For the moment, the herring pens in Mayo Cove remain in operation, but based on comments by Pierce County officials, that part of Lakebay Marina owner Derwin Hostetler’s business may be shut down within a matter of weeks. According to their research, it appears that Hostetler never had the proper permits to begin with.

If so, some of the bay’s other residents will be pleased.

The battle over the herring pens at the Lakebay Marina continues. Photo: Mindi LaRose, KP News

“My wife and I moved into the area in 2002,” says property owner Dylan Stanley. “About a year later all of a sudden there was a herring pen floating about a hundred feet off the Lakebay Marina dock. Then a fishing boat started coming in two or three times a night. They have two big diesel engines, which they leave running while they’re unloading and cleaning their nets. Two or three hours at a time. It’s pretty loud.

“That’s part of it, but starting at about 5:30 in the morning a refrigerator truck backs up to the marina, then a skiff goes out to the fishing boat to pick up the herring and bring it ashore. That means there’s noise from about 12:30 until 8 or 9 in the morning. All depending on tides and their work schedule.

“There’s four big pens, and I understand they starve the herring for about four days, to firm them up for freezing. But probably 20 percent of the fish die, so there’s a lot of dead fishing floating in the water, and a terrible smell.

Would you like herring with that?
According to the World Book Encyclopedia, “In many parts of the world, herring are a favorite food, either pickled, smoked, or eaten fresh.” However, in the United States, herring are typically used as bait. There is a significant herring fishery within what the Washington Department of Fish and Wildlife Website refers to as “the South-central Puget Sound region.” Which is why fishermen need places like Mayo Cove, in which to store herring, prior to taking them to market. For more, seehttp://wdfw.wa.gov/fish/forage/herring.htm

“Having the fish there brings in a large population of seals and seagulls. Having the operation there causes a lot of disturbance that none of us were aware of when we purchased our homes.”

Some, but not all, of Mayo Cove’s other residents agree. But Hostetler characterizes them “as people who have nothing better to do than make trouble.” He says the herring pens went into the water back in 1969.

“I bought it (the marina) to go into the fishing business,” Hostetler says. “The herring business. That was the main purpose of the marina. The marina is a fast way to starvation.”

If the herring pens were in place before 1971 when new shoreline regulations went into effect, and Hostetler applied for and was granted all of the necessary permits over the subsequent years, he could have what Mark Luppino, a code enforcement officer for Pierce County, calls “legal nonconforming (or grandfathered) rights.” Meaning that the pens could remain in operation.

If Hostetler failed to get all the necessary permissions to begin with, or had such permissions but allowed them to lapse at some point, then he might not have legal nonconforming rights.

Vicki Diamond, supervisor of the Current Planning section of Planning and Land Services for Pierce County, indicates that while her department was initially focused on the question of whether Hostetler’s original legal nonconforming rights had been allowed to lapse, they have come to believe that the marina operator and his partners never had legal nonconforming rights to begin with. And, because neither Hostetler nor his attorney have had an opportunity to respond to this latest development, the county granted them two additional weeks in which to consider the matter in July.

However, that decision doesn’t sit well with folks like Mayo Cove resident Stanley. “We are writing to express our dismay that the cease and desist order (described in the letter dated July 8, 2005) was not served on July 15th as promised,” Stanley wrote in a letter sent to Diamond on behalf of the residents. “Furthermore, our phone calls to you requesting explanation for yet another ‘two week’ reprieve went unanswered.

“Your office, under other leadership, gave its first two-week deadline in August of 2004.

“The law, as we have had it explained to us, states that any permit previously granted naturally expires if the operation is not in continuous use for over 1 year. If the permit expires, it can only be reactivated if nonconforming rights are granted or if the user goes through the Substantial Shoreline Development Permit process.

“We have proved both with photo documentation and through verbal testimony that the pens were not in Mayo Cove for at least one and a half years. Furthermore, as stated in your July 8th letter, no permit has ever existed for herring pens in Mayo Cove, the pens occupy territory not leased to Mr. Hostetler, and to add insult to injury, Mr. Hostetler is profiting from the illegal, ill-placed pens by way of sublease to Mr. Kauppila and Mr. Blair…”

In spite of repeated attempts to contact Hostetler by phone, in hopes of getting his reaction to the latest developments, Key Pen News was unable to get through.

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