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DORSEY, JAMES SSDP10-26-96-1 CITY OF BAINBRIDGE ISLAND OFFICE OF THE HEARING EXAMINER APPEAL OF ADMINISTRATIVE DECISION AND SEPA MITIGATED DETERMINATION OF NONSIGNIFICANCE APPROVING A SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT. APPLICANTS: JAMES M. DORSEY FAMILY LLC, JEFFREY DORSEY APPELLANTS: CHRISTOPHER AND SHAWN OTOROWSKI SSDP10-26-99-1 FINDINGS OF FACT CONCLUSIONS OF LAW AND DECISION FIND1NGS OF FACT 1. James M. Dorsey Family LLC., and Jeffrey Dorsey are the legal owners of property identified as Lots 198, 199, 200, 201,202, 203, 204, 212, 213,214, 215, 218, 219, 220, 221 and 222 in the Port Madison Plat. Full legal descriptions for these lots are included in the record as EXHIBIT57; Kitsap County Tax Assessor account numbers are included on page six of the Staff Report [EXHIBIT 160]. 2. On May 21, 2001, the Director of the Department of Planning and Community Development (DPCD) of the City of Bainbridge Island issued an Administrative Decision approving, with conditions, the Dorsey family application for a Shoreline Substantial Development Permit (SSDP). In addition, the Director issued a SEPA Mitigated Determination ofNonsignificance (MDNS) for the project. Notice of that Administrative Decision and SEPA MDNS was sent to the appellants [See EXHIBIT165]. The appellants have acknowledged receipt of the notice. On June 18, 2001, Christopher and Shawn Otorowski filed an appeal of the Administrative Decision and SEPA MDNS. 3. The underlying application for SSDP and SEPA review were filed by the Dorsey family in September and October of 1999. These applications were filed with the City of Bainbridge Island as a result of code enforcement actions brought by the City. Extensive work had been performed on the Dorsey property by the applicants without permits from the City. 4. The property which is the subject of this SSDP application and SEPA review is located on Port Madison Bay. A majority of the parcel has been developed as a single-family residential site. Appeal SSDP10-26-99-1 Hearing Examiner Dorsey/Otorowski Page - 1- City of Bainbridge Island The Dorsey family has owned the property since 1943 and has conducted various commercial activities on the site, including operation of a saw mill and a boat moorage and fuel dock facility. The site was originally platted in 1906 as a part of the Port Madison Plat. A majority of the Port Madison Plat has been developed for single-family residential use. The 16 contiguous platted lots owned by the Dorsey family have not been previously developed individually, rather the site has been used as a single residential site. 5. The applicants filed an application for a SSDP to obtain approval for alterations and improvements made to the site, including repairs and improvements made to the stormwater drainage system, repair and replacement of the shoreline bulkhead, repair and replacement of the dock and floats located on the shoreline, and improvements made to the private access roadway located on the property. Numerous letters of complaint were received from neighboring property owners, objecting to non-permitted activities and outlining possible environmental problems which exist on the property. In response to those complaints, the City of Bainbridge Island conducted an extensive investigation of activities on the property. 6, In May of 2000 the Dorseys filed an application for a boundary line adjustment to reconfigure the lot lines of the platted lots on the site. This boundary line adjustment application was consolidated with the SSDP application and included in the SEPA review process. The proposed development of the Dorsey property was reviewed as an integrated project. On April 24, 2001 the applicants notified the City of Bainbridge Island that they did not wish to go forward with the boundary line adjustment application. They requested that the City reach a decision on the SSDP application and make a threshold determination for SEPA review based on the lot configuration presently existing at the site. OnMay21, 2001 the Director of DPCDissued her Administrative Decision approving the application for SSDP and issuing an MDNS for the project. The boundary line adjustment application has not been pursued further by the applicant and remains "on hold" with the DPCD. 7. As a part of its environmental review of the Dorsey application, the City of Bainbridge Island required the applicant retain several professional consultants to examine the property and make an environmental assessment of the conditions which exist on the site. Those consultations included a wetland assessment [EXHIBIT 66], an environmental screening survey (hazardous waste investigation) [EXHIBIT 67], an archeological survey [EXHIBIT 63], and a biological evaluation [EXHIBIT61]. In addition to these outside consultants, the City of Bainbridge Island Public Works Department reviewed the road and drainage system improvements and made recommendations for revisions necessary to comply with the requirements of the Bainbridge Island Municipal Code (BIMC). Outside agencies were also asked for comment on the project. Comments were received from the Bainbridge Island Fire Department, the Washington State Department ofFish and Wildlife (WSDFW), the Suquamish Tribe, the Bremerton-Kitsap County Health District (BKCHD), among others. 8. The appellants have not provided a report of any environmental consultant to refute or Appeal SSDPI 0-26-99-1 Hearing Examiner Dorsey/Otorowski Page -2- City of Bainbridge Island supplement the evaluations made by consultants retained by the applicant. 9. The environmental evaluation performed by Shannon and Wilson, Inc., in March of 2000, concluded there was no evidence of contaminated surface soil, contaminated surface water, lead acid battery debris, or evidence of any underground fuel storage tanks on the property. A very small amount of contaminated soil was found near above ground storage tanks and was removed. The evaluation performed by Shannon and Wilson was limited to observations and sampling of readily accessible surface areas on the property. The history of the site was provided by the applicant and included specific areas of concern identified by the City of Bainbridge Island in a letter to Mr. Dorsey on March 8, 2000 [EXHIBIT 42]. 10. A wetland assessment was performed by Golder Associates, Inc., their report is dated May 5, 2001 [EXHIBIT66]. The wetland assessment was conducted by walking the entire site and determining where wetland conditions might exist on the property. The wetlands consultant concentrated examination on the hillside and associated toe of the slope area directly down-slope from Euclid Road, since this was the area that exhibited potential wetland conditions. A delineated wetland was identified on Lot 198. That wetland measures 1,099.6 square feet [Figure I attached to the Golder Report.] No other areas of wetland conditions were found on the property. Surface soils within the toe of the slope area, an area previously occupied by a cemented catch basin according to the report, were determined to be non-hydric in character. The wetland evaluation was conducted by qualified wetland biologists, Ms. B. Gurshaw, M.S. Biology, and Mr. D Snyder, M.S. Soils Science. 11. An archeological survey and evaluation was performed by Gary C. Wessen, PhD, in April of 2000 [EXHIBIT 56]. That survey and assessment included a background search, a ground surface inspection, and a limited sub-surface inspection of the site. Dr. Wessen concluded, after his inspection, that the site lacks any indication of the presence of potentially significant archeological deposits. Dr. Wessen found that the upper soil on the shoreline of the site showed much evidence of having been extensively reworked. He concluded that there was no reason to suggest that the bulkhead area may contain potentially significant archeological deposits. The conditions of approval require a stop work and archeological investigation if potential sites are uncovered during construction. 12. A biological evaluation was prepared by Caicos Corporation for submission to the U.S. Army Corps of Engineers to support the Dorsey application for bulkhead repair and dock and piling repairs at the site. That biological evaluation was reviewed by the City of Bainbridge Island during SEPA review. No additions were required to the report. 13. The City of Bainbridge Island Department of Public Works participated in a review of the applicant's project. Investigation was done of the changes made to the site prior to the permitting process, as well as proposed improvements to the drainage and road systems. The applicant was required to submit drainage plans for the project. MacLeamsberry, Inc., engineers retained by the applicant to make repairs and improvements to the drainage and road systems at the site, provided drainage plan information to the City. Off-site drainage information, as well as on-site drainage system revision plans were submitted to the Director [EXHIBIT50 andS1] as well as review comments from the Department of Public Works [included bt EXHIBIT 91], and follow-up letters [EXHIBITS 102, 103 and 104]. The Planning file also contains numerous letters and Appeal SSDP 10-26-99-1 Hearing Examiner Dorscy/Otorowski Page -3- City of Bainbridge Island memoranda between the applicant's engineers and the Department of Public Works, discussing requirements for the drainage system and road improvements on the property. 14. On June 25, 2001 the Department of Ecology issued its final notification of action on the SSDP filed by the City of Bainbridge Island [EXHIBIT 179]. 15. The City of Bainbridge Island has required the applicant to apply for Hydraulic Project Approval from the State of Washington and a JARPA permit from the U.S. Army Corps of Engineers. 16. The proposed work on the shoreline will be a replacement of an existing rock and creosote wood bulkhead, as well as replacement and repair of on-site dock and moorage floats. The footprint of the dock and moorage floats will not be increased in size as a result of this project. No additional bulkheading will be added to the shoreline. 17. The property site consists of 16 platted lots. The site is zoned R-2 and has a shoreline environment designation of Semi-Rural. The platted lots do not meet present zoning minimum size requirements, however, they are legal non-conforming lots, which may be used for single- family residential purposes if all other zoning, environmental and shoreline requirements can be met. 18. An MDNS was issued by the Director of DPCD on May 21, 2001. This MDNS was approved with 13 conditions, which outlined mitigation measures to address concerns raised during the environmental review process. The appellants have not identified any additional significant environmental impacts from the project which will not be mitigated by the conditions of approval attached to the MDNS and SSDP. 19. The boundary line adjustment application has been withdrawn by the applicant. The City did not make a final decision of approval or disapproval of the boundary line adjustment application prior to the request by the applicant to put the application on an indefinite hold. No final administrative decision on that application has been appealed to the Hearing Examiner as a part of this appeal. 20. Exhibit 190 is a copy of the plat map from the Port Madison Plat dated September 20, 1906. The lots filled-in in blue on the Exhibit show lots from the original plat which have been developed for single-family residential use. This Exhibits shows there are very few platted lots remaining undeveloped in the original Plat of Port Madison. The City of Bainbridge Island has determined that the platted lots owned by the Dorseys are available for possible development. 21. There are no public fights-of-way within this portion of the Port Madison Plat. Public fights-of-way which were dedicated as part of the original plat were vacated on July 6, 1920 by the Kitsap County Board of Commissioners. No existing public right-of-way road ends providing public access to the shoreline exist at the site. 22. This application is not an application for short subdivision or subdivision, but rather is an Appeal SSDP 10-26-99-1 Dorsey/Otorowski Page -4- Hearing Examiner City of Bainbridge Island application to make improvements to a site which already contains platted lots. No alterations to the property lines is app3oved by this application. There is no public access across the site to the shoreline, therefore no existing access has been lost by the development of this project as proposed. The zoning density will not be increased by development as proposed. 23. A licensed professional engineer has reviewed the work performed on the drainage systems on the property and has designed additions to the storm water system. The Public Works Department has reviewed the proposed design for compliance with the B1MC It has recommended preliminary approval of the design and work already performed at the site. 24. There were no naturally occurring streams identified on the site. Golder Associates did a wetlands assessment of the site and identified only one small wetland which is located outside the 200 foot shoreline jurisdiction. The wetland is located approximately 360 feet landward of the shoreline. The Washington State Department ofFish and Wildlife may issue a Hydraulic Project Approval for these shoreline activities after final SEPA determination. 25. The new bulkhead to be placed on the property must be located at, or immediately landward, of the actual existing Ordinary High Water Mark (OHWM) on the property. This requirement has been made a condition of the approval. A rock rip-rap bulkhead has been proposed for the site. Repairs to the dock do not involve any change in footprint. The use of navigable waters will not be interfered with on any greater scale than already encountered by the present dock. The repair work does not include the movement of the dock from its present location (approximately 20 feet north of the shoreline sideyard line). 26. No aquifer recharge areas have been identified on the site. 27. Mitigation measures have required replacement of vegetation improperly removed from the native vegetation zone prior to permitting. This replacement, at the ratio of two trees for each one removed, is adequate mitigation for damage to the native vegetation zone which occurred prior to the enforcement action. Replacement vegetation has been required and submission of a vegetation restoration plan is required as a condition. 28. On July 16, 2001, a Public Hearing was held before the Hearing Examiner to consider the application, the hearing was continued to July 30, 2001. Prior to the hearing, notice was published in the Bainbridge Review on June 30, 2001; notice of the public heating was mailed to the owners of property within 300 feet of the proposed project on June 27, 2001, and notices were posted at the City Hall, the Chamber of Commerce, and the Ferry Terminal on June 27, 2001; notice was posted at the subject property on June 29, 2001. [EXHIBIT159]. CONCLUSIONS OF LAW 1. The James Dorsey Family LLC and Jeffrey Dorsey are the true legal owners of the 16 platted lots which comprise the project site for this SSDP application. Appeal SSDP10-26-99-1 Hearing Examiner Dorsey/Otorowski Page -5- City of Bainbridge Island 2. The 16 lots included in this application are legal non-conforming lots which were platted as a part of the 1906 Port Madison Plat recorded with Kitsap County on January 3, 1906, after approval by the Kitsap County Board of Commissioners on January 2, 1906. BIMC Section 18.87 allows the development of non-conforming lots which do not conform to the minimum lot area, lot width and lot depth requirements of the current zoning. There is no requirement that these non-conforming lots in common ownership be aggregated. These lots are located in an area zoned R-2 Some of the lots are located along the shoreline and have a shoreline designation of Semi-Rural, which allows for single-family residential use. 3. A SSDP permit is required for the bulkhead repair and replacement and the dock repair and replacement. SEPA review is required for the project. Some project activities were conducted outside the 200 foot shoreline jurisdiction; however, since non-exempt activities were also required to complete the project, an SSDP is required for the entire project. 4. An extensive environmental review was conducted by the City of Bainbridge Island prior to issuing a threshold determination in this matter. The information gathered by the City from environmental consultants, the applicant and neighboring property owners was legally sufficient to support the Director's determination that a MDNS with conditions would mitigate the probable significant environmental impacts from the development of this project as described. A full environmental impact statement is not required for this project. 5. The appellants have argued that the issuance of the SSDP for this project is premature since there is a pending boundary line adjustment application on file with the City of Bainbridge Island. The appellant contends that a SSDP and SEPA review must include all aspects of this project, including a possible readjustment of the lot boundary lines. This application was processed as a combined project after the boundary line adjustment application was filed in May of 2000. For the next 11 months all review of the proposal assumed a possible reconfiguration of the lot lines. In April of 2001, the applicant chose not to go forward with his application for a boundary line adjustment. The City has not required any boundary line adjustment as a condition of approval for this SSDP. The City has accepted the lots on the site as legal non-conforming lots from the 1906 Port Madison Plat. This SSDP authorizes repair to the shoreline bulkhead, repair to the pier and floats, removal of tideland debris, improvement of the residential access road already developed on site, stormwater drainage controls and utilities placement for the existing lots of record Most of the activities now authorized by the SSDP occurred without the benefit of City review or approval. The impact of those actions have now been evaluated by the City and the permit is issued approving the project with conditions. If the boundary line adjustment application were revived by the applicant, it would not change the environmental review requirements for this project. The boundary line adjustment is a procedure for redrawing the lot lines on contiguous lots and does not authorize any particular land use action at the site. Any development on lots at this site is subject to zoning, shoreline and environmental ordinances which must be complied with when building permit applications are filed. The road work and stormwater drainage control system improvements have been substantially completed at the site. The impacts from those construction activities have been assessed in the environmental review conducted by the DPCD prior to issuance of the MDNS. Appeal SSDP 10-26-99-1 Hearing Examiner Dorsey/Otorowski Page -6- City of Bainbridge Island 6. The boundary line adjustment application has not been approved or denied by the DPCD The application is not currently pending for decision by the Director. The applicant has withdrawn the application for boundary line adjustment from consideration by letter dated April 24, 2001. There having been no final decision on the boundary line adjustment application, that issue is not before the Hearing Examiner in this appeal. The appellants argued that the Notice of Administrative Decision and SEPA MDNS, issued by the DPCD on May 26, 2001, was inadequate to provide notice to the appellants of the substance and detail of the decision made by the Director. The notice sent to the appellants referenced the staff report as a source for the findings of fact, conditions of approval and conclusions of law, which formed the basis of the Director's decision. That staffreport was maintained in the public access files of the DPCD This notice is legally adequate to inform the appellant of the nature of the decision made by the Director on this SSDP application and SEPA determination. Adequate legal notice was given to the public of the Director's Notice of Administrative Decision and SEPA MDNS. Adequate legal notice was also given for the public hearings held on this appeal. 8. The City of Bainbridge Island has the authority to determine whether it will accept as legal non-conforming lots, residential lots platted as a part of the 1906 Port Madison Plat. As a part of this review application the City determined that the 1906 Plat had been substantially developed with single-family residential lots. During the course of the review of the applicants' project site improvements, the City of Bainbridge Island determined that the site contained legal non- conforming lots which have been zoned for potential use as single-family residential lots. The Director's decision approving the SSDP and MDNS pertains to the existing lots of record [see the description of proposal section -EXHIBIT84.] The withdrawal of the boundary line adjustment application from consideration by the DPCD did not substantially change the project proposal or require additional extensive environmental review. The activities approved under the SSDP application remained substantially the same as those activities proposed for the project while the boundary line adjustment application was pending. A boundary line adjustment application filed alone would not require SEPA review. 9. The concerns of the appellants regarding possible environmental damage existing on the property have been addressed by the applicant and the applicants' consultants for environmental review. The review of the site for environmental evaluation addressed the concerns outlined in public comment letters, as well as additional concerns raised during the City's review of the project. The extent of the environmental review conducted by the City to determine the environmental impact of the proposed project is legally adequate to support the decision made by the Director of DPCD, that an MDNS with conditions would be adequate to mitigate any significant adverse environmental impacts from the project. The Director's decision to issue the MDNS and to not require an EIS must be accorded substantial weight. The record demonstrates that the City considered environmental conditions at the site in a manner sufficient to comply with the requirements of the State Environmental Policy Act, and the mitigation measures imposed on the project are adequate to address the environmental impacts from the proposal. The appellants have not met their burden of proof to demonstrate that the mitigation measures proposed by the Director are inadequate. The appellant has not shown any significant adverse environmental Appeal SSDP 10-26-99-1 Hearing Examiner Dorsey/Otorowski Page -7- City of Bainbridge Island impact from the project which will remain unmitigated by the conditions required in the MDNS. The scope of the work authorized by the SSDP has been evaluated adequately by the DPCD. Substantial evidence exists in the record to support the conclusions reached by the Director in making her administrative decision. 10. An SSDP was required for this project and should have been obtained by the applicants prior to beginning work at the site. After being notified by the Code Enforcement Officer for the City that permits would be required, the applicants have provided documentation on their activities at the site in a detailed and comprehensive manner, as required by the City. The information detailed preexisting conditions at the site, as well as plans for project completion. Applications for additional State permits required for the shoreline project have been filed by the applicant. The applicant provided information regarding the unauthorized removal of vegetation from the native vegetation zone on the site. This vegetation removal was in violation of the Shoreline Master Program of the City of Bainbridge Island and revegetation has been required by the Director as a condition of approval. Historic photographs and detailed drawings have been provided showing changes made to the property without proper permitting. A review of the present conditions of the site, as well as a review of the history of activities at the site prior to permit application, were included in the Director's consideration of the conditions of approval for this project. There is substantial evidence in the record that the information provided by neighbors through public comment letters was extensively researched by the DPCD and used in the assessment and imposition of conditions of approval for this permit application. The $550 fine levied by code enforcement was paid by the applicants on February 14, 2001. 11. The wetland identified on the subject property is located on the central eastern portion of the site and has been delineated as a wetland of 1,099 square feet. Due its small size, the wetland is not regulated as a jurisdictional wetland under BIMC 16.20.020 and 16.20.090. The pond located in the center of the site was manmade and therefore not a regulated wetland under BIMC 16.20. Artificial wetlands intentionally created from non-wetland sites such as detention facilities, irrigation and drainage ditches, grassland swales, canals, wastewater treatment facilities, storm ponds and landscape amenities are not regulated wetlands. 12. The appellants argued that placing the boundary line adjustment application on hold resulted in a "piece meal" review under the State Environmental Policy Act. A boundary line adjustment application by itself, is not subject to a requirement ora threshold determination under SEPA. The boundary line adjustment portion of the applicant's proposal is not an integral part of the project, since the property as platted can be developed in its present configuration without adjustment. The boundary line adjustment is not being required by the City and is an elective process which the applicant may wish to pursue to facilitate site development, however, the applicant is not bound to follow that procedure. The SEPA determination on the shoreline substantial development permit application for dock repair work, bulkhead replacement, storm drainage system repairs and existing road repair are independent considerations which do not require the processing of a boundary line adjustment. The Director's decision to go forward with the SSDP approval is not "piece mealing" as asserted by the appellants. No subdivision application has been filed which would give rise to additional requirements of SEPA review. Appeal SSDP 10-26-99-1 Hearing Examiner Dorsey/Otorowski Page -8- City of Bainbridge Island DECISION The appeal of the Administrator's decision granting a Shoreline Substantial Development Permit and issuing a SEPA Mitigated Determination of Non-Significance is denied. The Director's decisions are affirmed. Dated this ')-d) day of December, 2001. Robin Thomas Baker Hearing Examiner Pro Tem APPEAL This Hearing Examiner's Decision will be final unless appealed in accordance with the provisions of BIMC 16.12370. Appeal SSDP 10-26-99-1 Hearing Examiner Dorsey/Otorowski Page -9- City of Bainbridge Island BEFORE THE HEARING EXAMINER CITY OF BAINBRIDGE ISLAND In the Matter of the Appeal of GARRETT AND DIANNA LARSEN ADM13071 from an administrative decision of the Director, Department of Planning & Community Development ORDER REGARDING STAY The appellants and the Director have agreed that this matter should be stayed to allow settlement discussions and consideration of an application for a shoreline exemption. That request should be, and hereby is, GRANTED and the hearing scheduled for August 15,2005 is CANCELLED. Further action on this appeal and on the underlying decision, is stayed pending call by either party requesting that the appeal proceed or be dismissed. Entered this 12th day of August 2005. eredith A. Getches Hearing Examiner pro tern City ofBainhridge Island