A Liberty Lake homeowner argued before the Spokane County Hearing Examiner on Wednesday that he cannot comply with a court order to remove features he built on his Liberty Lake shoreline property because doing so would destabilize the hillside beneath his home.
Lloyd Herman was making a case for a retroactive permit to cover improvements that have been deemed illegal by the courts and the state Department of Ecology. He said he bought the property at 24603 E. Tum Tum Drive from his father in 1970 and has lived there since 1954. In 1993, Herman made several improvements, including building a bulkhead, enlarging a concrete deck and adding stairs. He was fined $1,000 by the Department of Ecology for violating shoreline management rules for doing the work without a permit. In 1995 he reached an agreement that called for him to remove some of the improvements in exchange for the $1,000 fine being dismissed.
The Department of Ecology fined Herman $30,000 in 2004 for a second violation and because he failed to comply with the terms of the 1995 agreement. Herman built a large enclosed cabana on the concrete deck in 2001 and made other improvements without permits. Herman appealed the decision and it went as far as the Washington Court of Appeals, which ruled that Herman must abide by the order of the Shorelines Hearing Board and pay the fine.
The board’s order required Herman to prepare a restoration plan, create a stormwater management plan and a planting plan and get a permit for any structures that are allowed to stay. It also required him to reduce the size of the cabana, remove two flights of concrete steps, remove concrete along the shoreline on the north end of the property (including a concrete cap on the bulkhead) and remove a concrete pier where a boat lift and crane used to be.
Herman has not made those changes. He did pay the fine and applied to Spokane County for a retroactive substantial development permit, but the permit asks that all structures be allowed to stay. Spokane County senior planner Bill Moser said Herman should remove the structures he was ordered to remove, then evaluate the hillside.
“That order is in full effect as it was originally drafted,” Moser said. “We find his request inconsistent with the board’s order.”
Moser said a letter from the Department of Ecology indicates Herman’s stormwater plan is inadequate. The stormwater plan also never received final approval from the Liberty Lake Sewer and Water District.
Herman argues that the structures are key to keeping the hillside stable.
“They ordered me, Ecology did, to stabilize my hillside by planting trees, shrubs and brush,” Herman said. “It’s an unstable hillside.”
Stabilization has to start from the bottom up and the work was done in response to Ecology’s 1995 order, he said. “The pier has become an integral part of the hillside stabilization,” he said.
The bulkhead was capped to add more weight to the base of the slope, he said. “The critical part of this whole plan is getting weight at the toe of the hillside,” he said.
The stairs he was ordered to remove are affixed to bedrock and also need to stay, he said. “It serves as a rebar support to the whole hillside,” he said.
Hydrologist Al Isaacson testified Wednesday that he first saw Herman’s property in 1993. “I wish you could have seen it then,” he said. “You wouldn’t believe the difference.”
At the time there was active erosion and runoff flowing on the south side of the house was washing sediment into the lake, he said. “It was a very unstable site,” he said. “It was moving.”
Now all the runoff goes into swales and is kept from flowing into the lake. Isaacson agreed with Herman’s assertions that the cabana and other structures help stabilize the hillside. “It puts weight on the toe of the slope,” he said. “The more weight on the toe of that slope, the better.”
Isaacson said he believes removing any of the items Herman was ordered to take out would be detrimental to the lake and to the hillside. “No professional engineer is going to sign off on removing any of this,” he said.
The county received several letters in opposition to Herman’s permit. A letter from Liberty Lake resident Steve Shirley states that Herman, as an attorney, knew he needed to apply for a permit. Herman “used his position of power in the community as a high profile attorney to thumb his nose at the shoreline regulations in a gross and obscene manner by building a small Taj Mahal within 50 feet of the high water mark,” he wrote. “These regulations are designed to protect and preserve the delicate water quality of Liberty Lake.”