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231218. HE Decision. BI. PLN52309and52308Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Project: Latchague-Irvine Single-family Residence File No: PLN52309 SVAR/SSDE/BLA - 1 - BEFORE THE CITY OF BAINBRIDGE ISLAND HEARING EXAMINER, STATE OF WASHINGTON IN THE MATTER OF: Project: Latchague-Irvine Single-family Residence File No: PLN52309 & PLN52308 SVAR/SSDE/BLA DECISION ON HEARING A public hearing on the above referenced application was held on December 6, 2023, at 10:00 AM, via ZOOM technology, and was opened by Hearing Examiner CAROLYN LAKE, of Goodstein Law Group PLLC. The hearing purpose was a consolidated review as authorized by Bainbridge Island Municipal Code (“BIMC”) 2.16.170, 1 where the applicant Nathalie Latchague-Irvine (“Applicant”) requests consolidated review and approval of a Shoreline Variance, exemption from Shoreline Substantial Development Permit, and Boundary Line Adjustment for property with common address of 14911 Skogen Lane N.E., Baimbridge Island, Washington (“Property”), which approvals would allow development consisting of demolishing an existing single-family residence, constructing a new primary residence, a guest quarter and garage and the aggregation of three lots. The proposed project is designed to result in a reduced overall building footprint area, conversion of impervious surfaces to pervious surfacing, and replacement of non-native vegetation with native vegetation (“Project”). The Project includes removing structures and impervious surfaces from Zone 1 of the shoreline buffer and from within, and immediately adjacent to, an estuarine Category II wetland. Exhibit 22, page 1. The Shoreline Variance is requested to allow flexibility for the Project’s reconstruction within the shoreline/wetland buffer outside of existing building footprints. At the opening of the public hearing, parties present confirmed they knew of no reasons or conflicts of interest that would prevent the Hearing Examiner from hearing the matter. Introductions were made of the persons expected to present testimony at hearing which included: David Greetham: City’s Interim Planning Manager Paul Nyland: City’s Public Works Representative Mr. Booth: City’s Development Engineering representative 1 BIMC 2.16.170, “An applicant for a single project proposal requiring more than one land use application may choose to follow the consolidated project review process. The procedures include consolidation of various land use applications, public notification of an application and opportunity for public comment prior to a final decision. Any combination of land use applications except for building and other construction permits may be processed under the consolidated project review process. Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Project: Latchague-Irvine Single-family Residence File No: PLN52309 SVAR/SSDE/BLA - 2 - Jennifer Lafreniere: Applicant’s Project lead, Block Architects Amber Mikluscak: Applicant’s Landscape Architect Marty Sievertson: Applicant’s Contractor Clark Construction The following parties were sworn and testified: David Greetham: City’s Interim Planning Manager Paul Nyland: City’s Public Works Representative Jennifer Lafreniere: Applicant’s Project lead Amber Mikluscak: Applicant’s Landscape Architect Marty Sievertson: Applicant’s Contractor Clark Construction No other persons presented public comment. The following Exhibits were offered and admitted without objections: No. Document Description Date 1 Staff Report 11/22/2023 2 Preapplication Conference Summary Letter 11/19/2021 3 Land Use Application (Updated) 06/23/2022 4 Notice of Application 10/21//22 4a Postcard Mailer 10/21/2022 4b Public Mailing List No date 4c Agency Mailing List 10/20/2022 4c Affidavit of Publication 10/26/2022 4d Certificate of Posting 10/22/2022 5 SEPA Determination of Non-significance 11/20/2023 6 Notice of Public Hearing 11/17/2023 6a Postcard Mailer 11/20/2023 6b Mailing List 10/20/2023 6c Affidavit of Publishing 11/27/2023 6d Certificate of Posting 11/20/2023 7-13 Public Comments (7) Various 7-13a Applicant Response to Public Comments 11/24/2022 14-17 Agency Comments (4) Various 18 SEPA Checklist 10/06/2022 19 Variance Decision Criteria Narrative by Applicant Received 07/14/2022 20 Vicinity Map 06/24/2022 21 Site Plan (existing and proposed) 06/24/2022 22 Site-Specific Analysis/No Net Loss Report 06/23/2022 23 Shoreline Ordinary High Water Mark Delineation Report 09/16/2021 24 Ordinary High Water Mark Determination/Wetland Evaluation 11/24/2021 25 Shoreline Replanting Plan 06/23/2022 26 Bainbridge Island Fire Department Memo 06/17/2021 27 Public Works Development Engineering Recommendation Memo 11/09/2023 Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Project: Latchague-Irvine Single-family Residence File No: PLN52309 SVAR/SSDE/BLA - 3 - At the close of the public hearing, the record was left open to (1) allow City and Applicant to confer and if possible, reach agreement and submit revised wording on proposed Condition 11.b of the City’s Staff Report (Exhibit 1), addressing Section 1-13 from the City’s Design and Construction Standards and Specifications (Exhibit 29), (2) submit Applicant’s updated Presentation (Exhibit 28), and (3) submit the City’s Updated Staff Report (Exhibit 30). These additional Exhibits are admitted: No. Document Description Date 28 Updated Applicant Hearing Presentation 11/30/2023 29 Updated Condition 11.b. 12/5/2013 30 Updated Staff Report 12/18/2023 After close of the hearing, the Hearing Examiner requested, and City and Applicant agreed to an extension of the date from December 14 to December 18, 2023 to issue the Hearing Examiner’s Decision, as allowed by BIMC 2.16.100.C.6.c.2 Based on the records and files provided to the Hearing Examiner and based on the testimony and exhibits provided at hearing, the Hearing Examiner makes the following: I. FINDINGS OF FACT 1. Summary of Request. The Applicant requests approval of the Project to demolish an existing single-family residence and construct a new primary residence and garage on the Property. The Applicant proposes to consolidate the existing three lots into one. A Shoreline Variance is requested to allow flexibility for reconstruction within the shoreline/wetland buffer outside of existing building footprints. Exhibit 1, page 1. 2. Summary of Project Property’s General Information and Site Characteristics: A. Property Owner and Applicant: Nathalie Latchague-Irvine B. Tax lot numbers: 342602-3-004-2004, 4187-000-010-0005, 342602-3-005-2003, (Original parcels Lots A, B and C, respectively); C. Property Address: 14911 Skogen Lane N.E. D. Property size: .51 acre total upland (.22 acre, .19, .10 acre, respectively) E. Current Use: Single-family residential. The Property is currently developed with a house, a carport, a garage with a second attached carport and five additional outbuildings. There are also two docks on the Property; the southernmost dock 2 BIMC 2.16.100.C.6.c provides that: “The hearing examiner shall issue a written decision in accordance with BIMC 2.16.020.M.6, within 10 working days of the public hearing, unless a longer period is agreed upon by the hearing examiner and the applicant or appellant. If the hearing examiner and the applicant or appellant agree on a longer period for issuance of the written decision, the examiner shall provide notice of the extension to the applicant or appellant, the city, and any person who testified at the hearing or submitted written testimony for consideration at the hearing.” Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Project: Latchague-Irvine Single-family Residence File No: PLN52309 SVAR/SSDE/BLA - 4 - includes a hot tub deck. With the exception of a workshop and the docks, all other buildings, along with the hot tub deck, are proposed for demolition. F. Zoning Designation / Comprehensive Plan Designation: R-2 / Residential – 2. G. Shoreline Environmental Designation: The upland designation is Shoreline Residential. The in-water designation is Aquatic for the westerly lots, (004 and 005), and Priority Aquatic A for the easterly lot (010). H. Shoreline Geomorphic Type / Class: The site geomorphic type is modified. The geomorphic class is low bank for the westerly lots (004 and 005) is low bank, and marsh/lagoon for the easterly lot (010). I. Terrain: The Property is the tip of a small peninsula and slopes gently down to the water. J. Soils: Site soils are significantly modified. There are several existing buildings with paved driveway and parking areas. Existing impervious surface covers 72% of the site. Area soils are Kapowsin gravelly loam. Areas immediately adjacent to the shoreline are 15- 39% slope but not defined as geologically hazardous. K. Access: Access is from Skogen Lane. L. Surrounding Properties - Use, Zoning, Comprehensive Plan and Shoreline Environment Designation: The Property is on a peninsula, surrounded on three sides by water. The two properties to the north contain single-family residential development and are also within the R-2 zoning district and Residential-2 Comprehensive Plan Designation. The properties to the north are within the Shoreline Residential upland environment. The water environment for the northwest property is Aquatic, and for the northeast property Priority Aquatic A. The geomorphic shore type for both adjacent properties is modified. M. Impacted Public Services: 3. Notice. Notice of the Project Application and Hearing Examiner public hearing satisfied the content and procedural requirements of WAC 173-27-110 and was given as follows: A. October 21, 2022: Notice of Application and SEPA Comment Period issued. B. October 20, 2023: Notice of SEPA Determination of Non-significance (DNS) Issued C. November 17, 2023: Notice of Public Hearing published. D. November 20, 2023; Notice of Public Hearing posted on project site. 4. Property’s Applicable Shoreline Considerations- Details. The proposed Project is located within the City's Puget Sound shoreline jurisdiction, which at a minimum includes all areas within 200 feet of the marine ordinary high-water mark (“OHWM”); any activity within this Police City of Bainbridge Island Police Department Fire Bainbridge Island Fire District School Bainbridge Island School District Water Individual well Sewer Off-site septic system Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Project: Latchague-Irvine Single-family Residence File No: PLN52309 SVAR/SSDE/BLA - 5 - jurisdictional area is subject to the City's Shoreline Master Program (“SMP”). The Property has a shoreline designation of Shoreline Residential per the SMP. Shoreline buffers are prescribed based on a combination of the shoreline designation and the physical and most predominant geomorphic characteristics of the property (SMP 4.1.3.6). This Property is classified as Category B, due to its constrained nature, in that no part of the Property is greater than 175 feet from the OHWM. The Category B shoreline buffer width for Shoreline Residential properties is 50 feet. The 50-foot shoreline buffer is further divided into a minimum 30-foot Zone 1 shoreline buffer measured from the OHWM landward, as adjusted to encompass native vegetation, and a Zone 2 shoreline buffer that extends between the landward edge of Zone 1 to the 50-foot maximum shoreline buffer width. The Property’s Zone 1 shoreline buffer is measured 30 feet landward from the OHWM, which was delineated along the existing bulkheads except where it encompasses the landward edge of the wetland on the Property’s south and expanded to encompass native vegetation on the Property’s eastern side. 5. Property’s Applicable Wetland Considerations- Details. The Property’s wetland was determined by the Department of Ecology (“Ecology”) to be an Estuarine Category II wetland. According to the SMP 4.1.5.12.7, a buffer of 110 feet plus a 15- foot setback is standard. See Exhibit 22, Figure 3, page 3. 6. Project Details. The Project involves removing several existing structures; building a new residence (Building A) and secondary structure (Building B) back from the shore; and remodeling an existing structure (Building C). Four structures will be removed and not replaced. A deck that is currently sited in the wetland and Shoreline Zone 1 (includes coincident wetland buffer) will be removed. Creosote pilings used in the current structure in Shoreline Zone 1 (includes coincident wetland buffer) will be removed. A portion of the existing impervious surfaces will be converted to pervious surfaces. Non-native landscaping will be replaced with native vegetation throughout. Stormwater runoff will be managed through bioretention systems after being minimized through the use of green roofs and other capture and dissipation systems. Details on the Project’s potential impacts and mitigating elements proposed are included in Exhibit 22, Sections 4 and 5. This Project does not include any alterations to the shore armor or docks. Exhibit 22, page 4. The Project is proposed to include low impact design elements, trails, and vegetation management. Exhibit 22, page 12. 7. Project’s Stormwater Details. The Applicant describes that stormwater runoff will be better managed that current conditions. All surface runoff not addressed by the green roofs will be captured and infiltrated on site. The Project proposes to remove a net of 2,082 square feet of structures and impervious surfaces from Shoreline Zone 1 (including coincident wetland buffer), 499 square feet from Shoreline Zone 2 (including coincident wetland buffer), and 178 square feet from the wetland. However, the wetland buffer Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Project: Latchague-Irvine Single-family Residence File No: PLN52309 SVAR/SSDE/BLA - 6 - outside of the shoreline buffer adds a net 754 square feet of structures. See Table 2, Exhibit 22, page 11. The Applicant describes that 245 square feet of net new surfacing will be installed in Shoreline Zone 1 (including coincident wetland buffer), however it will be pervious surfacing for paths that will reduce foot traffic and soil compaction in other areas of Shoreline Zone 1. Shoreline Zone 2 will have a net removal of 29 square feet of surfacing compared to existing conditions. The area of the wetland buffer outside of the shoreline buffer will be impacted by more structures. Exhibit 22, page 12. 8. State Environmental Policy Act Review. Applicant submitted the Project’s State Environmental Policy Act (“SEPA”) Checklist on October 6, 2022. The City of Bainbridge Island (“City”) issued its SEPA Determination of Non-significance (“DNS”) on October 20, 2023, in which the City found no probable significant adverse environmental impacts will result from the proposal. No appeals were received. One comment was received from the Washington Department of Archaeology and Historic Preservation (“DAHP”) regarding the potential need for a cultural resources survey. Based on additional consultation with the Suquamish Tribe, DAHP is satisfied that a cultural resources survey is not required if the Project is conditioned to include an inadvertent discovery plan for cultural resources. Exhibit 18 & Exhibit 5. 9. Agency Comments. The following Agencies commented on the Project: A. The Bainbridge Island Fire District recommends approval subject to conditions. Exhibit 26. B. Ecology commented on the Project’s proposed plantings in the estuarine wetland, stating that the proposed tree is unlikely to survive, that the wetland is currently functioning as one would expect to find in the location and that new planting may disturb existing vegetation and have adverse impact on survival and groundcover performance standards. Comment included a number of suggestions for vegetation. Ecology also commented that the proposed garage building (Building B) extends further waterward than the existing structure, and asked if it is possible to avoid extending the building towards the water. Regarding Building C, the workshop, Ecology commented that the proposed reduction to the size of this building should be documented. Additionally, Ecology requested that construction within the shoreline and wetland buffers be minimized, including proposed new trails and new dry creek bed drainage/river rock swale feature to the southwest of the Property between the new residence and the bulkhead. C. The Suquamish Tribe (“Tribe”) submitted two comments, stating the Project may have undocumented cultural resources, and that the proposed wetland enhancement plan, if successful, may serve as an example to other landowners with lawn/non-native vegetation extending to a bulkhead. The Tribe suggested changes to the monitoring plan, which states that after year one ground cover will be determined using visual cover estimates, stating that given the number of ground cover species such an approach may mask shifts in species composition that could provide feedback helpful for remedial Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Project: Latchague-Irvine Single-family Residence File No: PLN52309 SVAR/SSDE/BLA - 7 - plantings. Additionally, the Tribe commented that a Washington State Department of Fish and Wildlife Forage Fish Spawning Map - shows smelt spawning at the Project site. D. DAHP commented as described in Findings of Fact #8 above. Exhibits 14-17. 10. Written Public Comments. Seven public comments were received and are summarized below: • The public road end and water access at Skogen Lane should be preserved for public use and remain accessible during construction. • Trucks and materials should be staged on the site, and neighborhood electric service should remain uninterrupted. • Mail delivery and emergency vehicle service should remain uninterrupted. • Property damage from vehicles using neighborhood driveways as a turnaround should be avoided. • Root zones of trees on adjacent properties should be protected, including protection of root zones which extend into the right-of-way, and care should be taken not to harm tree limbs that extend outside those adjacent properties. • The Project should be coordinated with the community well manager and care should be taken to prevent damage to the waterline or contamination of the water system. • Inquiries related to estimated construction schedule and duration, as well as how long the public road end closure is anticipated to last. Commenters also requested clarification on what hours and days of the week are designated as “business hours” when demolition and construction activities can take place. • Inquiries related regarding the intent of the “autocourt” area within the road right- of-way, as identified on drawing A102, and whether this area will in any way restrict public access and use of the waterfront road end. • Construction vehicles should keep their speeds down and be respectful of the neighbors for delivery service and emergency vehicle access. • Confirmation that the “community way” noted on the Boundary Line Adjustment paperwork will not be privatized. • Assurance that removal of any existing creosote pilings on site will avoid groundwater contamination, including to the existing well located a few properties to the north. • The community water line should be well marked to avoid construction related damage. It was also noted that the proposed residence is limited to one water share per the Skogen Lane well system. Exhibits 7-13. 11. Applicant Response to Public Comments. The Applicant responded in writing to the public comments. Exhibits 7-13a. 12. City Recommends Approval. City Staff David Greetham, Interim Planning Manager testified and recommended approval of the Project’s Applications. Mr. Greetham testified that the Shoreline Variance allows a flexible approach to redevelopment within Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Project: Latchague-Irvine Single-family Residence File No: PLN52309 SVAR/SSDE/BLA - 8 - established wetland and shoreline buffers while still complying with underlying mandates of state and local laws and requirements. The Shoreline Variance is required because the structures will not be replaced within the existing footprints. The variance addresses building placement within buffers and concludes with a redevelop proposal that is more conforming to critical area and shoreline buffer standards than the existing developed condition. Staff applied development standards and applied flexibilities provided in code to address required buffers while providing a net increase in ecological functions via increased shoreline and wetland setbacks and proposed native vegetation enhancement, including approximately 14,is02 square feet of planting in shoreline buffers, wetlands, and wetland buffers. 13. Public Works/Engineering Conditions. The City Public Works Development Engineering department also submitted a written Recommendations Memo. Exhibit 27. At hearing, the Applicant’s landscape Architect representative and City Public Works/ Development Engineering representative commented on a possible change to one condition and committed to confer. The record was left open for submittal of a potentially revised condition, resulting in Exhibit 29, which was admitted as part of the Project record. 14. Property Site Constraints. The Applicant’s representatives testified, and Applicant’s Exhibits describe the numerous site constraints. Exhibit 28. The Applicant describes the proposed Project involves the redevelopment of a residential property that will result in a reduced overall building footprint area, conversion of impervious surfaces to pervious surfacing, and replacement of non-native vegetation with native vegetation. The Applicant describes this Project will removing structures and impervious surfaces from Zone 1 of the shoreline buffer and from within, and immediately adjacent to, an estuarine Category II wetland. Overall, the Applicant describes that a net gain in ecological function is expected as a result of this Project. Exhibit 22. 15. Project’s Mitigation Sequencing. Pursuant to SMP 4.1.2, the Applicant has taken steps to avoid and minimize Project impacts. Avoid: No new structures will be placed within Shoreline Zone 1. Minimize: Minimization techniques have been utilized during the design process to limit impacts. Building A is sited in a location that is as far from the OHWM as possible while minimizing the need for tree removals. Building A is sited 30 feet farther from the shoreline than the current residence. A green roof will be installed on Building B to manage roof runoff. Construction staging and access areas and have been sited to occur on currently impervious areas to reduce soil compaction and disturbance. Construction of structures has been planned to utilize existing building footprints for demolition and construction activities to minimize impacts. Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Project: Latchague-Irvine Single-family Residence File No: PLN52309 SVAR/SSDE/BLA - 9 - Standard best management practices (BMPs) will be utilized to minimize project impacts. All available and appropriate BMPs will be implemented as needed and may include, but are not necessarily limited to, the following: • No materials, spoils, debris, or equipment of any kind will be placed or disposed below the Puget Sound OHWM. • Construction impacts will be confined to the minimum area necessary to complete the project. • Marking construction limits. • Critical root zones of significant trees will be protected. • Covering exposed soils when not actively used. • Using tarpaulins to capture falling construction debris from under Building C. • Installing silt fencing. • Keeping all machinery clean and in good operating condition. • Immediately cleaning any spilled materials. • Immediately removing any demolition/construction materials that spill or fall outside of construction limits. • Disposing of all demolition/construction debris at appropriate upland facilities. Rectify: Existing Shoreline Zone 1 (including coincident wetland buffer) impacts will be rectified by removing the current residence, reducing the building footprint of the current Building C, and replacing non-native vegetation and lawn with native, salt- tolerant vegetation. Removing the existing structure in Zone 1 will also remove creosote-treated pilings that were used in the construction of the attached deck. This will remove potential soil and water contamination, and leaching to the marine environment, caused by creosote toxins. All temporary impacts will be restored in place. Wetland enhancement will involve the removal of non-native vegetation in the wetland and the planting of native vegetation. The impervious paving in the right-of-way will be reduced and resurfaced with pervious materials. Reduce: All mitigation areas will be preserved and maintained to ensure successful establishment. Impacts within shoreline and wetland buffers will be reduced over time as the compensatory mitigation areas mature. Compensate: A mitigation plan is included in the Projects’ Landscape Improvements Plan Set (see Exhibit 22, Appendix A, Sheet L009) to adequately compensate for Project impacts. Monitor: A five-year monitoring program is proposed in accordance with SMP 4.1.2.8. Performance standards, as detailed in the Landscape Improvements Plan Set (Exhibit 22, Appendix A, Appendix A, Sheet L0lO), will be used to assess Project success over time and ensure successful establishment of the mitigation area. Exhibit 22, pages 12- 13. Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Project: Latchague-Irvine Single-family Residence File No: PLN52309 SVAR/SSDE/BLA - 10 - 16. Project’s Mitigation Plan. Applicant included a Project Mitigation Plan in the Landscape Improvements Plan Set (Exhibit 22, Appendix A, Sheet L009). Mitigation is proposed on- site through extensive enhancement of shoreline buffer, wetland buffer, and wetland vegetation. This mitigation is anticipated to improve water quality and habitat functions. Buffer enhancement entails the removal of all invasive plants and non-native grasses within the project area and establishment of multistoried, native vegetation in all areas of the coastal terrace that are not developed by the structure, driveway, and maintenance/access trails. Overall, a total of 14,902 square feet of planting is proposed in shoreline buffer, wetland buffer, and wetland areas. This planting includes 13 new trees. Seven new trees will be planted in Shoreline Zone 1. Shoreline Zone 1 will be fully planted with native vegetation to meet or exceed the establishment of 65% canopy cover within 10 years. Overall, a net gain in ecological function is expected as a result of the completion of this Project. Exhibit 22, page 14. 17. Applicant’s Additional Exhibits. The Applicant also submitted the following Exhibits in support of Project approval: A. Applicant Response to Public Comments, Exhibits 7-13a, B. Site-Specific Analysis/No Net Loss Report, Exhibit 22 C. Shoreline Ordinary High Water Mark Delineation Report, Exhibit 23 D. Ordinary High Water Mark Determination/Wetland Evaluation, Exhibit 24 E. Shoreline Replanting Plan, Exhibit 25. Based on the above Findings of Fact, the Examiner issues the following: II. CONCLUSIONS OF LAW. 1. JURISDICTION. The Hearing Examiner has jurisdiction to hear this consolidated Project Review of the Project’s land use applications pursuant to BIMC 2.16.170. 2.16.170. This consolidated process is appropriate when a proposed development or use of land will require more than one of the approvals listed in BIMC 2.16.010 and provides a single process in which a single decision-maker will make all land use decisions on the application. Using this process, the Hearing Examiner may properly hear, consider and issue a Decision on any combination of land use applications except for building and other construction permit. 2. APPLICABLE CODES. The following BIMC regulations apply to the Project. The Project, as conditioned, satisfies the BIMC requirements. Below each applicable Code and the Project’s compliance is described. * * Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Project: Latchague-Irvine Single-family Residence File No: PLN52309 SVAR/SSDE/BLA - 11 - A. Shoreline Master Program Standard Requirement Project Compliance Shoreline Use Table 4- 1 Single-family residential use is permitted in the Shoreline Residential upland designation in which the project is located. Upland appurtenant The Project’s proposed single-family residential use is permitted in the Shoreline Residential upland designation in which the Project is located. Proposed upland appurtenant structures include a garage and, provided the structure is located landward of the OHWM and outside of wetlands, is a permitted accessory use. B. Dimensional Standards Table 4-2 (Residential) Standard Requirement Project Compliance n 30% side yard setback 5.9.5.8 30% of the lot width, which means the diameter of the biggest circle that can fit entirely inside the lot boundary line (BIMC 18.12.050.L) The Property is located at the end of a small peninsula with a curving shoreline. The Property’s sides are the shoreline facing east and west sides of the peninsula. The proposed site plan conforms with the minimum 30% side yard setbacks. Height 30 feet maximum for primary structure and appurtenances The Project’s structures meet this height standard. Shoreline Buffer Standards Table 4-3 Category B: Buffer width of 50 feet for developed lots with a depth less than 200’ from OHWM. The depth of each of the Project’s lot is 100 feet or less from OHWM, and the total standard buffer is 50 feet, plus associated wetland buffers. The total buffer encumbers nearly the entire Property. All existing development is at least partially within the standard shoreline buffer, and much of the existing residence is within the Zone 1 (most sensitive) shoreline buffer. The proposed Project plan removes this home and does not create any new development within Zone 1. An approved shoreline variance allows for redevelopment within the buffer while also providing site flexibility, including increased setbacks compared to the existing site condition. As approved and conditioned, this standard is met. Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Project: Latchague-Irvine Single-family Residence File No: PLN52309 SVAR/SSDE/BLA - 12 - Impact Analysis and No Net Loss Standard 4.1.2.4 A site-specific analysis of potential impacts utilizing required The Applicant submitted a site-specific analysis utilizing required mitigation sequencing, which forecasts a net gain in ecological function as a result of the Project due to reduced building footprint, conversion of impervious to pervious surfaces, and replacement of non-native vegetation with native vegetation. Exhibit 22. Removal of a deck/hot tub structure within and immediately adjacent to an estuarine wetland will be a beneficial impact. As approved and conditioned, the Project meets this standard. Standard Requirement Project Compliance Mitigation Sequence 4.1.2.6 Mitigation shall include the following actions in order of priority and is required for all mitigation activities: As conditioned by compliance with the Applicant’s Exhibit 22, Site-Specific Analysis, Section 5.2 (Watershed Co, June 23, 2022), the Project’s meets this standard mitigation sequencing. Standard. While impacts cannot be avoided due to the extent of buffer coverage across the Property, the Project reduces impacts over time by increasing building setbacks from the shoreline and compensating for the impact by removing some structures and enhancing previously developed areas with approximately 14,902 square feet of native vegetation. Shoreline Structure Setback View Requirement 4.1.3.11 The shoreline setback line is determined by averaging the distance from OHWM to the most waterward portion of the two adjoining property’s primary residential structures. The Project’s adjoining properties’ existing primary residential structures are located within 100 feet of the Project’s property line. The Property is located on a headland/peninsular landform, surrounded by water on three sides. The Property is currently developed with an existing residence. The Project, as proposed and conditioned, will provide for increased setbacks as compared to the existing condition. As conditioned, the Project meets the shoreline structure setback line requirements. Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Project: Latchague-Irvine Single-family Residence File No: PLN52309 SVAR/SSDE/BLA - 13 - Notice on Title 4.1.5.7.2 The property owner shall record notice of the presence of field- verified critical areas or buffers with the Kitsap County Auditor. The Property is encumbered by a wetland and its buffer. The Project is conditioned to record a Critical Areas and/or Critical Areas Buffer notice on title. As conditioned, the Project meets the requirement for Notice on Title. Regulations - Wetlands 4.1.5.12 Category II estuarine wetlands require a 110-foot width buffer and 15 foot structure or hard surface setback from the buffer for residential development. Both the Project’s existing and proposed replacement structures are located within a wetland buffer. The Applicant has shown that granting the shoreline variance allows for redevelopment flexibility within the buffer and retains/ improves function by the Project’s increased setbacks and establishment of approximately 14,902 square feet of native vegetation enhancement to the overall Property including the wetland buffer. The proposed building placement in the central site area also allows for retention of significant trees within the overall shoreline jurisdiction, consistent with Shoreline Master Program vegetation retention standards (SMP 4.1.3.5.6 C. BIMC Title 18 Zoning BIMC Table 18.12.020-2 Dimensional Standards for Residential Districts Standard Requirement Compliance Annotation Lot Area: Lot area means the total horizontal area within the lot lines, excluding any area seaward of the line of the OHWM. 20,000 sq ft minimum The Project proposal will combine three lots into one. The resulting lot area is .51 acre in size (22,136 square feet). The Project meets the minimum lot area standard. Density 20,000 sq ft minimum The Project proposal will combine three lots into one. The resulting lot area for the single- family residence is .51 acre in size (22,136 square feet). The Project meets the density standard. Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Project: Latchague-Irvine Single-family Residence File No: PLN52309 SVAR/SSDE/BLA - 14 - Lot Coverage “Lot coverage” means that portion of the lot area covered by buildings, excluding up to 24 inches of eaves on each side of the building. Any portion of a deck located more than five feet above grade shall be counted towards lot coverage. 20% maximum The Property’s combined existing lot coverage is approximately 5,950 square feet, or 26.9 percent. In addition, buildings, including 354 square feet of a workshop which extends over the water and a hot tub deck which is over the water adds additional lot coverage below Ordinary high-water mark (“OHWM”). The Project’s proposed lot coverage is reduced, consisting of 4,237 square feet, or 19.1 percent. The Project plans reflect the 354 square foot overwater coverage also will be slightly decreased. The Project meets the 20% lot coverage requirement. Setbacks 5 feet minimum The Property lies in the R-2 zoning district. The Property does not contain a front lot line, as defined in the BIMC, and therefore all lot lines are side lot lines. All Project buildings are 15 feet or more from the side lot lines. At or near grade structures are permitted in setbacks as provided in BIMC 18.12.040. The Project complies with the setback requirements. D. BIMC 18.30.030 Nonconforming Structures and Buildings. The BIMC provides that a nonconforming structure may remain and be used, provided; changes to the structure that would alter or increase the nonconformity are not permitted. Any vertical or horizontal extension of a nonconforming structure or building must meet current standards. Buildings may remain and be used and altered as provided in BIMC 18.30.030. Here because the Project’s proposed replacement strictures will be located outside the existing, non- conforming structures’ footprints, and instead within the wetland and shoreline buffers, the structures are subject to the Shoreline Variance criteria addressed in Section 3. C. 1. and Section 3.C.2, herein below. E. City Comprehensive Plan. The Property’s Comprehensive Plan designation is Residential-2. As conditioned, the Project will be compliant with the Comprehensive Plan via the implementing regulations in the Municipal Code for the R-2 residential zone, Critical Areas, Shoreline Master Program, and drainage and street standards. Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Project: Latchague-Irvine Single-family Residence File No: PLN52309 SVAR/SSDE/BLA - 15 - 3. LAND USE APPLICATION PERMIT CRITERIA A. 1. Boundary Line Adjustment - BIMC 2.16.090. An application for a boundary line adjustment (“BLA”) may be approved if no additional lot is created and no lot is created that contains insufficient area and dimensions to meet the minimum requirements for area, width and depth for a building site in the zone in which the property is located. If these criteria are not satisfied, then the following criteria must be met or the boundary line adjustment may not be approved: • After the adjustment, each lot involved retains its status prior to the adjustment as a developed or undeveloped lot and as a conforming or nonconforming lot; or • After the adjustment, a nonconforming lot that is permitted to be developed under BIMC 18.30.050 may become a conforming lot. A. 2. The Project Satisfies BIMC 2.16.090 BLA Criteria. The Property’s three existing lots do not conform to the R-2 district’s 20,000 square feet minimum lot area: Lot A is 9,493 square feet in size, Lot B is 8,317 square feet, and Lot C is 4,326 square feet. Granting the BLA results in one lot of 22,136 square feet, which meets the minimum lot area standard. The Project satisfies BIMC 2.16.090 BLA Criteria. B. 1. Shoreline Master Program Administration- Exemption from Substantial Development Permit BIMC 2.16.165 (E)(3). BIMC 2.16.165 (E)(1) governs exemption from Substantial Development permits. That code provision references and mirrors the requirements of WAC 173-27-040, which lists certain development activities which are exempt from shoreline substantial development permit requirements. The Applicant bears the burden to demonstrate compliance with WAC 173-27- 040 or its successor. If any part of a proposed development is not eligible for exemption, then a substantial development permit is required for the entire proposed development project, pursuant to WAC 173-27-040(d) or its successor. B. 2. Project Meets SDP Exemption BIMC 2.16.165 (E)(3) Criteria. The Applicant seeks Project approval of a single-family residence and normal appurtenance for Applicant’s own use or for the use of their family, which residence does not exceed a height of thirty-five feet above average grade level and meets the City’s requirements. As such the Project qualifies as exempt from substantial development permit as provided in WAC 173-27-040(2)(g).3 3WAC 173-27-040(2)(g) provides: “Construction on shorelands by an owner, lessee or contract purchaser of a single-family residence for their own use or for the use of their family, which residence does not exceed a height of thirty-five feet above average grade level and which meets all requirements of the state agency or local government having jurisdiction thereof, other than requirements imposed pursuant to Chapter 90.58 RCW. "Single-family residence" means a detached dwelling designed for and occupied by one family including those Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Project: Latchague-Irvine Single-family Residence File No: PLN52309 SVAR/SSDE/BLA - 16 - Pursuant to the City’s SDP Exemption criteria BIMC 2.16.165 (E)(3), the Project, as conditioned, also is consistent with: i. The applicable policies, guidelines, and regulations of the Shoreline Management Act of 1971; Chapter 90.58 RCW, as amended; and Chapters 173-26 and 173-27 WAC or their successors; ii. The goals, policies, objectives and regulations of the city of Bainbridge Island shoreline master program; iii. The city of Bainbridge Island comprehensive plan and municipal code; all other applicable law; and any related documents and approvals. See: Conclusion of Law # 2.A, 2.B., 2C., 2.D, and 2.E. herein above. C. 1. Shoreline Variance Citeria, BIMC 2.26.165(G)(3)(b). Pursuant to BIMC 2.26.165(G)(3)(b), this Project is a Major Shoreline Variance. Applications for major shoreline variances are more intensive than the minor shoreline variance and shall be decided by the hearing examiner following the procedures in BIMC 2.16.100. The City’s Shoreline Variance Criteria are found at BIMC 2.16.165(G)(4)(a). That City code provision references Washington Administrative Code (“WAC”) 173-27-170 and WAC 173- 27-210 or their successors and sets forth the minimum criteria for review and approval of a shoreline variance permit. C. 2. Project Satisfies Variance Decision Criteria of BIMC 2.26.165(G)(3)(b) & WAC 173-27-170. The Applicant has satisfied the BIMC 2.16.165(G)(4)(a) and WAC 173-27-170 Shoreline variance criteria. The Project’s development and/or uses will be located landward of the OHWM and/or landward of any wetland, as defined in both Chapter 16.12 BIMC and WAC 173-27-1704. Each criterion and Project compliance is addressed below. structures and developments within a contiguous ownership which are a normal appurtenance. An "appurtenance" is necessarily connected to the use and enjoyment of a single-family residence and is located landward of the ordinary high water mark and the perimeter of a wetland. On a statewide basis, normal appurtenances include a garage; deck; driveway; utilities; fences; installation of a septic tank and drainfield and grading which does not exceed two hundred fifty cubic yards and which does not involve placement of fill in any wetland or waterward of the ordinary high water mark. Local circumstances may dictate additional interpretations of normal appurtenances which shall be set forth and regulated within the applicable master program. Construction authorized under this exemption shall be located landward of the ordinary high water mark.” 4 The applicable variance criteria of BIMC 2.16.165(G)(4)(a) and WAC 173-27-170 are identical. See WAC 173-27- 170, “Review criteria for variance permits:” Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Project: Latchague-Irvine Single-family Residence File No: PLN52309 SVAR/SSDE/BLA - 17 - i. The strict application of the bulk, dimensional or performance standards set forth in the applicable master program precludes, or significantly interferes with, reasonable use of the property. The majority of the Project site contains critical area (wetland) and/or shoreline buffers. There is essentially zero buildable area on the site due to side yard setbacks, view setbacks, shoreline setbacks, wetland buffers, and a bisecting ROW (“Project Hardships”). The strict application of the buffer standards would significantly interfere with reasonable use of the Property for single- family residential development, as permitted in the R-2 zone. ii. The Project Hardships are specifically related to the property and is the result of unique conditions such as irregular lot shape, size, or natural features and the application of the master program, and not, for example, from deed restrictions or the applicant’s own actions. The Project Hardships are specifically related to this Property’s unique location at the end of a narrow peninsula, and the applicable buffer standards of the shoreline master program rather than deed restrictions or the Applicant’s own actions. Specifically, the Project Hardships are due to the Property’s location with water surrounding on three sides, a ROW bisecting it, a newly discovered wetland, and numerous significant trees. Despite these numerous constraints, the Project is requesting minimal variances: new construction within a wetland buffer, and the removal of a significant tree within the shoreline zone (in an effort to retain other, healthy, trees), as described in Applicant’s No Net Loss Report Exhibit 22, and Mitigation Plan Exhibit 22, at page14. iii. The design of the Project is compatible with other authorized uses within the area and with uses planned for the area under the comprehensive plan and shoreline master program and will not cause adverse impacts to the shoreline environment. The Project design is compatible with authorized residential uses in the area. The Property is designated for residential development in the R-2 zone designation and the shoreline master program residential designation. “(2) Variance permits for development and/or uses that will be located landward of the ordinary high water mark (OHWM), as defined in RCW 90.58.030 (2)(c), and/or landward of any wetland as defined in RCW 90.58.030 (2)(h), may be authorized provided the applicant can demonstrate all of the following: (a) That the strict application of the bulk, dimensional or performance standards set forth in the applicable master program precludes, or significantly interferes with, reasonable use of the property; (b) That the hardship described in (a) of this subsection is specifically related to the property, and is the result of unique conditions such as irregular lot shape, size, or natural features and the application of the master program, and not, for example, from deed restrictions or the applicant's own actions; (c) That the design of the project is compatible with other authorized uses within the area and with uses planned for the area under the comprehensive plan and shoreline master program and will not cause adverse impacts to the shoreline environment; (d) That the variance will not constitute a grant of special privilege not enjoyed by the other properties in the area; (e) That the variance requested is the minimum necessary to afford relief; and (f) That the public interest will suffer no substantial detrimental effect.” Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Project: Latchague-Irvine Single-family Residence File No: PLN52309 SVAR/SSDE/BLA - 18 - iv. The variance will not constitute a grant of special privilege not enjoyed by the other properties in the area. The Project’s development to replace an existing single-family residence is consistent with the uses of other area properties and specifically along Skogen Lane, which is developed with single- family residences. This Property has more constraints than most and is requesting minimal variances on code requirements that prohibit reasonable construction The grant of variance allows for at least two significant Property improvements: removing a structure from Zone 1 Shoreline (new footprint impacts minimal trees possible} and increasing the wetland buffer. v. The variance requested is the minimum necessary to afford relief. The requested variance is the minimum necessary to afford relief. The Project is for a single primary residence on three existing residential lots, while bringing the Property into greater conformance with critical area and shoreline buffer standards via increased setbacks and establishment of new landscaping. The Project’s proposed building configuration and placements are as far upland (out of Zone 1 and increasing wetland buffer) while also maximizing tree retainage, creating an enjoyable ROW experience, providing space for septic tanks (close to connection point, uphill to limit stormwater drainage through it, and as far away from the wetland and shoreline as possible). vi. And, the public interest will suffer no substantial detrimental effect. The public comments received are focused on potential impacts to the public interest, primarily short-term construction impacts and long-term protection of the existing Skogen Lane right-of- way that divides the Property and affords public shoreline access through the Property’s center. The Project design will maintain public shoreline access. Specifically, the proposed Project conditions are designed to avoid the appearance of private property by clearly maintaining a visually inviting, publicly accessible route to the shoreline within the existing public right-of-way. Additionally, as conditioned, materials utilized within the public right of- way must be approved by City Public Works to allow for long term City maintenance of the right-of-way and shoreline access. In addition to maintaining required setbacks, the Project as proposed removes hardscape and replaces it with native vegetation and pervious pathways, creating more privacy for the owners and giving more space/ views for those traveling to the public beach access. These improvements are not only being proposed within the setbacks, but also the ROW. Please see Exhibit 22, Appendix A Landscape Plans, and Exhibit 22, No Net Loss Report - Site Analysis, Mitigation Plan. 4. Department of Ecology Review. City decisions on shoreline variances must be reviewed by Ecology pursuant to WAC 173-27-130 and RCW 90.58.140(10). Ecology may approve, approve with conditions, or deny the application. Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Project: Latchague-Irvine Single-family Residence File No: PLN52309 SVAR/SSDE/BLA - 19 - Based on the above Findings of Fact and Conclusions of Law, the Hearing Examiner makes the following: III. DECISION. The Applicant’s Project Land Use Applications for (1) BLA pursuant to BIMC 2.16.090, (2) Exemption from Substantial Development Permit pursuant to BIMC 2.16.165 (E)(3) and WAC 173-27-040, and (3) Shoreline Variance pursuant to BIMC 2.26.165(G)(3)(b) and WAC 173-27- 170 (“Land Use Applications”) are CONDITIONALLY APPROVED. Approval of the Applicant’s Project and Land Use Applications is subject to the following conditions: 1. The authorization for the Project and its Land Use Applications’ construction activities automatically expires and is void if the Applicant fails to file for construction or other necessary development permits within two years of the effective date of the Shoreline Variance. The Project must be completed within five years of the effective date of the Shoreline Variance. 2. Project plans submitted for construction shall substantially comply with the plans approved by this Hearing Examiner Decision and as part of the Project’s Land Use Applications, including but not limited to proposed building placement within critical area and shoreline buffers. 3. Project construction pursuant to the Shoreline Substantial Development permit variance shall not begin and is not authorized until twenty-one days from the date the City files this variance approval with Ecology as defined in RCW 90.58.140(6) and WAC 173-27- 130, or until all review proceedings initiated within twenty-one days from the date of such filing have been terminated. 4. Pursuant to WAC 173-27-200, after the City’s approval of a variance permit, the City shall submit the variance permit to Ecology for Ecology’s approval, approval with conditions, or denial. State law provides that Ecology shall render its final decision approving, approving with conditions, or disapproving the variance permit and transmit to local government and the Applicant within thirty days of the date of the City’s submittal pursuant to WAC 173-27-110. 5. The City shall submit the complete Project file and variance approval to Ecology, upon which Ecology shall base its decision to approve, approve with conditions or deny the variance on consistency with the policy and provisions of the SMA. 6. The City shall provide timely notification of Ecology’s final decision to those interested persons who have requested notification from the City pursuant to WAC 173-27-130. Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Project: Latchague-Irvine Single-family Residence File No: PLN52309 SVAR/SSDE/BLA - 20 - 7. Prior to Project construction, the Applicant shall obtain the appropriate permits from the City of Bainbridge Island, including but not limited to clearing, grading, and/or building permits. 8. All Project construction activities shall comply with Puget Sound Clean Air Agency (“PSCAA”) regulations. 9. All Project construction activities shall comply with the noise standards contained in Chapter 16.16, BIMC. 10. Mitigation planting shall be installed as described in Exhibit 22, the June 23, 2022, Site- Specific Analysis (Watershed Co.) and Exhibit 22, Appendix A, the Landscape Improvements Plan Set, Sheet 109. Prior to final building permit inspection, the Applicant shall post financial surety for any plant installation not completed by the time of final inspection, and for long-term maintenance and monitoring as recommended by the landscape consultant. 11. Prior to any construction activity, the Applicant shall record a Critical Areas and/or Critical Areas Buffer notice on the Property’s title which is in conformance with SMP 4.1.5.7.2 and approved by the City. 12. A flood elevation certification shall be required prior to building permit approval for any proposed Project structures within the mapped flood hazard area. 13. To avoid disruption to community water service during construction, the existing water line shall be located and flagged in the field prior to commencement of Project development activities. 14. The Project shall comply with the following conditions to the satisfaction of Bainbridge Fire Department: a. Any future development shall comply with all provisions of the adopted fire code. b. Residential fire sprinklers, a fire hydrant, or NFPA 1142 may be required to meet fire flow for future development. c. A fully automatic fire sprinkler system design installed and tested pursuant to the current adopted edition of NFPA 13, NFPA 13R, or NFPA 13D, as determined by the Fire Marshall, shall be installed in all new buildings in excess of 3,600 square feet total floor area. d. Private fire apparatus access roads shall be no less than 12’ wide drivable surface with 13.5’ overhead clearance. 15. The Project shall comply with the following conditions to the satisfaction of the City Engineer: Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Project: Latchague-Irvine Single-family Residence File No: PLN52309 SVAR/SSDE/BLA - 21 - a. Construction within the right of way (“ROW”) shall require a ROW use construction permit. The ROW use permit is subject to independent review resulting in separate conditions, fees, and bonding requirements. b. The public ROW bisecting the subject parcels shall comply with COBI Design Standards (Standards) and shall retain the characteristics of public ROW. Characteristics include, but are not limited to, street section, surfacing material, signage, and clear delineation between publicly accessible areas and restricted private access areas. Per Section 1-13 of the Standards, deviations may be granted after a review of a formal request during the construction permit process. Requests shall include justification that the proposed deviations are in the public interest and are based on sound engineering principles and practices. The requirements for safety, function, appearance and maintainability must be fully met. (Exhibit 29). c. Public ROW shall remain free of obstructions and shall not be used for construction staging or parking throughout construction unless specifically permitted through a ROW Use Permit. d. A Revocable License Agreement (“RLA”) shall be completed prior to the issuance of any certificate of occupancy for any private improvements approved to be located within the ROW, including existing water and sanitary sewer service lines. The RLA shall include a map and legal description of the as-built improvements approved to be located within the ROW prepared by a licensed land surveyor. e. Issuance of building permit(s) shall require the Project to demonstrate that it meets applicable stormwater Minimum Requirements (“MR”) in accordance with the City’s adopted stormwater manual per BIMC 15.20 and 15.21. As proposed, the Project exceeds 5000 SF of new plus replaced hard surface area and is anticipated to be required to comply with MR 1-9. f. The Project site is not located within the COBI water or sanitary sewer service areas and is currently and proposed to be served by a Group B Public Water System and an on-site sewage system (“OSS”). Water and sanitary sewer services shall conform with Kitsap Public Health District requirements. g. No construction on or to the Project site may take place until civil improvement plans have been reviewed and approved by the City as part of a construction permit to include but not limited to Building, Grade and Fill, or Right of Way Use permits. 16. A Project-specific Inadvertent Discovery Plan (“IDP”) shall be required to address the potential for cultural resources on the Project site. The following stipulations shall apply to the plan: a. The Project-specific IDP is on-site and followed during all ground disturbing activities. b. The Project shall coordinate with the Suquamish Tribe for a “kick-off meeting” where the Project shares with the Tribe their demolition and excavation schedule, and the Tribe can assess what documentation (if any) will be needed and can plan site visits. c. The Project must keep the Tribe apprised of their schedule and inform the Tribe in advance of any schedule changes in a timely manner. Findings, Conclusions, and Decision City of Bainbridge Island Hearing Examiner Project: Latchague-Irvine Single-family Residence File No: PLN52309 SVAR/SSDE/BLA - 22 - d. If potential cultural resources are discovered at any time, the IDP should be immediately triggered. The cultural resources find should be protected in place with a minimum 30-foot exclusion area around the find. e. If archaeology is confirmed on the Property by the Suquamish Tribe or through photos provided to the DAHP, work must be halted around the find until archaeology can be properly assessed by a professional archaeologist. The Project will need to hire an archaeological contracting firm to conduct the professional assessment and reporting. f. If any precontact period (Native American) is found, or if historical period archaeology that is eligible for National Register for Historic Places is found, then a DAHP permit will be required for work within the archaeological site boundaries. 17. Any adjustment to this approved Shoreline Variance shall follow the requirements of BIMC 2.16.165(G)(6). 18. A Hearing Examiner Decision on Shoreline Variance may be appealed following the procedures of BIMC 2.16.165 (I)(2). Done this 18th day of December 2023. Carolyn A. Lake . Carolyn A. Lake Hearings Examiner