including without limitation the analysis provided in the Staff Report, and the MDNS issued for the project without any appeal, establishes that the applicant has met their burden to prove FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING REASONABLE ECONOMIC USE EXCEPTION FOR BROWN PROPERTY ON MARROWSTONE ISLAND – FILE NO. MLA22-00044 Page 12 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 that the pending application satisfies all criteria for approval of a Reasonable Economic Use Exception under JCC 18.22.260. 31. Based on the record, including all findings included in this Decision, the Examiner finds and concludes that the applicant established that its proposal is consistent with all of the following criteria, provided in JCC 18.22.260(3), with additional findings below each criteria, mostly derived from analysis in the Staff Report: a) There is no portion of the site where the provisions of this chapter allow reasonable economic use, including agricultural use or continuation of legal nonconforming uses; Additional Finding: Due to adjacent property ownership and locations of wetlands and wetland buffers, the applicant’s proposed access is the least environmentally impactful option allowing reasonable use of this parcel. (b) There is no feasible alternative to the proposed activities that will provide reasonable economic use with less adverse impact on critical areas or buffers; Additional Finding: The proposed access point will utilize a previously cleared area of the wetland and buffer, thereby minimizing the wetland and wetland buffer impacts. The wetland fill is limited to that necessary to construct a driveway for a future single-family residence. (See Exhibit 5, Mitigation Plan). (c) Activities will be located as far as possible from critical areas and the project employs all reasonable methods to avoid adverse effects on critical area functions and values, including maintaining existing vegetation, topography, and hydrology. Where both critical areas and buffer areas are located on a parcel, buffer areas shall be disturbed in preference to the critical area; Additional Finding: The proposed access point will cross the narrowest section of Wetland A, which minimizes vegetation removal and avoids removal of native trees and shrubs. The submitted site plan indicated that all future construction, with the exception of the driveway, will be outside of all wetlands and wetland buffers. Wetland hydraulic conditions will be maintained post-construction by installing two culverts under the fill. (See Ex. 6). Creation of new wetland area as mitigation will result in an increase in the total wetland area, which will be planted with native species by the applicant. (See Exhibit 5). (d) The proposed activities will not result in adverse effects on endangered or threatened species as listed by the federal government or the state of Washington, or be inconsistent with an adopted recovery plan; Additional Finding: No impact to threatened or endangered species is expected. There is no adopted recovery plan for this area. (e) Measures shall be taken to ensure the proposed activities will not cause degradation FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING REASONABLE ECONOMIC USE EXCEPTION FOR BROWN PROPERTY ON MARROWSTONE ISLAND – FILE NO. MLA22-00044 Page 13 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 of groundwater or surface water quality, or adversely affect drinking water supply; Additional Finding: All development shall comply with the 2019 Stormwater Management Manual for Western Washington prepared by Washington Department of Ecology, and the applicant has submitted an engineered stormwater plan prepared by Evergreen Engineering Services (Ex. 6). The applicant has proposed installation of orange construction fencing or similar fencing to demarcate the areas to remain undisturbed during construction activities. In addition, the applicant has proposed constructing the road during the summer months. Based on these proposals, this project is not expected to degrade ground water or surface water quality. Construction of an access road through the wetland is not expected to adversely affect drinking water supply. (f) The proposed activities comply with all state, local and federal laws, including those related to erosion and sediment control, pollution control, floodplain restrictions, and on- site wastewater disposal; Additional Finding: This proposal was reviewed against all Jefferson County Code requirements including drainage control, stormwater management and reasonable economic use exceptions. The proposal must satisfy all conditions imposed by the Department of Ecology in its Administrative Order issued for this project, to mitigate, compensate, and ensure success of restoration measures associated with wetland impacts (Exhibit 7). (g) The proposed activities will not cause damage to other properties; Additional Finding: The mitigation measures imposed by this Decision are intended to prevent damage to surrounding properties, like flooding; and the project is limited to work on the applicant’s parcel. (h) The proposed activities will not increase risk to the health or safety of people on or off the site; Additional Finding: Culverts are included to maintain hydrology on both sides of the driveway, helping to reduce potential for off-site flooding. Conditions have been modified to include a bond or surety device to ensure long-term success of the mitigation plan and restoration work, and to serve as an incentive for the applicant/proponent to follow-through in seeing that mitigation and restoration work succeeds. (i) The inability to derive reasonable economic use of the property is not the result of segregating or dividing the property or creating the condition of lack of use; Additional Finding: As explained above, public records show that Wetland A was already disturbed by unpermitted work performed by/under direction of a prior property owner, and their mandatory restoration work has not been fulfilled. The Browns did not create the current conditions on the site, which makes the proposed driveway, running through Wetland A, a less impactful route than one through an existing easement and Wetland B to the south. The Browns did not create conditions that warrant this request for a Reasonable Economic Use Exception. FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING REASONABLE ECONOMIC USE EXCEPTION FOR BROWN PROPERTY ON MARROWSTONE ISLAND – FILE NO. MLA22-00044 Page 14 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 and (j) The project includes mitigation for unavoidable critical area and buffer impacts in accordance with the mitigation requirements of this chapter. Additional Finding: The proposed mitigation plan compensates for the permanent impacts to the wetland and buffer, including installing native scrub-shrub vegetation and maintaining a seasonally flooded hydroperiod with two to six inches of standing water during the growing season in the new wetland area that matches the hydroperiod of the existing wetland. The plan will install additional trees around existing vegetation to continue the restoration plantings, permanently demarcate the wetland buffer boundary and provide long-term legally binding protection. Although the project attempts to minimize impacts to Wetland A, it cannot avoid the direct impact that will be caused by the proposed driveway, which will need to fill 285 square feet of Wetland A and impact 3,016 square feet of the buffer on both sides to construct the driveway from the east property line to the proposed building site. Wetland creation is proposed at a 2:1 ratio, which is in accordance with State and Federal wetland mitigation requirements, so a total of 570 square feet of wetland will be created next to Wetland A. Shrub cuttings are proposed for installation within the created wetland area. Buffer mitigation is proposed at ratio of 1.85:1 to compensate for the impact to the buffer of Wetland A and will consist of plant installation in conjunction with the ongoing restoration activities. The buffer enhancement area is 5,600 square feet in area and is proposed on the east side of Wetland A. Monitoring the Impact and Compensation and Taking Appropriate Corrective Measures Monitoring of the wetland mitigation area for this project is proposed for a period of 5 years to document the improvement of wetland and buffer conditions within the mitigation area. Hydrology monitoring is proposed in the early growing season to ensure the appropriate hydroperiod is created within the new wetland area and vegetation monitoring will take place in the late summer/early fall to determine the success of the plants installed within the wetland and buffer. The mitigation site will be monitored for a five-year period following project construction. The mitigation area will be monitored once during the growing season, preferable in the same two-week period each year to compare similar data. Hydrologic monitoring will be conducted during the early growing season of each year to ensure that the wetland hydrology matches the existing wetland hydrology. Monitoring will begin at the end of the first summer following full implementation of the mitigation plan. This project is expressly conditioned to require compliance with the mitigation proposal in the Wetland Mitigation Plan submitted on May 12, 2022. (Exhibit 5). FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING REASONABLE ECONOMIC USE EXCEPTION FOR BROWN PROPERTY ON MARROWSTONE ISLAND – FILE NO. MLA22-00044 Page 15 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 32. Except as modified herein, all findings, statements of fact, and analysis provided in the Staff Report are incorporated herein as findings of fact by the undersigned hearing examiner. V. CONCLUSIONS OF LAW. 1. The record includes a preponderance of evidence establishing that the pending applications consolidated in this hearing process both satisfy applicable approval criteria and merit approval, subject to conditions. 2. As conditioned, professional mitigation plan recommendations and stormwater reports show that the requested Reasonable Economic Use Exception will not result in any net loss of wetland functions over the long-term. The requested exception is supported by evidence in the record and meets applicable approval criteria. Following notice of the application and MDNS issued for the project, there were no appeals of the SEPA threshold determination issued for this proposal. 3. Any finding or other statement contained in a previous section of this Decision that is deemed to be a Conclusion of Law is hereby adopted as such and incorporated by reference. VI. DECISION. Based upon the preceding Findings of Fact and Conclusions of Law, evidence presented through the course of the open record hearing, all materials contained in the contents of the record, and the Examiner’s site visits to the area, the undersigned Examiner APPROVES a Type III Reasonable Economic Use Exception under master file no. MLA22- 00044, for the Brown’s driveway project on Marrowstone Island, subject to the following Conditions of Approval: CONDITIONS OF APPROVAL 1. The Decision approves and grants the applicant’s Type III Reasonable Economic Use Exception as described in the application materials and Staff Report for File No. MLA22-00044, to authorize 285 sq.ft. of fill in a Category III wetland (Wetland A), with 3,016 sq.ft. of additional impact in the same wetland’s buffer, for purposes of facilitating construction of a driveway to serve a future single- family home on the applicants’ property, located at 413 Gybe Road, a mostly vacant 5.13-acre site outside of the County’s Shoreline jurisdiction, assigned Parcel No. 921092007 on Marrowstone Island, in unincorporated Jefferson County. Any future reviews for subsequent permits or approvals needed for development work on this site are subject to review for consistency with then-applicable codes and ordinances and this Decision does not preclude subsequent reviews or determinations that new or FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING REASONABLE ECONOMIC USE EXCEPTION FOR BROWN PROPERTY ON MARROWSTONE ISLAND – FILE NO. MLA22-00044 Page 16 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 additional permits are needed, all of which may be subject to specific, additional conditions placed on such permits or approvals needed to authorize future modifications or changes at the site. 2. The applicant shall install the silt fencing along the edge of the construction area prior to beginning any clearing, grading, or other land-disturbing activities. The fencing shall be installed shown on sheet 4 of the engineered Stormwater Management Plan received on May 12, 2022. The project biologist shall be onsite during fencing installation to ensure proper placement. 3. The applicant shall contact DCD staff planner for a site inspection to confirm silt fence installation prior to any further land disturbing activity. 4. The project shall adhere to the Best Management Practices (BMPs) to control stormwater, erosion and sediment during construction. BMPs shall address permanent measures to stabilize soil exposed during construction, and in the design and operation of stormwater and drainage control systems. 5. Prior to any land disturbing activity, the applicant must comply with other local, state, and federal ordinances, regulations, or statutes applicable to the proposed development. 6. To comply with the engineered stormwater plan and the biological report, the construction of the proposed access shall occur during the dry season, when water is absent in the wetland. 7. The applicant shall comply with all mitigation requirements and details as specified in the Wetland Mitigation Plan prepared by Ecological Land Services, as reviewed and approved by the County, a copy of which is included in the Record as Exhibit 5. 8. The applicant shall comply with the Stormwater Management Plan prepared by Everett A. Sorensen P.E. with Evergreen Engineering Services, as reviewed and approved by the County, a copy of which is included in the Record as Exhibit 6. 9. All excavated sod and soils shall be stockpiled outside of wetland buffers. 10. To comply with the mitigation plan, the project biologist shall be onsite to oversee plant installation. The biologist shall prepare a mitigation as-built drawing/report to submit to Jefferson County. This as-built drawing/report must be reviewed and approved by the Director or designee before any other permit or plan approvals can be issued for development work on site. 11. The applicant/property owner shall comply with all terms and conditions of the Administrative Order issued by the Department of Ecology (“Ecology”) for this project (included in the record as Exhibit 7), as modified below, including without limitation: A. General Conditions: 1. The Applicant shall construct and operate the project in a manner consistent with the project description contained in the JARPA form received by Ecology on April 20, 2022, or as otherwise approved by Ecology. FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING REASONABLE ECONOMIC USE EXCEPTION FOR BROWN PROPERTY ON MARROWSTONE ISLAND – FILE NO. MLA22-00044 Page 17 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 2. For purposes of the Ecology Order, all submittals required by its conditions shall be sent to fednotification@ecy.wa.gov and Rebecca.rothwell@ecy.wa.gov. Submittals shall reference Order No. 21171. A copy of all required submittals will also be provided to the DCD Director or their designee, using an email address to be provided by the Director. 3. The Applicant shall provide access to the project site and mitigation site upon request by Ecology or County officials. 4. Copies of these Conditions of Approval and the Ecology Administrative Order shall be kept on the job site and readily available for reference by Ecology personnel, County Staff, the construction superintendent, construction managers and forepersons, and other state and local government inspectors. 5. Nothing in this Decision or Ecology’s Administrative Order waives Ecology’s authority to issue additional orders if Ecology determines further actions are necessary to implement the water quality laws of the state. Further, Ecology retains continuing jurisdiction to make modifications hereto through supplemental order, if additional impacts due to project construction or operation are identified (e.g., violations of water quality standards, downstream erosion, etc.), or if additional conditions are necessary to further protect the public interest. 6. The Applicant shall ensure that all appropriate project engineers and contractors at the project site have read and understand relevant conditions of this Decision and Ecology’s Order and all permits, approvals, and documents referenced in this Decision and Ecology’s Order. B. Notification Requirements: 1. The Applicant shall provide written notification to Ecology in accordance with General condition A.2 above immediately following a violation of the state water quality standards or when the project is out of compliance with any condition of this Order. C. Wetland Mitigation Conditions: 1. The Applicant shall mitigate wetland impacts as described in the Wetland Mitigation Plan prepared by Ecological Land Services, dated March 17, 2022 (hereafter called the “Mitigation Plan”), a copy of which is included in this Decision as Exhibit 5, or as revised and approved by Ecology. 2. Unless otherwise approved by Ecology in writing, the Applicant shall begin the compensatory mitigation project as soon as is feasible after the driveway is constructed. If wetland mitigation is delayed beyond one year from the time of FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING REASONABLE ECONOMIC USE EXCEPTION FOR BROWN PROPERTY ON MARROWSTONE ISLAND – FILE NO. MLA22-00044 Page 18 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 wetland impacts, Ecology may require additional compensation to account for additional temporal loss of wetland functions. 3. The Applicant shall provide a status report on the mitigation construction to Ecology 13 months from the date of permit issuance. Annual status reports on mitigation construction are required until mitigation construction is complete. 4. The Applicant shall follow the steps below to record a deed notification for the wetland mitigation site: a. Send a draft deed notification (see Attachment A: Wetland Notice for Deed Notification for an example) to Ecology for review prior to recording and make edits based on Ecology’s comments. b. Record, on the mitigation site property deed, a description of the mitigation area identified in the final mitigation plan and a site map from the final wetland mitigation plan or as-built report showing the location of wetlands and their buffers. c. Record these documents with the County Recording Office, Registrar of Deeds, or other official responsible for maintaining records for, or interest in, real property. d. Submit proof of this recorded documentation to Ecology within 180 days of this Order, unless otherwise approved by Ecology. 12. The approved mitigation shall be implemented prior to approval of any future plans or permits. DCD SHALL NOT ISSUE ANY FINAL CERTIFICATE OF OCCUPANCY UNTIL DCD REVIEWS AND APPROVES THE PLANTING AREA FOR COMPLIANCE WITH THE APPROVED PLAN AND PERMIT CONDITIONS. Contact project planner Jenny Murphy or staff biologist (Donna Frostholm) to review the mitigation as-built as prepared by the project biologist. 13. Plant survival shall be 100 percent for the first growing season. In the second through fifth growing season, plant survival shall be at least 80 percent. The applicant shall submit annual monitoring reports for five years, documenting plant survival and percent cover of non-native and/or invasive species. Contingency measures shall be required if plant survival requirements are not met. 14. As required as a SEPA mitigation measure listed in the final MDNS issued for this project, all grading and filling of land must utilize only clean fill. All other materials may be considered solid waste and permit approval may be required from your local jurisdictional health department prior to filling. All removed debris resulting from this project must be disposed of at an approved site. Contact the local jurisdictional health department or Department of Ecology for proper management of these materials. FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING REASONABLE ECONOMIC USE EXCEPTION FOR BROWN PROPERTY ON MARROWSTONE ISLAND – FILE NO. MLA22-00044 Page 19 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 15. Erosion control measures must be in place prior to any clearing, grading, or construction. These control measures must be effective to prevent stormwater runoff from carrying soil and other pollutants into surface water or storm drains that lead to waters of the state. Sand, silt, clay particles, and soil will damage aquatic habitat and are considered to be pollutants. Any discharge of sediment-laden runoff or other pollutants to waters of the state is in violation of Chapter 90.48 RCW, Water Pollution Control, and WAC 173-201A, Water Quality Standards for Surface Waters of the State of Washington, and is subject to enforcement action. 16. Development pursuant to this permit shall be undertaken subject to the applicable policies and performance standards of the Jefferson County Unified Development Code. 17. Consistent with other permits issued by the County for projects that include compensatory mitigation measures, the applicant/property owner must submit a bond or other financial surety equal to the estimated cost of the mitigation in order to ensure the mitigation is carried out successfully. Such bond or surety shall be released/refunded to the applicant/proponent upon completion of the mitigation activity and the required monitoring period. The Director shall have authority determine if a bond or surety proposed by the applicant/proponent is satisfactory, and any legal instruments needed to effectuate such bond or surety shall be in a form as approved by the County’s Chief Civil Prosecuting Attorney. 18. The applicant/property owner should be aware and is hereby advised that the County retains full discretion and authority to enforce its development regulations, environmental and critical areas codes, and conditions of approval through enforcement actions, liens, abatement, or other means available under applicable law. 19. Substantial progress towards completion of the driveway project authorized by this Decision shall be performed within two years of the issuance of this Reasonable Economic Use Exception, provided that the Director may authorize a single extension for a period not to exceed one year based on reasonable factors, if a request for extension has been filed before the expiration date and notice of the proposed extension is given to parties of record and the Department of Ecology. 20. The applicant/property owner shall obtain any associated permit, lease, license, or approval required by any state, federal, tribal, or other regulatory body with jurisdiction over any aspect of the project or proposed mitigation work. Any conditions of regulatory agency permits, leases, licenses, or approvals issued for any aspect of this project shall be considered conditions of approval for this Reasonable Economic Use Exception and are incorporated herein by this reference. // // // FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING REASONABLE ECONOMIC USE EXCEPTION FOR BROWN PROPERTY ON MARROWSTONE ISLAND – FILE NO. MLA22-00044 Page 20 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 21. The Permittee shall comply with all professional report conclusions and recommendations submitted in connection with the pending application and associated approvals issued by the County for this project, as approved, referenced, relied-upon, and/or modified by the County. End of Conditions – ISSUED this 1st Day of May, 2023 _____________________________ Gary N. McLean Hearing Examiner FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING REASONABLE ECONOMIC USE EXCEPTION FOR BROWN PROPERTY ON MARROWSTONE ISLAND – FILE NO. MLA22-00044 Page 21 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 Final Decision, Request for Reconsideration or Clarification, Appeal Rights The Hearing Examiner is authorized to issue Final Decisions for matters listed in JCC 2.30.080(2). Decisions of the Hearing Examiner may be subject to a request for reconsideration or clarification, by parties with standing and in the time and manner specified in the Jefferson County Hearing Examiner Rules of Procedure, including without limitation HEx Rules 6.5 and 6.6. JCC 18.25.750(4) explains that the applicant/proponent for a Shoreline permit or any party of record may request reconsideration of any final action by the decision maker regarding such Shoreline permit within 10 days of notice of the decision. Such requests shall be filed on forms supplied by the county. Grounds for reconsideration must be based upon the content of the written decision. The decision maker is not required to provide a written response or modify his/her original decision. He/she may initiate such action as he/she deems appropriate. The procedure of reconsideration shall not preempt or extend the appeal period for a permit or affect the date of filing with the Department of Ecology, unless the applicant/proponent requests the abeyance of said permit appeal period. JCC 18.25.750(5) explains that Appeals to the Shoreline Hearings Board of a decision on a shoreline substantial development permit, shoreline variance or shoreline conditional use permit may be filed by the applicant/proponent or any aggrieved party pursuant to RCW 90.58.180 within 21 days of filing the final decision by Jefferson County with the Department of Ecology. On matters not involving Shoreline permits, Final Decisions of the Hearing Examiner are subject to appeal as explained in HEx Rule 6.7, and JCC 18.40.340, which reads as follows: (1) Time to File Judicial Appeal. The applicant or any aggrieved party may appeal from the final decision of the administrator or hearing examiner to a court of competent jurisdiction in a manner consistent with state law. All appellants must timely exhaust all administrative remedies prior to filing a judicial appeal. (2) Service of Appeal. Notice of appeal and any other pleadings required to be filed with the court shall be served by delivery to the county auditor (see RCW 4.28.080), and all persons identified in RCW 36.70C.040, within the applicable time period. (3) Cost of Appeal. The appellant shall be responsible for the cost of transcribing and preparing all records ordered certified by the court or desired by the appellant for the appeal. Prior to the preparation of any records, the appellant shall post an advance fee deposit in an amount specified by the county auditor with the county auditor. Any overage will be promptly returned to the appellant. State law provides short deadlines and strict procedures for appeals and failure to timely comply with filing and service requirements may result in dismissal of any appeal. Persons seeking to file an appeal are encouraged to promptly review appeal deadlines and procedural requirements and confer with advisors of their choosing, possibly including a private attorney.