BRIGHT, JOHN & PENNEYa ,' M` CLERK
FINDINGS AND DECISION OF 11-11E 11'-EAI IM3 E"; kAMINUTI
CITY OF SAIN-BFUDGE ISLAND
In the Matter of the Appeal of
,101IN AND FMIlTNEY BRIGHT
of the Issuance of a Building Permit to
Ray and Sheri Heskew by the Director,
Manning an0 Community Development
111tro(luct tDgi
The Director issued a building permit [BLD13509]
residence o property owned by Ray and Sheri i-Ieskcw.
and Penny Bright, app+waled the issuance of that permit.
BLD13509S it
for con,stmction of a single-family
Tlhe adjacent property owners, John
The Hearing Examiner held the hearing on this m atter on September 8, 2005. Parties
represented at the hearing were the Director, Planning and Community Development, by
Rosemary Larson, Assistant City Attorney; Appellants, John and Penny Bright, by their
attorney, John Waldo; and, the Applicants, Ray ar.d Sheri Heskew, by their attorney, Heidi
J. Gassman.
After due consideration of all the evidence in the record, the following shall constitute the
findings, conclusions, and decision of the Hearing Examiner on this appeal.
Findings of Fact
Subject Property
1. The subject property, located on a northeast facing bluff overlooking Puget Sound
north of Yeomalt Point, is approximately 20,400 sq. ft. in size. The property is identified as
Tax Parcel No. 4120-000--013-0306 or, as it is not yet addressed, is referred to as "Lot C,
Grand Avenue". Access is via a driveway easement off of Grand Avenue. [Staff Report,
Exhibit 391
2. Except for the steep slope in the northern portion of the lot, the site is relatively flat
(elevation at the southern property line is 82-83 ft. and at the northwest corner, 200 ft. away,
el vation is 74 ft.). The slope descends ste,, ply toward Lot D and a concrete driveway down
to Lot D begins in the northvastr,rn corner of the lot. [Staff Report, Exhibit 39; Exhibit 1,
page 1 of 6]
3. The undeveloped site is bordered on the east, west and south by single-family
residences (including Lots A and 13 directly south., between the subject lot and Grand
Avenue). Zoning is R-2, single-family residential, two units to the acre. The Comprehensive
Plan designation is CSR 2 (Open Space Residential, 2 units per acre). The subject property
is more than 200 feet froni the shoreline and Lot D is between the subject property and
water's edge. [Staff Report, Exhibit 39]
4. The subject lot was created in 199 l through a Short Subdivision Amendment pursuant
to an application made by the owners at that time, Michael and Kinam Kelley. This
amendment divided Lot C of the original short plat (i.e., Short Plat. No. 2925; recorded
in 1982), into two lots: Lot C (the subject property) and Lot D (referred to as the Kelley
property). The subject property is the `upper" or upland portion of original Lot C. Lot D,
the "lower" portion of original Lot C, is located within the shoreline and shares the steep
slope noted in Binding 2 with Lot C. [Staf'Report, Exhibit 39, Attachments A -D; Testimony
of Preston] Lot C includes the top 15 ft. of the slope; the toe of the slope is on Lot D [see
GIS topo/parcel reaps included in Exhibit 14 for lot lines relative to topography, also Exhibit
2; Exhibit 7; and Amended Short Plat maps].
Background: Geotechnical Reports and Recommendations
5. At the time the short plat amendment was approved, this area was part of
unincorporated Kitsap County. The Comity's approval [Staff Report, Exhibit 39 Attachment
C], marked as having -been recorded March 11, 1991, noted the following SEPA condition
in the Department of Community Development "Comments" section:
Approval is conditioned upon site development meeting all recommendations
of the September 20, 1988 geotech report and February 15, 1991 amendment
to that report prepared by Geological Consulting Services.
6. The "recommendations" referred to in the condition of approval are in Geological
Consulting Services' September 20, 1988 report [Staff Report, Exhibit 39, Attachment D].
This report described the steep slope shared by Lots C and D as being located about 200 ft.
back from water's edge, approximately 40 ft. high, with several large maple trees at the edge
of the bluff and a very large maple half way dowr the slope. The trees were observed to be
straight and it was concluded that the slope was "seemingly stable at this time and has been
for quite a number of years." Despite this conclusion regarding stability, the following
recommendations were made:
To improve the stability of the bluff separating the upper and lower
sections... we suggest terracing the face of the bluff with gabion type
containment areas. Starting at the toe of the bluff, and behind each gabion,
subsurface drainage across +.he face should be established with all drainage
piped to a coil actor system and tight -lined to the beach. It should also be
assured that the existing drain line from the north abutting property is also
tight -lined to the beach. Potential surface water run-off from the upland area
should be collected and diverted away from the top edge of the bluff and
tight -lined to the beach.
We recommend... in the lower area, a curtain drain... periphery subsurface
drains... and all drainage collected and tight -lined to the beach.
In the event it: is decided to construct a home in tlrP upland__area, we
recommend a set -back distance of 75; feetto
_trom the p o#.tide �]uii'. F bluff
stabilization has been improved by ternacing, _�itliga'�ioLi, a closer s -bacl,:_
m_be�stified. Subsurface drainage should still be cAablished... [emphasis
added]
... the large maples at the edge of the slope of the bluff should be cut to
remove excessive weight. The stumps should not be removed. In order to
protect bare portions of the slope, some type of vegetation, such as ivy,
should be established... [emphasis in original]
7. In February 1991, Geological Consulting Services reviewed their 1988 .report "in
rcuards to the possibility of residence(s) [sic] construction on both the upper and lower
portions of Lot U and opined that such residential construction "would be possible as long;
as the recommendations listed in our report are followed..." [Exhibit 3, Attachment E]
3. Sometime in the spring of 1991, after Lots C and D had been cleared and a driveway
down to Lot D constructed, a slide developed fi-om the northerly portion of Lot D. By June
1992, considerable damage had occurred along the east side of Lot D and on the adjacent
property east of Lot D (i.e., referred to as the I{ing-Aexel property). Geotechnical
consultants Shannon & Wilson were employed to determine the cause of the sliding and if the
slide mass could be stabilized. The findings frorn that investigation are contained in a 1992
report that is mentioned in Exhibit 41, but was not made part of this record. The Appellants
indicate that the slide damage included loss of part of their bluff and contend that the slope
clearing and driveway construction initiated the instability that resulted in the slide event.
[Exhibit 9; Exhibit 41, page 1; Staff Deport, Exhibit 39, Attachment 1, Testimony of P.
Fright]
9. A 1994 Shannon & Wilson report [Exhibit 41 ] recounts the steps taken in response
to the slide noted in Finding 8. Drains were installed and buttress fill was added on the beach
on Lot D and on the King-Aexel property, in an attempt to stabilize the slide mass by
providing resistance to the material sliding, from, landward of the beach. To protect the
buttress fill, a bulkhead was constructed on the King-Aexel property and 3 5 ft. onto Lot D.
The rernediation ('owering the water table with subsurface drains and adding buttress fill) was
completed in 1994. [Exhibit 41, pages 1-4]
10. The 1994 Shannon & Wilson report [Exhibit 41, pages 6-7] concludes that the
stability of the Kin(;-Aexel property is dependent upon the stability of Lot D, but that Lot D
"is isolated from the Bright property" and it would be unlikely that instability at Lot D would
adversely affect the Bright property. The consultants recommended that all drains be properly
maintained, that specific steps be taken to isolate Lot D from the King-Aexel property wall,
and that a residence on Lot D not be cc: mrLicted closer than 80 ft. from the northern top of
the buttress fill. (The location shown for a residence on Lot D in the drainfield design plans
[Exhibit 7] does not appear to observe this recommendation [Exhibit 41, Figure 2].) No
specific recommendations were made for Lot C.
11. Consistent with the recommendations of Shannon & Wilson, various measures were
taken to stabilize the shifting soils, including: 2 -ft. diameter pilings driven 40 ft. deep, a
bulkhead constricted along the beach frontage, drainage tight -lined, and a rockery/retaining
wail along part of the driveway. [Testimony of Fredricks]
1:Z. Leland B. Jones, the geotechnical engineer who wrote the 1994 report [Exhibit 41],
testified that when Shannon & Wilson looked at Lot D in 1994 it was an active slide area and
the subsurface water had to be drained and controlled before a building could be constructed.
He spoke of the steep bluff as being "above" Lot D rather than a part of it and gave
conflicting testimony as to whether or not instability on Lot D would cause 'nstability on the
Bright property. (I.e., the report says that the Bright property is "isolated" and unlikely to
be affected by Lot D events, but hearing testimony was that sloughing ort the Bright s'
property could "eventually" be a result of bluff failure on Lot D.)
13. Along with the clearing that was done in 1991, a driveway was excavated down the
bluff to Lot D. That driveway, which begins about 60 ft. back from the northeast corner of
Lot C [see location and relative scale in Exhibit 2 and Exhibit 7], heads straight downslope
then turns rather abruptly toward the west, just south of the where the driveway enters Lot
D. The driveway is paved with concrete about 10-12 ft. wide [see Exhibit 124] and one
drainage catch basin is located at the top and another at a place downslope. Along the west
(upslope) side of the first section of the driveway (i.e., between the top of the slope [at about
elevation 74, see Exhibit 2] to and somewhat beyond the curve toward the west), there is a
3 ft. tall rockery along the toe of the slope formed at the driveway [see Exhibit 124]. [Staff
Report, Exhibit 39, Attachment G, Testimony of Fredricks, E]
14. The record does not establish when the Heskews became owners of Lot C and if,
during that transaction, they were specifically advised about of the setback condition imposed
with the short plat amendment that created Lot C and Lot D frorn the original Lot C.
Director's Decision
15. In June 2005, the Heskews filed a building permit application (Bf'13509SFR) for
construction of a residence on the subject property (i.e., Lot C). The application is for a
3,016 square foot house set 37-54 feet back from the top of the slope at the northerly end of
the property. Drainfield casements take up approxii-nately the southern third of the lot and
a 25 -ft. wide access and utility easement extends along the eastern side of the property. Other
building setbacks are: 10 ft. (rear yard) on the west; 25 ft. (front yard) on the east (in addition
to the access and utility easement); 10 ft. to the south between the building and the drainfield
easement; and, 5 lt. between the drainfield easement and the southern property line. [Exhibit
2; Staft'Rel,ort, Exhibit 39, Attachment B; Exhibit 40]
16. 1nc�luded with the application submittal was the City -required geotechnical analysis
[E=xhibit I ] and a Geol:Dgic Slope Reconnaissance report, by Aspect Consulting, dated March
25, 2005 [included ire Exhibit I, also Attachment G in Staff Report, Exhibit 39]. The repot t
ir:,,ludes recommen iat: ns for the setback from the top of the slope.
17. Tl�e repor t by>pect Consulting [Attachment G in Staff Report, Exhibit 39] describf.-,s
(lie northeastern slope of the property as having a elevation change on the order of 30 ft. from
the top ofthe slope to the driveway where it curves to the northwest, and another 20-25 ft.
elevation change below the driveway (within Lot D) to the flat portion of Lot D. The angle
of the slope above the driveway varies, generally ranging from 1.2H- IV, to near -vertical.
Evidence of former landslide activity can be observed in the lack of mature vegetation on the
north -facing slope and accumulations of loose soil debris in the more gently slope above the
beach on Lot U. The most recent slide activity, occurring in the upper foot of weathered soil,
is considered to have been small, isolated surficial slides. The geotechnical engineer saw the
age of the slope vegetation as suggesting that the last "notable toppling failure" had occurred
Burin , the severe storms of the winter of 1996-1997. The events and rernediation that
occaarred in 1991-1994 and the 1994 Shannon & Wilson report [Exhibit 41] are not
mentioned in Aspect Consulting's report. (At hearing, the geotechnical engineer testified as
to having reviewed the Shannon & Wilson report, but wren this occurred was not
established.)
18. Aspect Consulting recommends that the appropriate setback from the top of the bluff
on Lot C is one -foot for every foot of vertical relief frons the top to the driveway below, plus
five feet. The consultant estimates that, if the observed slope retreat of 2-3 inches per year
(ori average) continues, it would be 80-100 years before structures setback this recommended
distance would be close enough to the edge of the bluff to become "involved with slope
movement". [Staff Deport, Exhibit 39, Attachment G, pages 3-5; Testimony of Peterson]
The recommended setback would require a minimum distance of 35 ft. from the top of the
bluff [assuming 30 ft. vertical relief].
19. On July 27, 2005, the Director received two letters [Exhibits 8 and 9] from the
Appellants, owners of the adjacent property to the west. Both letters include information
about previous slide events, the failure of ether parties to implement required stabilization,
and concern about possible future damage to their property. The 1988 and 1991 Geological
Consulting Services' reports [see Findings 6 and 71 are mentioned; including the
recommendation for a 75 -ft. setback.
20. The Director required that the Applicants' geotechnical engineer consider whether
slope stabilization had been accomplished "in conformance with the recommendations of the
previous geotechnical reports" [Staff Report, Exhibit 39, page 3]. In a letter dated July 21,
2005, Aspect Consulting; responded [Exhibit 101. The geotechnical engineer reviewed the
short plat conditions and the 1988 and 1991 geotechnical reports and concluded that a 75 -ft.
setback is not necessary given the physical changes that had occurred since 1991. The
consultant cited the driveway constrl.rction as having flattened a portion of slope and now
provides a bench so that the slope is "substantially stabilized to at least the degree" that
gabion terracing would have provided. Aspect Consulting asserts that the setback they
recommend, in addition to site improvements already made, "fully addresses the old plat
recommendation". [Exhibit 1 or Staff Report, Exhibit 39, Attachment F, Testimony of
Peterson]
21. The City Engineer reviewed the consulting engineer's report and the required
submittals [Exhibits 1 and 5], and concluded that they met City's requirements. No errors or
treed to do reanalysis was found. [Testimony of Hathawa I]
22. On August 12, 2005, having determined all the City's requirements were met, the
Department issued a building permit (BP#13509SFR) to the Heskews for construction of a
single-family residence as indicated on the site plan and permit drawings. [Exhibit 2; Stag
Repoli, Exhibit 39, Attachtrtent B]
Appeal
23. On August 15, 2005, John and Penny Bright timely filed an appeal [Exhibit 331.
Required notice of the appeal hearing was completed as of August 19, 2005 [Exhibit 37] and
hearing was held on September 8, 2005.
24. In a letter to the City's planning department dated May 11, 2005 [Staff Report,
Exhibit 39, Attachment 1], Penny Bright had noted that the location of the proposed house
would be waterward of the front of her house and would block her view. Review ofthe Site
Plan [Exhibit 2] and the aerial photo in the Staff Report [Exhibit 39, Attachment A], supports
this assertion. However, as the subject property is not within the City's shoreline jurisdiction,
the view protections of the Shoreline Code are not applicable. By the time of hearing,
Appellants had withdrawn the shoreline setback issue from the appeal.
2.5. The Applicants and the Appellants both presented expert testimony regarding stability
of the slope and the appropriate building setback. [Testimony of Jones; Testimony of
Peterson] The experts disagree about what setback would be appropriate in these
circumstances. Neither presentation was wholly persuasive, but the following facts about the
steep slope shared by Lot C and Lot D are supported by the record: the slope has been the
source of the landslide materials deposited onto Lot D; there have been changes to the slope
since 1991 (e.g., cleared of mature trees, driveway cut down and across the slope, 1991 slide
and the remediation efforts that followed it); seismic induced landslides are possible; storm
water collecting near the top of the slope or flowing over it would increase instability; and,
slumping/soil creep is occurring.
'2- 6. The Appedla.nts contention that a required retaining wall/rockery has not been installed
is inaccurate. Evidence in the form of witness testimony [Fredericks] and a photo [Exhibit
1241, are convincing vidence that there is a rockery on the upslope side of the driveway at
least through Lot C.
Bainbridge Island Mo.1nicipal Code (BI.,4C)
2. I. BINK Chapter 2.16 of the Bainbridge Island Municipal Code includes decisions on
:Bolding and other consiructiott perinlis" a s among the administrative land use decisions to
be nl'rade by the 1:'rirector [sec B1i�, C 2.1€x.02.51. Stich decisions are to be "processed in
ac,c;or,l-vice i0th 13j'A! , r 2. 16. 01195."
-'S The adxnin'stral:ive decision rkc)ce(iures ofBl(�IC 2.1 5.095G. exempt building and
Al'�c r construction hermits ftom the redu.roments for public notice, public comment, and
notice of decis101-1.
%%.9. The decision l)rocedurLs ofBIN/' 2.16.095D provide that,
In making a decision, the dep<<t,t,,nent director small consider the applicable
decision criteria of this cede, all other applicable larv, and arry necessity
doc inetrn ajrd a1„()rovals.
30. BI:NIC 2.16.095E further provides that the Director "may approve, approve 1a�ith
mod�ficaiions or den"', 'he cxppliecrtiorl hascd on the decision criteria and findings of fact.”
31. 1'ursuart to BIMC 2.16.09.5H, decisions of the Director may be appealed to the
:Hearing Examinti•r- in accord with the procedures of LIl'v1C 2.16.130. The procedures of
I I vl0 2.16.130I c': ] for a hearing before the Hearing Exami ,er and BIMC 2.16.130
atrthoinzes the Ylearing Examiner to atiu-t--i, affirm with modifications, reverse, or remand the
decision of the Director. In making the appeal decision, the Hearing Examiner- is rewired by
BINIC 2.16.13OF. 2 to give `substantial iveighi to the decision of the department director."
Regarding building permits, the Building Code, at BIMC 15.04.040A, includes the
following (emphasis added) -
1 he complete and hitilding plans shall be reviewed by the
bt;ildif.g cuff ic;ul f r)r co;��iaitc-e rt,iili codc,s_adoe)te(l)�tliis claci)tc?r attd other
perlhient hm.,s and ordinances in eNc't in the cin, a)13aiatbrid se -Is/and.
When the biah1'ing official is satisfied that the tivorl; as described in the
application sal_isfit's the ,-ec uirernents_of this code and e01forn7s to other
Pertinent hats a ,d ordinances, the ai.yVicant will be required to pay the
ecdculc�tecl harildirtg perrttit fee. .4 building permit shall then he issued to the
applicam. for the lvork described.
Conclusions
1. The Hearing Examiner has jurisdiction to hear- and decide this matter an :, in making
that decision, must give substantial weight to the decision of the department director [see
Finding 31 ].
2.. To overcome the substantial weight accorde -the Director, an appellant has to show
that the Director's decision is clearly erroneous. Under this standard of review, the Director
can be reversed only if the Hearing Examiner is left with the def rilte and firm conviction that
a mistake has been made.
3. The subject property is not within the shoreline and shoreline regulations that would
prescribe a setback determined by the location of aujacent residences, do not apply.
Appellants properly withdrew the shoreline setback question frorn their appeal.
4. When issLrir-.- a bu.ildirg permit the Director is to erasure "cornl)liance 1,1, 7 codes
adopted by [the Building Code] acrd other- pertiirent lcnl's and ordinances ill effect 'n thre cit.}
ofBainbi-Idge Island" [Finding 32]. That was done here. It is not a nii„take to issue a permit
that complies with all the City's pertinent laws and ordinances.
5. The Director also is required to "consider the applicable dects,ioia criteria of this
code, all other applicable lcnv, and arty rreces.smy doc'u77 enLy arul approvals ” [Finding 291.
The approval of the Amended Short Plat that created the subject lot is a necessary approval
and the Director did consider it. The Director considered the setback condition and the
referenced technical reports and required a review and evaluation by a qualified geotechnical
engineer. This record does not show that it was an error- for the Director to rely upon the
updated geotechnical report and its assurance that the stability of the slope is comparable to
that intended by the 1988 reco1r1mendatiOils.
6. The Director would be remiss to issue the subject permit without considering the
setback condition included in the County's short plat approval. However, it was carefully
considered and that consideration resulted in the condition being modified [see Finding 18].
The modification was based upon qualified expert advice and, although other choices could
have been made, it has not been shown to have been a mistake. Circumstances have changed
considerably since the Amended Short Plat was approved in 1991, and requiring a 75 -ft.
setback or, in the alternative, gabion terracing of the entire slope face, is not warranted now.
Decision
The decision of the Director to issue Building Permit No. BLD13509SFR for construction
of a single-family residence on Lot C Grand Avenue [Tax parcel 4120-000-013-0306], is
here10y A_FF11104H).
Entered this 6"' day of October 2005.
ler-doh A. G-tchcs
City of 1=Sral bridge Island
Hearing Examiner ��r•o #em,
(-'.-�NCERNING REVIEW
I�'f'�1-E: It is the respon:,ibiiity of a person seeking reviedv o.f'a fearing Examiner
decision to consult applicable 'ode sections and other appropriate; sources, including
State taNv, to dctcni ine his/bier rights and responsibilities relative to appeal.
Request for judlcia�i review of this d:;cision by a person with standing can be made by filing a land use
petition in superior coinl 1xitiiin 21 days in accordance with the Land Use Petition Act, Devised Code
of Washington (RCW), 'Chapter 36.70C.