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.
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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
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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
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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
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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.
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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.
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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
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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.
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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.
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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