RES 2006-38 MADISON RIDGE PRELIM PLATRESOLUTION NO. 2006-38
A RESOLUTION of the City of Bainbridge Island, Washington,
approving the Madison Ridge Preliminary Plat (File No. SUB 13586).
WHEREAS, on November 10„ 2005, a preliminary plat application was submitted by
Tim Keating to the Department of Planning and Community Development (the "Planning
Department"); and
WHEREAS, the preliminary plat application facilitates creation of five residential lots
utilizing the open space option on a 4.61 acre parcel located on the southwest corner of Madison
Avenue North and Lovgren Road; and
WHEREAS, the Planning Department reviewed and forwarded its recommendation for
conditional approval to the Hearing Examiner; and
WHEREAS, on May 25, 2006, the Hearing Examiner conducted a public hearing on the
preliminary plat upon proper notice; and
WHEREAS, the hearing was continued to June 8, 2006 to allow (a) the applicant an
opportunity to propose an alternate tree retention area and (b) the Director to look into the
possibility of a wetland on the subject site; and
WHEREAS, at the June 8, 2006 hearing, the location of the northern boundary of the site
was challenged and the record was held open for the Planning Department to respond to that
information; and
WHEREAS, on June 27, 2006, the Planning Department provided information
addressing the boundary issue; and
WHEREAS, on June 30, 2006, a notice was issued requesting additional public
comment regarding the information provided by the Planning Department, and additional
comments were received and made a part of the record,; and
WHEREAS, on July 6, 2006, the applicant submitted a revised Tree Retention/Open
Space Plan, and the record was reopened to allow for additional public comment; and
WHEREAS, no further public comment was received, and the hearing record was closed
on July 24, 2006; and
WHEREAS, on August 21, 2006, the Hearing Examiner recommended conditional
approval of the preliminary plat and entered her Findings of Fact, Conclusions of Law, and
Recommendation; and
Page 1
WHEREAS, on September 27, 2006, the City Council held a public meeting to review and
discuss the preliminary plat and requested further clarification on the pedestrian trail
improvements and significant tree preservation now, therefore,
THE CITY COUNCIL OF' THE CITY OF BAINBRIDGE ISLAND,
WASHINGTON, DOES RESOLVE AS FOLLOWS:
Section 1. The Findings of Fact, Conclusions of Law, and Recommendation of the
Hearing Examiner (File No. 13586), as set forth in Exhibit "A", which is attached and
incorporated by reference, is adopted as the final decision of the Bainbridge Island City Council
with the following revised conditions:
5. The northern 25 ft. of the site (as measured after the right -of way dedication, Condition 2) shall
be designated as a roadside buffer and included in the Open Space designated on the final plat
[see Condition 6]. A 10 foot easement shall be established within the 25 foot roadside buffer.
The final plat indicates that the easement is for public pedestrian use and it shall be centered on
the constructed pedestrian trail.
14. With the Plat Utilities submittal, the Applicant shall submit civil drawings [Exhibit 53] that show
the approximate location of a 4 to 6 ft. wide trail within the roadside buffer [see Condition 5]. This
trail, located between the back side of roadside ditch (as improved) and the southern boundary of
the roadside buffer/open space, shall be constructed so as to meander as necessary to preserve
significant trees. The inside/roadside edge of the path shall not be closer than 20 feet from the
centerline of the roadway. The trail shall be installed or appropriate assurance device provided prior
to final plat approval and shall be inspected by the City Engineer or assignee. Maintenance of the
trail shall be the responsibility of the homeowners association unless the trail is dedicated to the
City or the Parks District. In the event that the trail is not maintained the City shall have the right to
provide the maintenance thereof, and bill the owner for the cost of the maintenance.
29. Existing vegetation in the roadside buffer along the Madison Avenue frontage must be left in its
natural state, except for removal of hazard trees and invasive plants and, within the Lovgren
Road roadside buffer, clearing and grading essential for construction of the driveways that cross
the buffer and for construction of the pedestrian trail within a dedicated _10 -ft. wide easement
[see Condition 30]. Removal of or damage to significant trees is prohibited for the construction
of the trail.
30. Consistent the civil plans approved by Public Works [Exhibit 59], the Applicant shall construct
a pedestrian trail [minimum width 4 ft.; maximum width 6 ft.] between the back side of the
ditch (as improved) , and the southern boundary of the designated roadside buffer along
Lovgreen Road. The trail shall extend from Madison Avenue to the western boundary of the
subdivision. Removal of vegetation shall be limited to a six foot swath for the trail construction
(no soil disturbance shall occur outside of the six foot trail construction corridor). The trail shall
be "field -fit" between or around existing trees, so that significant tree removal shall be avoided.
Limbs and branches up to 9 ft. over the trail and within 1 ft. of the trail edges shall be removed.
Any native, non-invasive plants removed for construction of the trail itself, shall be replaced as
approved by the Department of Planning and Community Development. The 4 to 6 foot wide
trail shall be constructed with a four inch layer of crushed 3/4 inch gravel over a geotextile mat
barrier.
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Section 2. The proposed preliminary plat is in conformance with the zoning ordinance,
the comprehensive plan, the subdivision regulations and standards, and all applicable land use
ordinances and applicable state law in effect at the time the fully completed application for
preliminary plat approval was submitted by Tim Keating to the Planning Department.
Section 3. The final plat of the Madison Ridge Subdivision shall state on its face that it is
subject to the conditions of approval set forth in this resolution.
PASSED by the Council this 1 lth day of October 2006.
APPROVED by the Mayor on the 12th day of October 2006.
ATTEST/AUTHENTICATE:
Rosalind D. Lassoff, CMC
City Clerk
Darlene Kordonowy, Mayo
FILED WITH THE CITY CLERK: October 5, 2006
PASSED BY THE CITY COUNCIL: October 11, 2006
RESOLUTION NUMBER: 2006-38
Page 3
EXHIBIT A
FINDINGS AND RECOMMENDATION
OF THE
HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Application of
TIM KEATING SUB13586
for preliminary plat approval of the
5 -Lot "Madison Ridge" Subdivision
BACKGROUND
Tim Keating has applied for preliminary plat approval for the 5 -lot "Madison Ridge"
subdivision. The Director has recommended approval of the subdivision, subject to
numerous conditions. The public hearing was held on May 25, 2006 and the parties were
represented as follows: the Director, Planning and Community Development Department
(PCD or Department), by Mara Preston, Planner, and the Applicant, Tim Keating, pro
se.
The hearing was continued to June 8, 2006 to allow the Applicant an opportunity to
propose an alternate tree retention area and for the Director to look into the possibility of
a wetland on the subject site. At the reconvened hearing on June 8U', the parties (Mark
Adam represented the Applicant) presented information, public comment was received,
and Exhibits 50-55 were admitted into the record. The location of the northern boundary
of the site was challenged and the Hearing Examiner left the record open for PCD to do
additional research and submit information responsive to that challenge. On June 27,
2006, that information [Exhibit 561 was submitted and on June 30, 2006 notice [Exhibit
57] was given as to the availability of that information and the opportunity for public
review and comment. Comment was received and is included the record as Exhibit 58.
On July 6, 2006, the Applicant submitted a revised Tree Retention/Open Space Plan
[Exhibit 591 and the record was subsequently reopened to allow opportunity for public
review and comment [Exhibit 601. No comments were submitted. The record closed at
the end of the comment period on July 24, 2006.
For the purposes of this recommendation, all section numbers refer to the Bainbridge
Island Municipal Code (BIMC or Code), as amended, unless otherwise indicated.
Recommended Conditions comprise Appendix A found at the end of this document.
SU$135 86
Page 1 of 29
After due consideration of all the information in the record, including that presented at
the public hearing, the following shall constitute the findings, conclusions, and
recommendation of the Hearing Examiner regarding this subdivision application.
FINDINGS
SITE DESCRIPTION
Location
1. The subject site (tax lot #102502-4-001-2004), is located at the southwest corner
of the intersection of NE Lovgren Road* and Madison Avenue NE (bound on the east by
Madison Avenue and on the north by Lovgreen Road). The site is rectangular, with
Lovgren Road on the long axis running east -west.
*Note: Documents in the record use various spellings for this street name: "Lovgren",
"Lovgreen", "Lovegren", and "Lovegreen". "Lovgreen" is the spelling used by
neighbors who submitted written comments [see e.g., Exhibits 24, 26, 29, 32, 35, 36].
However, consistent with the spelling used by the surveyor on the plat maps [see Exhibit
3], "Lovgren" has been used throughout this recommendation. Should the City Council
find that a different spelling is preferred, a condition of approval should be included to
require that spelling on the final plat.
2. The site is zoned residential., R-1 (one unit per 40,000 sq. ft.), and the
Comprehensive Plan designation is ORS -1, Open Space Residential. Surrounding uses
are all single family residential, as are the zoning and Comprehensive Plan designations.
[Exhibit 43, Staff Report, pages 8; Testimony of Preston]
3. As can be seen in the aerial photo [Exhibits 46A and B], the Idel Weis plat is
immediately to the south and there are single-family residences (and undeveloped
residential property) on both sides of Lovgren Road. The proposed plat is generally
consistent (i.e., similar in size, shape and orientation to the street) with the platting
pattern that is developing in the vicinity [see Sheet 1, Exhibit 53]
4. Lovgren Road is classified as a "Suburban Collector" (with design standards that
call for 13 -ft. wide driving lanes and 3 --ft. wide gravel shoulders in a 50 -ft. wide right-of-
way; Dwg. 7-040). Madison Avenue is a "Suburban Secondary Arterial" (with design
standards that call for 15 -ft. wide driving lanes and 5 -ft. wide gravel shoulders in a 60 -ft.
wide right-of-way; Dwg. 7-020). [Exhbit 44]
Size
5. The legal description of the property [Exhibit 5, Statutory Warranty Deed] is as
follows:
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THE NORTH 5 ACRES OF THE NORTHEAST QUARTER OF THE SOUTHEAST
QUARTER OF SECTION 10, TOWNSHIP 25 NORTH, RANGE 2 EAST, W.M., IN
KITSAP COUNTY, WASHINGTON.
EXCEPT THE EAST 30 FEET THEREOF FOR COUNTY ROAD;
AND EXCEPT ROAD ON NORTH.
6. There is a recorded right-of-way deed for Madison Avenue (i.e., the "Except East
30 feet for County Road" that is noted in the legal description). Finding no record of a
conveyance for a Lovgren Road right-of-way, the Applicant's surveyor used the
southerly edge of the pavement to mark the existing right-of-way (i.e., the "Except for
Road" noted in the legal description). [Exhibit 3, Sheet 2/5; Exhibit 5]
7. The subdivision application indicates the site to total 4.61 acres (200,800 sq. ft.)
with the east -west dimension of approximately 1301 ft. (this excludes the "East 30 feet"
for the Madison Avenue right-of-way). The north -south dimension, beginning the
southerly edge of the pavement, is 157 ft. at the western boundary, and 153 ft. at the
eastern boundary (this excludes the "Road"). [Exhibit 7; Exhibit 43, Staff Report, page
1; Sheet 3/5, Exhibit 51 ]
8. The size of the site [see Finding 7] was challenged during the hearing. Mr. Vince
Mattson contended that the property has less than the 200,000 sq. ft. that is necessary for
five lots. In comments made at both sessions of the public hearing [Exhibits 48 and 551
and in writing after the hearing [Exhibit 58], Mr. Mattson provided information and
analysis in support of this view. The fundamental argument is that the "Road" referred to
in the deed is not just the paved roadway, but a 15 -ft. wide prescriptive "right-of-way"
for the "public". By Mr. Mattson's calculations, with the northern property line located
15 ft. south of the section line (to incorporate the prescriptive right-of-way as he sees it),
the size of the subject property would be approximately 194,600 sq. ft.
9. The City Surveyor testified with certainty that the Public Works Department has
reviewed the situation and determined that right-of-way in this location is coincident with
the southerly edge of the pavement. The licensed surveyor who prepared the preliminary
plat maps and the Director also look to the edge of the pavement as the extent of the
"road" [see "ROAD ON NORTH" in deed, Finding 5]. [Testimony of Sproffske;
Testimony of Preston]
10. The facts here do not establish that the area beyond the edge of the pavement has
been used as public right-of-way or that it is reasonably necessary for the "public
easement of travel" [see Finding 61-1. The neighbors' consistently mention that there is
no place to walk off the pavement. Also, the ditch appears irregular and informal, not
"built" or maintained as a public facility. The permit documents referring to "right-of-
way" beyond the pavement are not persuasive. The references to "right-of-way" are part
of `boilerplate' permit provisions and conditions applied to all the roads involved, not
proof of the extent of a "right-of-way" here.
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Page 3 of 29
Physical Characteristics
11. The site is forested and undeveloped except for an existing single family
residence located in the central portion of the property within proposed Lot 3, about 500
ft. west of Madison Avenue. [See "Existing Conditions", Sheet 3/5, Exhibit 51 ]
12. Site vegetation generally consists of mature trees (e.g., western red cedar, big -leaf
maple, red alder, and Douglas fir) with an understory of sword fern, woody shrubs and
herbaceous groundcover. In some localized areas, vegetation is dominated by red alder,
willow, and an understory suggesting "seasonally very moist to wet soil conditions."
[Exhibit 7, page 2]
13. The site reconnaissance for the geotechnical evaluation noted evidence of
seasonally perched groundwater and information provided by neighbors [Findings 34 and
56] suggested the possibility that wetland areas are present on site. Following the public
hearing, PCD staff inspected the site and a wetland consultant evaluated the property for
the presence of critical areas. One suspect wet area was identified and it was determined
that it did not meet the parameters for a regulated wetland. [Exhibit 50; Testimony of
Preston]
14. Site topography is characterized by a gentle to moderate slope down to the west
with grades generally gentle (4 to 10%) on the east side and moderate (4 to 20%) on the
west. While the majority of the site has, slopes less than 15%, there are grades in the west
that exceed 15% and are mapped as "severe". Two areas in the west half of the site are
identified on Sheet 3/5 [see Exhibit 51'1 as having slopes exceeding 15%. [Geotechnical
Evaluation, Exhibit 7]
15. Because of the potential that the: steeper slopes could be "geologically hazardous"
under the Critical Areas Ordinance [BIMC 16.20], a geotechnical evaluation was
required [see Exhibit 71. The site reconnaissance found no evidence of recent or historic
slope instability and the slopes are underlain with dense glacial till soil. (A soil log
prepared for the Applicant with regard to on-site septic systems, notes up to "loamy fine
sand" over "compacted glacial till' [Exhibit 10].)
16. The stability analysis in the geotechnical evaluation indicates "a static factor of
safety of approximately 5.0 for the residential foundation soils. (A factor of safety of 1.5
or more is generally recommended for static conditions for residential construction.) The
geotechnical engineer suggested several measures be included where site grades exceed
15%. [Exhibit 7, pages 2-51 The Director recommends that all those suggestions in the
geotechnical evaluation (i.e., foundations in dense soils 3-4 feet below grade; redundant
drainage systems for daylight basements; upgradient curtain drains; drainage systems
designed to avoid increasing stormwater downslope; maintain existing vegetation outside
building envelopes; erosion control and site revegetation) be made conditions of plat
approval. [Exhibit 43, page 2, #31.
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Page 4 of 29
17. The Applicant would dedicate right-of-way and construct the approved
improvements [see Finding 39] along the entire Lovgren Road frontage. The Applicant
has also volunteered to construct a pedestrian trail (with a 10 -ft. wide easement for public
use) in the roadside buffer along the Lovgren Road frontage [see description in Finding
39].
SUBDIVISION PROPOSAL
18. Application for the "Madison Ridge" subdivision [Exhibits 3 and 14, as amended
by Exhibit 59] was filed on November 10, 2005. The application proposes division into
five residential lots. The most recent version of the plat is comprised of Sheets 1, 2, and
4 in Exhibit 3 and Sheets 3 and 5 in Exhibit 59.
Proposed Lots
19. The proposed lots would all be rectangular in shape and would range in size from
31,128 sq. ft. to 43,584 sq. ft. [see "Lot Details", Sheet 4/5]:
Lot 1
43,560 sq. ft.
Lot 2
43,584 sq. ft.
Lot 3
29,073 sq. ft.
Lot 4
31,128 sq. ft.
Lot 5
34,083 sq. ft.
20. The existing residence on proposed Lot 3 would continue to have driveway access
to Lovgreen Road (with the existing culvert replaced and a new driveway "approach"
constructed between road and driveway). The other lots would also have driveway
access: a driveway for Lot 1, another for Lot 2, and one (wider) driveway to be shared by
Lots 4 and 5. [Exhibit 53, Sheets 2-41
Infrastructure/Utilities/Schools
21. The subject property is within Kitsap Public Utility District #1. The Utility has
issued a Binding Water Availability Letter for water. service [Exhibit 9] from the existing
main in Lovgren Road [see Exhibit 53].
22. A fire hydrant is on the south side of Lovgren Road, near the western property
boundary of the subject site [see Sheet 3/5, Exhibit 531. The Fire Department noted
[Exhibit 19] that there is sufficient flow available and new hydrants would be required at
intervals not exceeding 600 ft. Hydrant location is subject to Fire Department and Public
Works approval and would be addressed by Recotmnended Condition 8].
23. The Kitsap County Health District regulates on-site septic systems. A minimum
lot size of 12,500 sq. ft. is required and individual system design and location within the
lot must get Health District approval at the building permit stage of development. There
is an existing on-site system serving the residence located on proposed Lot 3 and the
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Page 5 of 29
District has given preliminary approval for the subdivision, conditioned on and having
individual applications for each new system [Exhibit 381. Recommended Condition 13
includes this requirement.
24. Stormwater would be collected from impervious surfaces (e.g., roofs, driveways)
and conveyed to the public stormwater system. The City Engineer regulates stormwater
drainage [see BIMC, Chapter 15.20, Surface and Stormwater Management].
Recommended Conditions 18 and 20 would require that stormwater control facilities be
designed by an engineer and constructed in conformance with the applicable City and
DOE regulations as determined by the City Engineer.
25. The Applicant has paid a "school impact fee" [$54,875, see Exhibit 27] as would
be required by Recommended Condition 19.
Preservine Existing, Trees
26. As can be seen in the aerial photos [Exhibits 46A and B], the tree canopy,
estimated to cover 168,700 sq. ft. [Exhibit 52 and Exhibit 59, Sheet 5] covers most of the
subject site. Only the area around the existing house located on proposed Lot 3 is not
forested.
27. In the R-1 zoning district where there is "established vegetation of a forested nature"
adjacent to the road, "roadside buffers" are required. A 50 -ft wide buffer is required
along arterials and collectors. In situations (as here) where a site has frontage on two
roads, the one with the lesser classification may be 25 -ft wide. [See BIMC
17.04.080.A.4.b] Madison Avenue, an arterial, should have a 50 -fl. wide buffer and
Lovgren Road, a collector, a 25 -ft. buffer.
28. The original "Tree Retention Plan" [Exhibit 3, Sheet 5/51 that was submitted with
the application and considered at the initial public hearing, consisted of both roadside
buffers and the western 108 ft. of proposed Lot 1. The designated "retained canopy"
would total an estimated 50,490 sq. ft., and would comprise the required "Open Space"
[Sheet 4/5 in Exhibit 3].
29. Questions arose at hearing whether the entire area of the buffer along Lovgren
Road should be counted as "retained" as an unidentified number of significant trees in the
designated canopy would be removed for right-of-way improvements and driveways. As
there has been no survey to identify significant trees, it was impossible to determine the
effectiveness of the designated "Retained Canopy". The Applicant was asked to do a tree
survey or to consider including other areas to ensure effective retention. In response, the
Applicant submitted a revised "Tree Retention Plan" [Exhibit 521. The revised plan
maintains the 50 -ft. wide roadside buffer along the Madison Avenue frontage (in
proposed Lot 5), increases the width of the retention area in the western portion of Lot 1
from 108 ft. to 150 ft., adds the western 50 ft. of proposed Lot 2, and adds areas on both
the east and west sides of the house on Lot 3. This "Retained Canopy" would total
approximately 50,600 sq. ft. (the equivalent of approximately 25% of the total site), but
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Page 6 of 29
the 25 -ft. wide roadside buffer along Lovgren is no longer designated as included in the
retained canopy.
30. The revised plan identifies areas which would not be reduced or disrupted by
planned construction activities (as is the case with the Lovgren roadside buffer).
However, without the Lovgren roadside buffer, the proposal no longer satisfies the
requirements of BIMC 17.04.080.A.4. Without this roadside buffer, the open space areas
would not be connected. In addition, without the roadside buffer much of the frontage
could be cleared to create a front yard to the road [similar to front yards in Idel Weis
Court; see Exhibit 46]. If this occurred, the proposed pedestrian trail would be, for a
significant portion of its length, passing through front yards instead of a forested buffer.
31. The northern 25 ft. of the subject site (after the proposed dedication) should be
identified as a roadside buffer and included in the designated Open Space. To
accomplish this, the Applicant need not designate more Open Space than the total
proposed in the revised Tree Retention Plan (the Applicant can designate more, but more
than 25% cannot be required.) With the inclusion of the 25 -ft. wide Lovgren Road buffer
and the 50 -ft. wide buffer along Madison Avenue, the 50,600 sq. ft. total could be
maintained by a commensurate reduction in the width of the other tree retention areas
shown in Exhibit 52. Reductions in the designated widths could include: reducing the
width of the Lot 1 open space from 150 ft. to 50 ft. wide; reducing open space on the east
side of Lot 2 and on the west side of Lot 3, each to 25 -ft. wide (leaving a contiguous area
of at least 50 -ft. wide); and, reducing designated area on the east side of Lot 3, to as little
as 0.
32. An "Open Space Management Plan" (OSMP) Form was submitted with the
application [Exhibit 8]. The OSMP identifies the :individual lot owners as the "entity"
with ownership and management responsibility for the Open Space (presumably each
owner would be responsible for the Open Space designated on his/her own lot).
Approved uses would be: passive recreation; planting of native vegetation; planting non-
invasive, non-native vegetation; septic and stormwater systems; low impact fencing; and,
trimming/limbing vegetation for view corridors. No buildings would be allowed and the
retention of the existing vegetation would be required (except as needed for driveways,
utilities, and trail). The open space areas would have to be protected from damage during
construction and on-going maintenance would be up to individual owners. Significant
trees that became diseased, died, or determined to be a hazard could be removed and
replaced following the procedures of BIMC 18.85..060. To put prospective owners on
notice as to the restrictions and responsibilities for the Open Space, there should be a note
on the final plat stipulating that the lots are subject the provisions of the OSMP
DIRECTOR'S REVIEW AND RECOMMENDATION
33. As part of its consideration of the subject application PCD did environmental
review, including a SEPA threshold determination. An Environmental Checklist [Exhibit
6] was included with the application. Notice of the application and the SEPA comment
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Page 7 of 29
period was published on November 19, 2005 [Exhibit 23]. The Applicant provided the
required posting of land use action signs on November 21, 2005 [Exhibit 21].
Public Comment
34. Neighbors and other concerned citizens provided comments during review of this
application and the PCD Staff Report includes the Director's responses [Exhibit 43, Staff
Report, page 7]. The issues raised are summarized below. (Each written comment has
been assigned an exhibit number and is included in the record to be used by the City
Council in making it decision on this subdivision.)
■ Sara and Neal McCulloch [Exhibit 22]: Lovgren has no sidewalk or shoulder and traffic
exceeds speed limit; dangerous for children walking to school (1/2 mile west to Wilkes);
would support the proposal if it included sidewalk with vegetation barrier along Lovgren.
■ Berit Bergquist and John Fossett [Exhibit 24]: Lovgren crests in this location so that fast
moving vehicles cannot be seen until very close; walking conditions are hazardous for
pedestrians, including children walking to school; would support the proposal if it
included sidewalk with vegetation barrier along Lovgren.
■ C4y Vandervelde [Exhibit 25]: The existing drainage problems in the area should not be
exacerbated by development on this site; traffic on Lovgren travels too fast, speed bumps
or other mitigation is needed; wants both sidewalk and road widening to accommodate
safe pedestrian travel.
■ Bri4U Yeates [Exhibit 26]: Would be supportive of the proposal if it included sidewalk
with vegetation barrier; daughter cannot to walk to Wilkes because of dangerous
conditions on Lovgren; sidewalk is needed.
■ Dwight Shappell [Exhibit 28]: Lives downslope and has concern that runoff from subject
site will adversely affect his property; there are dead trees on subject site that are
endangering his property — this situation will be worsened if removal of trees for
construction changes the wind currents; sidewalk from Madison to Viewcrest Place
should be required.
■ Michael and Kara Gerlek [Exhibit 29]: No safe place for people to walk and fast moving
traffic make for a dangerous situation; subdivision will add more cars, pedestrians and
driveways on Lovgren; want entrance designed to maximize visibility of traffic on
Lovgren; wants sidewalk from Madison to Viewcrest.
■ Petition circulated by Hansen [Exhibit 301: 15 neighbors signed petition urging that a
sidewalk along Lovgren be required.
■ Katherine Wohlford [Exhibit 31]: Resident of Idel Weis Court. Concerned about septic
systems (could interfere with operation of their existing systems and need ensure
proposed systems won't run onto neighboring property); removal of trees for new
development will adversely affect the ability of the trees on the adjacent Idel Weis
properties to survive in the 15 -ft. wide dedicated open space (perimeter buffer) that their
subdivision was required to retain..
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Page 8 of 29
• Vince Mattson [Exhibit 33]: Has reviewed the deed and subdivision plans and has
believes that it was a mistake for the southern edge of the Lovgren Road pavement to be
used as the northern property boundary; if the other features (ditch, etc.) beyond the
paved travel way are included in "road", the subject site would measure 194,600 sq. ft.,
enough land for 4 lots, not 5.
■ Frank Baldwin [Exhibit 341: The west end of the site may contain some wetlands as
neighboring Idel Weis plat has wetland area.
■ Stephen and Noyuri Soderland [Exhibit 35]: Agree with the McCullochs that sidewalk
along Lovgren should be required.
■ J. Dax and Leslie Hansen [Exhibit 36]: Lovgren has limited visibility and an increasing
volume of fast moving traffic; a sidewalk along Lovgren should be required.
• John Grinter [Exhibit 41]: Concerned that the "numerous driveways" proposed would be
an obstacle in creating a pedestrian pathway separate from the road. Urges that the Non -
Motorized Transportation Committee be given the opportunity to create a better design
than that proposed by the Applicant.
• Phyllis Snyder [Exhibit 61]: Disapproves of the removal of trees and shrubs that provide
habitat for birds and other animals; advocates for the retention of some "mature
vegetation".
Review and Comment by Other Agencies
35. During its review of the application, PCD requested that City departments review
the subdivision application and provide comment. The comments received by PCD are
summarized below.
Dept/Agency Exhibit Comment
■ Non Motorized 37 Committee "unanimously supports" the Applicant's
Transportation inclusion of trail for public use.
Advisory
Committee
■ Kitsap County 38 Recommends approval; each septic system must have
Health District individual application before building permit issuance.
■ Fire Marshall 19 Adequate fire flow available; new hydrants to be
located at intervals not to exceed 600 feet, locations as
approved by Public Works and Fire Department. Access
is approved.
■ Public Works 54 Plans for erosion control and applicable permits will be
required for construction; stormwater collection and
conveyance requires design by civil engineer; must
submit agreement letter regarding frontage
improvements [Exhibit 39]; design for frontage
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Page 9 of 29
improvements must be by licensed civil engineer
[Exhibit 53]; any work in the right-of-way will require
permit.
36. In lieu of providing a traffic study [see BIMC 15.40.060], the Applicant has
agreed [Exhibit 39] to make the improvements and right-of-way dedications enumerated
in the Public Works Department comments dated March 15, 2006 [Exhibit 44].
37. BIMC 15.32.030 provides that preliminary plats of five or more residential lots
shall be subject to a concurrency test to determine if adequate capacity exists on affected
transportation facilities. If adequate capacity exists, the City Engineer is to issue a
certificate of concurrency [BIMC 15.32.040.13].
38. On March 16, 2006, the Public Works Department issued a Certificate of
Concurrency [see Attachment to Exhibit 441 in conformance with BIMC Chapters 15.32
and 15.40. As defined by BIMC 15.32.020, "concurrency" indicates that affected
transportation facilities have adequate capacity to serve a particular development without
adversely affecting the level of service standards and that there is capacity available for
the property described in the certificate.
39. The Public Works Department has approved the dedication of 25 -ft. south of the
section line and the construction of the improvements by the Applicant. The plans
approved by Public Works for the proposed improvements [Exhibit 531 were submitted at
the reconvened hearing held on June 6, 2006. Madison Avenue improvements consist of
widened the western lane and matching existing pavement and gravel shoulder to the
south. The half -street improvements for Lovgren Road would include widening the
southern lane to 13 ft., adding a 3 -ft. wide gravel shoulder, constructing a roadside ditch,
installing culverts under driveway approaches, and relocation and/or addition of fire
hydrants as required by the Fire Department.
40. The Public Works Department reviewed the proposed subdivision and has
recommended approval with a number of conditions.
Zoning and Land Use
41. The Director concluded that the proposal is consistent with the density provisions
of BIMC Chapter 18.33 for the R-1 zone. That is, with a total area of 200,800 sq. ft.
(prior to right-of-way dedication) and density of one unit per 40,000 sq. ft. [Finding 2],
the allowable number of lots would be five (i.e., divide the total site area by the minimum
lot size. [Sheet 3/5, Exhibit 59 includes lot sizes, configuration and dimensions]
42. The Director recommends that setback requirements be shown on the final plat.
As BIMC 17.04.080.A.3.a(C)(1) specifies that 50 ft. is the minimum distance between
buildings and streets designated "Collectors", distance between buildings and Lovgren
Road should be 50 ft. Recommended Condition 4 would require that the following
setbacks be noted on the final plat:
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■ Distance between buildings: 10 ft. minimum
• Distance between buildings and subdivision boundary: 15 ft. minimum
■ Distance between buildings and trail or Open Space: 15 ft. minimum
■ Distance between buildings and Madison Avenue: 50 ft. minimum
■ Distance between buildings and Lovgren Road: 50 ft. minimum
43. The R-1 zone allows a maximum of 15% lot coverage. The Director has
determined the maximum allowable coverage here would be 6,024 sq. ft. [Exhibit 43,
Staff Report, page 10] Recommended Condition 4 would require this limitation to be
noted on the final plat.
Environmental Impacts and Miti ag tion
44. To avoid and/or decrease adverse impact(s) to the trees in the perimeter buffer
established on the adjacent Idel Weis plat, significant tree within the 15 -ft. wide building
setback along the south property line should be protected during construction and the
retained. Removal of significant trees from the subject site would cause changes in the
wind exposure which could result in trees in the Idel Weis required buffer being damaged
or felled.
45. During construction, all areas slated for preservation (Open Space, buffers, and
southern building setback) must be protected (i.e., temporary construction fencing
installed prior to any clearing or grading activities and maintained throughout
construction) to avoid and/or reduce damage to the trees being retained. Recommended
Condition 24 would make this a condition of approval. Recommended Condition 23
would also prohibit construction staging within these areas.
46. Grading would be necessary for construction of driveways and residences. The
quantity of graded material has not been estimated, but clearing and/or grading would
require a permit [see e.g., Recommended Conditions 9 and 13] and all graded materials
hauled from the site would be required to be properly disposed of [see Recommended
Condition 32]. A plan for erosion control (TESCP) would be required by Recommended
Conditions 17 and 22. Also, measures would have to be implemented as determined by
the Puget Sound Clean Air Agency to be necessary to control dust emissions [see
Recommended Condition 33].
47. All new septic systems must have design approved by the Kitsap County Health
District and no adverse impacts are anticipated. See Recommended Condition 13.
48. Hours of construction would be limited [see Recommended Condition 26] to
mitigate potential noise impacts.
49. Adverse impact to historical or archaeological resources would be avoided and/or
minimized by implementation of Recommended Condition 34 which requires work cease
and proper agencies notified if any such resources are uncovered during construction.
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Director's Recommendation
50. On March 31, 2005 the Director issued a SEPA Determination of Nonsignificance
(DNS) [Exhibit 40] with proper notice. The DNS was not appealed [Exhibit 43, Staff
Report, page 1; Testimony of Preston].
51. The Staff Report regarding the subdivision application was issued on May 5,
2006. The Director recommends that the subdivision be approved with numerous
conditions [Staff Report, pages 2 through 5, Exhibit 43]. The Recommended Conditions
in Appendix A at the end of this Recommendation are based upon the Director's
conditions, modified by the Hearing Examiner in response to information received during
the hearing process.
52. Having concluded that the proposed subdivision, with the proper conditions,
would be consistent with the Comprehensive Plan and the applicable sections of the
Bainbridge Island Municipal Code, including the Subdivisions Ordinance and the Zoning
Ordinance, the Director recommended approval.
53. The Director's analyses [Exhibit 43, Staff Report, pages 10-12] are hereby
incorporated by reference and, except where this Recommendation differs, are adopted as
Findings.
PUBLIC HEARING
54. Notice of the public hearing to be held on May 25, 2006 was complete by May
10, 2006 [Exhibit 421.
55. During the public hearing, the Department's representative summarized the
proposal and reviewed the conditions recommended by the Director [Testimony of
Preston]. The Applicant contributed information about the subdivision proposal and the
subject property [Testimony of Keating; Testimony of Adam]. Several members of the
public commented [see below].
56. The comments of those members of the public who gave testimony about the
proposed subdivision at the hearing are summarized below:
■ Pat Marshall: Resides in adjacent "Idel Weis" plat to the south; concerned that
there will be insufficient buffer and runoff coming onto her property could be
increased and adversely affect the operation of existing septic systems.
■ John F. Fossett [see Exhibit 47]: Lovgren Road isnot safe for pedestrians as it lacks
shoulders, has a "blind" hill, and is heavily traveled.
■ Vince Mattson [see Exhibit 48]: Believes that the subject property has too little land
area to be divided into 5 lots; provided print out of County Assessor's data and his
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own measurements and calculations in support of his conclusion that "only 4 lots
should be approved for this subdivision."
57. Prior to the May 25`h hearing, written comment was received from Sara
McCulloch [Exhibit 61 ] urging careful consideration of the public comments and
reiterating her request that a 6 -ft. wide sidewalk with vegetation barrier be required for
the entire Lovgren frontage. Photographs were included to illustrate the existing safety
problems for pedestrians.
58. At the hearing on May 25, 2006, questions arose regarding: the sufficiency of the
amount of Open Space proposed ("Retained Canopy", Exhibit 3, Sheet 5/5); the
possibility of a wetland on the site; and, the improvements approved by Public Works
relative to the right-of-way along Lovgren. The hearing was reconvened on June 8, 2006
to consider the information gathered in response to those questions.
59. At the reconvened hearing, PCD staff reported that the site does not have a
protected wetland [see Finding 131. The Applicant: submitted a revised "Tree Retention
Plan" [Sheet 5/5, Exhibit 52] without the Lovgren Road buffer designated as "retained
canopy" and designating areas in Lots 1, 2, 3 and 5 for a total of 50,600 sq. ft. (This
submittal creates an ambiguity in that the "Open Space" designated in the application
[Sheet 4/5, Exhibit 3] was coincident with the "Retained Canopy" in the original "Tree
Retention Plan" [Sheet 5/5, Exhibit 3]. The buffer along Lovgren Road is not included in
the revised "Tree Retention Plan" [Sheet 5/5, Exhibit 52], but the designated "Open
Space" which still includes that buffer [Sheet 4/5, Exhibit 3]. [Testimony of Preston;
Testimony of Adam]
60. Mr. Mattson also testified at the reconvened hearing [see Exhibit 55] regarding
his research into Public Works maintenance activities that have extended beyond the edge
of the Lovgren Road pavement. A letter from the Assistant Public Works Director
indicates that modest roadside maintenance would have occurred along this segment of
Lovgren Road (where "...public rights of way are of varying widths...) "to preserve the
functionality and safety of the roadway..." "Roadway" refers to the road surface. Mr.
Mattson also testified regarding permits treating installation of a water main some
distance (estimated 2-3 ft.) south of the edge of the pavement, as in the "right of way".
61. The record was left open for PCD staff to check into right-of-way history, public
works maintenance activities, and get more information from the City Attorney. Staff
reported on June 27, 2006 [Exhibit 56]. It was clarified that the water line permit was for
installation in a large area (involving Miller and Day Roads as well as Lovgren Road),
and not a specific determination of the right-of-way along Lovgren Road. Follow-up
with Public Works disclosed no work plan for maintenance along the south side of
Lovgren. The City Attorney provided case citations on the subject of prescriptive
easements indicating that the size of a right-of-way acquired by the public is determined
based on the facts of each situation, as what is "reasonably necessary" for the "easement
of travel".
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62. During the period for review and comment on the PCD report, Mr. Mattson
submitted a letter [Exhibit 58] with copies of documents related to the
"Lovegren/Miller/Day Transmission Main" project mentioned above. On Lovgren Road
the work was to be done "...off pavement, south side of Lovegren."
BAINBRIDGE ISLAND MUNICIPAL CODE
Appendix B includes pertinent excerpts from sections of the Bainbridge Island Municipal
Code.
REQUIRED FINDINGS
Flexible Lot Standards: BIMC 17.04.080
63. The Flexible Lot Standards of BIMC 17.04.080 would be satisfied by this
subdivision with the Recommended Conditions as follows (with supporting Finding(s)
noted on the right).
Code Section Finding
BIMC 17.04.080.A Development Standards
1. Density Limits: 41
Does not exceed the I lot per acre permitted in R-1.
2. Minimum Lot Size Requirements: 18
All lots meet 12,500 sq. ft. minimum size for lots
with on-site septic systems.
3. Lot Setbacks and Dimensional Requirements: 42,43
a. All lots are 50 feet wide at the minimum lot width.
b. The lots are appropriate size, shape, and orientation.
c. All setbacks meet minimum requirements.
d. Maximum lot coverage (6024 sq. ft.) is within R-1 maximum.
4. Landscape Buffers: 29,31
Roadside: 25 -ft. wide on Lovgren; 50 ft. on Madison.
Park or Conservation Easement Buffers. Not applicable.
Landscape Perimeter Buffers. Not applicable.
5. Cluster Development Option. Not applicable.
BIMC 17.04.080.13 Landscape Standards 27,31
Landscaping consistent significant tree retention requirement.
BIMC 17.04.080.0 Roads and Pesdestrian Access Standards
1. Roadway character would be maintained. 29
2. Road improvementsconsistent with City's Design Standards. 15,28
3. Not applicable
4 Mailboxes location must be indicated on final plat. Condition 4
5. No transit stops have been recommended by Kitsap Transit.
6. Trail provides pedestrian access consistent with the
Non -Motorized Transportation Plan. 35
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Subdivision Decision Criteria: BIMC 17.04.094
64. BIMC 17.04.094.A.1 requires that applicable subdivision development standards
be satisfied. Here, the applicable development standards are the Flexible Lot Standards
of BIMC 17.04.080. As conditioned, the proposed subdivison would meet the applicable
standards.
65. As conditioned, the proposed subdivision would be consistent with BIMC
17.04.094.A.2 as it would make appropriate provisions for the public health and safety
by providing the necessary and appropriate utilities, improvements, and dedications. See
also Finding 71.
66. As conditioned, the subdivision would be consistent with the flexible lot design
process in satisfacion of BIMC 17.04.094.A.3.
67. A finding regarding conformance to the Critical Areas Ordinance (BIMC
Chapter 16.20) is not necessary as the Director has determined that there are no critical
areas. However, the recommendations of the geotechnical engineer [Exhibit 7] should be
required as conditions of approval.
68. BIMC 17.04.094.A.5 requires that the City Engineer determine that a subdivision
conforms to the applicable regulations and standards pertaining to drainage and water
quality. The Public Works Department has reviewed the preliminary subdivision
submittals and has final approval authority for the construction of those improvements.
69. This subdivision complies with all applicable provisions of the Bainbridge
Island Municipal Code and other applicable regulations in BIMC 17.04.094.A.6.
70. As required by BIMC 17.04.094.A.7, the proposed subdivision is in accord with
the Comprehensive Plan. Consistent with its R-1 residential designation, the
subdivision, as conditioned, would be compatible with existing neighborhood character,
including minimizing disturbance of roadside buffers and retaining significant trees.
71. As required by BIMC 17.04.094.13, public use and interest would be served.
The subdivision, as conditioned, would provide the necessary and appropriate utilities
[domestic water, fire flow, and on-site eptic systems] and public improvements [Lovgren
and Madison brought up to City design standards, right-of-way dedication] consistent
with the public use and interest. The public use and interest would also be served by the
provision of Open Space and the pedestrian trail and easement.
CONCLUSIONS
I. The Hearing Examiner's jurisdiction in this matter, BIMC 2.16.110.C.2, directs
that the Hearing Examiner hold a public hearing and make a recommendation to the City
Council on subdivision applications.
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2. All requirements for notice and opportunity to comment have been met. This
matter will be properly before the City Council consistent with the provisions of BIMC
17.04.095 that govern Council's consideration of preliminary subdivisions.
3. The "ROAD ON NORTH" is not part of the Keating property [see Finding 5]. If
that "road" includes more than just the pavement, the subject property would not have
sufficient land area for subdivision into five lots.
4. In these circumstances, the southerly edge of the pavement is the proper location
of the northern boundary of the subject site. There is no dispute that "EXCEPT EAST 30
FEET THEREOF FOR COUNTY ROAD" refers to the Madison Avenue right-of-way
not just the paved travel surface. Different language, "...EXCEPT FOR ROAD ON
NORTH", identifies the northern limit of the property. Different language in the same
document is usually and reasonably interpreted as intending a different meaning. Here, if
a right-of-way, not just the road itself had been intended, then parallel language (e.g.,
"EXCEPT NORTH 25 FEET THEREOF FOR COUNTY ROAD") should have been
used. "ROAD" here means the paved surface. This interpretation may not defeat a
prescriptive easement for a public right-of-way, but, the City, the voice of the "public",
has not asserted that a wider public right-of-way has been established or is reasonably
necessary for easement of travel. Indeed, the City Surveyor has reviewed the
circumstances and made a specific determination that the right-of-way stops at the edge
of the pavement.
5. The maximum density permitted on this R-1 zoned site is five. The proposed
subdivision and development of four new single-family residences is consistent with the
Comprehensive Plan designation. The size and configuration of the proposed lots is in
line with the existing uses and platting in this neighborhood.
6. A SEPA Determination of Nonsignificance (DNS) was issued by PCD. That
determination was not appealed, but the Recommended Conditions should be imposed to
ensure the necessary and expected mitigation of potential environmental impacts. The
Recommended Conditions (see numbers bracketed below) would provide mitigation of
potential environmental impacts as follows:
a. Mitigation of environmental impacts associated with construction as
related to: erosion/sedimentation, runoff, and pollution [17, 22, 24]; air quality
[33]; protection for significant trees [7, 14, 16, 24, 27, 301; noise [26];
historic/archaeological resources [34].
b. Mitigation of environmental impacts associated with long-term residential
use of the site as related to: stormwater control [18, 20]; preservation of
significant trees [4, 5, 6, 71; schools [19]; light and glare [36].
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c. Provision of: adequate access [31 ]; appropriate utility infrastructure and
improvements [8, 13, 14, 15]; compliance with zoning requirements and
conditions of subdivision approval [4].
7. Removal of trees within the 15 -ft. wide building setback along the southern
boundary would expose the adjacent trees in the required perimeter buffer of .the Idel
Weis plat to greater or different wind conditions. This exposure could adversely impact
the health and chances of survival for that required buffer. Appropriate mitigation to
avoid and/or minimize this potential impact is to disallow removal of significant trees,
except for hazard trees [see Recommended Condition 4.b].
8. Development of the proposed lots would involve the loss of many trees and would
be a major change in the appearance of the site. The required roadside buffer is needed
along Lovgren Road to provide screening and the preservation of significant trees and
native vegetation. Retaining existing vegetation within the buffer would have the
additional benefit of providing a "home" for the pedestrian trail. (Without the Lovgren
roadside buffer to prevent it, yards could be cleared to the right-of-way and the trail
would meander across front lawns.) Requiring the inclusion of this roadside buffer in the
designated Open Space does not require the Applicant to designate more than the 50,600
sq. ft. total proposed. Recommended Condition 6 would require the roadside buffers to
be included as designated Open Space, but would allow the Applicant to reduce the size
of other tree retention areas in order to have the net total equal 50,600 sq. ft.
9. The Applicant would construct improvements to bring both Lovgren Road and
Madison Avenue up to the City's design standards (and dedicate right-of-way as required
by the City for those improvements). The trail that Applicant proposes through the
Lovgren Road roadside buffer would be a direct benefit for the residents of the five lots.
The easement for public use of the trail would (as can be see from the comments of
neighbors) be a substantial and welcome addition to the neighborhood. Safe and pleasant
pedestrian passage would certainly be in the public interest.
10. With the Recommended Conditions, the subject subdivision would comply with
the flexible lot standards of BIMC 17.04.080, would meet all the preliminary subdivision
decision criteria of BIMC 17.04.094.A, and would serve the public use and interest
[BIMC 17.04.094.131, including by providing new housing opportunities.
RECOMMENDATION
It is the recommendation of the Hearing Examiner that the application of Tim Keating for
the 5 -lot "Madison Ridge Subdivision" [SUB 13586], be APPROVED WITH CONDITIONS 1-
37 THAT COMPRISE APPENDIX A.
Entered this 21 st day of August 2006.
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Meredith A. Getches
Hearing Examiner
Concerning Further Review
The City Council makes the City's final decisions on preliminary
subdivision applications. City Council decision procedures are found at
BIMC 2.16.110.
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APPENDIX A
RECOMMENDED CONDITIONS
MADISON RIDGE SUBDIVISION
[SUB13586]
PRIOR TO FINAL PLAT APPROVAL
The Applicant shall provide a survey of the subject property, prepared by a licensed
surveyor. All lot corners shall be staked with three-quarter inch galvanized iron pipe and
locator stakes and the survey shall be in compliance with all other state and local
regulations.
2. The Applicant shall dedicate 25 feet for the Lovgren Road right-of-way as shown in the
civil plans [Exhibit 53] approved by the Public Works Department on May, 10, 2006.
3. Show accessible mailbox locations (that do not restrict pedestrian access) on the
construction drawings that shall be submitted prior to final plat.
4. a. Building setbacks and lot coverage requirements shall be clearly noted on the
final plat as follows:
■ Building to Building separation Minimum 10 feet (25 ft. proposed)
■ Building to Exterior Property Line Minimum 15 feet
■ Building to designated Open Space/Buffer Minimum 10 feet
■ Building to Lovgreen Road Minimum 50 feet
■ Building to Madison Avenue Minimum 50 feet
b. Within the 15 -ft. wide building setback from the southern property boundary, all
construction activities (including cutting, clearing, grading, staging, etc.) and, except for
trees hazard trees) removal of significant trees shall be prohibited and those restrictions
shall be noted on the final plat.
5. The northern 25 ft. of the site (as measured after the right -of way dedication, Condition
2) shall be designated as a roadside buffer and included in the Open Space designated
on the final plat [see Condition 6]. The northern 10 ft. of this roadside buffer shall be
established and designated on the final plat as an easement for public pedestrian use of
the trail within the easement [see Condition 14].
6. Designated "Open Space" shall be clearly delineated as on the final plat and shall
include: the 25 ft. roadside buffer along Lovgren Road frontage [see Condition 51; the 50 -
ft. wide roadside buffer along the Madison Avenue frontage; and, areas in Lots 1, 2, and
3 designated "Retained Canopy" in the Tree Retention Plan [Sheet 5/5, Exhibit 59]. In
order to include the Lovgren Road buffer and maintain a minimum total Open Space of
50,600 sq. ft. as proposed for "Retained Canopy", some of the areas in Lots 1, 2, and 3
designated in the Tree Retention Plan may, at the Applicant's discretion, be reduced so
that the net total is the same. If the Applicant chooses to not exceed the 50,600 sq. ft.
open space proposed, the east -west dimensions in Lots 1, 2, and 3 may be reduced: west
side of Lot 1 can reduce from 150 -ft. to as little as 50 -ft.; east side of Lot 2 can reduce
from 25-11. to as little as 25 -ft.; west side of Lot 3 from 50 ft. to as little as 30 -ft.; and, on
the east side of in Lot 3 can be reduced to as little as 0.
7. The Open Space Management Plan [Exhibit 8] shall be revised and approved by the
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Director of Planning and Community Development as consistent with BIMC Chapter
17.04. This revised Open Space Management Plan (OSMP) shall note that is to be
applied for all Open Space designated on the final plat [see Condition 6]. The OSMP
approved by the Director shall be recorded with the final plat and shall include, but not
limited to, the following provisions.
a. No construction activities or staging shall be permitted in the Open Space areas
and temporary chainlink. fencing, orange construction fencing, or other
construction fencing satisfactory to the Director, shall be placed around all those
the Open Space areas within the site. Hazard trees within any Open Space area
can and should be removed with the approval of the Director during the clearing
and grading phase of construction.
b. The designated open space and buffers shall be utilized and maintained in
accordance with this Open Space Management Plan consistent with BIMC
Sections 17.12.090.G. and H.
c. No buildings are permitted in the open space areas.
d. Existing vegetation shall retained and maintained except for City -approved
driveways, utility corridors, and trails; provided that hazard trees may be
approved for removal utilizing the procedures outlined in BIMC 18.85.060.A.2.b
and c. Significant trees approved for removal shall be replaced by trees of
similar species.
e. Significant trees within the Open Space areas that are dead or otherwise
determined by a certified arborist to be a hazard to life or property may, as
approved by the Director, be removed and must be replaced following the
procedure of BIMC 18.85.060.
f. No cutting or clearing or other removal of existing and/or native vegetation shall
be allowed in the designated Open Space in to provide lawns, gardens, patios,
decks, recreation facilities, or other built features.
g. The approved uses within the Open Space are: passive recreation (walking, bird
watching, etc.); planting of native vegetation; planting of non-native, non-
invasive vegetation; low impact fencing (split -rail, etc.); removal of non-native,
invasive vegetation. Construction and maintenance of new septic systems and
storm drainage facilities may be permitted, provided that there is no reasonable
location outside the Open Space.
h. Individual lot owners shall be responsible for the maintenance of the Open
Space, including maintaining the trail within the easement, in accord with the
Open Space Management Plan.
8. Public and private improvements, facilities, and infrastructure, on and off the site
that are required for the subdivision shall be completed, have final inspection and
approval prior to final plat approval. Approval of public facilities will be shown by a
formal letter of acceptance from the City Engineer. An assurance device acceptable to
the City may be used (in lieu of physical completion) to secure and provide for the
completion of necessary facilities which are not considered by the Engineering
Department to be life, health, or safety related items. Any such assurance device shall be
in place prior to final plat approval, shall enumerate in detail the items being assured, and
shall require that all such items will be completed and approved by the City within one
year of the date of final plat approval. While lots created by the recording of the final plat
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may be sold, no occupancy of any structure will be allowed until the required
improvements are formally accepted by the City. Additionally, a prominent note on the
face of the Final plat drawing shall state:
"The lots created by this plat are subject to conditions of an assurance device held by the
city for the completion of certain necessary facilities. Building permits may not be issued
and/or occupancy may not be allowed until such necessary facilities are completed and
approved by the City of Bainbridge Island. All purchasers shall satisfy themselves as to
the status of completion of the necessary facilities."
9. The following note must be placed on the final plat:
"Prior to any clearing, or grading on individual lots, clearing, grading, or
building permit(s) must be obtained from the City."
W. The following note must be placed on the final plat:
"The lots in this subdivision are subject to the provisions of an Open Space Management
Plan."
11. The following conditions shall be placed on the final plat: 4-6, 8, 9, 12, 15-18, 21, 23, 26, 27,
31,33-36.
12. The Final Plat shall be in substantial conformance with the subdivision date-stamped
November 10, 2005 [Exhibit 3] as revised dates] 59, except as modified by the City
Council in its preliminary plat approval decision and conditioning.
PRIOR TO PERMIT_ ISSUANCE FOR CLEARING, GRADING, BUILDING
13. A plat utilities permit must be submitted, reviewed, and approved by the City and the
design and location of individual septic systems must be approved by the Kitsap County
Health District, before any on-site clearing or grading, drainage facilities, trails or any
other subdivision improvements can occur.
14. With the Plat Utilities submittal, the Applicant shall submit civil drawings [Exhibit 53] that
show the approximate location of a 34 ft. wide trail within the roadside buffer [see
Condition 5]. This trail, located between the back side of roadside ditch (as improved) and
the southern boundary of the easement, shall be constructed so as to meander as necessary to
preserve significant trees. The inside/roadside edge of the path shall not be closer than 20
feet from the centerline of the roadway.
15. Prior to issuance of any building or utility permit for improvement activities, final
construction plans in compliance with the City of Bainbridge Island Design and
Construction Standards and Specifications, shall be submitted to and approved by the
City of Bainbridge Island Public Works Department.
16. Any non-exempt tree harvesting shall require the appropriate Forest Practices Permit
from the Department of Natural Resources. The conditions of the Madison Ridge
Subdivision SUB 13568 shall become conditions of the Forest Practices Permit.
17. To avoid degradation of surface water quality, a Temporary Erosion and
Sedimentation Control Plan (TESCP), must be reviewed and approved by Public
Works City prior to any clearing, grading, or construction within this subdivision. [See
also Condition 22.]
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18. Surface storm water collection, conveyance and treatment facilities/systems must be
designed by a civil engineer registered in the State of Washington and all civil plans must be
designed in accordance with the City of Bainbridge Island Municipal Code (BIMC 15.20
and BIMC 15.21). The Applicant is required to obtain a US Environmental Protection
Agency (EPA), National Pollutant Discharge Elimination System (NPDES), Phase 11
Construction General Permit (CGP). Should the Applicant choose not to exceed 8,000
square feet of clearing on each lot, the NPDES permit will not be required.
19. School impact fees shall be paid for each of the created lots (i.e., Lots 1, 2, 4, and 5),
prior to final plat approval. (This condition has been fulfilled; see receipt for fees Exhibit
27.)
20. All design work for the stormwater plans and right-of-way work shall be completed by a
civil engineer registered in the State of Washington. All plat surveying and construction
staling shall be accomplished by a surveyor registered in the State of Washington.
21. The recommendations of the geotechnical report prepared by Meyers Biodynamics,
Inc. dated October 6, 2005 [Exhibit 7, pages 4-51 are conditions of this plat, to be
incorporated into construction plans and permit conditions as appropriate.
PRIOR TO CONSTRUCTION
22. Prior to any construction between October 1 and April 31, a TESCP specifically
addressing wet weather conditions must be reviewed and approved by the City Engineer
[see Condition 17].
23. No construction activities or construction staging shall be permitted in any Open Space,
buffer, or within the southern 15 -ft. building setback and a notice to that effect shall be
posted on-site.
24. Prior to issuance of any permit that allows clearing in the vicinity of the open space,
temporary construction fencing or silt fencing shall be placed at the edge of the open
space, buffers, and southern building setback on the subject property. This fencing shall
remain throughout construction to identify and protect these areas. All construction
staging areas shall be located outside of these designated areas.
DURING CONSTRUCTION AND PRIOR TO OCCUPANCY
25. All work within the City rights-of-way will require a Right -of -Way Permit, issued by the
Department of Public Works and Engineering.
26. Construction activities shall be limited to 7:00 AM to 7:00 PM weekdays and 9:00
a.m. to 6:00 a.m. on Saturdays that are not legal holidays. No construction activities
shall be permitted on Sundays and/or on legal holidays.
27. No construction or construction staging shall occur within the designated Open Space,
buffers, or southern building setback.
28. Applicant shall construct improvements as shown in the civil plans as approved by Public
Works [Exhibit 59].
29. Existing vegetation in the roadside buffer along the Madison Avenue frontage must be left
in its natural state, except for removal of hazard trees and invasive plants and, within the
Lovgren Road roadside buffer, clearing and grading essential for construction of the
driveways that cross the buffer and for construction of the pedestrian trail within the 10 -
ft. wide easement [see Condition 30]. All reasonable efforts must be employed to avoid
removal of or damage to significant trees.
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30. Consistent the civil plans approved by Public Works [Exhibit 59], the Applicant shall
construct a pedestrian trail [minimum width 3 ft.; maximum width 4.5 ft.] between the
back side of the ditch (as improved) , and the southern boundary of the 10 -ft. wide
easement in the designated roadside buffer along Lovgreen Road. The trail shall extend
from Madison Avenue to the western boundary of the subdivision. Removal of
vegetation shall be limited to the trail itself (no soil disturbance or tree removal shall
occur outside of the trail itself). The trail shall be "field -fit" between or around existing
trees, so that tree removal shall be allowed only, as a last resort. Limbs and branches up
to 9 ft. over the trail and within 1 ft. of the trail edges shall be removed. Any native, non-
invasive plants removed for construction of the trail itself, shall be replaced as approved
by the Department of Planning and Community :Development.
31. The access driveways shall be constructed to "minimally adequate" standards and
approved by the- Fire Department and constructed of an all weather surface.
32. All graded materials removed from the subdivision, if deposited on Bainbridge Island,
shall be at a City approved location. (Note: local regulations require that a grade/fill
permit is obtained for any grading or filling of 50 cubic yards of material or more.}
33. To mitigate potential adverse impacts on air quality during earth moving activities,
contractors shall conform to Puget Sound Clean Air Agency Regulation to ensure that
reasonable precautions are taken to avoid dust emissions.
34. The contractor is required to stop work and immediately notify the Department of
Planning and Community Development and the Washington State Office of Archaeology
and Historic Preservation if any historical or archaeological artifacts are uncovered
during excavation or construction.
35. On site mobile fueling from temporary tanks is prohibited unless the Applicant
provides and is granted- approval for a Permit and Best Management Pian that addresses
proposed location, duration, containment, training, vandalism and cleanup. Reference 1.
Uniform Fire Code 7904.5.4.2.7 and 2. Department of Ecology, Stormwater Management
Manual, August 2001, see Volume IV "Source Control BMPs for Mobile Fueling of
Vehicles and Heavy Equipment".) (Chapter 173-304 WAC).
36. All exterior lighting shall comply with the City's Lighting Ordinance, BIMC Chapter
15.34-.
37. Final "As -Built" plans are required and shall be drafted by the civil engineer of record and
the surveyor of record and submitted to the City for review and acceptance. Final "As -
Built" plans shall be submitted on mylars and also in digital form acceptable to the City
surveyor prior to- issuance of the first building permit in the subdivision-.
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APPENDIX B
RAINMDGE ISLA" MUNICIPAL CODE
Subdivision- Review Process
72. BIMC 2.16.025.B.2 classifies action on a subdivision application as a quasi-
judicial land use decision. BIMC 17.04.093 provides that subdivisions are to be reviewed
by the City Council in accordance with the decision procedures of BIMC Chapter 2.16
and the decision criteria of BIMC 17.04.094.
73. The decision procedures of BIMC Chapter 2.16 include, at BIMC 2.16.110, that
the Hearing Examiner, following a public hearing; is to make a recommendation to the
City Council prior to- the- final decision- on a subdivision application:
74. The express "Purpose " of the subdivision chapter [BIMC 17.04.020] includes the
following:
...to regulate the subdivision of land to promote the public health, safety and
general welfare... To carry out this purpose and further the comprehensive plan
policies addressing residential subdivision of land... this chapter establishes a
flexible lot process that promotes the preservation of open space, consolidation
of open space, and clustering of ' development within residential subdivisions.
This process... limits the -development- impact area, minimizes impervious surface
area and provides for greater flexibility in the division and establishment of
residential lots.
Subdivision Approval Criteria
75. The criteria for preliminary subdivision approval, found at BIMC 17.04.094,
require that:
A. The subdivision may be approved or approved with modification if. -
The
The applicable subdivision development standards of BIMC
17.04.080, 17.04.082, and/or 17.04.085 are satisfied, -
2. The preliminary subdivision mares appropriate provisions for
the public health, safety and general and public use and interest...
1. The preliminary residential- subdivision has been prepared
consistent with the requirements of the flexible lot design process;
4. Any portion of a subdivision that contains a critical area, as
defined in Chapter 16.20 BIMC, conforms to all requirements of that chapter;
5: The- city engineer- determines that the preliminary subdivision
meets the following:
a: The subdivision conforms to regulations concerning drainage...
b. The subdivision will not cause an undue burden on the drainage
basin or- water quality and will not unreasonably interfere with the use and
enjoyment of properties downstream.
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c. The streets and pedestrian ways as proposed align with and are
otherwise coordinated with streets serving adjacent properties.
d. The streets and pedestrian ways as proposed are adequate to
accommodate anticipated traffic.
e. The subdivision conforms to the requirements of this chapter and
the standards in the "City of Bainbridge Island Design and Construction
Standards and Specifications, " except as otherwise authorized by in BIMC
17.04.080:03;
6. The proposal complies with all applicable provisions of this
code, Chapters 58.17 and 36.70A RCW, and all other- applicable provisions of
state and federal laws and regulations; and
7. The proposal is in accord with the city's comprehensive plan.
B. A proposed subdivision shall not be approved unless written findings are made
that the public use and interest will be served by the platting of such subdivision.
76. No subdivision can be approved "until the owner of the affected property
dedicates to the city the portion of land designated on the -official street map or required
by the engineering design and development standards as a street right-of-way. " [BIMC
12.30.010]
Definitions
77. The "Definitions" section [BIMC 17.04.040] of the Subdivision chapter include
the following definitions of interest in reviewing this application:
"Flexible lot design" means a design process which permits flexibility in lot
development and encourages a more creative approach than traditional lot -by -
lot subdivision. The flexible lot design process includes lot design standards,
guidance on the placement- of buildings, use of open spaces and circulation
which best addresses site characteristics...
"Open space" means any area of land which is predominately undeveloped and
which provides physical and/or visual relief from the developed environment in
perpetuity; that is generally unimproved and set aside, designated or reserved for
public use or enjoyment; or used for the private use and enjoyment of property
owners. Open space may consist of undeveloped areas, such as pastures and
farmlands; woodlands, greenbelts, critical areas, pedestrian corridors and other
natural areas which provide recreational opportunity and visual relief from
developed areas.
Open space excludes tidelands, areas occupied by buildings, and any other
developed areas such as driveways, all rights-of-way and any other impervious
surfaces not incidental to open space purposes. For the purposes of this title,
open space shall be established consistent with the criteria- and standards of
BIMC 17.04.080...
"Preliminary plat" means a drawing of a proposed subdivision, which shows the
general layout of lots, tracts, streets, and other information required by this
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chapter, resolutions, ordinances or administrative rules of the department... the
basis for approval or disapproval of the general layout of a subdivision.
78. BIMC 18.85.0 10 defines "Significant tree" to mean.
A. Evergreen tree 10 inches in diameter or greater, measured four feet
above existing grade; or
B. Deciduous tree 12 inches in diameter or greater, measured four feet
above existing grade...
Flex Lot Provisions
79. BIMC 18.33.010 states that the purpose of the R-1 zone -is to
"...provide residential neighborhoods in a rural environment consistent with
other land uses such as agriculture and forestry, and the preservation of natural
systems and open space... does not require the full range of urban services and
facilities. "
80. Subdivisions established pursuant to the flexible lot design process are subject to
the development standards of BIMC 17.04.080., including the following.
A. Development Standards...
I Density.
a. The number of residential lots created in a subdivision shall not
exceed the density provisions of BIMC Title]& [Maximum- density permitted- in
the R-1 zone is one unit per 40,000 square feet of land. See BIMC 18.33.040.]
2. Minimum Lot Size Requirements.
b. Twelve thousand five hundred square feet... if septic drainfield is
located within the lot...
3. Lot Setbacks and Dimensional Requirements.
a. All lots shall be 50 feet wide at the minimum lot width...
b. Insofar as practical, side lot lines shall be at right angles to street
lines... size, shape, and orientation of lots shall be appropriate for the type of
development and use contemplated...
c. Setbacks.
i. Building to building... minimum 10 feet separation;
ii. Building to exterior property line... Minimum 15 feet;
iii. Building to right-of-way:
(B) Arterial. -Minimum 50 foot setback.
(C) Collector... Minimum 50 foot setback.
Iv. Building to trail, open space or access easement ... ... .minimum 15
foot setback.
d. Maximum Lot Coverage... as specified in BIMC Title 18 ... shall be
assigned to each lot... [Maximum coverage permittted in R-1 zone is 15%. See
BIMC 18.33.050.1
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4. Landscape Buffers.
b. Roadside Buffers. For all flexible lot design subdivisions located
in... R-1... where established vegetation of a forested nature is located adjacent to
public roads that are designated as collector or arterial roads on the adopted
road classification map, a 50 -foot -wide vegetative buffer shall be maintained.
ii. .... To accommodate an existing house that is located within 50 feet
of the property line adjacent to a collector... to maintain the character of the
neighborhood and reflect neighboring development patterns, the existing
landscaping may serve as the roadside buffer.
iv. Multiple Street Frontages. For properties subject to the roadside
buffer requirement along two property boundaries, the roadside buffer abutting
the street with the lower classification may be reduced to 25 feet in width....
e. Allowed Landscape Buffer Activities:
i.... wells and well houses;
ii. On-site storm water infiltration...
iii. Ingress and egress, where the access runs approximately
perpendicular...;
iv. Underground utilities... disturbance is minimized... buffer is
revegetated...
v. Nonmotorized trails and trail maintenance ... and
vi. Planting of vegetation.
B. Landscape Standards. Landscaping shall be established consistent with
the requirements of subsection A.4 of this section- and street tree planting
requirements of Chapter18.85 BIMC, and any other significant tree retention
requirement.
C. Roads and Pedestrian Access Performance Standards.
1. Existing roadway character shall be maintained where practical...
2. Roads and access shall be consistent with the standards set forth in
"City of Bainbridge Island Design and Construction Standards and
Specifications. " To minimize impervious surfaces, public rights-of-way, access
easements and roadways shall not be greater than the minimum required to meet
standards...
3. Variation from Road Requirements. A variation from the road
requirements and standards contained within the "City of Bainbridge Island
Design and Construction Standards and Specifications" may be approved by the
city engineer, i f such a reduction meets the purposes of this chapter.
4. Street names, traffic regulatory signs and mailboxes shall be provided.
The location of these shall be indicated on the plat.
5. Transit stops shall be provided as recommended by Kitsap Transit.
6. Pedestrian and bicycle circulation and access within a subdivision
and onto the site shall be provided through walkways, paths, sidewalks, or trails
and shall be consistent with the nonmotorized transportation plan, Ordinance
2002-09. Special emphasis shall be placed on providing pedestrian access to
proposed recreational and/or open space areas.
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81. Subdivisions (except where Applicant selects the "cluster development option" of
BIMC 17.04.080.A.5) are subject to the open space standards of BIMC 17.04.082,
including the following:
B. ...The area designated for open space preservation shall be configured
in a manner that enhances and promotes the natural character of the Island and
open space characteristics of the property. Open space configuration shall
satisfy the following guidelines:
1. Open space should be concentrated in large, consolidated, usable
areas...
2. Open space should connect to adjacent off-site open space areas,
designated greenways and/or critical areas;
3. Open space should be designed to preserve views from off-site of the
subject property;
4. Open space should be designed to preserve established vegetation on
ridgelines; and
5. Open space should enhance or retain the Island character through the
minimization of disturbance of roadside vegetation.
D. Open Space Area Requirements.
1. ...The area provided for open space area shall be a minimum of 25%
percent of the area of the property being subdivided
E. Calculation of Open Space Area. ... the open space area shall
generally be consolidated and contiguous and meet the open space definition,
criteria and standards of this chapter... Landscape buffers may be included in the
open space calculation as specified in BIMC 17.0 4, 080.A.4.g.
F. Open Space Ownership. Ownership of open space area shall be
established consistent with one of the following forms of ownership:
1. Private Ownership. Open space may be held in private
ownership if established by easements, restrictive covenants, or other similar
legal means; or
2. Common Ownership. Open space may be held in common by
a home or property owner's association or other similar
organization ... appropriate covenant, conditions, and/or restriction shall be
required; or
3. Public Ownership. The city or other public agency may
choose to accept ownership of open space. Upon approval and acceptance by the
director
H....Open space areas shall be permanently maintained. An Applicant
shall submit a draft open space management plan (OSMP) for review as part of
the preliminary plat application. Final approval of the OSMP will occur at the
time of final plat approval.
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1.... include a list of all approved uses for the open space areas...
2.... include a maintenance plan... that clearly describes the
frequency and scope of maintenance activities... Such a plan shall include, but
not be limited to, the following:
a. A forest management plan, if the open space is to be
managed as , forested open space pursuant to Chapter 84.34 RCW or as
timberland under RCW 76.09.050.
b. For open space areas that are forested and are not part of a
forest management plan... provisions shall be included for replacing significant
trees that may later become diseased or die or are determined to be a hazard to
life or property.
c. An identification of the management entity responsible for
the maintenance of the open space areas. Open space areas shall be maintained
permanently by the individual property owners, property owner's association, a
conservancy organization, special public district or the cityfor properties owned
by the city.
d. A plan for protecting open space features and existing
vegetation within all open space areas, both during and after the construction
phases including provisions for replacing signfcant trees and other vegetation
that are damaged as a result of construction actions. Such a plan shall include
temporary fencing to be installed around the open space during construction
phases to prevent accidental damage to the open space.
e. A plan for irrigating and otherwise ensuring the survival of
any newly established vegetation.
f. Provisions , for the removalof invasive species and for the
general enhancement of fish and wildlife habitat, consistent with guidelines
developed by the city.
g..Jow impact fence (e.g., split rail) or signs delineating the
boundary... not be required for the landscape buffers.
3. In the event that the open space area is not maintained consistent
with the OSMP, the city shall have the right to provide the maintenance thereof,
and bill the owner for the cost of the maintenance.
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