VISCONSI - ORDER RECONSIDERATIONMay 5, 2014
OFFICE OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND, WASHINGTON
ORDER ON RECONSIDERATION
Project:
File number:
Appellant:
Applicant:
Owners:
Location of Subject Property:
Visconsi Master Plan
Conditional Use Permit and Site Plan Review
SEPA Threshold Determination Appeal
SPR/CUP 17734
Islanders for Responsible Development
Visconsi Companies LTD
Deschamps Partnership LP and Suzanne Kelly
NE Corner of High School Road and SR 305
1. The applicant, Visconsi Companies LTD, and the SEPA appellant, Islanders for Responsible
Development ( "IFRD "), filed timely motions for reconsideration of certain conditions appended to the
Hearing Examiner's March 27, 2014, decision approving the Visconsi site plan review and conditional
use permits and denying the IFRD SEPA appeal. IFRD has also requested amendment of findings
related to noise regulation and the Planning Commission review process. A notice dated April 14,
2014, authorized written comments to be submitted by the parties and the public through April 25,
2014, in response to these motions. Timely comments were received from Stonecress residents Linda
and Barry Andrews and Margaret Tchakerian and from the applicant. Comments will be considered to
the extent that they relate to the issues identified within the motions; new issues cannot be raised
through commenting.
2. Most of the requested changes to the March 27, 2014, decision targeted the project conditions,
but two of IFRD's requests were for revisions to language contained in the report's findings. The first
seeks modification of language within the findings describing the process pursuant to which the
Planning Commission's recommendation for project denial was reached. The gist of IFRD's contention
is that the Examiner's discussion overstated the role played by Commissioner Maradel Gale in the
process and "marginalizes the rest of the Planning Commission."
3. Finding number 17 states that "[b]ased on proposed findings drafted by Commissioner Maradel
ORDER ON RECONSIDERATION - 1
Gale, the Planning Commission voted unanimously on November 14, 2013, to recommend denial of
the Visconsi site plan and conditional use permit applications." The opening sentence of finding 18
relates that "Commissioner Gale's written findings regarding the deficiencies of the Visconsi proposal
were accepted by the Planning Commission as the basis for its recommendation of denial." This
finding and the next one then further discuss the Planning Commission's written recommendation in the
context of it being based on Commissioner Gale's analysis. This characterization was deemed
appropriate because Commissioner Gale was identified as the principal author of the written
recommendation and appeared at the public hearing before the Examiner to both explain and
vigorously defend the Planning Commission position. One other Planning Commissioner, Jon
Quitslund, also participated in the hearing, but he spoke before Commissioner Gale's appearance and
only briefly described the Commission process in general terms.
4. Notwithstanding IFRD's displeasure, the findings stated in the March 27, 2014, decision relating
to the Planning Commission process neither were materially inconsistent with the hearing record nor
did the matters related therein have any actual effect on the ultimate permitting or appeal decisions. It
is uncontested that Commissioner Gale was mainly responsible for drafting the recommendation, the
Commission adopted it as presented, and only Commissioner Gale described and explained it at the
hearing. The Planning Commission recommendation eventually was rejected by the Hearing Examiner,
but that outcome depended in no way on questions of authorship or attribution. Thus in terms of the
decisional process, IFRD's request appears to be inconsequential; it adds up to nothing more than a
complaint about style and emphasis. In other words, it is an effort at political spin. The request will be
denied.
5. The IFRD request for reconsideration of finding number 99 is more substantive. This finding
contains language implying that traffic noise generated by vehicles on the private Visconsi site would
not be subject to noise control regulations. WAC 173- 60- 050(4)(a) exempts from regulation noise
generated by any vehicles on public highways subject to WAC Chapter 173 -62, and the noise
exemption for vehicles on private property stated at WAC 173- 60- 050(4)(f) does not apply if the
receiving properties are residential. Visconsi points out that it has volunteered to be subject to noise
monitoring and suggests the matter should be deemed moot. But even so, the exemption reference in
finding 99 is inaccurate and should be corrected, as requested by IFRD.
6. Regarding IFRD's various requests for amended language within the permit conditions, Visconsi
has agreed to the proposed changes involving conditions I I(b) (fence extension), 23(J) and (Q) (speed
limits) and 47 (service delivery hours). These requests will be granted as proposed. Condition 23(J) is
also the topic of Visconsi's sole reconsideration proposal, which seeks increased flexibility with regard
to the design of safety features for crosswalks C and D traversing the internal spine road. No one has
objected to this request, and it also will be granted.
7. IFRD has requested modification of condition number 21, which places limitations on the drive -
through windows proposed for site buildings 1 and 2. IFRD is concerned that if in the future the
currently anticipated uses for these buildings change, the City may fail to make a necessary new
determination as to the appropriateness of retaining the drive- through facility. This circumstance is
covered by condition number 49(A), which requires the City to review a proposal for a building
conversion and issue a change of use approval. Modification of condition 21 is therefore unnecessary,
and the IFRD reconsideration request pertaining thereto will be denied.
ORDER ON RECONSIDERATION - 2
8. The IFRD request regarding condition number 25 is that the requirement for five motorcycle
parking spaces serving the site as a whole be expanded to encompass five spaces for each building or
building cluster, which would raise the total to at least 20 and perhaps 35 spaces. IFRD also seeks to
add to the condition some sort of design requirement to address the visibility of motorcycles to other
"maneuvering vehicles within the parking area." Condition 25 is a voluntary mitigation offered by
Visconsi; it was never formally requested by IFRD (see exhibit 52) nor discussed at any length at the
hearing. As a result, the record provides an insufficient basis for concluding that five stalls is an
inadequate number of motorcycle parking spaces. Further, IFRD's stated rationale for the design
component of its request — that the condition as written poses a "great risk of injury to motorcycles and
riders" — relies on a factual contention that was never elaborated within the hearing testimony. As
such, this request must be denied as unsupported by the hearing record.
9. A stronger case exists in support of IFRD's request for modification of condition number 29 to
include language linking the commuter bike shelter location to existing bus stops. The exhibit 52
summary of the IFRD project conditions testimony identified a need to provide of "a community bike
shelter in order to reduce ferry congestion downtown." Condition 29, which incorporates language
from the Visconsi voluntary mitigation proposal, specifies a bike shelter but not its location. Visconsi's
objection to the IFRD request is mostly based on speculation about whether WSDOT would in fact
permit a bike shelter to be sited within the SR 305 right -of -way. A further unknown is the precise
future location of the bus shelter required by condition number 30. Since the logic of a "commuter"
bike shelter is that it be convenient to public transportation, in principle the IFRD request is reasonable
and should be granted in some form. But the language of the condition needs to be flexible enough to
accommodate currently unknown design factors.
10. IFRD contends that condition number 38, which requires that "[e]xterior trash
receptacles /recycling facilities shall be fully screened with solid walls and gates," does not go far
enough to protect Stonecress residents from site - generated noise and that such facilities therefore
should be moved further away from the eastern property line. The IFRD motion mischaracterizes the
record in attributing to the Visconsi sound engineer a statement to the effect that the currently proposed
location of the facilities "would have a significant negative impact on the adjacent neighborhood."
What Mr. Nelson actually suggested was that without sound attenuation some noise from clanging
receptacle lids would likely be perceptible offsite. The Visconsi response to the IFRD motion states that
the "masonry enclosure for the trash/recycle receptacles will be held a minimum of 30 feet from the
Stonecress property line;" condition 38 will be modified to include this information. Also on this
subject, Linda and Barry Andrews have proposed in their comment that a requirement for trash
receptacle covers be added to condition 38 based on a representation made by Visconsi at a meeting
with Stonecress homeowners. But because this meeting took place outside the public hearing
framework, any private agreements reached in that forum cannot supply a legal basis for permit
conditions unless the parties specifically so stipulated.
11. Controlling truck traffic usage of Polly's Lane on the western boundary of Stonecress is at best a
complicated and uncertain task. Ultimately the most effective measures will be those that bar entry
from High School Road to Polly's Lane and operate to assure the functionality of the main access spine
road so that the motivation to seek out an alternative route will be minimized. While these primary
mitigations will be supported by provisions for "no trucks" signage at the Visconsi exit to Polly's Lane
(condition 23(Q)) and Visconsi's voluntary mitigation condition for limiting the size of vehicles under
its control (condition 47), the effective value of these two secondary conditions will mainly be
ORDER ON RECONSIDERATION - 3
informational. No sentry is going to be posted at the site exit to enforce the no truck access signage,
and the condition 47 truck size limitation will not apply to non - Visconsi vehicles such as contractors
exiting from ProBuild.
12. The IFRD reconsideration motion queries whether conditions 23(Q) and 47 are inconsistent and
suggests modifying condition 47 to make it applicable to all commercial delivery vehicles rather than
just those larger than a single unit three -axle truck. There are two basic reasons why this suggestion
should be rejected. First, as noted above, while the comprehensive "no trucks" signage will convey
potentially effective information to the public generally, it is likely to have little actual regulatory
consequence and thus does not provide a workable template for narrower conditions of a more
mandatory nature. Second, the position taken by IFRD at the hearing as documented in exhibit 52 was
that "all large truck traffic" should be prohibited on Polly's Lane. A last minute attempt by IFRD to
move the goal posts further back should not be accommodated absent a truly compelling rationale.
Condition 47 as written, insofar as these matters lie within Visconsi's control, gives IFRD exactly what
it originally requested.
13. IFRD's final reconsideration request, also supported by the email from Barry and Linda
Andrews, is that Visconsi be required to pay one -third of the annual costs for maintaining the
Stonecress stormwater system based on the fact that 5 of the 15 Stonecress roadway catch basins are
located within Polly's Lane, which will inevitably handle some traffic exiting the Visconsi site. But a
proposal to allocate the responsibility for stormwater maintenance based on nothing more than a catch
basin count suffers from multiple deficiencies. Here are a few. First, the record provides no
information on what the overall costs of Stonecress stormwater system maintenance are and what
percentage of such costs should reasonably be assigned to catch basin and culvert functions. Second,
Visconsi will not add new flow volumes to the Stonecress system but only a marginal increase in
pollution to existing flows; no information exists in the record as to actual pollution quantities or the
nature of Stonecress runoff pollution treatment facilities (if any) and their maintenance costs. Third,
extrapolating from the project traffic study, the percentage of Visconsi traffic using Polly's Lane should
constitute about one -third of the total volumes for the road, but the IFRD formula assumes (without
offering any justification) that 100 percent of the maintenance costs to the stormwater system
attributable to all vehicle use of Polly's Lane should be imposed on Visconsi. Finally, as noted by
Visconsi's response, while Polly's Lane may possess one -third of the system's catch basins, it only
comprises about 10% of Stonecress's impervious area, thus further undercutting a conclusion that a
simple catch basin count supplies a logical mitigation trigger.
14. But even if the proposed IFRD formula were rationally defensible, there is also a consideration
of overall fairness that argues persuasively against imposing additional stormwater facility costs on
Visconsi. Because Stonecress lies within the nearby downstream conveyance system for the Visconsi
northeast drainage basin, condition number 23(F) requires the developer to assure adequate stormwater
flow capacity through Stonecress. While the exact nature of the problem remains to be determined, the
thrust of the neighborhood hearing testimony was that the Stonecress system downstream from the
Woodland Village wetland is presently malfunctioning — either wetland flows are not bypassing the
pond or the bypass pipe is undersized. Condition 23(F) requires Visconsi to assess and fix this
problem, a problem that it obviously did nothing to create. This requirement will confer a significant
benefit on Stonecress above and beyond any mandated project impact mitigation effects. This benefit
will surely exceed any rationally demonstrable new maintenance costs imposed on Stonecress resulting
from a minor additional contribution to runoff pollution loads on Polly's Lane.
ORDER ON RECONSIDERATION - 4
On reconsideration, the Hearing Examiner's March 27, 2014, decision is modified as follows:
The first sentence of finding number 99 on page 24 is revised to read as follows:
"Traffic noise is the potential impact source of greatest worry to Stonecress residents."
2. Condition number I I (b) on page 51 is revised as follows:
(b) A 150 LF 6' high board on board fence starting just north of the Applicant's
Development connection to Polly's Lane and running north along the west property line
of Stonecress shall be installed adjacent to the 30' buffer to provide additional screening
for the Stonecress homes. The fence will be placed on Stonecress's west property line
prior to final inspection of the first building in this development.
3. Condition 23Q) on page 53 is revised as follows:
J. For the Primary Access Road ( "the spine road "), submit a final design which
includes the addition of a planter strip between the Primary Access Road and sidewalk to
the east of the drugstore building and proposed relocation of crosswalks by the drugstore
as set out in Hearing Exhibit No. 53. As approved by the City Development Engineer,
the layout depicted in exhibit 42 shall be modified to eliminate crosswalk A; shorten the
divider strip so that its northern tip does not extend north of the northeast corner of
building 4 and the bulb is removed; reduce the intersection offset for the driveways north
of buildings 4 and 5; and provide a pedestrian walkway along the western edge of the
rain garden north to the ProBuild entry. Crosswalks B and D shall be elevated 6 inches
above adjacent grade where they cross the spine road, be constructed from materials that
contrast with the driving surface, and be flanked on both approaches by speed humps or
tables; provided that, in the alternative the applicant with City Development Engineer
approval may install stop signs at crosswalks B and D in lieu of an elevated crosswalk
flanked by speed humps or tables. The spine road will be posted with a 15 mph speed
limit, but the speed limit will not be enforced by the City of Bainbridge Island.
4. Condition 23(Q) on page 54 is revised as follows:
Q. A design for limiting Polly's Lane to one -way southbound traffic use, with left
and right turn movements provided to High School Road and a 15 mph speed limit, shall
be submitted to the City Development Engineer for approval. The applicant will install
"One Way" and "Do Not Enter" signs. The design shall also prohibit placement of street
lights along Polly's Lane. The design features listed above will also require Fire
Marshal review and approval. A "Local Traffic Only" sign shall be placed on the corner
of the intersection of Stonecress Drive and High School Road, and a "No Trucks" sign
shall be placed at the Applicant's Development exit to Polly's Lane. The site
development exit design shall include features for preventing or discouraging entry from
Stonecress Lane. A crosswalk shall be placed just south of Stonecress Drive across
ORDER ON RECONSIDERATION - 5
Polly's Lane. Once the conceptual approvals required by condition 44 below have been
obtained, the facilities required by this condition all shall be installed prior to the
connection of the Applicant's Development to Polly's Lane.
5. Condition 29 on page 54 is revised as follows:
A minimum of 53 bicycle spaces are required for this development; a proportional
number of spaces are to be installed in conjunction with the completion of each building.
The racks or wall hangers need to provide the ability to lock wheel and frame of bicycle.
At a minimum there should be bicycle racks associated with each building within the
development. The site will provide a commuter bike shelter accommodating 8 bicycles
prior to the last building receiving a certificate of occupancy. The location of the bike
shelter is to be determined after the location for the bus shelter required by condition 30
below has been decided and, to the extent reasonably feasible, shall be accessible an
existing bus stop, as approved by the Planning Director.
6. Condition 38 on page 56 is revised as follows:
Exterior trash receptacles /recycling facilities shall be fully screened with solid walls and
gates and fully contained within a masonry enclosure, the eastern wall of which shall be
at least 30 feet from the closest point along the eastern site property line. The screening
enclosures shall be architecturally consistent with the adjacent structures. All enclosures
serving associated buildings shall be constructed and inspected prior to final inspection
of the associated building.
7. Condition 47 on page 57 is revised as follows:
All site service and delivery vehicle operations will be restricted to the hours of 7 a.m. to
9 p.m. The applicant shall state within an appropriate legal document that any vehicle
larger than a single unit — three -axle truck will be prohibited on Polly's Lane.
ORDERED May 5, 2014.
Stafford L. Smith, Hearing Examiner
City of Bainbridge Island
ORDER ON RECONSIDERATION - 6