Declaring that a “wetland” created by illegal dumping is not protected by law, a Kitsap County Superior Court Judge has ruled that the city of Bainbridge Island was wrong when it required the owner to get a special permit to build a home.

The city had initially decided that Charles Cole did not need a special permit to work on the lot at the corner of Murden Cove and Manitou Beach drives, but reversed its ruling after a neighborhood group became involved.

While the decision from Judge Karlynn Haberly would allow Cole to continue building a personal residence, he is unsure whether he will do so.

“At some point you just start to think, ‘Do I really want to live in this area?” Cole said.

Cole is continuing to press a case against the city for money damages he claims to have sustained by virtue of the city’s actions, including increased construction costs caused by the delay and attorneys’ fees spent in fighting the case.

“I hope we can sit down and settle the money issues without the cost of further litigation,” said Dennis Reynolds, Cole’s attorney. No precise figure has been worked out, he said.

City Administrator Lynn Nordby said that no decision has been made yet on whether to appeal Haberly’s ruling.

When Cole applied for a building permit in 1997, an outside consultant said there was a small wetland on the property of recent origin, formed when county highway crews deposited spoils from ditch-cleaning operations on the property, including mud and wetland plants.

Because the spoil material blocked water runoff, a damp area developed on the property, the study said. While calling the area an unregulated Class 4 wetland, the study said the area performed no measurable or significant ecological function.

At issue

The legal issue was whether Cole needed a so-called Shoreline Substantial Development Permit, required for many types of near-shore work. The process for obtaining those permits is more expensive and time-consuming than the process for a simple building permit, involving such things as public hearings and state Department of Ecology approval.

In 1998, building inspector Will Peddy determined that no SSDP would be required so long as less than 250 cubic yards of fill material was used.

When work got under way, though, the Murden Cove Preservation Association protested, claiming that Cole and his contractor, Bill Nelson, were using more than 250 yards of fill.

In response to a letter from Vince Mattson of the Murden Cove group, state Department of Ecology shoreline planner Alice Schisel wrote to Mayor Dwight Sutton in October of 2000, saying that the city had misinterpreted the SSDP exemption. Schisel said the 250-yard exemption applied only to grading, not to filling a wetland with material brought in from off site. Schisel said that any filling of a wetland – regulated or unregulated – would require an SSPD.

On the basis of that letter, city Planning Director Stephanie Warren reversed her earlier decision, and Peddy directed Cole to stop work. City hearing examiner Robin Baker affirmed that decision.

Rather than apply for such a permit, Cole took the city to court.

“There has never been a request for an SSPD for a single-family dwelling,” he said. “This had been going on for four years while I jumped through hoops. I finally just said, ‘hell, no.’”

The ruling

Judge Haberly did not address the exemption that had been the focus of the city’s two decisions. Rather, she relied on language in the state law and city ordinances saying that an artificially created wetland is not a wetland at all. The Cole property fell under that proviso, she said, since everyone agreed that the Cole “wetland” was created by the dumping.

“We had not focused on that issue,” Warren said. “And it was not raised by the Department of Ecology in the first letter we got.”

The issue was, however, explicitly raised in a second letter from Schisel in August of 2001. That letter said that the city may have “misconstrued” the earlier communication as a ruling on the Cole property. Schisel went on to say that if the wet area on Cole’s lot was created by artificial acts, then it was not a wetland at all in the eyes of the law.

By the time the second letter arrived, the matter was already in court, Warren said.

“We would have changed our decision again if the matter had not been in court,” she said. “We forwarded the letter to our attorneys – I don’t know why the matter wasn’t dropped.”

Mattson said he was unconvinced that the wetland was artificially created.

“The neighbors maintained it had been a wetland for many years,” he said, “but the hearing examiner did not allow them to testify.”

Mattson said the association was interested in upholding the integrity of the process, but had no opinion on Cole’s building plan itself.

“If your are going to have laws on the books, then you need to follow them, and if it was a Class IV wetland, then the city should have required a substantial development permit,” he said.

“We never said this was a good or bad project – that was not our point.”