PLN52224_COBI - Johnson RUEX (Final, 8.18.23)
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Johnson Reasonable Use Exception and Variance
Nos. PLN52224 RUE & PLN52224 VAR
Page 1 of 20
BEFORE THE HEARING EXAMINER
FOR THE CITY OF BAINBRIDGE ISLAND
In the Matter of the Application of ) Nos. PLN52224 RUE & PLN52224 VAR
)
Jacob and Cayla Johnson ) Johnson Single-Family Residence
)
)
For Approval of a Reasonable Use ) FINDINGS, CONCLUSIONS,
Exception & Variance ) 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 lot that is significantly impacted by critical areas—and the
associated request for a zoning variance to reduce a required front setback from 25 feet to 5 feet,
thereby allowing the proposed building envelope to be sited as far from an on-site wetland and
associated buffers as possible—on an approximately 0.4-acre undeveloped property at 2145
Belfair Avenue NE, 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 June 1, 2023.
Testimony:
The following individuals presented testimony under oath at the open record hearing:
HB Harper, City Planning Manager
Jacob Johnson, Applicant
Exhibits:
The following exhibits were admitted into the record:
1. Staff Report, dated May 18, 2023
2. Preapplication Summary, dated May 11, 2022; City Development Engineering
Memorandum, dated May 10, 2022; Fire Department Memorandum, dated April 12, 2022
3. Land Use Application, dated June 2, 2022
4. Notice of Application, dated July 15, 2022, with Notice Materials:
a. Postcard Mailer
b. Mailing List
c. Affidavit of Publication, Bainbridge Island Review, dated July 15, 2022
d. Certificate of Posting, dated July 14, 2022
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Johnson Reasonable Use Exception and Variance
Nos. PLN52224 RUE & PLN52224 VAR
Page 2 of 20
5. Critical Areas Report Peer Review, The Watershed Company, dated August 29, 2022
6. Comment from Dae Yu, dated August 5, 2022
7. Comment from Carolyn Siscoe, dated August 5, 2022
8. Comment from Heather Patrick, dated July 20, 2022
9. Project Narrative, received June 2, 2022
10. Revised Site Plan, dated November 17, 2022
11. Revised Survey, dated November 17, 2022
12. Revised Mitigation Plan, Ecological Land Services, Inc., revised February 21, 2023
13. Notice of Public Hearing, dated May 12, 2023, with Notice Materials:
a. Postcard Mailer
b. Mailing List
c. Affidavit of Publication, Bainbridge Island Review, dated May 23, 2023
d. Certificate of Posting, dated May 19, 2023
14. City Engineering Memorandum, dated April 4, 2023
15. Sewer Availability Letter, dated December 22, 2021
16. Proof of Water Service Letter, dated October 21, 2021
The Hearing Examiner enters the following findings and conclusions based on the admitted
testimony and exhibits:
FINDINGS
Application and Notice
1. Jacob and Cayla Johnson (Applicant) request approval of a reasonable use exception
(RUEX) to allow the construction of a single-family residence—with an approximately
1,184 square foot building footprint—and associated improvements, including a
driveway, on an undeveloped 0.4-acre lot that is almost completely covered by a
Category III wetland and its associated 60-foot critical areas buffer. The Applicant also
requests a zoning variance from the requirements of Bainbridge Island Municipal Code
(BIMC) 18.12.020 to reduce the required front setback from 25 feet to 5 feet to allow the
proposed residence to be sited as far from the on-site wetland as possible. The property
is located at 2145 Belfair Avenue NE.1
The RUEX would allow for development of a single-family residence and associated
improvements within the wetland buffer on the property, not to exceed 1,200 square feet
in lot coverage. As mitigation for the approximately 2,315 square feet of wetland buffer
that would be permanently impacted by the proposal, the Applicant would enhance 3,120
square feet of on-site wetland buffer by removing invasive species and planting a variety
of native vegetation. In addition, the Applicant would install permanent fencing along
the remaining buffer edge adjacent to the development area and would record notice to
title documenting the presence of critical areas to protect the on-site wetland and
1 The property is identified by tax parcel number 41480040020005. Exhibit 1, Staff Report, page 1.
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Johnson Reasonable Use Exception and Variance
Nos. PLN52224 RUE & PLN52224 VAR
Page 3 of 20
remaining buffer area in perpetuity. Sewer services would be provided by Kitsap County
Sewer District No. 7. Water service would be provided by Kitsap Public Utility District.
Exhibit 1, Staff Report, pages 1 through 3, 7, 10 through 12, and 17; Exhibit 2; Exhibit 3;
Exhibits 9 through 12; Exhibit 15; Exhibit 16.
2. The City of Bainbridge Island (City) determined that the application was complete on
June 30, 2022. On July 14, 2022, the City provided notice of the application by posting
notice on-site, with a comment deadline of August 5, 2022. The next day, the City
provided notice of the application by mailing or emailing notice to property owners
within 500 feet of the subject property and to reviewing government departments and
agencies and publishing notice in the Bainbridge Island Review. On May 19, 2023, the
City provided notice of the open record hearing associated with the application by
posting notice on-site. On May 23, 2023, the City provided notice of the hearing by
mailing or emailing notice to property owners within 500 feet of the subject property and
to reviewing government departments and publishing notice in the Bainbridge Island
Review.
The City received one comment on the proposal from a reviewing government
agency/department in response to it notice materials: the City’s Department of Public
Works noted that it recommends approval of the application, with conditions that have
been incorporated into the recommended conditions of approval for the application. The
City also received several comments on the proposal from members of the public, which
are discussed in detail below. Exhibit 1, Staff Report, pages 4 and 5; Exhibit 4; Exhibit 6
through 8; Exhibit 13; Exhibit 14.
State Environmental Policy Act
3. City staff determined that the proposal would be exempt from review under the State
Environmental Policy Act (SEPA), Chapter 43.21C Revised Code of Washington
(RCW), and the Washington Administrative Code (WAC). Specifically, WAC 197-11-
800(1)(b)(i) exempts construction of one detached single-family residence and, as noted
by the City in its review materials, WAC 197-11-800(6)(a) exempts land use decisions
from SEPA review for otherwise exempt projects (except for rezones). Exhibit 1, Staff
Report, page 1.
Comprehensive Plan, Zoning, and Surrounding Property
4. The property is designated as “Residential District-2” 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 determined that the proposal would be consistent with the goals
and policies of the Comprehensive Plan, including those of the Environmental, Water
Quality, and Lane Use Elements. Exhibit 1, Staff Report, pages 3, 5, and 14.
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Johnson Reasonable Use Exception and Variance
Nos. PLN52224 RUE & PLN52224 VAR
Page 4 of 20
5. The 0.4-acre subject property is within the “Residential 2” (R-2) zoning district. The
purpose of the R-2 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, at a
somewhat higher density than the R-1 district.” BIMC 18.06.020.C. Single-family
dwellings are a permitted use in the R-2 zone. BIMC Table 18.09.020. Exhibit 1, Staff
Report, pages 3 through 5.
6. Within the R-2 zoning district, certain dimensional standards require a minimum lot area
of 20,000 square feet per dwelling unit, a minimum lot depth and width of 80 feet, and a
maximum lot coverage of 20 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 5 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 5 and 6.
7. Project plans show that the parking requirements, minimum lot depth requirement, side
setback requirements, and maximum lot coverage requirements would be satisfied. The
17,424 square foot property is legally nonconforming with the minimum lot area and
minimum lot width requirement currently applicable to properties in the R-2 zoning
district. BIMC 18.30.050. Because a RUEX is proposed, lot coverage would be limited
to 1,200 square feet under BIMC 16.20.080.F, which is less than 3,484.8 square feet of
maximum lot coverage that would be typically allowed for a 0.4-acre property under the
20 percent maximum lot coverage requirement. As noted above and discussed in detail
below, the Applicant requests a variance from the 25-foot front setback requirement to
allow the proposed residence to be sited as far from the on-site wetland as possible.
Essentially, this would entail siting the residence closer to Belfair Avenue NE. Exhibit 1,
Staff Report, pages 6 and 7; Exhibit 3; Exhibit 10.
8. All surrounding properties are also within the R-2 zone. Surrounding lots are developed
with single-family residences or recreational space. Fort Ward Park is located west of the
subject property. Exhibit 1, Staff Report, pages 3 and 4.
Critical Areas
9. The 0.4-acre site is currently undeveloped. Topography throughout the lot slopes
gradually from the east to the west where a topographical depression is located. A
wetland dominates the western portion of the parcel. The wetland is vegetated with a
combination of scrub-shrub and forested areas. The eastern, upland portion of the
property is dominated by forested vegetation. Ecological Land Services, Inc., prepared a
report addressing critical areas on the property on behalf of the Applicant, entitled
“Mitigation Plan” (“MP”) on March 21, 2022, that it later revised on February 21, 2023,
to address comments made by the City’s third party reviewer, The Watershed Company,
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Johnson Reasonable Use Exception and Variance
Nos. PLN52224 RUE & PLN52224 VAR
Page 5 of 20
in a report entitled “Critical Areas Report Peer Review” (“Peer Review”), dated August
29, 2022. The Mitigation Plan identified the wetland on the western portion of the
property (Wetland A) as a Category III wetland with a low habitat rating. Category III
wetlands with a low habitat rating require a 60-foot buffer for moderate land use
intensities, which include single-family residential development.2 BIMC 16.20.140.I.4 –
Table 5. Wetland A covers the western half of the property and, with the associated 60-
foot buffer, impacts almost the entire site. The MP determined that development of a
single-family residence, with associated appurtenances, including a driveway, would be
possible while avoiding direct impacts to Wetland A.
The Mitigation Plan details necessary mitigation sequencing for the proposal, as required
by the City’s critical areas ordinances. The proposed residence and driveway would be
constructed in the southeast quadrant of the property, as far from Wetland A as possible.
The driveway would be constructed with permeable material. The proposed location of
the residence would allow the Applicant to retain all of the significant trees on the
property, except for two Pacific madrone. The Applicant would plant four 6-foot native
tree species along the northern edge of the driveway to mitigate for the on-site tree
removal. Trenching for utility access would occur in the most direct route from the
transformer and the road to the proposed residence and the area disturbed by trenching
activities would be replanted with native vegetation. To compensate for 2,315 square
feet of permanent impacts to the wetland buffer from development, the Applicant would
remove invasive species throughout 3,120 square feet of the remaining wetland buffer
and plant native species through the area. The Mitigation Plan determined that wetland
enhancement would improve buffer function. The MP provides a seven-year
maintenance and monitoring plan for mitigation and restoration areas. Exhibit 1, Staff
Report, pages 2, 6, and 7; Exhibit 5; Exhibit 12.
10. City staff reviewed the Mitigation Plan 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
to accommodate construction of a single-family residence with necessary infrastructure.
Accordingly, City staff determined that developing the property with a single-family
residence would only be possible through the reasonable use exception process. City
staff also noted that a Habitat Management Plan (HMP) would not be required for the
proposed development. Exhibit 1, Staff Report, page 8; Exhibit 2.
2 During third-party review, the Watershed Company initially determined that Wetland A is a Category III
wetland with a moderate habitat function, requiring a 110-foot buffer pursuant to BIMC 16.20.140.I.4 –
Table 5. Exhibit 5. Additional analysis, however, resulted in the Applicant and City staff reasserting that
Wetland A has a low habitat function, and a 60-foot buffer is appropriate under BIMC 16.20.140.I.4 –
Table 5, as memorialized in the Applicant’s Mitigation Plan. Exhibit 12. Specifically, City staff concurred
with the Mitigation Plan’s reevaluation that a 60-foot buffer is applicable here, stating that “it was clarified
during peer review that the City uses [Washington State Department of Ecology’s] 2018 guidance on
wetland buffers, and the 60 [foot] buffer is correct.” Exhibit 1, Staff Report, page 6.
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Johnson Reasonable Use Exception and Variance
Nos. PLN52224 RUE & PLN52224 VAR
Page 6 of 20
11. 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-2 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
attorney and would otherwise meet the requirements for an ARPA, no such designation is
required. Here, the on-site wetland and remaining wetland buffer would occupy over 65
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, pages 12 and 17.
Reasonable Use Exception
12. 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; where any alterations are mitigated;
where the proposal ensures no net loss of critical area functions and values consistent
with best available science; where the proposal addresses cumulative impacts of the
action; and where the proposal is consistent with all other applicable regulations and
standards. BIMC 16.20.080.F.
13. The Applicant proposes construction of a single-family residence with an approximately
1,184 square foot building footprint and associated improvements, including a driveway.
To minimize impacts to the wetland and buffer, the residence would be sited in the
southeastern corner of the property, which represents the area on the property furthest
from the edge of the on-site wetland. As proposed, the single-family residence would be
located entirely within the required 60-foot buffer area. As noted, however, 3,120 square
feet of wetland buffer to the west of the homesite area would be enhanced through the
removal of invasive species and planting of various native vegetation, and a majority of
the site would be protected in perpetuity. Exhibit 1, Staff Report, pages 8 through 12,
and 17; Exhibit 12.
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Johnson Reasonable Use Exception and Variance
Nos. PLN52224 RUE & PLN52224 VAR
Page 7 of 20
14. Nick Rasor, 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 critical area functions and values consistent with the best available science as it
pertains to the incorporation of “low impact development” (LID) techniques for the
purposes 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. Rasor
provided several recommendations about site development and construction that City
staff determined should be incorporated as conditions of approval for the RUEX. Exhibit
1, Staff Report, pages 5, 17, and 18; Exhibit 14.
15. The Bainbridge Island Fire District reviewed the proposal and did not convey any
concerns. The project would be required to comply with all provisions of the City’s
adopted Fire Code. The Kitsap Public Health District also reviewed the proposal and did
not recommend any specific approval conditions. Exhibit 1, Staff Report, page 5; Exhibit
2.
16. 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:
• The 0.40-acre property is almost completely encompassed by a wetland and its
buffer. The proposed pervious rock driveway and walk-up are roughly less than
992 square feet and provide the required space for two vehicle parking spots for
the proposed single-family residence. To compensate for the proposed buffer
impacts, a greater than equal amount if square footage inside the buffer between
the development and the wetland would be enhanced through the removal of
invasive species and the planting of native tree and shrub species intended to
increase the functions of the wetland and its buffer.
• Administrative options for buffer reduction would not allow for enough buildable
area to accommodate the proposed home. To accommodate the building on this
property, impacts to the buffer are necessary and must proceed through the RUEX
process. Buffer mitigation is required to compensate for the buffer reduction per
the BIMC 16.20.080.
• The proposed building envelope is located in the optimal location within the
buffer at the southeast corner of the property. Mitigating for the impacts between
the building envelope and the wetland would ensure no net loss of buffer and
habitat functions on the property.
• The project has been designed to avoid all direct impacts to the wetland. The
project cannot avoid all impacts to the wetland buffer because most of the
property is composed of critical area and its buffer. The location of the single-
family residence would impact two Pacific Madrone. These two trees would be
replaced at the ratio 2:1 > 6 feet/3:1 > feet of native tree species, preferably
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Johnson Reasonable Use Exception and Variance
Nos. PLN52224 RUE & PLN52224 VAR
Page 8 of 20
Pacific Madrone. The trenching for public water, public sewer, and
electric/telecommunication would occur in the most direct route. Upland soil
would be returned to the trench and planted with native vegetation. This would
rectify the impacts of trenching. The 15-foot setback from the southern property
line would accommodate for this mitigation.
• The proposed location of the single-family residence is 15 feet away from the
nearest point of the wetland. Relocating the residence ten feet to the south would
not increase the distance between the single-family residence and the wetland.
The reduced setback would not allow for the proposed trenchwork mitigation and
would encroach on the root system of mature hedge to the south. The requested
variance would not allow for the required two parking spaces in front of the
residence. Therefore, the proposed location of the structure, driveway, and
trenchwork is the best possible on the parcel. There is no reasonable alternative
to the proposal with less impact to the wetland buffer.
• There has been extensive consideration of low impact development (LID)
techniques. The proposed development would include a metal roof, roof gutters,
drains, and dispersion of stormwater to a bioretention cell in the form of a rain
garden. A slab on grade foundation would provide the least amount of
disturbance to the property.
• A highly visible fence would be used during construction and replaced with a split
rail fence around the building envelope, dwelling, and driveway. Buffer
mitigation would occur directly around the building envelope.
Exhibit 9.
17. 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 critical areas ordinance allows for maintenance of existing structures and
uses, and a limited range of accessory structures (e.g., utilities), but since the
property is currently undeveloped and without an existing use, these allowances
do not apply. Strict application of the critical areas ordinance would deny all
reasonable use of the subject property, as there is no area available outside of
critical areas to establish a use on the site.
• “Reasonable alternative” means an activity that could feasibly attain or
approximate a proposal’s objectives, but at a lower environmental cost or
decreased level of environmental degradation. BIMC 16.20.190.67. The proposal
is for a residence, the purpose of which is to provide shelter for a single family.
While there are other allowed uses for the R-2 zoning district that may have less
impact to the critical area buffer, such as a passive recreation park, the City has
not identified alternative uses that would achieve the proposal’s objective.
Measures to minimize impacts have been imposed.
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Johnson Reasonable Use Exception and Variance
Nos. PLN52224 RUE & PLN52224 VAR
Page 9 of 20
• The Applicant has adequately demonstrated an inability to avoid impacts, and has
minimized impacts to a significant extent, in addition to providing compensatory
mitigation. During the preapplication stage, the City recommended that the
Applicant include additional minimization steps, including considering whether
the garage and garage access could be located on the eastern side of the house,
fronting Belfair. The Applicant provided the information that utilizing the natural
slope of existing topography to the greatest extent requires the garage access to
come from the north. It is noted that the driveway configuration seems to be
oriented to accommodate exterior parking, which is not required. Reconfiguration
could possibly result in slightly lower impact, although exact dimensional
difference by such reconfiguration is unknown.
• Although a smaller residence may result in less impact to the buffer, the
underlying zoning supports the allowed lot coverage, which is limited to 1,200
square feet. The City has historically considered lot coverage of 1,200 square feet
reasonable for a lot that is covered by critical areas, provided enough mitigation is
proposed to adequately compensate for impacts.
• Neither the Applicant nor the Applicant’s predecessor are the cause of the
inability to achieve reasonable use of the property. There are no prior permits or
uses related to this site.
• Under BIMC 18.12.050, lot coverage means that portion of the total lot area
covered by buildings, excluding up to 24 inches of eaves on each side of the
building, any building or portion of building located below predevelopment, and
finished grade.
• The proposed single-family residence includes a building footprint that would not
exceed 1,200 square feet, and final lot coverage calculations must be provided
with the building permit application.
• The proposal does not include any known threats to public health, safety, or
welfare. No concerns about threats public health, safety, or welfare were raised
during the comment period.
• Although there are no prescriptive mitigation requirements for wetland buffers,
the mitigation plan is required to contain goals and objectives that are related to
the functions and values of the original critical area, in accordance with BIMC
16.20.180.G.3.b. Additional mitigation sequencing includes rectifying the tree
removal (that is necessitated by the situating of the development as far from the
wetland as possible) through replanting. Additionally, a rain garden and
permeable driveway serve to reduce the impacts of stormwater runoff. Buffer
enhancement is proposed to compensate for the impacts through invasive removal
and installation of native plants.
• The total impact is 2,315 square feet of permanent impacts to the wetland buffer.
To compensate for impacts, 3,120 square feet of buffer enhancement is proposed.
The enhancement proposal includes native plant installation to improve species
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Johnson Reasonable Use Exception and Variance
Nos. PLN52224 RUE & PLN52224 VAR
Page 10 of 20
diversity where invasive species are prevalent today. No net loss has been
adequately demonstrated.
• Cumulative impacts are the combined environmental impacts that accrue over
time and space from a series of similar or related individual actions, contaminants,
or projects. Since 2013, six residences have been constructed in this wetland’s
buffer through RUEX approval, all of which were approved by the City with no
net loss of buffer functions, presumably due to removal of invasives and
replanting of natives.
• The proposal would be consistent with zoning requirements and other applicable
regulations and standards.
Exhibit 1, Staff Report, pages 8 through 11.
Variance
18. As noted above, the Applicant also requests a zoning variance to reduce the required
front setback from 25 feet to 5 feet to allow the proposed residence to be sited as far from
the on-site wetland as possible. The Applicant’s project narrative addresses the criteria
for a minor variance under BIMC 2.16.060.D, and suggests that the proposal would meet
the variance criteria because:
• The minor variance would allow the proposed single-family residence to be
located as far from the wetland as possible.
• The proposed reduction would allow for a 15-foot building/structural setback
from the wetland for the construction of the single-family residence.
• The proposed residence would share a similar exterior design within the
community.
• There is no unreasonable threat to the public health, safety, or welfare on or off
the property.
Exhibit 9.
19. City staff also analyzed the proposal for compliance with the variance criteria of BIMC
2.16.060.D and generally concurred with the Applicant’s assessment. City staff
specifically noted:
• Decreasing the front setback from 25 feet to 5 feet does not pose any risk to the
property or improvements in the vicinity. The single-family residence would be
located more than 25 feet from the edge the paved street even with the reduced
setback because of the wide 60-foot right-of-way in this area.
• The variance is requested because of on-site critical areas and associated buffers.
• The variance request is related to the presence of critical areas on the property and
has not arisen from actions taken or proposed by the Applicant.
• The City considers the reduction in the front setback, an impact minimization
step, to be a significant part of the RUEX request. The variance is necessary for
the enjoyment of a substantial property right possessed by other properties in the
vicinity that are developed with single-family residences.
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Johnson Reasonable Use Exception and Variance
Nos. PLN52224 RUE & PLN52224 VAR
Page 11 of 20
• The variance would be consistent with all other provisions of the municipal code
and would be in accord with the Comprehensive Plan.
Exhibit 1, Staff Report, pages 13 and 14.
Written Public Comments
20. As noted above, the City received several comments on the proposal from area residents.
Specifically:
• Dae Yu expressed support for the proposal.
• Carolyn Siscoe expressed concerns about the effects of reduced front setbacks on
privacy, the size of the proposed residence, and monitoring of mitigation
measures.
• Heather Patrick raised concerns about visual impacts related to the reduced front
setback, the size of the proposed development, wetland impacts, and the
cumulative impacts of similar RUEX permits that have been approved in the
surrounding area.
Exhibits 6 through 8.
21. City staff provided responses to the concerns raised by area residents, noting:
• Four residences located immediately west of the subject property received zoning
variances to reduce the front setback to 5 feet, in order to minimize impacts to the
wetland and buffer. Most of the residences to the east and south of the subject
property, along Belfair Avenue NE, appear to meet the 25-foot front setback.
While approval of the variance depends on whether the decision criteria are met,
it does not appear that the reduced setback is inconsistent with other development
in the vicinity.
• The home size is limited to 1,200 square feet of lot coverage and 30 feet in height.
The lot size, if it were not for the critical areas and need for a RUEX, could
otherwise support over 3,000 square feet of lot coverage. The proposed footprint,
which is approximately 1,200 square feet in size, appears smaller or comparable
to the homes in the vicinity.
• The cumulative impact of the proposed action and recent similar actions (several
residences built in the wetland buffer, approved by the City over several years)
have been conditioned to ensure no net loss.
Exhibit 1, Staff Report, pages 4 and 5.
Testimony
22. City Planning Manager HB Harper 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 for approval of a RUEX and
zoning variance. She noted that the City code limits residential development requiring a
RUEX permit to a 1,200 square foot footprint, but that the subject parcel would typically
support a larger residential footprint of approximately 3,000 square feet if a RUEX
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Johnson Reasonable Use Exception and Variance
Nos. PLN52224 RUE & PLN52224 VAR
Page 12 of 20
application was not required. She explained that the City retrains neutral third party
consultants to review wetland reports and mitigation plans for the City, as The Watershed
Company did for the subject application. Testimony of Ms. Harper.
23. Applicant Jacob Johnson testified that the proposed residence complies with the
limitations set forth by the criteria for a RUEX, including a footprint of less than 1,200
square feet. He stated that the driveway footprint had been decreased and the mitigation
measures increased to ensure that no net loss to buffer functions would occur as a result
of the proposed development. Testimony of Mr. Johnson.
Staff Recommendation
24. Ms. Harper testified that City staff recommends approval of the application, with
conditions. Mr. Johnson testified that the Applicant would adhere to the recommended
conditions of approval. Exhibit 1, Staff Report, pages 14 through 18; Testimony of Ms.
Harper; Testimony of Mr. Johnson.
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. The Hearing Examiner also has authority to hear and approve, approve with
conditions, or deny a request for a minor variance under the City’s consolidated project review
process. BIMC 2.16.060; BIMC 2.16.170.
Criteria for Review
Reasonable Use Exception
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;
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Johnson Reasonable Use Exception and Variance
Nos. PLN52224 RUE & PLN52224 VAR
Page 13 of 20
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.
Minor Variance
Criteria for review and approval of a minor variance are as follows:
1. A minor variance may be approved or approved with conditions if:
a. The granting of the variance will not be materially detrimental to
the public welfare or injurious to the property or improvements in
the vicinity and zone in which the property is located; and
b. The variance is requested because of special circumstances related
to the size, shape, topography, trees, groundcover, location or
surroundings of the subject property, or factors necessary for the
successful installation of a solar energy system such as a particular
orientation of a building for the purposes of providing solar access;
and
c. The need for a variance has not arisen from previous actions taken
or proposed by the applicant; and
d. The variance is necessary for the preservation and enjoyment of a
substantial property right possessed by other property in the same
vicinity and zone, but that is denied to the property in question
because of special circumstances on the property in question, and
will not constitute a grant of special privilege inconsistent with the
limitations upon uses of other properties in the vicinity in which
the property is located; and
e. The variance is consistent with all other provisions of this code,
except those provisions that are subject to the variance, and is in
accord with the comprehensive plan.
2. A variance may be approved with conditions. If no reasonable conditions
can be imposed that ensure the application meets the decision criteria
[described above], then the application shall be denied.
BIMC 2.16.060.D
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
particular, RCW 36.70B.040 mandates that local jurisdictions review proposed development to
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Johnson Reasonable Use Exception and Variance
Nos. PLN52224 RUE & PLN52224 VAR
Page 14 of 20
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
1. With conditions, the proposal would comply with the reasonable use exception
criteria of BIMC 16.20.080.F. Because a wetland and wetland buffer cover almost all
of the Applicant’s property, strict application of the City’s critical areas ordinances would
deny all reasonable use of the property. The City provided reasonable notice and
opportunity to comment on the application. The City received two comments from area
residents, which raised concerns about impacts to the on-site wetland, the consistency of
proposed residence with surrounding residences, and the size of the proposed building
footprint. The Applicant submitted a wetland buffer mitigation plan setting out
mitigation sequencing that would minimize the impact on critical areas. The mitigation
plan determined that the proposal would be the minimum necessary to allow reasonable
use of the property and that siting the proposed residence closer to Belfair Avenue would
result in the least impacts to the wetland buffer. City staff determined that the present
proposal would have the fewest impacts on the wetland and its buffer and, with a
condition requiring the Applicant to submit a final mitigation plan for City review prior
to building permit issuance, would result in no net loss of critical area functions or
values. The Applicant would provide two off-street parking spaces in accord with code
requirements. The lot is undeveloped, 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 proposal
is exempt from SEPA review.
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
southeastern corner of the property, in an area that is as far from the on-site wetland as
possible. As proposed, the site layout would result in a reduction of the required wetland
buffer around the single-family residence, but the remaining buffer area on the property
would be maintained between the homesite and the on-site wetland. In addition, the
Applicant would remove invasive species and would install a variety of native vegetation
in the remaining buffer area. Over 65 percent of the property would be protected in
perpetuity following development. The proposed location of the residence would allow
the Applicant to retain all of the significant trees on the property, except for two Pacific
madrone. The Applicant would plant four 6-foot native tree species along the northern
edge of the driveway to mitigate for the required tree removal. The proposed
development would utilize low impact development (LID) techniques, including a metal
roof, roof gutters, drains, and dispersion of stormwater to a bioretention cell in the form
of a rain garden. The Applicant would also install a permeable driveway.
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Johnson Reasonable Use Exception and Variance
Nos. PLN52224 RUE & PLN52224 VAR
Page 15 of 20
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, with
conditions requiring submittal of a final mitigation plan, would ensure no net loss of
critical area functions and values. The proposal addresses the cumulative impacts of the
proposed development by siting the proposed residence as far as possible from the
wetland edge and by providing buffer enhancement measures. Since 2013, six residences
have been constructed in the same wetland’s buffer through RUEX approval, all of which
were approved by the City with no net loss of buffer functions. Conditions restricting
pesticide, fertilizer, and herbicide use and requiring measures to prevent future
encroachment into the wetland buffer, such as permanent fencing and protection of the
on-site critical areas in perpetuity, would ensure that there would be no negative
cumulative impacts from development.
Conditions, as detailed below, are necessary to ensure that the proposal’s impacts to
critical areas are the minimum necessary to allow reasonable use of the property, to
ensure that the proposal satisfies all other criteria for approval of a reasonable use
exception, and to ensure that the proposal complies with all other applicable local, state,
and federal requirements. Findings 1 – 24.
2. With conditions, the proposal would comply with the minor variance criteria of
BIMC 2.16.060.D. The Applicant requests a reduction of the front setback from 25 feet
to 5 feet to allow the proposed residence to be sited as far from the on-site wetland as
possible. Members of the public raised concerns about impacts to the on-site wetland and
that granting the variance would result in a residence that would be out of character with
other residences in the vicinity. As addressed above in Conclusion 1, however, the
variance would allow the proposed residence to be sited in an area resulting in the least
impacts to on-site critical areas and is necessary to allow reasonable use of the property.
The need for the variance is not the result of any actions taken or proposed by the
Applicant but, instead, is due to the special circumstances of a Category III wetland and
its associated buffer covering nearly all of the property – a legal, nonconforming lot.
Granting the variance would allow the Applicant to construct a single-family residence
on the property, a property right enjoyed by other properties in the vicinity and the R-2
zone, in a manner minimizing impacts to critical areas and thereby satisfying the criteria
for a reasonable use exception. The proposal would comply with all other applicable
development regulations and would be consistent with the Comprehensive Plan.
Conditions, as detailed below, are necessary to ensure that the proposal satisfies the
criteria for a variance, as well as all other applicable local, state, and federal
requirements. Findings 1, 4 – 24.
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Johnson Reasonable Use Exception and Variance
Nos. PLN52224 RUE & PLN52224 VAR
Page 16 of 20
DECISION
Based upon the preceding findings and conclusions, the request for a reasonable use exception,
to allow the construction of a single-family residence, on a 0.4-acre lot that is impacted by
critical areas and located at 2145 Belfair Avenue NE, and the request for a variance to reduce the
required front setback from 25 feet to 5 feet, allowing the proposed residence to be sited as far
from the on-site wetland and associated buffer as possible, is APPROVED, with the following
conditions:
1. Work shall be completed in substantial compliance with the design and specifications
included in the RUEX file, including:
a. A permanent impact area not to exceed 2,315 square feet;
b. A permeable driveway;
c. Development and permanent impacts located outside of all wetlands.
2. Minor changes to the site plan within the approved impact area may be authorized as a
part of the building permit review, provided the square footages of the impact area in
condition 1 do not increase.
3. Lot coverage calculations must be provided with the building permit application.
4. To further minimize impacts to the wetland buffer, the following shall be implemented:
a. No pesticides, herbicides, or fertilizers may be used in fish and wildlife
conservation areas or their buffers except those approved by the U.S.
Environmental Protection Agency (EPA) and Washington Department of Ecology
and applied by a licensed applicator in accordance with the safe application
practices on the label. This shall be stated on the site plan and recorded with the
Notice to Title.
b. Lighting on the exterior of the residence to shall be limited to the minimum
necessary and shall be directed downward and away from the wetlands.
c. Access of machinery shall be restricted to as few areas as possible, to reduce soil
compaction. These areas shall be indicated on the site plan with the building
permit application.
d. Construction shall take place during the dry season (May through September) to
reduce impacts to aquatic resources.
e. Tall, dense evergreen vegetation shall be planted around the outside edge of the
buffer to improve screening between development and the wetland.
f. The buffer enhancement area shall not be cleared or grubbed, except for the
removal of invasive species. Downed woody debris shall be retained, and plant
material from invasive species removal shall be removed and properly disposed
of.
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Johnson Reasonable Use Exception and Variance
Nos. PLN52224 RUE & PLN52224 VAR
Page 17 of 20
g. No refuse, including but not limited to household trash, yard waste (e.g., lawn
clippings) and commercial/industrial refuse, shall be placed in the buffer.
h. As the largest impervious surface proposed for installation on the subject site,
roofing deserves particular attention. Accordingly:
§ Roofing shall be of a non-leaching material that is not harmful to the
environment. Examples of non-leaching materials are metal and tile roofs.
Any alternative method proposed requires approval by the City prior to
final building permit issuance and must address BIMC water quality
standards, Chapter 13.24, to assure that wetland flora and fauna functions
and values are maintained/enhanced.
§ Alternatively, the roof of the single-family residence shall be a permeable
green roof of an appropriate design to further slow the flow of stormwater,
and to enhance ecological function on the subject site following
construction. Any alternative method proposed requires approval by the
City prior to final building permit issuance, and must address BIMC water
quality standards, Chapter 13.24 BIMC, to assure that wetland flora and
fauna functions and values are maintained/enhanced.
i. Maintenance of all permeable hard surfaces – namely the driveway and green roof
– at appropriate intervals shall be required to ensure that they retain their
functionality for stormwater management. A permeable hard surfaces
maintenance plan should be included as a part of the final building permit
application. Updates regarding the condition and function of permeable surfaces
and confirming appropriate maintenance has taken place are required to be
included in any annual monitoring reports submitted to the City.
j. To prevent inadvertent damage to significant trees, the site plan shall identify
significant trees. Tree root protection fencing is required for any significant trees
with roots in the immediate vicinity of the project area. Tree root protection
fencing shall be marked on the final site plan and in place prior to the start of
construction.
5. A final mitigation plan shall be provided with the building permit application, consistent
with the results of the mitigation plan.
6. A temporary five-foot-high chain link fence with tubular steel poles or “T” posts shall
delineate the area of prohibited disturbance, which is the outer edge of the reduced
wetland buffer and reserve drainfield, unless the director has approved the use of a four-
foot-high plastic net fence as an alternative. The fence shall be indicated on the site plan.
The fence shall be erected and inspected by City staff before clearing, grading, and/or
construction permits are issued, shall remain in place until construction has been
completed, and shall at all times have affixed to it a sign indicating the protected area.
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Johnson Reasonable Use Exception and Variance
Nos. PLN52224 RUE & PLN52224 VAR
Page 18 of 20
7. Prior to final inspection of the building permit, the temporary fencing shall be replaced
with the permanent low-impact fencing along the perimeter of the buffer enhancement
area.
8. A minimum of two signs indicating the presence of a protected wetland buffer shall be
placed on the split-rail fence, prior to final inspection of the building permit. Signs shall
be made of metal or a similar durable material and shall be between 64 and 144 square
inches in size. The Director may notify the applicant that additional signs area required,
should deemed necessary as a result of the final building area layout.
9. All plantings shall be installed prior to final building permit inspection, or a performance
surety shall be provided in accordance BIMC 16.20.160.
10. A monitoring report shall be submitted annually by December 31st each year, at a
minimum, documenting milestones, successes, problems, and contingency actions of the
mitigation plan. The mitigation plan shall be monitored for a period necessary to
establish that performance standards have been met, but not for a period less than seven
years.
11. If the performance standards in the mitigation plan are not met, a contingency plan shall
be submitted to the Department of Planning and Community Development for approval.
Any additional permits or approvals necessary for contingency actions shall be obtained
prior implementing the contingency plan.
12. A maintenance surety shall be provided prior to final building permit inspection, or upon
release of the performance surety if plantings are not installed at the time of the final
inspection, whichever is applicable. The director shall release the maintenance surety
upon determining that performance standards established for evaluating the effectiveness
and success of the structures, improvements, and/or compensatory mitigation have been
satisfactorily met for the required period.
13. The Applicant shall record a notice to title with a site plan to document the presence of
the wetland buffers and mitigation areas with the Kitsap County auditor. Such notice
shall provide notice in the public record of the presence of the critical area, the
application of Chapter 16.20 BIMC to the property, and that limitations on actions in or
affecting such areas may exist. The notice must be recorded prior to the issuance of the
building permit.
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Johnson Reasonable Use Exception and Variance
Nos. PLN52224 RUE & PLN52224 VAR
Page 19 of 20
14. The Applicant shall comply with the following conditions to the satisfaction of the City
engineer:
a. All underground utilities (domestic water, septic transport, power, telecom, etc.)
shall be located/routed to minimize site disturbances to the maximum extent
feasible.
b. Use of soil sterilant to construct the driveway shall be strictly prohibited.
c. As proposed, there are two exterior off-street parking spaces in addition to two
interior garage parking spaces. The site plan shall be reevaluated during the
building permit review for the minimum number of required off-street parking
spaces for residential dwellings per BIMC 18.15.020 to determine if the impacts
to the critical areas can be further minimized.
d. 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.
e. Hardscaping shall be constructed of permeable materials or contain wide
permeable jointing where feasible to allow infiltration or shallow subsurface
filtration of surface stormwater. Building permit documentation shall include
location and materials for proposed hard surface/hardscape and plans shall include
construction details for permeable surfaces and subgrades.
f. Consideration shall be given to utilizing minimal excavation foundation systems
per the 2012 Low Impact Development Guidance Manual for Puget Sound as a
means of minimizing impacts to the proposed home site and the adjacent critical
areas and buffers. 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
submitted with the building permit for City engineering review prior to building
permit review, approval, and issuance.
g. A final stormwater site plan/report shall be submitted with the building permit
demonstrating compliance with all applicable minimum requirements as required
by Chapter 15.20 BIMC.
h. In conjunction with compliance with Chapters 15.20 and 15.21 BIMC, selected
Best Management Practices (BMPs) employing dispersion from the proposed
structure and driveway shall give strong priority 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 toward the
critical areas on site.
Findings, Conclusions, and Decision
City of Bainbridge Island Hearing Examiner
Johnson Reasonable Use Exception and Variance
Nos. PLN52224 RUE & PLN52224 VAR
Page 20 of 20
15. The RUEX permit automatically expires and is void if the applicant fails to file for a
building permit or other necessary development permit within three (3) years of the
effective date of the permit unless the applicant has received from the City an extension
for the permit.
DECIDED this 18th day of August 2023.
ANDREW M. REEVES
Hearing Examiner
Sound Law Center