240326. PLN52399_HE DECISION. Lukins BulkheadBEFORE THE HEARING EXAMINER
BAINBRIDGE ISAND, WASHINGTON
In the Matter of the Application of ) No. PLN52399 SVAR/SSDE
Lukins Bulkhead )
) HEARING EXAMINER
) FINDINGS, CONCLUSIONS
) & DECISION
_________________________________)
SUMMARY OF DECISION
The Applicants’ requests for (1) approval to remove an existing 119.5-foot long, five-to-six foot high
wood bulkhead which is located on a lot containing single-family residential development and install a
new 73-foot long, six-foot high, five-inch wide soldier pile concrete wall two feet landward of the existing
wall, along with a wing wall 20 feet in length, (2) two shoreline variances and (3) shoreline substantial
development permit are APPROVED, as conditioned.
SUMMARY OF RECORD
Request:
Kyle and Susan Lukins, (“Applicants”) request approval to remove an existing 119.5-foot long, five-to-six
foot high wood bulkhead located on a single-family residential development lot and install a new
concrete wall two feet landward of the existing wall, along with a wing wall 20 feet in length on property
commonly known as 185 Lovell Avenue SW, Bainbridge Island, Tax lots 8541-000-185-0006 (Lukins);
8066-000-000-0004-004 (Sun Day Cove Common Area).
Hearing Date: The Bainbridge Island Interim Hearing Examiner conducted a virtual open record public
hearing on the application on March 19, 2024. One written public comment was received prior to
hearing. The record closed on March 19, 2024, at close of hearing.
Testimony: At the open record public hearing, the following individuals presented testimony under oath:
Kelly Tayara, Bainbridge Island Senior Planner and Project Manager; Kyle Lukins, Applicant; Leanne
McDonald, Applicants’ representative; Roger Katz, member of public and Sharon Dietrich, member of
public.
Exhibits: At the open record public hearing, the following exhibits were admitted into the record:
1 Staff Report
2 Notice of Incomplete Application
3 Notice of Complete Application
4 Notice of Application / SEPA Comment Period
5 Land Use Application
6 Ownership documents
6A Owner / Agent Agreement (Lukins) and HOA ownership explanation
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6B Owner / Agent Agreement (SunDay Cove HOA)
6C Temporary Construction Easement (Cool)
7 Applicant Narratives – Decision criteria and shoreline regulations
8 Site Photos
9 Site Plan
10 Site and Cross Section Plan
11 Design calculations
12 SEPA Checklist (Revised)
13 Geotechnical Engineering Report
14 Site Specific Impact Analysis / FEMA Report / Mitigation Plan
15 Shore Friendly Kitsap Site Visit Recommendations Memo
16 City Development Engineer Recommendation
17 Agency Comment - Dept. of Archaeology and Historic Preservation
18 Agency Comment – Dept. of Ecology
19 Agency Comment – Suquamish Tribe
20 Public Comment - Dietrich
21 SEPA MDNS
22 Notice of Public Hearing
23 Notice Issuance Documentation
23A NOA/SEPA Proof of Public Notice
23B NOA/SEPA Certificate of Posting
23C SEPA DNS Affidavits of Public Notice
23D Public Hearing Proof of Public Notice
23E Public Hearing Affidavit of Public Notice
23F Public Hearing Certificate of Posting
24 Sharon Dietrich’s pre-hearing public comment.
25 Sharon Dietrich’s email to Renee Argetsinger
26 “Clean” copy of Site Plan (Exhibit 9)
Findings, Conclusions, and Decision
Bainbridge Island Hearing Examiner
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Based on the record developed through the open record hearing process, the Hearing Examiner enters
the following findings and conclusions.
FINDINGS
1. Applicants Kyle and Susan Lukins, (“Applicants”) request approval to remove an existing 119.5-
foot long, five-to-six foot high wood bulkhead located on a single-family residential development
lot and install a new concrete wall two feet landward of the existing wall, along with a wing wall
20 feet in length on property commonly known as 185 Lovell Avenue SW, Bainbridge Island, Tax
lots 8541-000-185-0006 (Lukins); 8066-000-000-0004-004 (Sun Day Cove Common Area)
(“Project”). Testimony of Tayara, Exhibit 1, Exhibit 4, Exhibit 5, Exhibit 7.
2. The instant application was submitted on August 19, 2022, and deemed complete by the City of
Bainbridge Island (“COBI”) on December 5, 2022. Exhibits 1 and 3. Testimony of Tayara,
Testimony of McDonald, Exhibit 1, Exhibit 3, and Exhibit 5.
3. The City issued a notice of application on December 16, 2022. Testimony of Tayara, Exhibit 1 and
Exhibit 4. Notice of the open record hearing was posted on February 21, 2024, mailed to the
Applicants and public commentors on February 21, 2024, and published on February 23, 2024.
Exhibit 23C, Exhibit 23D, Exhibit 23F.
4. The COBI undertook State Environmental Act (“SEPA”) review and found no probable significant
adverse environmental impacts will result from the Project and issued a Determination of Non
significance (“DNS”) on February 12, 2024. The appeal period ended on February 26, 2024, and
no appeals were received. Testimony of Tayara, Exhibit 1, Exhibit 12, Exhibit 21, Exhibit 23A.
5. The Project site consists of one parcel totaling .25 acres. The Project property contains one
single-family residence and a bulkhead and is within the Sun Day Cove development, which is a
mix of condominium and single-family homes. The Zoning Designation is R-4.3. The
Comprehensive Plan Designation is Urban Residential-4.3. Testimony of Tayara, Exhibit 1.
6. The Project’s property is .25 acre in size (10,890 square feet) compared to the 10,000 sq ft
minimum. Exhibit 1.
7. In the Project’s R-4.3 zoning district, walls greater than four feet in height may be permitted in
setbacks if necessary for slope stabilization as determined by a geotechnical engineer and City
concurrence (BIMC 18.12.040). Here, the wall abuts the southerly boundary. The submitted
geotechnical engineering report (Aspect Consulting, September 12, 2022) documents loose fill
and ice-contact deposits between the residence and the bulkhead that extend approximately six
feet in depth and determined that soils left unsupported would be at a near-vertical inclination
and failure would occur immediately due to tide and wave action. Testimony of Tayara, Exhibit 1,
Exhibit 13, Exhibit 14, Exhibit 15.
8. The Applicants request consolidated Project review of a shoreline variance and exemption from
shoreline substantial development permit, as provided in BIMC 2.16.170. Testimony of Tayara,
Exhibit 1, Exhibit 7.
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Bainbridge Island Hearing Examiner
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9. The Project’s upland Shoreline Environmental designation is Shoreline Residential. The water
designation is Aquatic. The Applicants’ tidelands extend approximately 40 feet waterward of
OHWM. Tidelands waterward of the Lukins’ property are also privately owned. The site slopes
moderately down to the existing bulkhead. Approximate elevations are 9.5 feet at the beach
base of the bulkhead, 14 feet at the top of the bulkhead, and 19 feet at the residence. Testimony
of Tayara, Exhibit 1, Exhibit 9, Exhibit 13, Exhibit 14, Exhibit 15.
10. The Project’s surrounding properties include one property to the north which is undeveloped
except for a deck which adjoins the bulkhead on the Lukins property. A second property to the
north contains Sunday Cove multi-family development. The property to the west is developed
with the access drive and utilities serving Sun Day Cove. The property to the south contains
another single-family home within Sun Day Cove, and the Lukins’ bulkhead adjoins the bulkhead
on that property. Eagle Harbor is to the east. Surrounding properties are within the R-4.3 zoning
district and Resdential-4.3 Comprehensive Plan designation. The adjacent shoreline properties
are within the Shoreline Residential upland and Aquatic water environments, the geomorphic
shore type is ‘modified’, and the geomorphic class is marsh/lagoon. Testimony of Tayara, Exhibit
1.
11. One public comment was received prior to the open Record Hearing from Sharon Dietrich. Ms.
Dietrich stated that the existing bulkhead is connected to the Lukins’ bulkhead, asked how that
interface would be handled, and expressed concern that vibrations during construction may
damage the storm drain on her property. Testimony of Tayara, Exhibit 1, Exhibit 20.
12. Agency comments were received, and Staff responded as follows.
a. The Washington State Department of Archaeology and Historic Preservation (“DAHP”)
commented that the Project is in an area determined to be at very high risk for
archaeology according to the DAHP predictive model, that several nearby sites and close
access to running fresh water increases the chances of archaeological finds, that the
most likely location on the property for finds is immediately behind the existing
bulkhead, and that the proposed excavation would destroy any archaeological resources
present. DAHP recommends a professional archaeological survey of the Project area be
conducted prior to ground disturbing activities, and continued consultation with
concerned Tribes' cultural committees and staff regarding cultural resource issues.
b. The Suquamish Tribe commented that there are two streams which are located
approximately 2,500 feet northwest and 4,500 feet southeast of the Project and contain
chum and coho salmon, and that juvenile salmonids are anticipated to use the site.
Additionally, the Tribe states that the SEPA checklist indicated there are no known
spawning streams for chinook, but that the presence of juvenile chinook salmon moving
in from other areas cannot be discounted. The Tribe concurs with the Kitsap County
Shore Friendly Program Coastal Geologic Services Site Visit Recommendations to
enhance vegetation above the shore after any work is completed and recommends that
planting should occur along the entire face of the replaced bulkhead and be arranged to
ensure litter and insect fall into the intertidal zone to benefit juvenile salmonids.
c. The Washington State Department of Ecology (“DoE”) commented that, while the
bulkhead replacement is proposed at a low-energy site, the proposal to removes nearly
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50 feet of bulkhead completely and install the new bulkhead landward of the existing
structure is an improvement.
d. DoE additionally commented that it is unclear in the provided Primary Appurtenances
Memorandum whether any consultation with the neighbor took place that resulted in
the conclusion that the neighbor is unlikely to agree that a sewer line which extends on
the property could be relocated: Relocation of the sewer line would potentially allow for
a change in design and further minimization.
e. DoE further commented that the submitted Site Specific Impact Analysis & Mitigation
Plan / FEMA Report describes temporary relocation of the Salicornia (pickleweed) to
Strawberry Park, but provides no information about substrate, elevations, existing
conditions, or suitability of temporary planting. DoE states that additional discussion of
returning Salicornia to the site should be provided, including regrading to improve
habitat value, the monitoring period, performance standards, and contingency measures
if the survival rate is low. The agency also commented that information regarding the
cumulative effect of the proposal is needed per WAC 173-27-170(4).
f. Staff Response: While DAHP commented on the potential presence of archaeological
resources, recommending an archaeological survey and continued consultation with
concerned Tribes, the Suquamish Tribe submitted comment, making no mention of
archaeological concerns. Recommended Project conditions include extending an
invitation to the Suquamish Tribe to visit and analyze the site or providing an
archeological survey. Recommended conditions include upland replanting consistent
with recommendations of both the Suquamish Tribe and Kitsap County Shore Friendly
Program. Recommended conditions also include applicant documentation of the
conditions of the temporary Salicornia relocation site, and performance standards and
contingency measures once the Salicornia is returned to the subject property.
Testimony of Tayara, Exhibit 1, Exhibit 17, Exhibit 18, and Exhibit 19.
13. Notice of the open record hearing was posted on February 22, 2024, E-mailed to the Applicants
and public commentors on February 21, 2024, mailed to those persons listed in Exhibit 23D and
published on February 23, 2024. Exhibit 23D, Exhibit 23E Exhibit 23F.
14. The Applicants’ representative Leanne McDonald testified that she has been assisting
throughout the process. Over the course of six years, Ms. McDonald and the Applicants have
worked with the COBI to enhance their understanding of the code and determine if they could
apply for this application. They also met with several experts who determined that a shoreline
variance would be needed to install a flat, vertical bulkhead and ensure protection for the house.
The application was also submitted to the Army Corps of Engineers, who sent back a letter
stating that the existing bulkhead would have to be removed after the soldier pile is constructed
and no permit will be required. All necessary materials, documentation, and measurements have
been submitted to the Washington State Department of Fish & Wildlife. They now have
everything they need to issue the permit. Testimony of Leanne McDonald. Exhibit 7, Exhibit 11,
Exhibit 14, Exhibit 15.
15. Kyle Lukins, Applicant, testified he is the owner and shared that they seek to replace the existing
bulkhead with a comparable structure. A group of representatives from the Department of Fish
& Wildlife, Shore Friendly Kitsap, and another geotech firm came out to visit the site and
determined that, due to the close proximity of the house to the waterfront and steep slopes,
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Bainbridge Island Hearing Examiner
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anything but a vertical bulkhead wouldn’t be realistic for this Project. It has been almost five
years since the Applicants initially filed their application, and they are very thankful to have this
hearing today. Testimony of Kyle Lukins. Exhibit 13, Exhibit 14, Exhibit 15.
16. Sharon Dietrich provided public comment that she is the Lukins’ neighbor, who earlier submitted
a public comment stating that the current bulkhead extends across both properties, but the
replacement would only cover the Lukins’ property. Therefore, Ms. Dietrich expressed her
concern for how the two will connect. She also added that Kyle Lukins has been very
accommodating, and she is comfortable with the current plans. Public comment of Sharon
Dietrich. Exhibit 20, Exhibit 24.
17. Roger Katz commented at hearing that he is a local architect and resident of the Sunday Cove
development. He claims to be familiar with the bulkhead situation and is aware that many
alternatives were explored to replace the bulkhead. He has 35 years of experience working on
Bainbridge Island and believes the only reasonable solution is the soldier pile bulkhead that is
being proposed. The soft approach considered at one point would have resulted in the loss of
four or five significant fir trees on the waterfront, which would have also endangered the
adjacent marina. Mr. Katz also added that anything less than a vertical bulkhead would definitely
endanger the stability of the foundation on the Lukins’ home. Public comment of Roger Katz.
Substantial Development Permit Exemptions.
18. Applicants seek a Substantial Development Permit Exemption for the bulkhead’s construction
pursuant to BIMC 2.16.165 and WAC 173-27-040. Certain development activities identified in
WAC 173-27-040 are exempt from the requirement to secure a shoreline substantial
development permit; however, a shoreline variance or shoreline conditional use permit may
still be required. Exhibit 1.
Shoreline Master Program
19. Bainbridge Island Municipal Code (“BIMC”) Chapter 16.12 Shoreline Master Program applies to
the Project. The BIMC Shoreline Master Program is adopted under the authority granted by
Chapter 90.58 RCW and Chapter 173-26 WAC. The COBI adopted the latest update to its
Shoreline Master Program as amended through Ord. 2020-17, effective March 5, 2021 (“SMP”).
Exhibit 1.
20. The SMP use table (Table 4-1), shoreline setback table (Table 4-2), and the shoreline buffer table
(Table 4-3) provide regulatory use and dimensional provisions for each shoreline designation.
SMP. 4.0.1.8. Exhibit 1.
21. The SMP’s Shoreline Use Table 4-1 provides that single-family residential use, which includes
bulkheads, is permitted in the Residential upland designation in which the Project is located.
Exhibit 1.
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22. The SMP’s Dimensional Standards (Residential) Table 4-2 provides that a maximum of 200 square
feet of impervious surface is allowed in the side yard setback and the minimum side yard is five
feet. Exhibit 1.
23. The SMP Impact Analysis and No Net Loss Standard §4.1.2.4 requires a site-specific analysis of
potential impacts utilizing required mitigation sequencing and providing compensatory
mitigation measures when deemed necessary as a result of the analysis. Here, the Project
consists of construction of a six-foot high, 79 feet long, precast soldier pile wall, with beams that
are six-inches square, and precast concrete panels that are five feet long, ten inches tall, and 5.5
inches thick placed between the beams. The wall is proposed two feet landward of an existing
five-foot high, 118 feet long, one-foot depth wood bulkhead. The existing bulkhead is proposed
for removal in sections as the soldier pile wall segments are constructed. Construction is
proposed by barge; Hydraulic Project Approval (“HPA”) from the Washington State Department
of Fish and Wildlife (“WDFW”) is required before work begins to ensure activities protect fish
and aquatic habitat. The Applicants submitted a site-specific analysis utilizing required mitigation
sequencing, and identifying one adverse impact, a temporary adverse impact to water quality
caused by sediments during bulkhead removal. Exhibit 1, Exhibit 13, Exhibit 14, Exhibit 15.
24. While not identified as an impact or mitigation measure in the analysis report, the biologist’s
report states, “Salicornia (pickleweed) exists waterward of the bulkhead and hanging from the
bulkhead in patches particularly along a 36-foot raided portion of the beach near the center of
the bulkhead. The Salicornia will be removed prior to construction and will be planted and
monitored at an equivalent elevation fronting Strawberry Park. Following construction of the
bulkhead, the Salicornia will be planted back in the original location, per the advice from
Washington State Fish and Wildlife”. No removal of upland native vegetation or trees is
proposed. However, existing non-native upland vegetation (largely lawn) disturbance will occur.
While not identified as an impact or mitigation measure in the report, the report states, “New
native vegetation will be planted upland of the bulkhead and monitored for five years”; a plant
list and planting plan are provided in the report. The report proposes in-kind mitigation, citing
the removal of a treated wood bulkhead and installation of a new smaller bulkhead. To achieve
no net loss of environmental functions and ecosystem-wide processes, the Applicants propose
removal of the wood bulkhead, which is treated in creosote. Exhibit 1, Exhibit 14.
25. The SMP’s Revegetation Standards at §4.1.2.5 require that if the shoreline buffer is altered or
reduced pursuant to Vegetation Management (SMP 4.1.3), the entire area of Zone 1 shall be
planted; 65% canopy coverage shall be obtained within ten years; and existing native vegetation
in Zone 1 shall be retained. Vegetation disturbance greater than 200 sq. ft. requires a planting
plan by a qualified professional. Here, the standard shoreline buffer extends 50 feet landward of
OHWM. The shoreline buffer will be altered as a result of construction, including removal of
existing vegetation (largely lawn). The Applicants’ Site Specific Impact Analysis and Mitigation
Plan includes a planting plan. Proposed plants are low-growing, and the plan does not specify
the number of plants, planting recommendations, or planting area dimensions. While the
general size of the areas proposed for landscaping on the plan appear to meet regulatory intent,
the planting areas are set back from the bulkhead. Exhibit 1, Exhibit 14, Exhibit 15.
26. The SMP’s Mitigation Sequence at §4.1.2.6, requires that mitigation shall include the following
actions in order of priority and is required for all mitigation activities:
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a. Avoiding impact
b. Minimizing impact
c. Rectifying impact
d. Reducing or eliminating impacts over time
e. Compensating for impact
f. Monitoring impact and taking corrective measures as needed
g. Compliance
Here, the Applicants submitted a site-specific analysis utilizing required mitigation sequencing.
Additionally, the submitted Geotechnical Engineering Report (Aspect Consulting, Sept. 12, 2022)
contains an alternatives analysis that considers various bulkhead removal and bulkhead
replacement options. Exhibit 1, Exhibit 13, Exhibit 14.
27. The SMP’s Monitoring and Maintenance standards at §4.1.2.8 state that a monitoring program is
a required component of any mitigation plan and shall meet the requirements of SMP §4.1.5.14.
At a minimum, all shoreline stabilization projects shall include:
a. Five-year monitoring and maintenance program that addresses the shoreline
stabilization mitigation measures
b. Annual site visit by a qualified professional
c. Annual progress report which includes monitoring / maintenance recommendations.
The COBI notes that the Applicants’ submitted site-specific analysis does not specify
performance measures; but that recommended Project conditions ensure specific measures
during the monitoring period. Testimony of Tayara, Exhibit 1, Exhibit 13, Exhibit 14.
28. The SMP’s Vegetation Management Standards at §4.1.3 provides that Development within
shoreline jurisdiction shall be located and designed to protect existing native vegetation from
disturbance to the extent possible, to mitigate impacts to existing vegetation, and to meet the
standard of no net loss of ecological functions and processes (SMP 4.1.2). The COBI notes that
Applicants provided a planting plan with the submitted Site Specific Impact Analysis and
Mitigation Plan, and that the plan requires modification to meet the revegetation standards.
Testimony of Tayara, Exhibit 1, Exhibit 14.
29. The SMP’s Shoreline Buffer Standards / Location and Design Standard at Table 4-3 /§ 4.1.3.6.1.ii
provide that a Shoreline Buffer Category B applies where the property is shallow (200 feet in
depth or less, as measured landward), or located on a high bluff, or does not meet any of the
characteristics of Category A. As applied here, the Category B Buffer width is 50 feet for
developed lots with a depth less than 200’ from OHWM. The Shoreline Buffer consists of two
zones. Zone 1 extends from the OHWM a minimum of 30 feet, or to the limit of existing native
vegetation whichever is greater. Zone 2 is immediately landward of Zone 1 and extends an
additional 20 feet. Two alternative methods may be used to meet the goals and policies of the
SMP Vegetation Management section. An applicant may propose a Site-Specific Vegetation
Management Area through a Habitat Management Plan, or a shoreline buffer may be
maintained in a predominately natural, undisturbed vegetated condition. Here, the Applicants
opt to utilize the shoreline buffer alternative. The Project property extends less than 200 feet
landward from the OHWM. Portions of the home, consisting of the attached deck, the entire
patio and a generator are located within buffer Zone 1; portions of the home and deck are
located in Zone 2. For shoreline buffer areas, the total square footage of all buildings or
structures must not exceed 400 square feet, or ten percent of the shoreline buffer area,
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whichever is less. Only one-third of Zone 2 may contain structures and lawn. Additionally, only
ten percent or 300 square feet of allowed square footage is allowed in buffer Zone 1, and only
water-related structured are allowed within Zone 1. Testimony of Tayara, Exhibit 1, Exhibit 13.
30. The SMP’s Regulations regarding Wetlands at §4.1.5.12 provide that Category II wetlands include
estuarine wetlands smaller than one acre or disturbed estuarine wetlands larger than one acre.
Estuarine wetlands require a 110-foot width buffer and 15-foot structure or hard surface setback
from the buffer for residential development. The marine waters adjacent to the Project site are
designated by WDFW as Priority Habitat Estuarine and Marine Wetland. Salicornia (pickleweed)
is found hanging from and waterward of the bulkhead in patches. The Project is proposed within
the waters of Eagle Harbor. Physical disturbance scores are low (poor) primarily because of the
urban setting, ferry activity, low forested cover in the marine riparian zone, and relatively high
number of docks, mooring buoys, and ramp densities. Shoreline modification is prohibited in or
adjacent to wetlands, in accordance with SMP §6.1.4(1), and the Applicants seek a variance from
that standard. Testimony of Tayara, Exhibit 1, Exhibit 13, Exhibit 14, Exhibit 15.
31. The SMP’s General Regulations at §4.2.2.3 requires that use and development shall preserve and
protect cultural resources and consult DAHP and affected tribes prior to beginning development
so there is ample time to assess the site and make arrangements to preserve cultural resources.
Regarding the Project. DAHP commented on the potential presence of archaeological resources,
recommends an archaeological survey, and recommends continued consultation with concerned
Tribes. The Suquamish Tribe submitted comment, making no mention of archaeological
concerns. Recommended project conditions include extending an invitation to the Suquamish
Tribe to visit and analyze the Project site or providing an archeological survey. Testimony of
Tayara, Exhibit 1, Exhibit 17, Exhibit 19.
32. The SMP’s General Shoreline Modification Provisions at §6.1.4 prohibit shoreline modification in
or adjacent to wetlands. The Applicants seek a variance from this standard. Testimony of Tayara,
Exhibit 1.
33. The SMP’s Shoreline Stabilization provisions at §6.2.4 state that Vertical and/or flat hard-faced
structures are prohibited. Here, the Applicants propose a soldier pile wall, and therefore seek a
variance from this standard. The distance between the bulkhead and the residence ranges from
13.5 to 24 feet. The residence is nine feet above beach level, and the existing bulkhead is five
feet in height. The sewer line serving the home is approximately six feet from the bulkhead. As
demonstrated in the geotechnical report, the area between the bulkhead and the residence is
too narrow for a typical rock bulkhead, and the slope is too steep for soft shore protection
consistent with Marine Shoreline Design Guidelines. Testimony of Tayara, Exhibit 1, Exhibit 13,
Exhibit 14, Exhibit 15, Exhibit 16.
Other
34. In response to Hearing Examiner questions, Kelly Tayara shared that the Applicants’ proposal
to move the bulkhead causes the shoreline to become more proximate to the shore. There is
another proposal currently under consideration for West Eagle Harbor, in which there will be
construction involving the sewer line along that waterfront. There are many complications to
the shore, and from the City’s perspective, relocating the source is impractical at this point.
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Bainbridge Island Hearing Examiner
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Testimony of Kelly Tayara. Exhibit 9, Exhibit 26.
35. Kyle Lukins also shared that the existing sewer line passes from the southeast corner of the
Lukins’ property, across Sharon Dietrich’s property, and into the line presently in the bay. He
isn’t sure whether there is a formal easement across the Dietrich property but believes it’s
likely that there was one. In any case, there has been a 40-year practice of use. At the
connection between the Dietrich property and Lukins property, there is a concrete wall on the
Dietrich side that extends down to about 10 feet from the existing bulkhead. The existing
sewer line passes between the concrete wall and bulkhead. Therefore, moving the line back or
modifying it is both impractical and infeasible. Comment by Kyle Lukins.
36. Kelly Tayara shared that, from the City’s perspective, the sewer line is not adversely affected
by the proposed Project. Testimony of Kelly Tayara. Exhibit 9, Exhibit 26.
37. In response to Hearing Examiner questions regarding the Vegetation Standards (page 6 of the
Staff Report), which states that vegetation disturbance greater than 200 feet requires a
planting plan, Kelly Tayara confirmed that the area was indeed greater than 200 feet. There
were three planting plans, and the City’s main concern was that none of them addressed the
concerns of the Suquamish tribe or specified the number of plants in the planting list. Overall,
the proposal was inadequate in many ways, but the City is willing and able to provide
recommended conditions to guide the Applicants and ensure adequate environmental
mitigation is provided. Testimony of Kelly Tayara, Exhibit 14.
38. The Hearing Examiner asked the City’s representative to expand on how the Project meets the
requirements for shoreline buffer areas, which provide that the total square footage of all
buildings and structures must not exceed 400 square feet or 10%, whichever is less. Kelly
Tayara responded that in the City’s view, the existing development is non-conforming to this
standard. The term “non-conforming” means that the development is vested since it pre-
existed the adoption of this requirement. Testimony of Kelly Tayara.
Based upon the above Findings, the Hearing Examiner makes the following:
CONCLUSIONS
1. Jurisdiction: The Bainbridge Island Interim Hearing Examiner has jurisdiction to hear and
decide applications for major Shoreline Variances, as is requested here, pursuant to BIMC
2.16.165.G.3.b.
2. Consolidated review of the requested shoreline variances and the exemption from shoreline
substantial development permit for this Project is appropriate, as provided in BIMC 2.16.170.
Zoning & Comprehensive Plan
3. The Project’s single-family residence use is permitted in the R-4.3 district pursuant to
BIMC 18.09.020.
4. The Project conforms to the requirements of BIMC Table 18.12.020-2 Dimensional
Standards for Residential Districts as to lot lines and setbacks.
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5. Based on the geotechnical engineering report (Aspect Consulting, September 12, 2022)
documents and as condition herein, the wall provides necessary slope stabilization and
therefore complies with BIMC 18.12.040.
6. The Comprehensive Plan guiding principles, goals, and policies, along with implementing
regulations in the Municipal Code, are used to evaluate the proposal and weigh Project
impacts. As conditioned, the Project complies with the Comprehensive Plan via the
implementing regulations in the Municipal Code for the R-4.3 residential zone, the
Shoreline Master Program, and drainage standards.
Chapter 16.12 BIMC, Shoreline Master Program
7. As conditioned, the Project meets the criteria of Chapter 16.12 BIMC, the Shoreline
Master Program as follows:
a. Shoreline Use Table 4-1: Single-family residential use, which includes bulkheads,
is permitted in the Residential upland designation.
b. Dimensional Standards (Residential) Table 4-2: Although the existing garage
extends one-half foot into the five-foot width minimum side yard setback along
the southeast property line, the use is legally nonconforming to this standard.
The proposed bulkhead extends to the property line, a total of 105.5 feet [(20.6 x
.5) + 5 x .5)] of impervious surface and is in compliance with this standard.
c. Impact Analysis and No Net Loss Standard 4.1.2.4: Overall, a net gain in ecological
function is predicted as a result of the Project because in addition to removal of
the leaching bulkhead, the new wall is located landward of the existing wall, the
new wall has a much smaller physical footprint than the existing wall, proposed
upland plantings replace non-native vegetation with native vegetation, and
temporarily relocating pickleweed addresses temporary impacts. No additional
compensatory mitigation measures for impacts to the shoreline are deemed
necessary. As conditioned, the Project meets this requirement.
d. Revegetation Standards §4.1.2.5: Recommended conditions include a
requirement to submit a landscape plan with building permit that meets the
requirements of this regulation and the mitigation requirements of the Single-
Family Residence Shoreline Mitigation Manual. The landscape plan must provide
a multi-storied canopy, identify plant species, spacing and locations, be designed
to achieve 65 percent coverage of Zone 1 (30 feet from OHW) within ten years,
and to incorporate plant location and types designed to provide shade and ensure
vegetation litter and insects fall into the intertidal area. As conditioned, the
Project meets this requirement.
e. Mitigation Sequence §4.1.2.6: The Project’s geotechnical report demonstrates
that action to protect the single-family residential development is necessary.
Should fill and ice-contact deposits that comprise the area between the house
and the bulkhead be left unsupported, the near-vertical materials would fail, and
the home’s foundation would eventually be undermined. The Project’s biologist’s
analysis demonstrates that the length and configuration of the wall minimize
adverse impacts, that removal of the existing wall rectifies, reduces and
compensates for adverse impacts due to leaching contaminants, and that the
Findings, Conclusions, and Decision
Bainbridge Island Hearing Examiner
Lukins Bulkhead, SVAR & SSDP Application - 12 -
proposed monitoring period is sufficient to document future impacts and take
any necessary corrective measures. The analysis did not specify performance
measures; the Project is conditioned to ensure specific measures during the
monitoring period. As conditioned, the Project meets this requirement.
f. Monitoring and Maintenance §4.1.2.8: Recommended conditions include a
monitoring program meeting the requirements of SMP 4.1.2.8: At a minimum,
the program shall include: Performance measures; A contingency plan with
corrective actions if mitigation actions do not lead to the desired outcomes; An
annual site visit by a qualified professional for five years to assess the
effectiveness of the mitigation; A progress report submitted to the Administrator
annually, which includes any monitoring or maintenance recommendations of the
qualified professional. As conditioned, the Project meets this requirement.
g. Vegetation Management §4.1.3: The City’s Single Family Residence Shoreline
Mitigation Manual contains prescriptive mitigation for impacts to existing
vegetation, including lawn. Recommended conditions include a requirement to
submit a landscape plan that meets those mitigation requirements. As
conditioned, the Project meets this requirement.
h. Shoreline Buffer Standards / Location and Design Standard, Table 4-3 / §4.1.3.6,
Category B: Buffer width of 50 feet for developed lots with a depth less than 200’
from OHWM: Buildings and structures in the shoreline buffer are nonconforming
to this standard. As the Project removes a substantial portion of the bulkhead,
and the new wall will be two feet landward of existing, OHW will likely reestablish
landward of its current location, in effect increasing nonconformity in the
shoreline buffer. Recommended conditions include depicting the OHWM on the
landscape plan, along with Shoreline Buffer Zones 1 and 2, in order to facilitate
required mitigation planting for excavation and other upland vegetation
disturbance of the buffer, as discussed above under the vegetation management
section. As conditioned, the Project meets this requirement.
i. Regulations – General §4.2.2.3: Recommended Project conditions include
extending an invitation to the Suquamish Tribe to visit and analyze the site or
providing an archeological survey. As conditioned, the Project meets this
standard.
8. Applicants request Variance to the following Shoreline Standards:
a. Wetland Regulations at §4.1.5.12 and General Shoreline Modification provisions
at 6.1.4, which prohibit shoreline modification in or adjacent to wetlands, and
b. Shoreline Stabilization at §6.2.4 which prohibits vertical and/or flat hard-faced
structures.
9. The Project as conditioned meets the criteria for the two requested Shoreline Variances,
as contained in BIMC 2.16.165.G.4, WAC 173-27-170 and 173-27-210 or their successors,
as followed:
a. 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.
Findings, Conclusions, and Decision
Bainbridge Island Hearing Examiner
Lukins Bulkhead, SVAR & SSDP Application - 13 -
The Applicants submitted a site-specific analysis and habitat management report,
along with a geotechnical report containing an alternatives analysis that considers
various bulkhead removal and bulkhead replacement options.
The geotechnical report demonstrates that action to protect the single-family
residential development is necessary. Should fill and ice-contact deposits that
comprise the area between the house and the bulkhead be left unsupported, the
near-vertical materials would fail, and the home’s foundation would eventually be
undermined.
b. The hardship described in subsection BIMC 2.16.165.G.4.a.i 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 Applicants’ own actions.
The Project’s home was constructed in 1985 within proximity to the shoreline and
nine feet above the beach. The size of the home, given the limitations of the
quarter-acre lot, along with construction of the home on a slab foundation, make
moving the home infeasible.
c. 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 supported by WDFW and the Kitsap Shore Friendly Program.
The Suquamish Tribe supports the Project; recommended conditions follow Tribe
recommendations to enhance vegetation above the shore ensure litter and insect
fall into the intertidal to benefit juvenile salmonids.
The DoE commented that the submitted Site Specific Impact Analysis & Mitigation
Plan / FEMA Report provided no information about substrate, elevations, existing
conditions, or suitability of temporary planting, and that additional discussion of
returning Salicornia to the site should be provided. Recommended Project
conditions require the Applicants for construction to provide detailed final plans
containing the information.
The biologist’s analysis demonstrates that the length and configuration of the wall
minimize adverse impacts, that removal of the existing wall rectifies, reduces and
compensates for adverse impacts due to leaching contaminants. WDFW HPA
requirements, along with recommended conditions regarding aquatic and upland
vegetation, ensure adverse impacts to the shoreline environment will be avoided.
COBI Development Engineering concurs with engineering aspects of the
conclusions and findings in both Aspect and Coastal Geologic Services reports,
along with engineered drawings (Sealevel Bulkhead Builders, 2022). Specifically,
COBI DE agrees with the site classification as a low energy environment, the
assessed potential risk to the primary structure and appurtenances (sanitary
sewer line), and the engineering/geology assessments associated with the various
alternative analysis (both WDFW and COBI SMP versions). The reviewed material
included a site plan, Shore Friendly Kitsap report (Coastal Geologic Services,
Findings, Conclusions, and Decision
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2020), site photos, and geotechnical and coastal analysis (Aspect, 2022).
d. The variance will not constitute a grant of special privilege not enjoyed by the
other properties in the area.
Properties in the area are also protected by bulkheads.
e. The variance requested is the minimum necessary to afford relief.
The geotechnical report demonstrates that action to protect the single-family
residential development is necessary, and that the proposed wall is the minimum
necessary to afford relief.
f. The public interest will suffer no substantial detrimental effect.
The Project, as conditioned, results in a net benefit to ecological functions and
processes due to the reduced footprint of the new bulkhead in comparison to the
existing (i.e. the permanent removal of a portion of shoreline armoring), removal
of leaching contaminated wood, construction of the new wall landward of the
existing bulkhead, and increased upland native vegetation.
The cumulative effect of like Projects would likely be a benefit, as any reduction in
shoreline armoring, along with increased shoreline native vegetation, is generally
of benefit to shoreline ecological functions and processes. While two neighbors
to the south have similarly situated homes in proximity to the shoreline,
remaining area homes are set back greater than 80 feet from the shoreline.
10. The Project meets the criteria for a Shoreline Substantial Development Permit exemption
as follows.
Certain development activities identified in WAC 173-27-040 are exempt from the
requirement to secure a shoreline substantial development permit; however, a shoreline
variance or shoreline conditional use permit may still be required. State law requires that
exemptions be construed narrowly. Exemption from substantial development permit
procedures does not constitute exemption from compliance with the policies and use
regulations of the SMA (Chapter 90.58 RCW), the provisions of the master program, or
applicable city, state or federal permit requirements. Applicants shall have the burden of
demonstrating that the proposal complies with the requirements for the exemptions
sought as described under 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.
The Project is exempt from substantial development permit as provided in WAC 173-27-
040(2)(c): Construction of the normal protective bulkhead common to single-family
residences. A "normal protective" bulkhead includes those structural and nonstructural
developments installed at or near, and parallel to, the OHWM for the sole purpose of
protecting an existing single-family residence and appurtenant structures from loss or
damage by erosion.
Findings, Conclusions, and Decision
Bainbridge Island Hearing Examiner
Lukins Bulkhead, SVAR & SSDP Application - 15 -
DECISION
Based on the preceding Findings and Conclusions, the Applicants’ requests for (1) approval to remove an
existing 119.5-foot long, five-to-six foot high wood bulkhead which is located on a lot containing single-
family residential development and install a new 73-foot long, six-foot high, five-inch wide soldier pile
concrete wall two feet landward of the existing wall, along with a wing wall 20 feet in length, (2) two
shoreline variances and (3) shoreline substantial development permit are APPROVED subject to the
following conditions:
Project Conditions
1. Construction pursuant to this permit shall not begin and is not authorized until 21 days from the
date of filing with the Department of Ecology as defined in RCW 90.58.140(6) and WAC 173-27-130,
or until all review proceedings initiated within 21 days from the date of such filing have been
terminated; except as provided in RCW 90.58.140 (5)(a) and (b).
2. The authorization for construction activities automatically expires and is void if the applicant fails to
file for construction permit or other necessary development permit 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.
3. Prior to any construction, the Applicants shall obtain the appropriate permits from the City of
Bainbridge Island, including but not limited to clearing, grading, and/or building permits.
4. Plans submitted for construction shall substantially comply with the plans approved through this
land use permit, including but not limited to proposed mitigation, as modified by these conditions of
approval.
5. A copy of all agency approvals required, including Washington Department of Fish and Wildlife and
any US Army Corps of Engineers permits and/or approvals, and/or documentation from the
applicable agency that such approvals are not required, must be submitted to the City prior to
building permit issuance.
6. The waters fronting the Lukins property in which the barge will be located and associated
construction activities are proposed are not public lands and are privately owned. The Applicants
shall provide, to the City’s satisfaction, documentation of the authority to conduct any activity
associated with the Project on lands covered by water, including but not limited to the barge
location and activities, prior to construction permit issuance.
7. The Applicants shall submit an owner-agent agreement for replanting on the Strawberry Park site, or
alternate site. For authorization on the Strawberry Park site, contact Chris Wierzbicki at
cwierzbicki@bainbridgewa.gov.
8. The application for building permit shall include documentation that the Suquamish Tribe has been
extended invitation to visit the site, to share with the Tribe the demolition and excavation schedule,
and to allow the Tribe to assess any recommended documentation of archaeological resources.
Alternately, the Applicants shall provide with building permit application a Project-specific
Inadvertent Discovery Plan (IDP), to the satisfaction of the Department of Planning and Community
Development, to address the potential for cultural resources on the Project site.
9. The Applicants shall submit with construction permit application an amendment to the Site-Specific
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Bainbridge Island Hearing Examiner
Lukins Bulkhead, SVAR & SSDP Application - 16 -
Impact Analysis & Mitigation Plan addressing Salicornia as follows, to the satisfaction of the
Department of Planning and Community Development:
A. Identify substrate, elevations, existing conditions, and suitability of the temporary replanting
site.
B. Provide a site-specific Salicornia Transplant and Monitoring Plan.
C. Identify the monitoring time period.
D. Identify contingency measures for low survival rates for replanting Salicornia on the Lukins
property.
10. The Applicants shall submit with construction permit a landscape plan meeting Revegetation
Standards contained in SMP §4.1.2.5 (p. 70 – 71) and, at a minimum, the mitigation requirements
identified in the Single Family Residence Shoreline Mitigation Manual.
A. Depict the OHWM, Shoreline Buffer Zone 1 (30 feet landward of OHWM) and Shoreline Buffer
Zone 2 (50 feet landward of OHWM) on the plan.
B. Identify the area of upland disturbance.
C. Provide a multi-storied canopy, and include species, spacing and plant size, be designed to
achieve 65 percent coverage of Zone 1 within ten years.
D. Incorporate plant location and types designed to provide shade and ensure vegetation litter and
insects fall into the intertidal area.
E. Identify performance standards for upland planting mitigation.
F. Provide a monitoring program meeting the requirements of SMP§ 4.1.2.8 (p. 73): At a
minimum, the program shall include: Performance measures; A contingency plan with
corrective actions if mitigation actions do not lead to the desired outcomes; An annual site visit
by a qualified professional for five years to assess the effectiveness of the mitigation; A progress
report submitted to the Administrator annually, which includes any monitoring or maintenance
recommendations of the qualified professional.
11. Prior to final building permit inspection, financial surety shall be required for maintenance and
monitoring, and any plant installation not completed by the time of final inspection.
12. All activities shall comply with Puget Sound Clean Air Agency (PSCAA) regulations.
13. The Project shall comply with the following conditions to the satisfaction of the City Engineer:
a. Issuance of building permit(s) shall require the Project to demonstrate that it meets Minimum
Requirement 2 (Erosion Control) in accordance with the City’s adopted stormwater manual per
BIMC 15.20 and 15.21.
b. Minimum Requirement 2 may be met through the submittal of a Temporary Construction
Stormwater Pollution Prevention Plan (SWPPP) submitted for review and approval with the
required building permit. COBI form B109d or equivalent may be used to satisfy this
requirement. The SWPPP requirement may also be satisfied by an issued HPA if imposed HPA
conditions reasonably apply to any upland disturbances anticipated on the Project. If so, this
shall be explicitly noted in the building permit application which includes the HPA.
c. Shoreline uses and activities shall apply Best Management Practices (BMP’s) to minimize any
increase in surface runoff and to control, treat and release surface water runoff so that receiving
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Bainbridge Island Hearing Examiner
Lukins Bulkhead, SVAR & SSDP Application - 17 -
properties, receiving waters, wetlands or streams, and are not adversely affected, consistent
with the City’s adopted Stormwater Management Manual.
d. Building permit submittals shall demonstrate methodology to locate and protect existing
sanitary sewer line located between existing bulkhead and primary structure during all phases of
construction.
14. Distribution of Decision. Pursuant to pursuant to BIMC 2.16.165.G.3.e, the administrator shall mail
the final city decision to the Applicants, the State Department of Ecology, and the State Attorney
General. The permit must be received by Ecology within eight days of the date of the decision.
Within eight days of the date of the decision, the administrator shall also mail the decision to any
person who requested notice of the decision.
15. Ecology’s role. As addressed in BIMC 2.16.165.G.3.f, the State Department of Ecology shall
approve, approve with conditions, or deny all shoreline variances approved by the COBI. Ecology’s
decision must be made within 30 days of the date the permit and other information required by
WAC 173-14-090 or its successor are received by Ecology and the Washington State Attorney
General. Ecology will send a letter to the Applicants and the COBI informing them of the decision.
Upon receipt of the Ecology decision, the administrator shall notify those interested persons who
requested notification.
14. Appeal. This Project decision may be appealed to the Washington State Shorelines Hearings
Board in accordance with BIMC 2.16.165.I.
Decided: April 2, 2024.
Carolyn A. Lake .
Caroyn A. Lake
Bainbridge Island Interim Hearing Examiner