HEX Decision_PLN50583A_RUE Rehder RUEX
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Rehder Reasonable Use Exception, No. PLN50583A RUE
Page 1 of 17
BEFORE THE HEARING EXAMINER
FOR THE CITY OF BAINBRIDGE ISLAND
In the Matter of the Application of ) No. PLN-50583A RUE
)
Vance Rehder )
)
)
For Approval of a Reasonable Use ) FINDINGS, CONCLUSIONS,
Exception ) AND DECISION
SUMMARY OF DECISION
The request for a reasonable use exception to allow the construction of a single-family residence,
with associated improvements, on a 4.75-acre lot containing critical areas, off of NE Pine Way,
is APPROVED. Conditions are necessary to address specific impacts of the proposal.
SUMMARY OF RECORD
Hearing Date:
The Hearing Examiner held an open record hearing on the request on January 14, 2021, using
remote meeting technology in light of the ongoing COVID-19 pandemic.
Testimony:
The following individuals presented testimony under oath at the open record hearing:
Kelly Tayara, City Senior Planner
Aaron Pool, City Code Compliance Officer
Vance Rehder, Applicant
Paul Nylund, P.E., City Development Engineer
Christopher Detter
Exhibits:
The following exhibits were admitted into the record:
1. Staff Report, dated December 28, 2020
2. Site Assessment Review, dated July 13, 2020
3. Letter from Kelly Tayara to Vance Rehder, dated July 29, 2020; Memorandum from
Deputy Fire Marshal Jackie Purviance to Kelly Tayara, dated July 8, 2020; Memorandum
from Kelly Tayara to Paul Nylund, dated July 28, 2020
4. Master Land Use Application, received August 12, 2020
5. Notice of Incomplete Application, dated August 12, 2020
6. Notice of Complete Application, dated August 28, 2020
7. Notice of Application and Hearing, with attached materials:
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Rehder Reasonable Use Exception, No. PLN50583A RUE
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a. Postcard Mailer, published September 2, 2020
b. Mailing List
c. Affidavit of Publication, dated September 4, 2020
d. Certificate of Posting, dated September 4, 2020
8. SEPA Checklist, with Staff Annotations, dated September 2, 2020
9. Wetland Delineation Report, Ecological Land Services, Inc., dated October 2015
10. Geotechnical Evaluation, Cobalt Geosciences, LLC, dated August 12, 2020
11. Stormwater Management Worksheet; Stormwater Pollution Prevention Plan Narrative,
received August 12, 2020
12. Applicant Project Narrative, received August 27, 2020
13. Revised Site Plan, received December 16, 2020
14. Comment from Linda Wohlsen, received September 17, 2020
15. Comment from Linda Blevins, received September 18, 2020
16. Water Availability Letter, Kitsap Public Utility District, dated September 18, 2016; Letter
from Island Utility Company, dated June 18, 2015
17. Kitsap Public Health District, Notice of Pending Building Site Application, dated
October 16, 2018
18. Memorandum from Paul Nylund, dated November 4, 2020
19. Applicant Response to Staff Report, received January 14, 2021
The Hearing Examiner enters the following findings and conclusions based on the testimony and
exhibits:
FINDINGS
Application and Notice
1. Vance Rehder (Applicant) requests approval of a reasonable use exception (RUEX) to
allow construction of a single-family residence and associated improvements, including
septic facilities, on a 4.75-acre lot containing a wetland and an associated wetland buffer.
The unaddressed property is off of NE Pine Way in the Eagledale area of Bainbridge
Island, and an existing gravel driveway already provides access to the proposed
development area.1 The RUEX would allow for development of a single-family
residence and associated improvements, not to exceed 1,200 square feet in lot coverage.
As mitigation for the proposal, the Applicant would remove invasive species throughout
the wetland buffer area and would install a variety of native vegetation in a 22,239 square
foot mitigation area within a maintained 50-foot buffer area, including installing 180
trees and 305 shrubs. Over 80 percent of the property would be protected in perpetuity
following development. Exhibit 1, Staff Report, pages 1 and 7 through 9; Exhibit 7;
Exhibit 9; Exhibit 10; Exhibit 19.
2. The City of Bainbridge Island (City) determined that the application was complete on
August 28, 2020. On September 4, 2020, the City provided notice of the application and
1 The property is identified by tax parcel number 022402-1005-2007. Exhibit 1, Staff Report, page 1. A
legal description of the property is included within the Wetland Delineation Report. Exhibit 9.
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Rehder Reasonable Use Exception, No. PLN50583A RUE
Page 3 of 17
the associated open record hearing, with a comment deadline of September 18, 2020, by
mailing or emailing notice to property owners within 500 feet of the subject property and
to reviewing government departments and agencies, and by publishing notice in the
Bainbridge Island Review. The same day, notice of the application and associated
hearing was also posted at the project site. Exhibit 6; Exhibit 7.
3. The City received no comments from reviewing government agencies in response to its
notice materials. Two comments from the public, however, were received. Linda
Wohlsen wrote the City about previous construction activity on the project site and
requested additional information about the maximum allowable lot coverage and building
height for the proposal, about whether any restrictions on the type of foundations that
would be allowed would be imposed, and about stormwater impacts from the proposal.
Linda Blevins requested information about stormwater impacts from the proposal as well
as information about the type of foundation that would be used for the proposed
residence. Exhibit 14; Exhibit 15.
State Environmental Policy Act
4. The City determined that the proposal is exempt from review under the State
Environmental Policy Act (SEPA), Chapter 43.21C Revised Code of Washington
(RCW), and Washington Administrative Code (WAC) 197-11-800(1)(b)(i), because it
would involve minor new construction.2 Exhibit 1, Staff Report, page 1.
Comprehensive Plan, Zoning, and Surrounding Property
5. The property is designated “Residential District-1” under the City Comprehensive Plan.
The purpose of the City’s Residential District designation is to promote low-impact
residential development that reconciles development and conservation. City
Comprehensive Plan, LU-22. City staff analyzed the proposal for consistency with the
Comprehensive Plan and identified goals and policies applicable to the proposal,
including:
Using mitigation sequencing to develop properties adjacent to or adjoining critical
areas to account for the present and future need to reduce the potential for
personal injury, loss of life, or property damage due to flooding, erosion,
landslides, seismic events, climate change, or soil subsidence.
Employing conservation design methods and principles such as low-impact
development techniques for managing stormwater and wastewater, and using
green building materials and high-efficiency heating and lighting systems.
2 Notice materials prepared by the City indicated that SEPA review of the proposal would be necessary.
Staff later determined, however, that the proposal would be exempt from SEPA review, as detailed above.
The City did not receive any comments specific to SEPA from reviewing government agencies or the
public. Accordingly, inadvertently including information about SEPA review in the notice materials was
harmless. Exhibit 1, Staff Report, page 2; Exhibit 6; Exhibit 7.
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Rehder Reasonable Use Exception, No. PLN50583A RUE
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Protecting wetlands and riparian areas.3
Exhibit 1, Staff Report, pages 4 and 5.
6. The 4.75-acre property is within the “Residential 1” (R-1) zoning district. The purpose of
the R-1 zoning district is to “provide residential neighborhoods in an environment with
special Island character consistent with other land uses such as agriculture and forestry,
and the preservation of natural systems and open space.” Bainbridge Island Municipal
Code (BIMC) 18.06.020.B. Single-family dwellings are a permitted use in the R-1 zone.
BIMC Table 18.09.020. Development of the property would occur within an area that is
approximately 36,500 square feet, resulting in the remaining 3.9 acres of the property
being preserved as protected wetland and buffer. Exhibit 1, Staff Report, pages 5 and 6.
7. Within the R-1 zoning district, certain dimensional standards require a minimum lot area
of 40,000 square feet per dwelling unit; a minimum lot depth and width of 80 feet; and a
maximum lot coverage of 15 percent. BIMC Table 18.12.020-2. Setback requirements
include front lot line setbacks of 25 feet and side lot line setbacks of at least 10 feet.
BIMC 18.12.020. Maximum building height in the R-1 zoning district is limited to 25
feet. BIMC Table 18.12.020-2. Two parking spaces are required for each primary
dwelling. BIMC 18.15.020.C. Exhibit 1, Staff Report, pages 6 and 7.
8. Project plans show that the parking requirements, minimum width and depth
requirements, maximum lot coverage requirements, and minimum setback requirements
would be satisfied. Because a RUEX is proposed, lot coverage would be limited to 1,200
square feet, as required by BIMC 16.20.080.F. Given the large size of the property (4.75
acres), development would entail lot coverage of less than one percent, far less than the
maximum lot coverage of 15 percent typically allowed under the municipal code. In
addition, the proposed development area would be set back over 300 feet from the
adjacent right-of-way to the north and approximately 100 feet from the adjacent right-of-
way to the east, satisfying front lot line setback requirements. An existing shed on the
property is set back 10 feet from the west property line and 12 feet from the south
property line, satisfying side lot line setback requirements. The proposed residence
would be set back 20 feet from the south property line, and the proposed septic drainfield
would be located 10 feet from the south property line, also satisfying municipal code
requirements. Structure height would be reviewed and verified during building permit
review. Exhibit 1, Staff Report, pages 2 through 6; Exhibit 2; Exhibit 12; Exhibit 13.
9. The property is bounded to the north and east by NE Pine Way. All surrounding
properties are also zoned for residential development and generally contain single-family
residences. Exhibit 1, Staff Report, page 2; Exhibit 13.
3 City staff specifically identified the following goals and policies of the Comprehensive Plan as relevant to
the proposal: Environmental Element Policies EN-1.2, EN-4.1, and EN-5.6; Land Use Element Policy LU-
14.1. Exhibit 1, Staff Report, pages 5 and 6.
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Rehder Reasonable Use Exception, No. PLN50583A RUE
Page 5 of 17
Critical Areas
10. The site is generally undeveloped, although there is an existing shed (discussed in more
detail below) on the property and a gravel driveway that provides access to the site
development area. Site topography is generally level, with sloping upland forest to the
east. Ecological Land Services, Inc. (ELS), prepared a Wetland Delineation Report,
dated October 2015, addressing on-site critical areas.4 ELS biologists visited the site to
collect data on vegetation, hydrology, and soils, and identified a Category III
depressional wetland occupying a majority of the subject property. ELS determined the
wetland is composed of both forested and scrub/shrub vegetation communities with a
seasonally flooded hydroperiod in the low depressional area of the property and saturated
hydroperiod on the gradual eastern slope. The forested portion of the wetland is
dominated by red alder and western cedar, and dominant shrub species include
salmonberry, red huckleberry, Indian plum, and evergreen blackberry. Upland areas
around the wetland are dominated by a mixed deciduous and coniferous forest, with a
sparse shrub layer (including salmonberry, salal, and holly) and a dense herbaceous layer
dominated by blackberry and various fern species. ELS determined that the wetland is
seasonally flooded from a perched water table and a culvert that discharges to the
property. There are no streams or other critical areas associated with the site. ELS
determined that the Category III wetland would, in normal circumstances, require a 110-
foot buffer, with an additional 15-foot building and impervious surface setback. The
wetland and associated buffer would cover the entirety of the subject property.
Accordingly, ELS determined that buffer modifications (i.e., buffer width averaging or
buffer reduction) would not be feasible for the project site. Exhibit 9.
11. City staff reviewed the Wetland Delineation Report through the site assessment review
process, as required by BIMC 16.20.080.A, and concurred that use of buffer averaging or
an administrative buffer reduction of up to 25 percent would still result in insufficient
space being available to construct a single-family residence with necessary infrastructure,
including a proposed on-site septic system, especially when accounting for the required
15-foot building setback from the edge of the wetland buffer. Accordingly, City staff
determined that developing the property with a single-family residence would only be
possible through the reasonable use exception process. Exhibit 1, Staff Report, pages 8
and 9; Exhibit 2; Exhibit 9.
12. The City code identifies aquifer recharge protection areas (ARPAs) as critical areas that
must be protected. BIMC 16.20.100.E.1 generally states that any proposed development
or activity requiring a site assessment review located within the R-1 zone requires
designation of an ARPA. Under BIMC 16.20.100.E.1.d, however, if 65 percent of a
property would be protected in perpetuity by a legal instrument acceptable to the City
4 Senior Planner Kelly Tayara testified that, under the municipal code, wetland delineations are valid for a
5-year period and that the City deemed the application complete on August 28, 2020. Testimony of Ms.
Tayara.
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Rehder Reasonable Use Exception, No. PLN50583A RUE
Page 6 of 17
attorney and would otherwise meet the requirements for an ARPA, no such designation is
required. Here, the proposed wetland and remaining wetland buffer would occupy over
80 percent of the site and be protected in perpetuity. Accordingly, the City determined
that an ARPA need not be designated. Under BIMC 16.20.070.G, the Applicant would
field-verify the presence of the critical area and buffer and record this information with
the Kitsap County Auditor, along with any limitations on actions related to the protected
area. This notice would run with the land and would serve as a legal instrument
acceptable to the City attorney. Exhibit 1, Staff Report, page 9.
Reasonable Use Exception
13. The City code provides for a reasonable use exception (RUEX) where the City’s critical
areas ordinance (Chapter 16.20 BIMC) would deny all reasonable use of the property;
where there are no reasonable alternatives with less impact to the critical area or its
required buffer; where the proposal minimizes the impact through mitigation sequencing;
where the proposed impact is the minimum necessary; where the inability to derive
reasonable use of the property is not the result of actions by the Applicant; where the
proposed total lot coverage does not exceed 1,200 square feet for residential
development; where the proposal does not pose an unreasonable threat to the public
health, safety, or welfare on or off the property; and where any alterations are mitigated.
BIMC 16.20.080.F.
14. The Applicant proposes construction of a single-family residence with an on-site septic
system. To minimize adverse impacts to the wetland and buffer, the residence would be
constructed in the southwestern corner of the property, which represents the largest
upland area on the property, and is furthest from the wetland. Low Impact Development
(LID) techniques would be employed to minimize ground disturbance activity and
excavation, especially within the wetland buffer. Because the property is not located
within the City’s sewer service area, an on-site septic system would be installed east of
the residence, along with a septic drainfield. As proposed, the single-family residence
would be located entirely within the required 110-foot buffer area. As noted, however, a
50-foot buffer area would be maintained adjacent to the homesite area, the proposal
would result in less than one percent of lot coverage, and the majority of the site would
be protected in perpetuity. Exhibit 1, Staff Report, pages 9 and 10; Exhibit 7; Exhibit 13;
Exhibit 15; Exhibit 19.
15. Cobalt Geosciences, LLC, prepared a Geotechnical Evaluation, dated August 12, 2020,
for the Applicant. The Geotechnical Evaluation determined that construction of a
residence in the proposed site development area would be feasible and provided
recommendations related to use of a shallow spread footing foundation system. The
Geotechnical Evaluation did not address alternatives to traditional foundation design that
would have fewer impacts on the disturbed wetland buffer. Exhibit 10.
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Rehder Reasonable Use Exception, No. PLN50583A RUE
Page 7 of 17
16. The Applicant submitted City Form #B109, addressing stormwater management, with the
application materials. Conceptually, the Applicant intends to infiltrate all stormwater on-
site. All hardscaping would be constructed of permeable materials or contain wide
permeable jointing, where feasible, to allow infiltration. Finally, diffuse flow methods
would be used to discharge surface stormwater into the wetland buffer, to provide for
increased hydrological recharge. The Applicant would submit a final Stormwater Site
Plan for review and approval prior to development. Exhibit 12.
17. Paul Nylund, the City’s Development Engineer, reviewed the proposal and determined
that it would be consistent with applicable stormwater regulations and that the proposal
would protect the critical area functions and values consistent with the best available
science as it pertains to the incorporation of LID techniques for the purpose of handling
of stormwater, retaining vegetation, and mimicking natural hydrology to the maximum
extent feasible. Furthermore, he determined that the site plan conforms to the City’s
Design and Construction Standards and Specifications. Mr. Nylund provided several
recommendations about site development and construction that City staff determined
should be incorporated as conditions of approval for the RUEX. Exhibit 18.
18. Jackie Purviance, the City’s Deputy Fire Marshal, reviewed the proposal and noted that
the future development must comply with all provisions of the City’s adopted Fire Code.
Ms. Purviance also provided information on requirements related to fire apparatus access
roads and noted that residential fire sprinklers or a fire hydrant may be required to meet
fire flow requirements. Exhibit 3.
19. The Kitsap Public Health District reviewed the proposal and provided preliminary
approval for the proposed septic system. It also determined that an existing well on the
property must be decommissioned. Kitsap County Public Utility District #1 has indicated
that water is available to serve the site, and the Island Utility Company would provide
electricity to the property. Exhibits 15 through 17.
20. The Applicant provided a Habitat Management Plan, based on recommendations
provided by ELS in the Wetland Delineation Report, addressing impacts that would result
from reducing the wetland buffer around the single-family residence and addressing the
compensatory mitigation that would be necessary to ensure the integrity, function, and
value of the Category III wetland on-site and to ensure that no net loss of wetland
function would result from construction of a single-family residence. To mitigate for
permanent impacts to the wetland buffer from development of a 1,200 square foot
residence partially within the buffer area, the Applicant would:
Remove low-lying invasive vegetation throughout the buffer area.
Install appropriate sedimentation and control measures, during construction, such
as silt fencing.
Install a variety of native vegetation in a 22,239 square foot mitigation area within
a maintained 50-foot buffer area, including installing 180 trees and 305 shrubs. A
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Rehder Reasonable Use Exception, No. PLN50583A RUE
Page 8 of 17
15-foot structure/hard surface setback between the buffer and the homesite area
would be maintained as well.
Monitor the re-established area for no less than 7 years to ensure long-term
survival of installed vegetation.
Exhibits 12 and 13.
21. The Applicant submitted a project narrative addressing the criteria for a RUEX under
BIMC 16.20.080. The project narrative suggests that the proposal would meet the criteria
for a RUEX because:
Due to the size and location of the on-site wetland, there are no areas available on
the property to avoid impacting the required wetland buffer to construct a single-
family residence.
The proposed residence would be situated in the southwest corner of the property,
which is the largest upland area of the property and is furthest from the wetland.
The proposal would minimize impacts on the wetland and buffer through
appropriate mitigation sequencing and use of best management practices during
construction.
The impact to the critical area is the minimum necessary to allow reasonable use
of the property, and the site layout, as proposed, would allow reasonable use of
the property with fewest impacts to the wetland buffer. Minimal lawns and use of
native plants in landscaping will further ensure minimal habitat impacts.
The wetland and buffer were existing conditions and not created by the Applicant
or the previous property owner.
One single-family residence would be built on the lot, and the total lot coverage
would be no more than 1,200 square feet. This would result in lot coverage of
less than one percent of the entire property.
The proposal would not pose an unreasonable threat to public health, safety, or
welfare on or off the site and would be consistent with other building and zoning
regulations.
All other adjacent parcels have been developed. No adverse cumulative impacts
are anticipated from development of the site.
Exhibit 12.
22. City staff also analyzed the proposal for compliance with the RUEX criteria from BIMC
16.20.080 and generally concurred with the Applicant’s assessment. Staff specifically
noted:
The Applicant would not be able to develop the lot without the requested RUEX.
Lot coverage of 1,200 square feet is considered reasonable on lots encumbered by
critical areas or associated buffers.
Given the size of the on-site wetland and associated buffer, there do not appear to
be any other reasonable alternatives to the proposed use that would achieve the
same purpose for the Applicant with less impact to the critical area buffer.
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Rehder Reasonable Use Exception, No. PLN50583A RUE
Page 9 of 17
The proposed residence and associated improvements would be located within an
area that is approximately 36,500 square feet, allowing for approximately 3.9
acres of the property to be preserved in perpetuity.
The proposal minimizes impacts on the wetland buffer in accordance with
mitigation sequencing requirements under BIMC 16.20.030. Specifically: the
residence would be located outside of the wetland itself and sited on an upland
area of the property as far from the wetland as possible; the proposal would
account for natural topography, and minimal grading would be necessary,
allowing for the maintenance of natural drainage; the project avoids grading
within the wetland buffer by incorporating natural topography into the site design;
low-impact construction techniques would be considered to minimize ground
disturbance and excavations; the Applicant would remove invasive species
throughout the wetland buffer area and would install a variety of native vegetation
in a 22,239 square foot mitigation area within a maintained 50-foot buffer area,
including installing 180 trees and 305 shrubs; fencing and signing would be
provided along the wetland buffer edge, to prevent encroachment; light would be
directed away from the wetland and buffer, and the Applicant would restrict the
use of pesticides on-site; and site monitoring would occur for at least 7 years.
The proposed impact to the critical area is the minimum necessary to allow
reasonable use of the property. The City considers 1,200 square feet of lot
coverage reasonable when a lot is encumbered by critical areas, provided enough
mitigation is proposed to adequately compensate for impacts. Site alternatives
were considered and deemed infeasible.
The inability of the Applicant to derive reasonable use of the property is not the
result of actions by the Applicant or the Applicant’s predecessor.
Proposed total lot coverage would not exceed 1,200 square feet.
The proposal would not pose an unreasonable threat to the public health, safety,
or welfare on or off the property.
The proposal would result in no net loss of critical area functions and values and
would incorporate protective measures consistent with best available science,
including LID measures, best management practices (BMPs) for stormwater, and
protective fencing to avoid wetland impacts during and after construction.
Development would occur in a manner that minimizes impacts to the wetland and
mitigates the reduction of the wetland buffer through the planting of dense,
diversified plantings in the remaining buffer. Temporary impacts would be
addressed through protective measures, such as construction fencing, and future
impacts would be addressed through monitoring, to ensure the success of
compensatory mitigation, and through the installation of protective fencing along
the boundary of the reduced buffer area.
The proposal would be consistent with zoning requirements and other applicable
regulations and standards.
Exhibit 1, Staff Report, pages 10 through 16.
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Rehder Reasonable Use Exception, No. PLN50583A RUE
Page 10 of 17
Testimony
23. City Senior Planner Kelly Tayara testified generally about the property, the process of
reviewing the proposal, and how the proposal would comply with the City
Comprehensive Plan, zoning ordinances, and requirements associated with a RUEX. She
explained the way that mitigation sequencing was addressed and stressed that the need
for a septic drainfield has driven the need for a RUEX on the property. Testimony of Ms.
Tayara.
24. City Code Enforcement Officer Aaron Pool testified that he received a complaint about a
structure being built on the property without permits and investigated the complaint. He
met with the Applicant and determined that a permit would be required for site
development. Mr. Pool noted that the Applicant immediately began working with City
staff to address obtaining necessary permits and that the code enforcement investigation
associated with the property would be closed once necessary permits are obtained.
Testimony of Mr. Pool.
25. City Development Engineer Paul Nylund testified about stormwater requirements
associated with the proposal and the review that engineering staff conducted related to
the project. He explained that the proposal would have to comply with the Department of
Ecology’s 2012 Stormwater Manual, with updates in 2014 and 2018, but an engineered
stormwater plan would not be required given that less than 5,000 square feet of new
impervious surface would be created through site development. Mr. Nylund clarified that
the driveway leading toward the proposed homesite need not be addressed with the final
stormwater plan because it already serves the site and is a preexisting site condition. He
also explained that, normally, the portion of a driveway apron within the municipal right-
of-way must “match” the road surface to which it connects. Here, because NE Pine Way
is paved, the apron within the right-of-way connecting to the Applicant’s gravel driveway
would normally need to be paved. Mr. Nylund noted, however, that because the apron is
within a wetland buffer area, it is possible that the City will waive this requirement
through administrative review of the site development permit associated with the project.
Testimony of Mr. Nylund.
26. Applicant Vance Rehder testified that the current proposal has been designed to have the
fewest impacts on the wetland and its buffer. He stressed that he grew up on Bainbridge
Island, several of his family members still live in the area, he is a birder and an Eagle
Scout, and he purchased the property with the intent of maintaining as much of it as
possible in a natural condition. Mr. Rehder explained that he did not realize the shed he
constructed (an appurtenant structure) could not be built before construction of the
residence (a primary structure) and that is what ultimately lead to the code compliance
issue. He noted that the shed was constructed on pads and beams such that it has very
little impact on the environment, is outside the wetland buffer area, and was constructed
in a portion of the property that previously contained a garbage mound as well as the well
that is being decommissioned. Mr. Rehder requested that the shed not be calculated as
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Rehder Reasonable Use Exception, No. PLN50583A RUE
Page 11 of 17
part of the 1,200 square feet associated with site coverage under the RUEX because
properties are normally allowed such appurtenant structures and site coverage on his
property would still only be around one percent of the total site, even accounting for the
shed. Mr. Rehder also addressed several of the approval conditions recommended by the
City, noting: he would like the ability to begin removing invasive species from the
mitigation area and trees from the homesite while waiting on building permits; two
different septic companies have reviewed the suitability of soils for the septic drainfield
and further evaluation seems unnecessary; and a geotechnical evaluation has already
occurred such that further evaluation seems unnecessary. Finally, Mr. Rehder explained
that he paid an additional $20,000.00 for the property because the previous property
owner had already gone through the preliminary stages of the land use review process
and he was under the impression that all that would be required for site development
would be the submission of appropriate site development and building permits.
Testimony of Mr. Rehder.
27. Area resident Christopher Detter testified that he owns property to the southwest and
does not object to the proposal but wanted to ensure that stormwater from the proposal
would not impact his own property and that discharged stormwater would be
appropriately addressed. Testimony of Mr. Detter.
28. In response to Mr. Detter’s testimony, Mr. Nylund explained that the City understands
the drainage patterns associated with the area and he believes the majority of stormwater
from new impervious surfaces on the site would drain toward the wetland buffer. He
noted that stormwater would not be allowed to sheetdrain toward the septic drainfield
proposed for development east of the homesite. Finally, Mr. Nylund explained that there
may be existing drainage issues in the area but that those are likely problems associated
with capital infrastructure. He stated that the current proposal would not have
detrimental impacts on adjacent properties but that the proposal would likely not assuage
any existing drainage issues in the area. Finally, in response to Mr. Rehder’s comments,
Mr. Nylund explained that another geotechnical report is not necessarily required but that
some additional information may be necessary, including information on the feasibility of
alternative approaches to constructing the foundation. He stressed that the City would
not require that Mr. Rehder employ an alternative approach to construction if it is
prohibitively expensive but documentation of the feasibility of alternative approaches is a
standard requirement when an Applicant seeks a RUEX. Testimony of Mr. Nylund.
29. Ms. Tayara also responded to Mr. Rehder’s testimony. She explained that, while soil
analysis has occurred in terms of the proposed septic system, the City believes additional
analysis is appropriate addressing the location of the drainfield and stormwater elements,
including their relationship to each other and the relationship of the drainfield to
stormwater improvements on the adjacent property to the south, to ensure that the
proposed systems provide for public health, safety and welfare both on and off the
property. Ms. Tayara also explained that a permit would not normally be required for a
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Rehder Reasonable Use Exception, No. PLN50583A RUE
Page 12 of 17
shed that is under 200 square feet (subject to certain height restrictions). Testimony of
Ms. Tayara.
Staff Recommendation
30. Ms. Tayara testified that City staff recommends approval of the application, with
conditions. Mr. Rehder testified that he would adhere to the conditions of approval.
Exhibit 1, Staff Report, pages 13 through 15; Testimony of Ms. Tayara; Testimony of Mr.
Rehder.
CONCLUSIONS
Jurisdiction
The Hearing Examiner has authority to hear and approve, approve with conditions, deny, or
remand a request for a reasonable use exception. BIMC 2.14.030; BIMC 2.16.100; BIMC
16.20.080.E.
Criteria for Review
Criteria for review and approval of reasonable use exceptions are as follows:
1. The application of this chapter would deny all reasonable use of the
property;
2. There is no reasonable alternative to the proposal with less impact to the
critical area or its required buffer;
3. The proposal minimizes the impact on critical areas in accordance with
mitigation sequencing (BIMC 16.20.030);
4. The proposed impact to the critical area is the minimum necessary to
allow reasonable use of the property;
5. The inability of the applicant to derive reasonable use of the property is
not the result of actions by the applicant, or of the applicant’s predecessor,
that occurred after February 20, 1992;
6. The proposed total lot coverage does not exceed 1,200 square feet for
residential development;
7. The proposal does not pose an unreasonable threat to the public health,
safety, or welfare on or off the property;
8. Any alterations permitted to the critical area are mitigated in accordance
with mitigation requirements applicable to the critical area altered;
9. The proposal protects the critical area functions and values consistent with
the best available science and results in no net loss of critical area
functions and values;
10. The proposal addresses cumulative impacts of the action; and
11. The proposal is consistent with other applicable regulations and standards.
BIMC 16.20.080.F.
The criteria for review adopted by the City of Bainbridge Island City Council are designed to
implement the requirement of Chapter 36.70B RCW to enact the Growth Management Act. In
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Rehder Reasonable Use Exception, No. PLN50583A RUE
Page 13 of 17
particular, RCW 36.70B.040 mandates that local jurisdictions review proposed development to
ensure consistency with City development regulations, considering the type of land use, the level
of development, infrastructure, and the characteristics of development. RCW 36.70B.040.
Conclusions Based on Findings
With conditions, the proposal would comply with the reasonable use exception criteria of
BIMC 16.20.080.F. The City provided reasonable notice and opportunity to comment on the
application. The City determined that the proposal was exempt from SEPA review. A wetland
and wetland buffer cover the entirety of the Applicant’s property such that that strict application
of the City’s critical areas ordinances would deny all reasonable use of the property. Neither the
City nor public comments suggested any alternative uses for the property. The Applicant is
proposing lot coverage of no more than 1,200 square feet. The Applicant submitted a wetland
delineation and a mitigation plan setting out mitigation sequencing that would minimize the
impact on critical areas. The wetland delineation also determined that the proposal would be the
minimum necessary to allow reasonable use of the property. City staff determined that the
present proposal would have the fewest impacts on the wetland and its buffer. The lot was
created prior to the adoption of the City’s critical area ordinances and is not the result of any
action of the Applicant.
The Applicant proposes construction of a single-family residence on the property that would
result in total lot coverage of no more than 1,200 square feet. To minimize adverse impacts to
the wetland and buffer, the residence would be constructed in the southwestern corner of the
property, in an upland area that is as far from the wetland as possible. Low Impact Development
(LID) techniques would be employed to minimize ground disturbance activity and excavation,
especially within the wetland buffer. Because the property is not located within the City’s sewer
service area, an on-site septic system would be installed east of the residence, along with a septic
drainfield. As proposed, the site layout would result in a reduction of the required wetland buffer
around the single-family residence, but a 50-foot buffer would be maintained between the
homesite and the on-site wetland. In addition, the Applicant would remove invasive species
throughout the wetland buffer area and would install a variety of native vegetation in a 22,239
square foot mitigation area within the maintained 50-foot buffer area, including installing 180
trees and 305 shrubs. Over 80 percent of the property would be protected in perpetuity following
development.
The Applicant’s mitigation plan contains monitoring and contingency plans, along with
enhancement of the remaining wetland buffer. The City determined that the wetland delineation
and mitigation plan are based on the best available science and would result in no net loss of
critical area functions and values. The mitigation plan addressed the cumulative impacts of the
proposed development and determined that there would be no negative cumulative impacts if the
request is approved.
Especially given the size of the property in question, Mr. Rehder’s point about the
reasonableness of not including the shed in the lot coverage calculation is well taken. It would
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Rehder Reasonable Use Exception, No. PLN50583A RUE
Page 14 of 17
appear that the major problem with the shed is temporal in nature: had Mr. Rehder received the
RUEX and constructed the residence on the 1,200 square feet of the homesite, as proposed, no
further permitting would seemingly be required associated with him then placing a 200 square
foot shed on the property (subject to height restrictions). That the shed is not allowed to remain
because it happened to be built prior to the residence or, alternatively, must be calculated as part
of the allowed 1,200 square feet of the homesite – on a 4.75-acre property of which 80 percent
would be protected in perpetuity – does create an absurd result. Ultimately, however, the
Hearing Examiner will defer to City staff’s analysis of its own municipal code. If City staff
determines during the site development and building permit stages of review that the shed need
not be calculated as part of the allowable 1,200 square feet of total lot coverage associated with
the RUEX, nothing more need be done.
Conditions are necessary, including those to ensure that work is completed in substantial
compliance with submitted plans; total lot coverage does not exceed 1,200 square feet; a 50-foot
wide buffer and 15-foot hard surface/structure setback is maintained between the homesite area
and the edge of the on-site wetland and the full wetland buffer width is maintained outside the
homesite area; all necessary permits are obtained prior to construction activity; additional
geotechnical information is provided assessing the location of the proposed drainfield and
stormwater elements; a construction fencing plan is submitted; compensatory mitigation area
monitoring occurs; a split-rail fence is installed for the entire length of the common boundary
between the wetland buffer and the hard surface structure setback; appropriate signage is
installed indicating the presence of a protected wetland buffer; all holly (Ilix opaca) is removed
within the compensatory mitigation area; all work within the compensatory mitigation area is
performed with hand labor or hand-held equipment; all mitigation plantings are installed prior to
occupancy; a notice to title documenting the presence of the wetland, buffer, and compensatory
mitigation planting area is recorded; and that all requirements of the City Engineer are satisfied
(as further detailed below). Findings 1 – 30.
DECISION
Based upon the preceding findings and conclusions, the request for a reasonable use exception to
allow the construction of a single-family residence, with associated improvements, on a 4.75-
acre property off of NE Pine Way, containing a wetland and wetland buffer, is APPROVED,
with the following conditions:5
1. Except as provided in these conditions of approval, all construction plans and
constructions activities shall substantially comply with the plans approved through this
Reasonable Use Exception.
2. Total lot coverage is limited to 1,200 square feet. Lot coverage is measured as the total
lot area covered by buildings, excluding up to 24 inches of eaves on each side of a
building. Any portion of a slatted or solid deck located more than five feet above grade
5 This decision includes conditions designed to mitigate impacts of this proposed project as well as
conditions required by City code.
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Rehder Reasonable Use Exception, No. PLN50583A RUE
Page 15 of 17
shall be counted towards lot coverage. City staff shall have the discretion to determine
whether the existing shed on the property must be included in the allowable lot coverage
calculation without further review by the Hearing Examiner.
3. The homesite area, which includes the dwelling and necessary infrastructure, shall
provide a 50-foot wide buffer from the edge of the wetland and 15 foot hard surface /
structure setback from the buffer. Outside of the homesite area, the full wetland buffer
width shall be provided and the homesite area shall not extend east of the reserve
drainfield.
4. Prior to any construction activity, including any development, vegetation removal, land
clearing, or grading, the Applicant shall obtain an applicable permit from the City, except
as otherwise allowed by BIMC 16.20.090.B.3.
5. Permit application for any construction activity shall include a geotechnical assessment
of the location of the drainfield and stormwater elements, including their relationship to
each other and the relationship of the drainfield to stormwater improvements on the
adjacent property to the south, to ensure that the proposed systems provide for public
health, safety and welfare both on and off the property. This requirement may be
satisfied through submission of an addendum to the existing geotechnical report prepared
for the proposal.
6. Permit application for any construction activity shall include a construction fencing plan
which, at a minimum, delineates the north and east clearing limits. The fence shall be
made of durable material and shall be highly visible. Once the fencing plan is approved
by the City, the fencing shall be installed and installation approved by the City prior to
any other construction activity.
7. Permit application for any construction activity shall include a compensatory mitigation
area monitoring program which is consistent with the requirements of BIMC 16.20.180.G
and an estimate for the cost of completion of the monitoring. Monitoring reports shall be
submitted annually for a period of seven years. Once the monitoring plan and estimate is
approved by the City, and prior to occupancy, the applicant shall provide a surety
ensuring fulfillment of the monitoring program, in an amount not less than 50 percent of
the approved estimate.
8. Prior to occupancy of the residence, a split-rail fence shall be installed for the entire
length of the common boundary between the buffer and the hard surface structure
setback. The fence shall be depicted on the submitted building permit plans.
9. Prior to occupancy of the residence, two signs indicating the presence of a protected
wetland buffer shall be placed on the fence (north and east). Signs shall be made of metal
or a similar durable material and shall be between 64 and 144 square inches in size.
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Rehder Reasonable Use Exception, No. PLN50583A RUE
Page 16 of 17
10. All holly (Ilex opaca) within the compensatory mitigation area shall be removed.
11. All work within the compensatory mitigation area, including planting and invasive
species removal, shall be performed with hand labor or hand-held equipment.
12. All mitigation plantings shall be installed prior to occupancy. At the discretion of the
Department of Planning and Community Development, if deemed necessary to ensure
plantings are accomplished during an optimal season, a planting performance assurance
device shall be provided in accordance BIMC 16.20.160.
13. The Applicant shall submit a recorded notice to title to document the presence of the
wetland, buffer and compensatory mitigation planting area. The notice shall be recorded
with the Kitsap County Auditor prior to the issuance of construction permit for the
residence.
14. The Applicant shall comply with the following conditions to the satisfaction of the City
Engineer:
A. Existing access to the Pine Way right-of-way shall be improved to the standard
paved residential driveway approach detail (City of Bainbridge Island Design and
Construction Standards) DWG 8-170. A waiver to this condition may be
requested during building permit review if the Applicant demonstrates to the City
Engineer’s satisfaction that the adverse effect of additional hard surface from a
paved road approach in a wetland buffer would justify overriding City policy on
paved road approaches in the public right of way. In this case, the existing gravel
approach could remain but would be subject to potential grading requirements to
ensure a standard road approach connection that protects/ballasts the existing
City-maintained asphalt roadway surface in the Pine Way right-of-way.
B. All underground utilities (well water, septic transport, power, etc.) shall be routed
to minimize site disturbances to the maximum extent feasible.
C. Use of soil sterilant to construct the driveway shall be strictly prohibited.
D. Consideration shall be given to utilizing minimal excavation foundation systems
per the 2012 Low Impact Development Guidance Manual for Puget Sound as
means of minimizing impacts to the proposed home site and the adjacent wetland
and its buffer. A bid comparison/analysis shall be submitted demonstrating the
Applicant has engaged an appropriate design and construction professional to
explore alternative foundation systems including stilts, helical piers, and pin piles
with grade beams. The bid(s) shall be obtained from a designer or installer with
documented experience building with minimal excavation technology and
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Rehder Reasonable Use Exception, No. PLN50583A RUE
Page 17 of 17
submitted with the building permit for City Development Engineer review prior to
building permit review, approval, and issuance.
E. Areas outside the building footprint, driveway, septic components and associated
drain field and any necessary construction setbacks shall be protected from soil
stripping, stockpiling, and compaction by construction equipment through
installation of resilient, high visibility clearing limits fencing or equivalent,
subject to inspection by the City prior to clearing and construction.
F. Hardscaping should be constructed of permeable materials or contain wide
permeable jointing where feasible to allow infiltration or shallow subsurface
filtration of surface stormwater.
G. In addition to complying with BIMC 15.20 and 15.21, surface stormwater from
the proposed structures and the developed driveway shall discharge and disperse
at a location and in a manner consistent with BMP T5.10B – Downspout
Dispersion Systems and BMP T5.12 – Sheet Flow Dispersion. Strong priority
shall be given to diffuse flow methods (i.e. BMP C206: Level Spreader, pop-up
emitters, diffuser tee or engineered equivalent) to minimize point discharges of
surface stormwater into or towards the wetland on site.
DECIDED this 29th day of January, 2021.
ANDREW M. REEVES
Hearing Examiner
Sound Law Center