APPLEWHITE, LEAHCITY CLERK
CITY OF BAINBRIDGE ISLAND
OFFICE OF THE HEARING EXAMINEli~, , ,~ ,~.
APPLICATION FOR VARIANCE
APPLICANT: LEAH APPLEWHITE
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FINDINGS OF FACT
CONCLUSIONS OF LAW
AND DECISION
SUMMARY
Ms. Applewhite has purchased a legal non-conforming lot on Kirk Avenue NE, near Fairy
Dell Park. Ms. Applewhite's lot has a unique topography. The lot is traversed by a seasonal
drainage which carries run-offfrom Frey Avenue NE and surrounding properties. Building sites
are further limited by steep slopes on the property. Front yard, side yard and stream buffer
building setbacks; all limit the size of the remaining building envelope. Encroachment into the
front yard setback has been recommended by a geotechnical engineer to reduce impacts on the
stability of the steep slopes on the property. The variance application is approved with
conditions.
FINDINGS OF FACT
1. Leah Applewhite is the owner of an undeveloped lot located at 11693 Kirk Avenue NE,
Bainbridge Island, Washington. The legal description of the subject lot is as follows:
Lots 4 and 5 and the South 25feet of Lot 3, Lot 17 of the Plat of Venice as
recorded on Volume 3, Plat 105 of Plats Records of Kitsap County, Washington
and situate in Section 8, Township 25 N, Range 2 E, Willamette Meridian, City of
Bainbridge Island, Kitsap County, Washington.
This parcel is identified under Tax Account No. 4188-017-003-0205.
2. The Applewhite parcel has a zoning designation of R-1 and a Comprehensive Plan
designation ofOSR-1. Surrounding properties to the North, South, East and West have an R-1
zoning designation and a Comprehensive Plan designation of OSR-1.
3. This lot was created in 1909 as a part of the Venice Plat. In 1997 a previous owner, Mr.
Joseph O. Fore, Jr., aggregated non-conforming Lots 4 and 5, and the south 25 feet of Lot 3,
Block 17 of the Plat of Venice, into a single lot. This single lot was subsequently sold to Ms.
Applewhite. The Applewhite lot remains a legal non-conforming lot. It is approximately
13,180.5 sq.fi, in size and measures approximately 112.5 fi. x 117.16 ft. Minimum lot size under
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Applewhite Page -1- City of Bainbridge Island
current R-1 zoning is 40,000 sq.fi.
4. Ms. Applewhite has filed an application for a variance fi'om the required 25 foot from yard
setback from Kirk Avenue NE. The eastern property line of her property abuts Kirk Avenue NE.
5. The site visit revealed a parcel which is unique in character with topography which
presents a challenge for an owner wishing to building a single family residence on the site. The lot
is located in an area that has been fully developed with single family residences. Fairy Dell Park
borders the Applewhite lot on its west side. Lots adjoining on the north and south sides have
been developed with single family residences. The Applewhite lot is traversed diagonally from
southeast to northwest by a seasonal drainage which carries mn-offfrom Frey Avenue as well as
storm mn-offfrom surrounding properties. This drainage channel has created abroad, grass-
covered drainage swale through the Applewhite property, carrying the mn-off to Fairy Dell Creek
and on into Puget Sound. This drainage swale has been classified by Steve Morse, City of
Bainbridge Island Natural Resource Planner, as a Class V stream. A Class V stream requires
certain buffers and building setbacks which are described in the Critical Area Ordinance, B1MC
16.20. Under BIMC 16.20.090, a 15 foot building setback is required from the top of the bank of
a Class V stream. Mr. Morse has determined that the Class V stream which crosses Ms.
Applewhite's property has a very narrow channel with no well defined bank. Mr. Morse testified
that the stream drainage channel is about 6 inches in width. The 15 foot building setback is
measured from the edge of the drainage channel and extends 15 feet on either side of the channel.
6. The building envelope on the Applewhite property is further restricted by the requirement
that sideyards in the R-1 zone measure at least 10 feet from the property line (BIMC 18.33.060).
In addition, the R-1 zone requires a 25 feet front yard setback fi-om any street adjoining the
property. Since the Applewhite lot abuts Kirk Avenue NE on its eastern property line, BIMC
18.33.060 requires a 25 foot setback from Kirk Avenue NE. There is a limited area of flat ground
on the lot suitable for building a single family residence. The northeast comer of the lot is level
and therefore a possible building site. If this request for variance were not granted, a building
envelope measuring approximately 2,400 sq.ff would be available on the northeast comer of the
Applewhite property. This 2,400 sq.ft., is triangular in shape and measures approximately 70 ft.
long diagonally along the stream bed. Much of the 2,400 sq.ft, building envelope would be too
narrow for siting a building. Two other areas on the property, one in the northwest comer and
one in the southwest comer, are flat enough to provide a possible building site. Access to those
sites would require crossing the Class V stream. The northwest and southwest comers of the lot
have been designated as areas for the septic system and reserve drainfields, and the storm water
retention/detention system.
7. Ms. Applewhite retained the services of the geotechnical engineering finn, URS
Corporation, to assess her lot's suitability as a building site for a single family residence. The
URS report is included in the record as EXHIBIT48. Ms. Applewhite also retained Shannon &
Wilson, a geotechnical and environmental consulting firm. Carole L.B. Mitchell, P.E., opined that
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the proposed daylight basement style house planned by Ms. Applewhite would be appropriate for
this residential lot. [See Attachment D to Staff Report: EXHIBIT 43.]
8. A public hearing was held on September 25, 2001, in the City Council Chambers at City
Hall. Several neighbors attended the hearing and gave testimony, both by letter and by oral
testimony, objecting to Ms. Applewhite's application for variance. Several neighbors cited
concerns about future development of the Kirk Avenue NE right-of-way, and possible impacts
from allowing the Applewhite home to be built within 3 feet of the western edge of that right-of-
way. The Kirk Avenue NE right-of-way measures 60 feet in width, however, only the eastern 14
feet of the tight-of-way has been developed as a gravel roadway. Kirk Avenue NE has been
designated as a residential suburban street on the city's Functional Road Classification Map.
Residential suburban streets require a 30 foot right-of-way. The granting of this variance would
not encroach upon the public right-of-way. The full 60 feet of right-of-way would be retained by
the City of Bainbridge Island for any future development. The Department of Public Works
(DPW) was consulted regarding a possible development of the Kirk Avenue NE right-of-way.
The DPW indicated that at some point in time the Kirk Avenue NE right-of-way may be
developed as a residential suburban street. This would require the centering of the roadway in the
right-of-way. The developed portion of the right-of-way would be moved west nearer to the
Applewhite property. The DPW stated that it is unlikely that the city would develop the roadway
in the Kirk Avenue NE neighborhood wider than the 30 feet required for a residential suburban
street. If Kirk Avenue NE were relocated to the center of the right-of-way, and developed to the
full 30 feet in width, the western edge of the newly developed tight-of-way would still be located
15 feet from the western edge of the 60 foot right-of-way, and at least 18 feet from the front of
the Applewhite home.
9. Other neighbors testified by letter and in person, about possible adverse impacts on Fairy
Dell Creek. Concerns were raised about possible contaminants entering the drainage way from
the proposed septic system, and possible contamination from chemicals in storm water run-off
from the lawn, driveway or roof areas. Mr. JeffDavis, Washington State Department ofFish and
Wildlife (WSDFW) Area Habitat Biologist, made a visit to the property to assess possible impacts
to the stream. He submitted a letter recommending the variance allowing the house siting on the
northeastern comer of the lot to enhance stream protection and avoid encroachment in the buffer.
[See EXHIBIT 30.]
10. Several significant trees remain on the Applewhite lot. They are located in the northwest
comer and on the southwest corner of the property. All significant trees will remain on the
property and will not be disturbed by construction activities at the site. One identified significant
tree is located in an area designated as a reserved drain field. Decisions concerning the possible
removal of that tree will be made if the reserved drainfield is developed on the property.
11. Several neighbors commented on concerns about parking along Kirk Avenue NE. They
questioned whether adequate space would remain on the Applewhite property for off-street
parking if the front yard were reduced to 3 fi. in width. The site plan submitted by Ms.
Applewhite shows a garage and driveway located on the north side of the residence. Space will
be available for parking two vehicles on the site. One vehicle could be parked in the garage, and
one in the driveway between the garage and Kirk Avenue NE right-of-way. The garage is set
back approximately 20 feet from the east property line.
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12. This neighborhood has been developed as a single family residential development. The
home planned by Ms. Applewhite is consistent in size with other homes built on lots in the
vicinity. This lot has been zoned R-I which allows development for single family residential use.
13. The unique characteristics of the Applewhite lot create the need for a variance to build a
home on the parcel. Ms. Applewhite's site plan proposes a small residence with a garage
measuring approximately 32 ft. x 50 ft. Lot coverage will total only 12% of the lot. The R-1
zone allows a maximum lot coverage of 15%.
14. The sloping terrain on the Applewhite property varies from 1.5 H: IV to about 2 H: IV.
The slopes have been classified by the City as geologically hazardous slopes. Geologically
hazardous slopes are protected under the Critical Area Ordinance (BIMC 16.20.080). A
geotechnical engineer's report will be required prior to issuance of any building permit. BIMC
16.20.080 requires a geotechnical engineer to certify that the project will not decrease the stability
of the slope. DPW must review of the Geotechnical Engineer's Report and give approval prior to
issuance of a building permit. Since this steep slope borders a drainage swale which carries water
into Fairy Dell Creek, sediment control measures must be in place prior to construction. A
temporary erosion and sediment control plan should be submitted to the City Engineer for
approval prior to issuance of the building permit. The erosion control plan must specify methods
for erosion control for wet weather conditions, if any clearing or grading is proposed outside the
dry season of the year, April Ist to October Is'. Storm water drainage control plans must also be
submitted to minimize adverse impacts to the Class V seasonal drainage stream and downstream
impacts to Ferry Dell Creek.
15. A review of this variance application was based on the plan proposed by the applicant
dated September 8, 2001 and received by the Department of Planning and Community
Development (DPCD) date stamped September 11, 2001.
16. This residence will be provided sewer service through a private septic system described by
the applicant as a Glendon Mound System. This septic system will be built in the southwestern
corner of the property. Water will be provided by the Kirk Avenue Water District.
17. On September 25,2001, a Public Hearing was held before the Hearing Examiner to
consider the application. Prior to the hearing, notice was published in the Bainbridge Review on
September 8, 2001; notice of the public hearing was mailed to the owners of property within 300
feet of the proposed project on September 5, 2001, and notices were posted at the City Hall, the
Chamber of Commerce, and the Ferry Terminal on September 5, 2001; notice was posted at the
subject property on September 9, 2001. [EXHIBIT 42.]
CONCLUSIONS OF LAW
1. This matter is properly before the Heating Examiner for decision on a variance application
under BIMC 18.111.020. Extensive public comment was received during the public comment
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period and a public hearing before the Hearing Examiner was requested.
2. Leah Applewhite is the tree legal owner of property located at 11693 Kirk Avenue NE,
Bainbridge Island, Washington.
3. Findings of Fact have been entered which support an application for variance from the
required 25 foot front yard setback from Kirk Avenue NE, for a residence to be built on the
northeast comer of the Applewhite parcel. An application for variance must satisfy the decision
criteria contained in BIMC 18.111.040 for approval or approval with conditions.
4. BIMC 18.111.040.(A)( 1 ): A variance may be approved or approved with modifications
if: The variance will not constitute a grant of special privilege inconsistent with the limitations
upon uses of other properties in the vicinity and zone in which the property is located.
The proposed location and construction of a single family residence on the northeast
comer of the Applewhite parcel would not constitute a grant of special privilege inconsistent with
the limitations upon uses of other properties in the vicinity and zone where this property is
located. This neighborhood has been developed with single family residences along both the east
and west side of the Kirk Avenue NE right-of-way. Most residences which have been built are as
large as, or larger, than the residence proposed by Ms. Applewhite. Most residential lots along
Kirk Avenue NE have been developed in conformance with the 25 foot front yard setback
requirement. The Applewhite property, however, contains unique topographical features which
make compliance with that front yard setback requirement impractical and create an unusual
hardship for the property owner. On such feature is a broad storm water drainage swale, which
transverses the property diagonally from southeast to northwest. B1MC requires building
setbacks of 15 feet from the top of the channel bank of this Class V stream. In addition, the lot
contains a steep slope with unstable soils. BIMC 16.20 requires protective measures for
geologically hazardous slopes. A Geotechnical Engineer's report recommended that the house
footings be placed back at least 5-8 feet from the slope face, to aid the long term stability of the
house and the slope. Potential building sites on this parcel are limited, due in part to the small size
of the parcel (only 13,180.5 sq.ft.) and the need for an on-site septic system to provide sewer
service for the residence. Current regulations discourage crossing a Class V stream to locate the
house at the back of the lot, when a suitable building site could be located in another area that
does not require impacts to the stream. Most homes along Kirk Avenue NE appear to have
complied with the required 25 foot front yard setback; however, some homes to the north along
Kirk Avenue NE appear to be located closer to the developed roadway.
BIMC 18.111.040.(A)(2): A variance may be approved or approved with modifications
if'. The granting of the variance will not be materially detrimental to the public welfare or
injurious to the property or improvements in the vicinity and zone in which the property is
located.
Ms. Applewhite has requested a variance to allow the reduction of her front yard setback
from Kirk Avenue NE from the 25 feet required under BIMC 18.33.060, to a minimum of 3 feet.
Reducing this yard to a 3 foot width will place her residence approximately 48 feet from the
existing developed gravel roadway. The Kirk Avenue NE public right-of-way measures 60 feet in
width. Sixty feet is the standard width right-of-way for a secondary arterial in Bainbridge Island.
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Kirk Avenue NE has been designated on the Road Classification Map, as a residential suburban
street. A residential suburban street has two standards of development, one is 18 feet of
pavement with 3 foot shoulders, and the other is 12 feet of pavement with turnouts every 300
feet. Each of these suburban residential street standards require only 30 feet of right-of-way for
development. Kirk Avenue NE, is not developed to city standards for a suburban residential
street. Kirk Avenue NE is approximately 14 feet wide and constructed on the easternmost
portion of the Kirk Avenue NE right-of-way. It is a gravel road with inadequate drainage.
According to the DPW there are no present plans for upgrading of Kirk Avenue NE. An upgrade
of the road to residential suburban standards would require centering the roadway in the 60 foot
right-of-way, and improving a 30 foot wide portion of the right-of-way. The Applewhite
residence will not encroach on the public right-of-way. If Kirk Avenue NE were developed to its
full 60 foot width, the Applewhite residence would be closer to the street than other houses in the
neighborhood which have been built in compliance with the 25 foot front yard setback required in
the R-I zone.
The site plan submitted by Ms. Applewhite provides for two off-street parking spaces, in
accordance with the requirements of BIMC 18.81.030. The front of the Applewhite residence
will be landscaped to provide screening for neighbors across the street, and to screen the
residence from Kirk Avenue NE. The Applewhite lot is now barren except for a few trees located
around the back perimeter of the property. The lot is covered in low growing grasses.
The reduction of the front yard setback requested in the variance application, will not be
materially detrimental to the public welfare or injurious to the property or improvements in the
vicinity and zone.
6. BIMC 18.111.040.(A)(3): A variance may be approved or approved with modifications
if.. The variance is requested because of special circumstances related to the size, shape,
topography, location or surroundings' of the subject property and will provide the applicant with
use rights and privileges permitted to other properties in the vicinity and zone in which the
property is located.
The unique physical characteristics of the Applewhite lot have been extensively described
in the Findings of Fact. This parcel is restricted as a building site because of steep slopes and the
location of a Class V stream which diagonally traverses the parcel. The lot itself is approximately
1/3 the size of a conforming property in the R-1 zone. Restrictions on development significantly
reduce the building area for any single family residence. Most other properties in the
neighborhood are not as constrained topographically as this property. Kirk Avenue NE is an
oversized right-of-way for a suburban residential street. The 25 foot front yard sctback required
from that right-of-way absorbs a substantial portion of the building envelope available on the
property. Restrictions on the culverting or disturbance of Class V streams, limit driveway access
to the rear of the property for a possible building site, A variance is necessary to provide Ms.
Applewhite with the opportunity to develop her property as a single family residential lot, which is
the use for which it has been zoned and platted. Most other lots in the Venice Plat have been
developed as single family residential lots. The Applewhite lot is a legal non-conforming lot and
can be developed for use as a building site for a single family residence, provided all other
requirements for building in the R-1 zone can be met.
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7. BIMC 18.111.040.(A)(4): A variance may be approved or approved with modifications
if'. The need for a variance has not arisen from actions taken or proposed by the applicant.
The need for this variance has arisen because of the physical characteristics and
topography of this residential lot. The Venice Plat was created in 1909, well before current City
of Bainbridge Island zoning regulations were in place. The Bainbridge Island Municipal Code
allows a non-conforming lot to be developed in accordance with zoning requirements for the zone
in which it is located, even though it does not meet the lot size requirement presently required for
the zone. The development proposed by Ms. Applewhite conforms to requirements in the R-1
zone in all aspects, except for the requirement ora 25 feet front yard setback from the public
right-of-way. This lot was platted as a single family residential lot long before the front yard
setback requirement was adopted by the City of Bainbridge Island. Ms. Applewhite has not
contributed to the need for this variance. Ms. Applewhite is entitled to apply for a permit to
develop her property as a single family residential lot. A variance mechanism has been adopted by
the City of Bainbridge Island to grant relief from provisions of the zoning ordinance, where
practical difficulty renders compliance with certain provisions of the code an unnecessary
hardship, where the hardship is a result of physical characteristics of the subject property and
where the purpose of the Comprehensive Plan is fulfilled (BIMC 18.111.010.) In this instance the
geotechnical engineering consultant has recommended that the Applewhite residence be placed at
least 8 feet to the east of the face of the slope. The engineer's report shows an increased cost for
construction of the residence, if the footprint is moved closer to the steep slopes located in the
northeast portion of the property. The development of this property as a single family residential
lot is in compliance with the purpose of the Comprehensive Plan which has assigned this
neighborhood an OSR-1 Comprehensive Plan designation.
8. BIMC18.111.O40.(A)( 5): A variance may be approved or approved with mocBfications
if: The variance is necessary for the preservation and enjoyment of a substantial property right
possessed by other property in the same vicinity and zone, but which is denied to the property m
question because of special circumstances on the property in question.
The granting of this variance will allow Ms. Applewhite to build a single family residence
with an attached garage on her residential lot located at 11693 Kirk Avenue NE. Other properties
along Kirk Avenue NE have been developed with similar residences with attached garages. To
build this residence further to the west would increase the construction costs and impact the
stability of the steep slope located in the northeastern portion of the Applewhite lot. Without the
variance the property is left with a very small building envelope, which is triangular in shape and
measures approximately 70 ft. long where it borders the stream buffer. The triangular building
envelope totals 2,400 sq.ff, however, a majority of that square footage is too narrow to be
included in the building footprint. Without the variance, it would be difficult to site a building on
the property without directly impacting the Class V stream which traverses the property through
the middle, crossing from the southeast comer to the northwest comer of the parcel. Without the
variance, building a residence of the size proposed by Ms. Applewhite would be impractical and
perhaps infeasible.
9. BIMC 18.111.040.(A)(6): A variance may be approved or approved with modifications
if', The variance is the minimum necessary to fulfill the needs of the applicant.
This variance application is supported by consultation reports from a geotechnical
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engineer as well as a field visit from the WSDFW Area Habitat Biologist. The home site
proposed is ora size consistent with other homes in the neighborhood and is the minimum
proposed by the applicant to meet her family's needs. The residence measures approximately 40
fi. x 32 fi. in size, and is designed with a one car attached garage. This residence will be
consistent in size with other homes built on lots in this neighborhood and consistent with property
uses enjoyed by the neighbors.
10. BIMC 18.111.040.(A)(7): A variance may be approved or approved with modifications
iJ~ The variance is consistent with all provisions of this code and is in accord with the
Comprehensive Plan.
Since this application is to build a residence on a lot which contains both a Class V stream
and a geologically hazardous slope, conditions must be attached to the project to ensure
compliance with the Critical Area Ordinance. The site plan proposed by Ms. Applewhite is in
conformance with the provisions of the BIMC and the Comprehensive Plan in all respects except
for the reduction in the front yard setback requested by this variance application. This application
for a variance is exempt from review under the State Environmental Policy Act (SEPA) (WAC
197-11-800).
11. This variance application satisfies the decision criteria of BIMC 18.111.040 and should be
approved with conditions. In order to ensure compliance with the Critical Area Ordinance and
other provisions of the Bainbridge Island Municipal Code and the Comprehensive Plan, the
following conditions must be attached to the variance approval:
1. The applicant shall obtain an approved building permit from the
DPCD prior to construction.
2. A temporary erosion and sediment control plan shall be submitted
with the building permit application.
3. Any clearing and grading proposed outside of the dry season, April 1't
to October 1't, shall require an erosion control plan that specifically identifies
methods of erosion control for wet weather conditions, and those methods
shall be approved by the City Engineer prior to any activity at the site.
4. A storm water drainage plan shall be submitted by the applicant and
approved by the City Engineer prior to building permit issuance.
5. The applicant must obtain a Geotechnical Report from a licensed
Geotechnical Engineer addressing the building foundation and slope stability
at the building site. This Geotechnical Report shall be submitted with the
building permit application to the DPW. The Geotechnical Report shall
conform to the requirements of BIMC 16.20.080 and meet all requirements of
the City Engineer prior to building permit issuance.
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6. The residence building shall be set back at least 15 feet from the edge
of the Class V stream which traverses the property.
7. Location of the single family residence shall follow precisely the site
plan submitted by the applicant, which is dated September 8t~, 2001 and date
stamped by the DPCD, September 11t~, 2001. The single family residence
shall not be located closer than 3 feet to the east property line of the lot. No
building or structure encroachment is allowed into the 60 foot public right-
of-way known as Kirk Avenue NE, abutting the east property line of the lot.
8. All construction activities at the site shall be conducted in a manner
which avoids impacting the Class V stream which traverses the property.
Erosion and sediment control measures shall be utilized to prevent
sedimentation or other pollutants from traveling off-site and into Fairy Dell
Creek. No modifications shall be made to any portion of the Class V stream
channel or its buffer area on the property except minimal disturbance
necessary for placement of septic system connection lines.
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DECISION
This application for a variance from the required front yard setback is approved with the
conditions listed in Conclusion of Law 11. A front yard setback measuting at least 3 feet in width
from east to west must be maintained along the entire east property line of the Applewhite lot.
Dated this 1~t day of October, 2001.
Robin Thomas Baker
Hearing Examiner Pro Tern
APPEAL
This Heating Examiner's Decision may be appealed to the City Council in accordance with
the provisions of BIMC 2.16.140
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