Judge upholds herring pens ‘cease and desist’ order

William Dietz, KP News

“After reviewing all information, planning staff has concluded that the appellant does not have nonconforming rights.” That was the decision that came down April 21 from Hearing Examiner Mark E. Hurdelbrink regarding Administrative Appeal Case No. AA4-05, known locally as the herring pen operation in Mayo Cove.

Since July 2005, KP News has been covering the ongoing dispute between Pierce County’s Department of Planning and Land Services and Mayo Cove herring pen owner Derwin Hostetler. The county maintained that Hostetler lacked the permits necessary to operate the herring pens, while the marina operator continued to claim legal nonconforming rights, which, if valid, would allow him to continue the operation.

However, after review, the hearing examiner concluded that: “….There are two conditions that are applicable when determining whether a use is legally nonconforming.  First, the person asserting the right must show that they had a legally established use when the use began and second, that the use has not ceased for more than one continuous year. It appears that Mr. Hostetler operated this herring pen operation since 1968 or 1969.  Pierce County does not have any record of shoreline permitting for herring pens or other aquacultural uses within Mayo Cove. The Department of Natural Resources lease only includes uses associated with commercial moorage float and marina services dock. There was not a specific provision relating to a herring pen operation. No evidence shows that the herring pen was ever legally established at the marina or elsewhere in Mayo Cove. It also appears that the location of the herring pens is outside the current leased area. Both photographic evidence and testimony from neighboring property owners indicate that the herring pen uses have not been continuous since 1969 which is a requirement for nonconforming rights to remain established. The cease and desist order should be upheld.” (Click here to see ruling)

Dylan Stanley, one of the residents who opposed the herring pens, reacted to the hearing examiner’s finding this way. “It’s been a long process. I have mixed feelings. I’m not jumping for joy. It’s good for some people and hard for others… I think everybody just wants a healthy bay.”

So is the long-running fish story finally over? No, it isn’t. According to Diedre Wilson, senior planner for Pierce County Planning, “They (Hostetler and his attorneys) filed an appeal May 3.”

KP News obtained a copy of the Motion For Reconsideration, which reads in part: “The Motion for Reconsideration is based upon the fact that the substantial rights of the appellant have been materially affected, including, but not limited to: 1. Errors of Procedure and Misinterpretation of Fact, including the determination by the Hearing Examiner that Hydraulic Project Approval and a Section 10 Permit from United States Army Corps of Engineers was required for herring pens in 1969...”

“They’re also asking that the cease and desist order be lifted until the review of the motion for reconsideration is completed,” Wilson adds.

The motion for reconsideration will go before Hurdelbrink — the same hearing examiner who found against the herring pens in the April 21 decision.

Will the next finding settle the matter? Not necessarily. According to Mark Luppino, code enforcement officer for Pierce County, “Mr. Hostetler has an opportunity to appeal the hearing examiner’s decision. If so, it would go to Superior Court.”

When asked what he will do if Hurdelbrink denies the motion for reconsideration, Hostetler says, “I would listen to my lawyer’s advice on that.”

And given the fact that similar herring operations have been approved elsewhere in the state, he could also apply for the permits the county says he needs, and could potentially receive them.