Dear City Council Members and Honorable Mayor McGinn,
The people of this state do not yield their sovereignty to the agencies that serve them…. The people insist on remaining informed so that they may maintain control over the instruments that they have created. RCW 42.56.030
My name is Kevin Bagley and I am the founder of Lake Union Liveaboard Association. We have been living on Lake Union in a 72 foot Paddle-Wheeler (a fully functioning vessel, coast guard inspected, marine surveyed, documented, frequently cruised, and in every way a vessel). Together with my wife, Linda Bagley, we own Special Agents Realty and have specialized in Floating Homes, Houseboats, and waterfront properties in Seattle since 2006. During this time, we have become local experts on houseboats, helping many people purchase their houseboat. Initially, we knew nothing about 1990 SMP rules that might affect houseboat sales, but later, we learned of this and then advised prospective buyers and sellers to understand that rules that affected them. Primarily we provided them with copies of the CAM-229 to help them understand the rules so they could comply. We have also added this information to two websites that we created to assist buyers and sellers of these vessels. We have participated in dozens of Marine surveys on houseboat vessels, have examined hulls, engines, nav stations, 12 volt systems, bilge pumps, even participated in sea trials. As a subject matter expert, we were NOT involved in the development of regulations affecting liveaboards and houseboat-vessels.
My apologies for the length of this letter, but because our group has not been FULLY INVOLVED in the process, communication is limited to 2 minute speeches and lengthy letters. I implore the readers to read this document in its entirety.
Proposals are at the end of this document.
Members of Lake Union Liveaboard Association have repeatedly complained that they have NOT been involved in the development of the Shoreline Master Programs. The entire process of the development of regulations affecting liveaboards has been conducted WITHOUT stakeholder involvement and participation.
In developing master programs and amendments thereto, the department and local governments, pursuant to RCW 90.58.130 shall make all reasonable efforts to inform, fully involve and encourage participation of all interested persons and private entities, and agencies of the federal, state or local government having interests and responsibilities relating to shorelines of the state and the local master program.
Please note that this law requires department and local governments to make all reasonable efforts to inform and fully involve all interested persons.
DPD has failed this requirement.
In the meeting of the City Council Planning, Land Use and Sustainability committee meeting, held on 12/12/2012, DPD presented changes to the Shoreline Master Program section 23.60A.214 Standards for using vessels as dwelling units, which significantly affect “interested persons” and “private entities” and were published only hours before being presented, reviewed by the PLUS committee and voted on. This city council and DPD are in direct violation of WAC 173-26-090.
This change affects the following interested persons and private entities who have received no notice of this proposal or whom have NOT been informed or involved in any way: Yacht Brokers, Marina Owners, Vessel Manufacturers, The Recreational Boating Association of Washington, Northwest Yacht Brokers Association, the public as purchasers of these vessels, the public as those who may desire to live aboard a certain style of vessel. We are trying to contact affected stakeholders to assure they
Because these changes (and others) have been implemented WITHOUT proper stakeholder involvement, there are significant ramifications that went unnoticed, un-discussed, and which directly affect free enterprise and may cause potential legal problems.
A VERY DANGEROUS SITUATION:
A Yacht Broker sells a Destiny Yacht to a buyer (LEGAL). The Buyer of this yacht purchases this yacht FULLY intending to live aboard the yacht. Unfortunately, the yacht broker knew nothing about this regulation nor the intended purpose (living aboard) and sells the Yacht. The buyer then begins living aboard the yacht (the buyer also knows nothing about this regulation). Later a complaint is filed and the buyer looses the ability to use his MAJOR purchase for its intended use. Law suits ensue. People lose their assets. Who is liable; the buyer who bought the vessel legally? The Yacht Broker who sold the boat legally? The Marina that moors the boat legally? (Sound familiar?)
While “CLARIFICATION” was a goal of these regulations, the proposed regulations will NOT improve the situation without all sides of the equation being addressed. Will Yacht Brokers be tasked with the responsibility of informing consumers that they cannot live aboard their vessel? What if the vessel is sold on Craigslist, or through a private party? Will Marinas be tasked with policing their marina to assure that someone does not live aboard a certain “style” vessel? Once again, we are back to complaint based enforcement and leaving the PUBLIC believing they are doing NOTHING wrong while the city allows peoples hard earned money to be THROWN DOWN THE DRAIN. The problem that is facing houseboat owners NOW (unclear regulations, un-enforced regulations, no registration methodology, no oversight) will soon plague the public once again.
In the absence of FULL INVOLVEMENT, we will endeavor to respond to DPD statements in the section titled Questions and Answers below.
Assumption of Accuracy
It appears that the City Council has been assuming that information presented by DPD is correct and accurate. This is leading to flawed perceptions and decisions made on incorrect information. DPD has alluded to an estimate of 150 “illegal” structures over water and has said that perhaps 25% of “houseboat-style” vessels are “illegal.” This would yield a total number of “houseboat-style” vessels at around 600. John Skelton admitted that they have no evidence of this, yet decisions are being made with this number being bandied about as though it were fact.
DPD has not performed a basic assessment of the number of Slips, Vessels, Vacancies, and Houseboat-style vessels, yet purports 150 allegedly illegal houseboats and indicates that Houseboat vessels are displacing Recreational and Commercial vessels. Again, the PLUS committee seems to be accepting this as fact.
To provide a FACT-BASED estimate of the total number of Slips, Vessels, Vacancies, and Houseboat-style vessels, we have created a statistical analysis that provides a systematic assessment of all Seattle Slips and have made these results available to the public. It can be viewed at: bit.ly/SeattleSlips
The following is the Summary Statistics page from this presentation:
As can be seen by this fact based analysis, houseboat style vessels occupy only 1.15% of all Seattle Slips, and as no slips in Lake Washington were included, this is a CONSERVATIVE estimate. The total number of Houseboats is approximately 113. Of these, we believe the vast majority meet the DPD criteria of being Vessels, designed and used for Navigation.
Per public record, DPD has issued a number of Notices Of Violations in the last five years and out of 5 allegations of a vessel being an “overwater structure” only 1 of these was found to be an “overwater structure.” This implies a success rate of about 20%, or, put another way, DPD has been wrong 80% of the time when they issue an NOV. This seems like an extreme waste of time and taxpayer money.
Preserving Space for Water Dependents uses: Because DPD has not accurately assessed the situation, they have made statements that are not true. The recent survey we performed proves that there is an abundance of vacant slips and there are 19 vacant slips for every 1 houseboat. With a vacancy rate greater than 24% in peak season, there is no validity that houseboats are displacing recreational or commercial vessels.
It is also commonly discussed by DPD as though the current owners of both vessels and house-barges are the same owners as existed in 1990. To assume this is irrational. The vast majority of vessels and house-barges have been sold MULTIPLE times since the 1990 SMP. It is completely unreasonable to expect 4th generation owners to know anything about 1990 rules that have been IGNORED by DPD. These people bought their vessels and house barges the same way you would be any vessel or car. You do NOT expect, NOR SHOULD THE CITY HAVE THE RIGHT, to suddenly make these “ILLEGAL.”
Imagine you buy your home in good faith, only to find a city agency tell you that you are not allowed to live in your home, you can be fined daily, and evicted, because your home is NOT SHAPED LIKE A ‘REAL’ HOME and is not allowed, and oh, by the way, this was a rule that was put into place 23 years ago – we just haven’t been enforcing it.
The Cost to Achieve No Gain or Negative Progress
The Cost of Regulation Development
As DPD is now in the 6th iteration of the Houseboat-Vessel-Liveaboard regulations (primarily section 23.60A.214) it is apparent that a great deal of taxpayer money is being expended on this section. DPD has re-written this section repeatedly and every iteration was drastically different from the previous iteration. They have also spent 10’s of thousands of taxpayer dollars on Naval Engineers and Architects, only to throw out the regulations based on this information. It is also apparent that DPD does NOT have a good grasp on this issue. At this point, we are confident that tens of thousands of dollars have been spent, and possibly more than 100 thousand dollars have been spent on this section alone. We believe that FULL INVOLVEMENT by the stakeholders would yield a more effective result, with a far lower cost, and less harm to the public.
We will be asking that DPD provide an accounting through the public records disclosure act, of how much taxpayer dollars have been spent this section.
What Kind of Vessel is it OKAY to Live In? REGULATING STYLE – NOT USE
DPD is stating that the regulations being proposed are for the purpose of clarifying what kind of vessel can be used as a dwelling unit. This statement is BLATENTLY stating that they want to regulate STYLE not USE. Previously the regulations indicated you could live aboard a recreational vessel and the regulations were trying to define ‘What is a recreational vessel?’ Now, there is no reference to being a recreational vessel, it simply states you cannot live aboard your vessel if it LOOKS LIKE ONE OF THESE. This amendment is clearly and indisputably a regulation based on STYLE AND/OR SHAPE. This type of regulation is COUNTER-PRODUCTIVE to the effort to improve our waters or limit the number of overwater residences.
The discussion should focus on USE, not what style of vessel where that use can occur. In 20 years, these regulations will INCREASE the number of live-aboards and INCREASE the contribution of grey-water because we will have MORE live-aboards. The ONLY difference is that they will now be on Pointy-nosed vessels instead of houseboat-style vessels.
Maggie Glowacki indicated on 12/12 that Ecology is secondary and the Residential use is primary. As there is NO RESTRICTION on the number of liveaboards on Pointy Shaped vessels and there is NO RESTRICTION on grey-water contribution from these vessels, I submit that NEITHER ECOLOGY or RESIDENTIAL USE is being addressed and in 20 years the ECOLOGY WILL BE WORSE, and RESIDENTIAL USE WILL BE WORSE, with the only change being that the residential use will be on Pointy-nosed vessels. We will have a lake filled with live-aboard Yachts, Trawlers, and Sailboats.
This is NEGATIVE PROGRESS at significant cost.
DOE Guidelines REQUIRED that the regulations resulted in NO NET ECOLOGICAL LOSS. The current regulations fail this requirement
The Cost of Litigation
As Notices of Violations have already begun, this will likely end up in litigation. The cost of this litigation will likely be expensive, both for the City (paid for by taxpayers) and for the vessel owners (paid for by the owners – also taxpayers). People will typically fight for their rights when the city is effectively “TAKING” their property, or rendering their property valueless. Imagine this cost multiplied by however many vessels DPD seeks to attack.
The Cost of Lost Revenue
As the city removes one of the culturally significant ways of living in Seattle, that has been a way of life for decades, it will reduce the charm and character of Seattle. NO ONE GOES ON TOURS OF SHILSHOLE.
As people are EVICTED and their life savings ruined, repercussions will crop up in many places. Loans will be defaulted on. Public Assistance demands will increase. Insurance companies will lose revenue, local businesses will suffer
The Humanitarian Costs
Above all, the cost in terms of damaging people’s lives, making them homeless, ruining them financially, and leaving people in uncertainty is the highest cost of all. IT IS MORE THAN A TRAGEDY, IT IS A TRAVESTY.
Question and Answers
This section is designed, in the absence of FULL INVOLVEMENT, to try to partially attain some sort of dialogue. Here we will look at questions that were asked of DPD, their response, and a response from a LULA member. While DPD has had the opportunity to publically participate in an exchange of information, the liveaboard stakeholders have had no opportunity to respond to DPD statements as they are made. Had this been a TRUE DIALOGUE, both DPD and the City Council would have benefited from insight ONLY gained in a conversation.
Q: DOE reps discussing proposals, existing Liveaboard Vessels and Amnesty Proposal
DOE: Jeff Talent;
- Need to figure out what to do with the situation, referring to existing Live-aboard vessels.
- Indicated DOE is very concerned with the concept of an Amnesty program.
- Indicated that he did not feel the Shoreline Master Program was the place to solve this problem (speaking to EXISTING live-aboard vessels). It probably should be city administrative actions.
- If it was in the form of an amendment, he encouraged having the time to work on it and not hold up the rest of the SMP.
- He also indicated that existing vessels are under the same set of rules when they came into existence.
DOE: Joe Burkhart
- Fundamentally, we are typically looking forward at new uses and planning for new uses.
- Black & White – prohibiting non-water dependent structure use
- Indicated that they were not concerned about the Vessels but about the USE.
A: We concur with DOE and emphasize that the regulations should be about use, and NOT about the vessel. We are VERY concerned that Manufacturers of nationally sold recreational vessels (Destiny Yachts, Harbormaster, Gibson, East Coats Houseboats). While we have consistently stated that the proposed regulations are about style, not use, this has been summarily dismissed. There has been no honest open discussion about this and it is a delusion to think this is not true.
THESE REGULATIONS ARE REGULATING STYLE, NOT USE.
Living aboard IS THE USE.
Q: Nick Licata asked about the term “Shanty Boats”
DPD: There were chuckles by DPD representatives as though this seemed humorous. There were statements that this was found on AllAboutHouseboats.com
A: As Liveaboards, we find this language derogatory. There are NO Shanty Boats in Seattle Waters, and a search of the website mentioned during the 12/12/12 meeting did not reveal any “Shanty Boat” manufacturers. We feel this term was inserted to connote a level of disrespect (the definition of Shanty is “A small, crudely built shack”). This should be removed.
House-barge Compliance Program
Q: Richard Conlin proposed a compliance program requiring house barge owners to contain grey-water or obtain a hardship waiver. Nick Licata stated that he had no sympathy for people who agreed to make changes but didn’t.
A: The important things to consider in this regard are;
- The city failed to develop a procedure to ensure compliance
- The city failed to enforce this requirement (FOR OVER 20 YEARS)
- Most House-barges have changed ownership numerous times with NO conveyance of information regarding the Grey-water containment rule.
- Most current owners knew NOTHING about this requirement when they purchased.
Exemption based on hardship and BMP’s
- All vessels are already going to be required to comply with Best Management Practices
- The cost of implementing grey water containment should be borne by those that failed to comply, NOT by new owners. IF the owner at the time this requirement was implemented still owns the house barge, then they should be REQUIRED to comply barring a proven hardship. The failure to develop an implementation process and enforce this requirement is the City’s fault and requiring a NEW owner to comply should be considered an undue hardship. The new owners did not evade the requirements, they simply did not know and should be allowed to proceed by complying with Best Management Practices.
- There are not enough resources; Ship Yards, professionals capable of doing the work, parts to accomplish this in 120 days. Many of these do not have the room, will encounter instability, or will have prohibitive costs to make this happen.
- Currently, the infrastructure to dispose of the Grey Water does not exist. The pump-out services do not have containers large enough to hold grey water.
- There is no clear definition of Hardship – i.e. what is a prohibitive cost? NOTE, there are initial costs and then increased ongoing costs in the form of pump-out services which can be quite expensive since existing pump-out vessels would likely have to make multiple trips.
Based on these facts, and that these house-barges have existed for the last 23 years without causing any significant ecological impact, we recommend exempting all house-barges that are not owned by the owners at the time of the 1990 agreement.
Q: Nick Licata asked regarding house-barges and grey water impact; How does that compare to the impact from liveaboards on vessels like Shilshole?
DPD: Maggie stated “There weren’t good methods that marinas could ‘easily’ be put in place.”
A: This begs the question as to WHY DOES IT HAVE TO BE “EASY” FOR POINTY VESSELS but it is okay if it is HARD FOR BOXY VESSELS OR HOUSEBARGES.
LULA proposed reasonable solutions that addressed grey-water (and limited liveaboards) for ALL liveaboard vessels – regardless of shape, but this was ignored. This is an unequal application of standards.
It has been 23 years since the last Seattle Shoreline Master Program (SSMP) update. At the time of that update, a small number of vessels (about 34) without propulsion were “grandfathered” in as “House Barges” while at the same time, about 30 houseboat style vessels chose NOT to be grandfathered in, and instead added propulsion and steering and became licensed as vessels. The Department of Planning and Development (DPD) was aware of these vessels, and allowed them to continue to exist in Seattle Waters because they met the definition of a Vessel.
Over the last 23 years, about 83 more of these houseboat style vessels, meeting the CAM-229 standards, have been added to Seattle Waters. Again, DPD was aware of these vessels and made few attempts to prevent or remove them from Seattle Waters as they met the criteria required by law. There is NO LAW, REGULATION, CITY CODE, or ORDINANCE that indicates how a Vessel must look, what shape it must be, or that you cannot build a vessel that looks like a house.
Vessels come in ALL SHAPES AND SIZES.
DPD has been making overt statements about “illegal” houseboats which have no basis in fact (as admitted by DPD officials). These statements are not based on any evidence, examination, or proof; they are simply conjecture and opinion of those that do not like the concept that a vessel can look like a house.
It is important to know that Houseboat-Style vessels have been built, bought, and sold as vessels for decades. Many of these houseboat vessels have changed ownership numerous times since they were built and each purchaser of these vessels went through a similar process that any other vessel-style (Yacht, Tug, Sailboat, etc.) buyer went through. These Houseboat-Vessels had MARINE surveys, they purchased MARINE insurance, they were closed through MARINE title services, their vessels were hauled out at MARINE shipyards, they had special MARINE bottom paint applied to protect their vessel, they paid sales tax as required of all MARINE vessels, they registered their vessels with the state and paid annual MARINE licensing fees. These MARINE vessels have engines, steering, fuel systems, navigation lights, bilge pumps, MARINE safety equipment, Fenders, cleats, 12 volt systems, black water tanks and other features that CLEARLY make them a vessel.
People buying and building these vessels bought and built their homes in good faith and NEVER thought they were doing anything wrong and in FACT were doing nothing wrong. Because DPD has recently stated that there are 150 “illegal” houseboats, does NOT make this a fact and we believe that the recent notices of violations will be found false. DPD has made accusations like this in the past and has repeatedly been proven wrong.
Derogatory Public Statements and Actions
Public, recorded statements by DPD officials have indicated a strong bias against Houseboat style vessels and their owners. The following statements and actions have been made by DPD representatives;
- DPD Spokesperson Bryan Stevens stated that houseboat owners “are skirting city oversight by calling themselves boats.”
- Margaret Glowacki, after hearing a statement from Shilshole boat owners indicating they would never accept registration or deal with grey-water, indicated that “well, then we will go after the Houseboats”
- Bryan Stevens stated “Some have just put outboard motors on the back of their floating home type structure and said hey I’m a boat and therefore I’m not regulated.”
- The recent addition of the term “Shanty Boats” to the guidelines is derogatory (the definition of Shanty is “A small, crudely built shack.”) and completely unnecessary. The website claimed to contain this information has no information on “Shanty Boats” and there are no vessels on Lake Union that are “Shanty Boats.”
- DPD Inspector, Christine Bruno has harassed and threatened houseboat vessel owners, telling them “they better get an attorney” and showing up after hours and multiple times per week.
We ask the City Council to exercise some scrutiny when considering the presentations by DPD and we encourage DPD to take a more responsible, professional approach as a public agency.
Proposal: Alternative to Code Interpretations
The only way that a houseboat-vessel owner can establish their legality and avoid living in perpetual fear of DPD inspectors and having to defend potential Notices of Violations is through an expensive CODE INTERPRETATION. The following proposal would be allow a vessel owner to prove compliance with existing regulations and could be completed during a marine survey which is commonly performed on houseboat vessels. The CAM-229 is the ONLY document published by DPD clarifying the rules to be a live-aboard vessel.
- Houseboat vessel owners can demonstrate compliance with CAM 229 by providing a 100% compliant Live-Aboard Vessel Certification (see below).
- The Live-Aboard Vessel Certification would be completed by the inspector and 100% compliance would serve as proof of compliance with the CAM 229 guidelines.
- Houseboat vessels owners would be required to present a 100% compliant Live-Aboard Vessel Certification within 30 days request from DPD based on a bona-fide complaint (See Bona-fide Complaints).
- Owners of houseboat vessels would have a 120 day grace period to address and correct any issues (i.e. repairs) and present a 100% compliant Live-Aboard Vessel Certification.
- Any Vessel that is unable to produce as requested, a Live-Aboard Vessel Certification could be subject to enforcement action.
It is reasonable to provide some protection against Frivolous Complaints (essentially harassment).
- The complaint process should be required to clearly identify what parts of the CAM-229 a particular vessel is out of compliance with.
- Reasonable evidence should be provided both to DPD and to the vessel owner that the vessel does NOT meet the CAM-229 standards.
- Repeated complaints (three) by the same individual that prove to be false should preclude that individual from filing further complaints to avoid harassment.
Sample Live-Aboard Vessel Certification form:
Proposal: REVISE Section 23.60A.214 and Include Public – Stakeholder Involvement
We ask the City Council to SERIOUSLY consider that the live-aboard community has not been FULLY INVOLVED as required in WAC 173-26-090. We remain committed to working with DPD, DOE, and the City Council to achieve a result that works for everyone and ultimately benefits our waters and protects our shorelines. To this end we ask that the City Council table the current proposals contained in section 23.60A.214, establish a task group to FULLY INVOLVE the stakeholders and work through the liveaboard regulations to achieve a reasonable proposal that can be presented to the City Council within 60 days.
Proposal: Housebarge Compliance Program
This proposal is based on the following concepts;
- House-barges have been on the lake, with minimal consequence for the last 23 years.
- The requirements implemented by DPD in 1990 did not contain sufficient checks and balances nor procedures to assure compliance.
- Most house barges have had multiple owners since 1990 and the information was not conveyed to the new owners
- Owners who owned their house-barge at the time of implementation and continue to own their housebarge should comply with regulations.
- Owners of house-barges that can demonstrate they purchased their houseboat after the implementation of the house-barge regulations are not be required to contain their grey water, but must comply with Best Management Practices.
- Owners of house-barges that purchased their house-barge prior to the implementation of the house-barge regulations are required to comply with the grey water containment requirements within 120 days.
- Owners of house-barges that purchased their house-barge prior to the implementation of the house-barge regulations who can demonstrate undue hardship to implement grey water containment may be granted an exception. Undue hardship is defined as any of the following conditions:
- Implementing grey water containment would cause an unsafe or unstable condition.
- An inspection by a marine surveyor indicates the vessel does not have sufficient space to provide for Grey Water Containment
- The cost of implementing Grey Water Containment is greater than 3% of the vessel’s assessed value.
- We remain committed to working with DPD, DOE, and the City Council
- We believe the FULL INVOLVEMENT is required, would improve the process, and result in better regulations that are fair and effective.
- The facts indicate that Houseboat vessels are NOT a significant problem
- Current proposals accomplish neither improved ecology nor a reduction in Live-aboards.
- Our proposals are reasonable and based on sound information and factual data
- It is time our city stopped ruling with FEAR and assured the preservation of this uniquely Seattle lifestyle
Co-Owner Special Agents Realty
– Founder Lake Union Liveaboard Association.