DonahueOFFICE OF THE HEARING EXAMINER
FOR THE CITY OF BAINBRIDGE ISLAND
In the matter of an Application
for Shoreline Substantial Development
Permit/Conditional Use Permit.
Applicant: Christopher Donahue
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NO.
SSDP04-26-99-1
AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION
SUMMARY
The applicant has applied for a Shoreline Substantial Development Permit/Conditional Use Permit to build a marine railway on his property where it fronts on Agate Passage
near the Agate Passage Bridge. The marine railway will be situated entirely on the applicant’s property on support pilings composed of concrete, steel or plastic as required by the
SEPA conditions. This railway design will provide for pedestrian access across the shoreline during mean low tide and mean lower low tide events. The application for Shoreline Substantial
Development/Conditional Use Permit is granted.
FINDINGS OF FACT
1. This application is for construction of a marine railway on property located at 16376 Reitan Road in the City of
Bainbridge Island. The property is owned by Christopher Donahue and is identified by tax lot number 4131-000-026-0004 which is legally described as:
TR 26 TGW TDLDS ALSO TH PTN OF LOT
27 DAF BAT MOST ELY COR OF SD LOT TH ON NELY LN OF SD LOT N52*58'W 420. 76FT TH S2*54'13W 130.55FT TH S14*28'E 85.50FT TH S2*50'E 44.96FT TO NLY MGN OF SPRING STREET TH N89*09'40E ALG
SD MGN 318.96FT TO POB TGW & SUBJ TO ESMT TGW AND & ALL WATER RIGHTS
2. The project site is designated as a Semi-Rural Shoreline Environment which
accommodates low to medium density residential development, low to medium intensity recreational development, passive recreation and open space. The zoning designation for the property
is R-1, one unit per acre. The Comprehensive Plan designation is OSR-1, open space residential one unit per acre.
3. A Mitigated Determination of Non-Significance was issued on September 8, 1999. That MDNS was not appealed.
4. The applicant has submitted plans to construct a marine railway on the
shoreline of his property where it fronts Agate Passage with an approximately ten foot high bank. The railway will be constructed on pilings of concrete, plastic or steel extending
approximately 26.5 feet out from the toe of the bulkhead. Earlier this year the applicant replaced the bulkhead on his shoreline under a Shoreline Exemption Permit SSDE01-21-99-1.
The repair work on the bulkhead has been completed.
5. On September 16, 1999, the Washington State Department of Fish and Wildlife issued a Hydraulic Project Approval on September 16,
1999 (Log # 00-D6575-04) for this railway construction.
6. This site presently contains a single family residence and two accessory structures. A marine railway was previously built
on the site, however, its remnants had deteriorated to such a condition that it was not repairable and must be replaced. As a part of the project to replace the bulkhead, the stubbed
remnants of pilings from the site’s original marine railway were removed from the beach. The applicant currently maintains a mooring buoy waterward of the site within Agate Passage.
7. Property
to the north, east and south of this parcel is zoned for and used as single family residential property.
8. The proposed use is defined as a marine railway under the Shoreline Master
Program. It is a permissible use for which a Conditional Use Permit is required in a Semi-Rural Shoreline Environment (Table 4-1 of the Shoreline Use and Modification Activity Matrix
in the Shoreline Master Program).
9. As a part of the review process for this application, the Suquamish Tribe was notified about the proposed project. The Suquamish Tribe has stated
that there is a potential for encountering archeological resources at this site and has recommended that a condition be attached to the project requiring a general artifacts survey of
the site prior to any site disturbance, and that appropriate procedures for conservation be required by the conditions of approval.
10. The area of the shoreline that would be defined as a native vegetation zone on this site (a fifty foot width from the ordinary high water mark landward for residential uses in the
Semi-Rural Environment) has been disturbed for many years. A portion of this designated fifty foot area is presently vegetated with non-native grasses cut down to a landscaped lawn.
The remaining vegetation is predominantly ‘Salal’ hanging over the top of the bank and mature ‘Madrone’ understory. The proposal to build this railway involves a very limited area
of disturbance in this vegetation zone. The area of disturbance will measure approximately 240 sq.ft. No trees will be removed to build this railway and vegetation removal at the
site will be limited to the immediate footprint of the start of the railway. No vegetation removal has been suggested between the ordinary high water mark and the top of the bank.
Overall modification to the site would not exceed five hundred cubic yards of material because minimal land alteration is necessary to built this marine railway.
11. The use will not consume any quantity of water. Mitigation measures will include a temporary erosion and sediment control plan and permanent storm water control plan to ensure preservation
of existing water quality. The Hydraulic Project Approval of the State Department of Fish and Wildlife will restrict site construction to those times outside of critical spawning activities
for marine life near this site.
12. The proposed use will impact a relatively small area of shoreline, bridging over the bank on support piers leaving the face of the bank and beach
undisturbed except for eight piling supports and a concrete footing pad underneath a boat holding area landward of the bank top. It is expected that the support pilings should provide
for substantially the same circulation of sand and water across the beach as exists prior to construction with minimal disturbance caused by the railway pilings. The removal of the
pilings from the previous marine railway helps to maintain the existing condition on the site. Specific Best Management Practices for water quality and bank stabilization protection
are appropriate as conditions of approval for this project, and will be included within a temporary erosion and sediment control plan and a permanent storm water control plan at this
site.
13. The proposed marine railway will not obstruct continued pedestrian access across the beach or the free movement across the waters of the State of Washington. The railway
will be visible at the beach and from the water surface, however, it will not be beyond the scale or scope of other typical uses along the shoreline in this vicinity.
14. No public
health or safety hazard is anticipated from the use of a marine railway at this location.
15. This use by its nature is water dependent and must be located within the native vegetation zone. The intrusion on this zone has been limited to only that portion necessary for
railway use, there are no accessory driving or parking areas to be built near the marine railway site. This site does not exhibit any unique, rare or extraordinarily fragile characteristics
beyond the very nature of the site being a shoreline on Agate Passage. The soil at the site is Indianola loamy sand with Indianola-Kitsap complex along the immediate shoreline frontage.
16. Two
written comments were submitted as a part of the review process. Both comments requested that public access across the beach continue without interference. Observations made by Planning
Staff at the site show that tides at mean high tide and higher prohibited any walking across the beach since the waterline meets the existing bulkhead during high tide events. Only
during low and lower tides is the beach accessible for walking. During low and lower tide events the proposed railway will continue to allow access underneath it at two locations, 1)
at a width of four feet with seven feet high clearance, and 2) at a width of four feet with a five feet high clearance. Access would continue unobstructed around and under the base
of the railway. The railway will not completely obstruct views from any vantage point, however, the structure will be visible on the shoreline and from the surrounding waters. There
are several other marine railways on the surrounding shoreline including one just north of the subject site. Construction activities for the railway onto the beach will not limit access
across the beach or the water surface.
17. The railway will not cause a significant decrease in geo-hydraulic processes already restricted across this site. The proposed railway is
located at the existing grade at the top of the bank. The railway will then access over the top of the bank on support pilings intended to avoid cutting into the bank or substantially
disturbing vegetation. Rails will not extend beyond the support features. Rail supports gradually lower the railway to the level of the beach allowing a reasonable grade to control
the boat’s ascent and descent.
18. Notice of the public hearing was published in the Bainbridge Review on October 20 and 27, 1999. Notice was posted and sent to surrounding property owners as required by BIMC 2.16.
An Affidavit of Mailing is included in the record as Exhibit 4A.
CONCLUSIONS OF LAW
1. A development use or activity can not be undertaken within the jurisdiction of the Shoreline
Management Act and the Shoreline Master Program unless it is consistent with the policy and procedures of the Shoreline Management Act, applicable State regulations and the
Shoreline Master program. Further, a substantial development such as the construction of this marine railway can not be undertaken within the jurisdiction of the Shoreline Management
Act and the Shoreline Master program unless an appropriate Shoreline Permit has been obtained. The proposal to build a marine railway on the applicant’s property is a substantial development
on the shoreline for which a Shoreline Substantial Development/Conditional Use Permit must be obtained.
2. Christopher Donahue is the legal owner of the real property on which this
marine railway is to be constructed.
3. This matter is properly before the Hearing Examiner (Shoreline Master Program Section VII.(C)(1)(a). Section VII.( J)(2) sets forth the purposes and decision criteria for the granting
a Conditional Use Permit for projects on the shoreline. Adequate legal notice was given for the hearing.
4. A marine railway may be authorized as a conditional use on the shoreline
if the applicant can demonstrate: 1) the proposed use will be consistent with the policies of RCW 90.58.020, or its successor, and the policies of the Shoreline Master Program, 2) the
proposed use will not interfere with the normal public use of the public shoreline, 3) the proposed use of the site and design of the project will be compatible with other permitted
uses within the area, 4) the proposed use will cause no unreasonably adverse effects to the shoreline environment designation in which it is located, 5) the public interest suffers no
substantial detrimental effect, 6) the proposed use is consistent with the provisions of the Zoning Ordinance and the Comprehensive Plan.
5. A marine railway is a specifically permitted use under the City of Bainbridge Island Shoreline Master Program dated November 26, 1996 and corrected in January, 1998. A marine railway
is included in the definition of boating facilities under the City of Bainbridge Island Shoreline Master Program at Section V.(D). Table 4-1 entitled “Shoreline Use and Modification
Activity Matrix” at page 57 of the Shoreline Master Program lists boating facilities, such as a marine railway, as allowed in a Semi-Rural Environment subject to a Shoreline Conditional
Use Permit. A Shoreline Substantial Development Permit may also be required.
6. The proposed marine railway is a use of the property which will not interfere with the normal public
use of the public shoreline because the marine railway is elevated above the beach, and at two locations has sufficient room for people to pass under the railway to continue along the
beach. Also, this marine railway will not extend beyond the applicant’s property and will not encroach upon the tidelands or waterways of the State of Washington which adjoin the
applicant’s parcel.
7. The proposed use of this site for a marine railway for launching small boats into the waters of Agate Passage is compatible with other permitted uses for properties
along the shoreline in this vicinity. The design of this project is consistent in scale and materials with other marine railways which have been constructed on properties near the site.
8. The
proposed use of this area for a marine railway for the launching of small boats will cause no unreasonably adverse effects to the shoreline environment. The marine railway system has
been designed so that the rails are supported by pilings. The design avoids cutting into the bank or substantially disturbing vegetation in the area along the shoreline. The raised
supports gradually lower the railway to the level of the beach allowing a reasonable grade to control the boat’s descent to the water and its ascent back up to the shoreline property.
The rails will not extend beyond the support features, so cross littoral draft will not be obstructed by the rails themselves. This design, as has been previously stated, will allow
continued pedestrian access across the beach during low and lower low tide events.
9. The public interest suffers no substantial detrimental effect from the placement of a marine railway
at this location. There is no encroachment into public access to the shoreline by this structure. There is no encroachment into waters of the State of Washington which adjoin the subject
property by this structure. This marine railway replaces an older marine railway which existed at the site and was too dilapidated to be repaired. This marine railway will allow the
applicant an enhanced enjoyment of his waterfront parcel.
10. The proposed use of this area of the shoreline for the construction of a marine railway is consistent with the provisions
of the Bainbridge Island Municipal Code (BIMC) Zoning Ordinance, Title 18, and the Bainbridge Island Comprehensive Plan. This use is a permitted use, subject to Conditional Use Permit
approval in the R-1 zone and under the Comprehensive Plan designation of OSR-1.
11. BIMC requires that this marine railway be designed by a Washington State licensed engineer with expertise
in designing marine railways. The plans and specifications for construction must be stamped with the designing engineer’s seal.
12. This Shoreline Substantial Development/Conditional
Use Permit Approval is based on the design of the railway dated May 27, 1999 as submitted by the applicant. This design must be approved and stamped by a Washington State Licensed Engineer
prior to application for a Building Permit.
13. In order for this project to meet the requirements of the Shoreline Master Program certain conditions must be attached to the Shoreline Substantial Development/Conditional Use Permit
approval. Earlier in the process, on September 8, 1999, a Mitigated Determination of Non-Significance was issued. That MDNS was not appealed and the conditions which were included
as mitigation in that Determination of Non-Significance must be met as conditions of this Shoreline Substantial Development/Conditional Use Permit. Those SEPA conditions are as follows:
SEPA
CONDITIONS:
Prior to site disturbance, a set of Best Management Practices (BMP’s) shall be submitted to and approved by the City of Bainbridge Island, to avoid degradation of water quality
and shoreline bluff stability during temporary construction activities and on-going maintenance of the site. The BMP’s shall be designed by a professional engineer and or habitat biologist
with expertise in such measures.
Removal of existing vegetation shall be limited to that necessary for placement of support pilings and storm water control measures except that minor
trimming may occur to prevent fouling of the rails with vegetation. The intent of this measure is to prevent degradation of shoreline stability, water quality, or habitat area.
In
order to prevent loss of significant archaeological resources, the following measures shall be taken.
3a. A cultural resources assessment shall be conducted by a professional archaeologist
or other professional with such expertise; scope as described in the June 9, 1999 Suquamish Tribe correspondence. The assessment area shall be limited to that area proposed for placement
of the railway. The assessment shall be submitted to and approved by the Director of Planning & Community Development prior to site disturbance.
3b. In the event phenomena of possible
archaeological interest is uncovered during placement of the railway, all work will stop immediately and notification shall be promptly given to the City and State Office of Archaeology
and Historic Preservation. In such a case, the applicant shall be required to provide for a site inspection and evaluation by a professional archaeologist to ensure that all possible
valuable archaeological data is properly salvaged. The applicant shall receive permission from the State Office of Archaeology and Historic Preservation prior to further disturbance
of the site (RCW 27.53.070 or its successor.)
The railway design shall utilize support pilings composed of concrete, steel or plastic (new and used creosote or similarly treated wood
materials shall not be utilized), to prevent degradation of water quality and habitat.
No over-water application of paint, preservative treatment or other chemical compounds shall be
permitted, to avoid degradation of water quality. Extreme care shall be taken to prevent petroleum products, chemicals, or other toxic or deleterious materials from entering the water
and degrading water quality. If a spill does occur, or if an oil sheen or distressed or dying fish are observed in the project vicinity, work shall cease immediately and Washington
Department of Ecology shall be notified of such conditions. Contact: Northwest Regional Spill Response Section at (206) 649-7000.
It is also necessary to add certain non-SEPA Conditions
to this project to ensure its compatibility with the site, and to ensure protection of the shoreline during construction and use of this marine railway system. Those non-SEPA conditions
are as follows:
Non-SEPA Conditions:
6. Prior to site disturbance, a boundary survey shall be conducted to provide accurate physical markings on the site which depict subject property
lines. No portion of the marine railway shall intrude into lands, specifically tidelands, not under ownership of the applicant.
Prior to site disturbance, an approved building permit shall be secured for the marine railway feature. Design of the feature shall be engineered and stamped by a professional engineer
licensed in the State of Washington with expertise in such features.
Prior to Site disturbance, an approved Hydraulic Project Approval for the marine railway shall be secured from
the Washington Department of Fish & Wildlife.
Design of the marine railway shall provide for pedestrian access across the shoreline during mean low tide and mean lower low tide events.
A copy of all public agency approvals and approved drawings shall be given to all contractors performing work at the site.
DECISION
The application for a Shoreline Substantial Development/Condit
ional Use Permit to construct a marine railway on the applicant’s residential property at 16376 Reitan Road, Bainbridge Island, WA is hereby granted subject to Conditions 1-10 listed
in Conclusion of Law.
Dated this 15th day of February 2000.
/S/ Robin Thomas Baker
City of Bainbridge Island
Hearing Examiner Pro Tem