Gladys_Paup CITY OF BAINBRIDGE ISLAND
OFFICE OF THE HEARING EXAMINER
APPLICATION FOR SHORELINE ) SSDP/CUP01-14-00-1
SUBSTANTIAL DEVELOPMENT/ ) FINDINGS OF FACT
CONDITIONAL USE PERMIT ) CONCLUSIONS OF LAW
APPLICANT: EVERETT P.
AND ) AND DECISION
GLADYS A. PAUP )
____________________________________)
SUMMARY
Mr. And Mrs. Paup have filed an application for a Shoreline Conditional Use to build a beach
access stairway at their personal residence on Wing Point in Bainbridge Island. The Paup residence is located on the north side of Wing Point. The north property line is a sloping
bluff, 80 feet in vertical height, which adjoins the Puget Sound shoreline. This bluff has been identified as a geologically hazardous area; however, Mr. Alvin R. Zeman , a professional
geotechnical engineer, has studied the site and has stated in his report to the City that proper construction of this beach access stairway will neither increase nor decrease the stability
of the existing bluff slope. Of necessity, the beach access stairway will be constructed in the native vegetation zone, however, conditions imposed on the project will assure that minimal
site disturbance and minimal vegetation removal will occur at the construction site. Replacement native vegetation will be required to protect the slope. This stairway project will
be constructed entirely above the ordinary high water mark on the shoreline and will not interfere with public access to the public shoreline or to the waters of Puget Sound. The Shoreline
Conditional Use Permit is granted.
FINDINGS OF FACT
1. This application for Shoreline Substantial Development/Conditional Use Permit seeks permission to construct a beach access stairway on property owned by Everett P. and Gladys A. Paup
who reside at 6964 Wing Point Road, Bainbridge Island, Washington 98110. The project site is legally described as:
LEGAL DESCRIPTION ASSESSORS ACCOUNT NO.4111-000-026-035, 027-0205,
027-0304. The south one-third of Lot 26, Madrono Park, according to plat recorded in Volume 1 of plats, Page 49, Records of Kitsap County Washington, being that certain tract of land
described in deed recorded under Auditor’s File No. 147766: Except the west 40 feet thereof conveyed to Kitsap County as records under Auditors File No. 51278 for Wing Point Road.
Together
with all uplands adjacent to the east thereof and lying between the northerly and southerly lines thereof extended easterly, which adjacent upland include portion of vacated Washington
Avenue. Also that portion of Lot 27 of Madrono Park, according to plat recorded in Volume 1 of Plats, Page 49,
Records of Kitsap County Washington lying north of the following described line:
Beginning at a point on the east line of the west 40 feet of said Lot 27 which is 624.22 feet south of
the north line of Lot 19 in said plat: thence N 89 57'10” E, parallel with the north line of said lot 19, to a point on the line of ordinary high tide and the terminus of said line+/-
together
with all uplands adjacent to the east thereof and lying between the northerly and southerly lines thereof extended easterly, which adjacent upland include portion of vacated Washington
Ave.
2. The Paup property is approximately 1.47 acres in size. There are a single family residence and accessory buildings built on the level portion of the site. The northern property
line consists of an 80 foot shoreline bluff, which overlooks Puget Sound. The bluff is a steep grade, which maintains up to a 60% slope. The soils at the site have been identified
as Dystric Xerorthents. The consulting engineer, Mr. Alvin R. Zeman has identified the soil type as dense to very dense glacial till. According to his report, after visual observations,
no seepage from water bearing sand zones were noted. The glacial till is covered by a thickness of weathered soil upon which vegetation, consisting primarily of alders and blackberries,
covers the slope. According to Mr. Zeman’s report, the dense glacial till at this site is one of the most resistant soils types with regard to deep seated sliding, however, shallow
slope movements of weathered soil and vegetation above the glacial till typically occur during unusual rainfall events in winter months.
3. The Paup property has a zoning designation
of R 2.9; a Shoreline Environment designation of Semi-Rural and a Comprehensive Plan designation of Semi-Urban Residential. The Paup property is bordered on the north by the Puget Sound
shoreline, a shoreline of statewide significance. Although hawks, great blue herons and eagles have been observed on or near the site, this property is not located within an area identified
in the Comprehensive Plan as a nesting or priority habitat area for any monitored species.
4. Vehicular access to the site is off Wing Point Road. There is no pedestrian access to
the shoreline bordering the north property line from the upland portion of the site.
5. The Paup property is provided water by the City of Bainbridge Island public water system and
also has public sewer service. A storm water collection system on the site is designed with a tight line drainage feature that discharges storm water at the toe of the shoreline bluff.
This storm water system will be modified as a part of this beach access stairway project. There is presently a corrugated PVC drainage pipe which carries storm water for discharge
into Puget Sound. This pipe will be replaced with a solid PVC pipe which will be attached to the bottom of the staircase. The storm water will be dispersed into an energy dissipater
at the toe of the slope before dispersal into Puget Sound.
6. The Shoreline Master Program under Section V.K.Reg.9 allows a beach stairway to be
located within the native vegetation zone on a shoreline lot provided it conforms to all other City and State requirements.
7. The shoreline bluff on the north side of the Paup property
is presently covered by brambles and alders, which have volunteered in the weathered soil accumulating on top of the slope. This beach access stairway will be constructed, of necessity,
in the designated native vegetation zone along the Puget Sound shoreline. Mr. Hofmeister, consulting engineer for the project, testified that the zigzag design selected by the applicants
was selected in part to minimize the amount of necessary disturbance to the vegetation and soils in the native vegetation zone. Alternate designs, such as a straight sloping stairway
across the face of the slope, would involve a much larger area of disturbance. Minimal native vegetation removal, erosion control during construction, and replacement of native vegetation
after construction, will help protect the integrity of the slope and maintain the natural landscape appearance of the native vegetation zone.
8. The beach access staircase has been
designed in a zigzag pattern with a landing every twelve feet vertically. This switchback design localizes the impact of construction on the site. The staircase will be supported by
posts consisting of CCA-approved treated wood, placed into augured holes drilled into the glacial till, then backfilled with concrete for stability. The storm water from the residential
site will be collected in the catch basins at the top of the slope and then transported through PVC tight lines attached to the bottom of the staircase for outlet at the base of the
staircase into an energy dissipater before release into Puget Sound. This storm water control system will help minimize the potential for shallow soil movement on the slope.
9. Construction
of this staircase, on a bluff of this height and with a slope of this steep grade, may require that equipment and materials for construction be brought to the site by barge from the
water side. The shoreline of Puget Sound, which abuts this property, contains potential habitat for both shellfish and salmon. Both a Hydraulic Project Approval and a National Marine
Fisheries Permit would then be required for this project. If construction activities or clearance of the site are done from the shoreline rather than from the upland portion of the
site, these additional permits would also be required.
10. Since there will be removal of vegetation from the native vegetation zone during construction, and replanting of native species
after construction, a vegetation management plan must be approved by the Department of Planning and Community Development prior to issuance of a building permit for the project.
11. Since
this staircase will be built in a geologically hazardous area, it is imperative that the beach access stairway be placed in a location on the slope, which is the least vulnerable to
instability. The final site plan design and location must include a written determination from the applicants’ consulting geotechnical engineer that the site chosen for the staircase
is the location
on the shoreline bluff least susceptible to landslide or erosion risks. Approval of the final site plan design and location of the staircase on the slope must be obtained from the City
Engineer prior to any construction at the site.
12. Under the Shoreline Master Program, all accessory structures built in the native vegetation zone must be located and designed to
avoid the need for structural shore defense. The geotechnical engineer’s report provided by the applicant concludes that the staircase installation on the Paup property will not make
the shoreline bluff more or less stable than it is prior to staircase installation. No shoreline armoring will be needed to protect the staircase. Any future application for placement
of shoreline armoring cannot be based solely on the need for protection for this stairway. No bulkhead presently exists along the shoreline on the applicants’ property. This beach
access stairway must be located and designed to prevent the need for future shoreline stabilization measures to protect the staircase.
13. The staff report reviews the Shoreline Master Program (SMP) policies as they relate to this application. The staff has expressed concern about the cumulative impacts of allowing
another staircase to be built along this shoreline bluff. This staircase will contribute to a change in the visual aesthetics of the bluff along the north side of Wing Point, especially
if additional property owners along the bluff seek permission to build similar staircases for access to the beach from their individual lots. According to testimony, only one such beach
access stairway presently exists on the north side of Wing Point in the vicinity of the applicants’ property. Gary Waterman has built a staircase on the property immediately next door.
SMP Section III, G sets forth the general policies and regulations concerning visual and physical public access. Policy G (15) states that development should minimize visual impact
to the natural shoreline landscape. In addition, Section III, G. Regulations 4, 7, and 8 set requirements to help maintain the public’s existing visual access to the water and the
shoreline. According to Mr. Hofmeister, the consulting engineer, this staircase will be constructed in a design to minimize the area of disturbance on the bluff. The native vegetation
that is removed during construction will be replanted. Surrounding vegetation will remain to camouflage the staircase. Minimal trimming of native vegetation will be done to allow
use of the stairway for access to the beach. In addition, the staircase will be painted with a non-reflective natural color to blend in with the native vegetation and soils on the shoreline
bluff. The public’s visual access to the natural shoreline landscape will be minimally impacted by this project.
14. On June 27, 2000, a public hearing was held before the Hearing
Examiner to consider the application. Prior to the hearings, notice was published in the Bainbridge Review on June 10, and June 17, 2000, (EXHIBIT 25). Notice of the Public Hearing
was mailed to owners of property within 300 feet of the proposed project, and notices were posted at the City Hall, the Chamber of Commerce and the Ferry Terminal on the 7th day of June,
2000, (EXHIBIT 26).
CONCLUSIONS OF LAW
1. This application for Shoreline Substantial Development/Conditional Use Permit is properly before the Hearing Examiner and all public notice requirements have been met in a timely
manner.
2. This application requires a Shoreline Conditional Use Permit because it is an application for a beach access staircase to be located in a native vegetation zone, to serve
a single residence located in the Semi-Rural shoreline environment. (Specific Shoreline Use Policies and Regulations, K. Residential Development, Regulations-General 16.)
3. This application
must comply with the criteria set forth in Section VII of the Shoreline Master Program (SMP) under J, 2, a (1) through (6).
4. SMP, Section VII, J, 2, a (1) states: The proposed use
will be consistent with the policies of RCW 90.58.020 or its successor and the policies of the Master Program.
A review of the Shoreline Master Program policies concerning this project,
can be found in the Department of Planning and Community Development (DPCD) Staff Report. Additional testimony provided at the hearing demonstrated that the proposed beach access stairway
project is consistent with the policies of the Shoreline Master Program. Mitigation measures have been recommended by the DPCD, which will ensure compliance with the SMP.
5. The
Paup property is located on a shoreline of statewide significance, the shoreline of Puget Sound. SMP Section III, H. lists policies for shorelines of statewide significance located
in the City of Bainbridge Island. This proposed beach access staircase project, when constructed in accordance with mitigation measures required in this decision to minimize its impacts,
will meet the intent of those policies. Protections for the shoreline and the adjoining waters of Puget Sound have been included in the required mitigation measures.
6. SMP Section
VII, J, 2. a, (2) requires: The proposed use will not interfere with the normal public use of the public shoreline.
The beach access stairway proposed for the Paup property will be
constructed on the shoreline bluff above the ordinary high water mark and will not interfere with or intrude upon the waterways of the state, nor interfere with the beach pedestrian
access presently enjoyed on this shoreline of statewide significance. There is presently no pedestrian access from the Paup property to the beach below since the shoreline bluff exceeds
80 feet in height. There is no easily accessible public pedestrian access on the beach in front of the Paup property. Present access to the shoreline from the waterside would not change.
7. SMP
Section VII, J, 2, a, (3) requires: The proposed use of the site and design of the project will be compatible with other permitted uses within the area.
This beach access stairway is
to be used as an accessory structure to a single family residence,
which has existed on this property since 1929. Private residential uses and appurtenances are specifically permitted in this Semi-Rural Shoreline Environment, if allowed under a Conditional
Use Permit. This staircase is similar to other staircases already constructed on high bluff faces in the vicinity and on other similar high bluffs on the shoreline elsewhere in the
City. While the staircase will change the natural landscape of the slope, the change to that natural landscape view will be minimized by the retention of natural vegetation and replacement
of vegetation removed during construction activities. The MDNS also allows only minimal trimming of vegetation around the stairway. This staircase will not be visible from other properties
in the vicinity, but will be visible from the waters of Puget Sound. Since the staircase is to be located entirely on the applicants’ property, out of the view of neighbors on either
side, it will be compatible with other permitted uses of properties in this area. As previously stated, an adjoining neighbor has a similar staircase to the beach which is not visible
from the Paup’s property.
8. SMP Section VII, J, 2, a, (4) requires: The proposed use will cause no unreasonably adverse effects to the shoreline environment designation in which it
is located.
This property has been designated as a Semi-Rural Shoreline Environment. Under the Shoreline Master Program, a beach access staircase is permissible in that environment
with a Conditional Use Permit. The applicants provided a geotechnical engineer’s report because this staircase is to be built in a geologically hazardous area. According to the geotechnical
report of Zipper Zeman Associates, Inc., dated December 21, 1999 [EXHIBIT 9] “proper construction of the stairway will neither increase (n)or decrease the stability of the existing slope,
assuming any disturbed areas are revegetated, the potential for surface erosion or shallow downslope movement will remain unchanged.” Mitigation measures have been required under the
MDNS to minimize any adverse environmental impacts, which have been identified for this project.
9. SMP Section VII, J, 2, a, (5) requires: The public interest suffers no substantial
detrimental effect.
The public interest will suffer no substantial detrimental effect from the placement of this beach access stairway on the Paup property. The public will continue
to have access over the waters of Puget Sound adjacent to the Paup shoreline and pedestrian access presently available will not be changed. Locating the staircase on the bluff face
will alter the visual landscape of native vegetation on the shoreline bluff presently enjoyed, however, that visual landscape is visible only from the water side. The adjoining neighbors
will not see the staircase, except perhaps the uppermost portion of the first landing. Pedestrians along the shoreline will now see a staircase that did not previously exist. Conditions
have been required under the MDNS to protect the native vegetation zone in which the staircase is to be built. Since this beach access structure is allowed in the native vegetation
zone of a Semi-Rural Shoreline Environment and the requirements of City and State codes will be met, the public interest will suffer no substantial detrimental effect.
10. SMP Section
VII, J, 2, a, (6) requires: The proposed use is consistent with the provisions
of the zoning ordinance (BIMC Title 18) and the Comprehensive Plan (Ordinance 94-21).
The proposed staircase and storm water tight line equipment are built to service a single family
residential site. Residential uses are specifically permitted within this residential zone (R 2.9) and the staircase and storm water features are accessory uses. The policies of the
Comprehensive Plan will be met by the design of the project and through conditions placed upon the project in the SEPA process and the CUP process. A vegetation management plan will
be required for the maintenance of the native vegetation zone on the shoreline bluff to protect bluff and shoreline during construction and after completion of the project. The applicant,
as required by BIMC 16.20.080, has filed a geotechnical engineer’s report. The staircase has been designed in a zigzag pattern to minimize the disturbance of the slope; to minimize
the impact on the native vegetation zone and to prevent adverse impacts to the stability of the slope. An indemnification agreement will be required of the applicants in accordance
with BIMC 16.20.080.C, (2), g. Additional permits including Hydraulic Permit Approval, will be required from the State of Washington and National Marine Fisheries Service if supplies
and/or construction equipment are brought to the site by water, or construction activities are conducted from the shoreline.
11. This beach access staircase is an accessory use for
the personal residence on the site and is appropriate for this shoreline lot, provided certain conditions of approval are met. The project conforms to the requirements of the Shoreline
Master Program policies, the land use code requirements of the BIMC, and the policies of the Bainbridge Island Comprehensive Plan if mitigation measures are added as conditions of approval.
12. This
Shoreline Substantial Development/Conditional Use Permit application has been reviewed under the State Environmental Protection Act (SEPA). A final MDNS was issued by the DPCD on April
19, 2000. No appeals were filed. The MDNS is now final.
13. The following conditions are necessary to bring this project into compliance with the policies and requirements of the
Shoreline Master Program and the Bainbridge Island Municipal Code:
SEPA Conditions:
1a. To prevent degradation of shoreline bluff stability, water quality, and habitat area, a vegetation
management plan shall be submitted, concurrent with a building permit application, which includes at a minimum the following items:
1. Removal of existing vegetation shall be limited
to that necessary for placement of support pilings and storm water control measures. The plan shall specify in no case will vegetation larger than twelve inches diameter at breast height
be removed in conjunction with the staircase placement or maintenance.
2. All removed vegetation shall be immediately replaced with native species appropriate to Puget Sound shoreline
bluffs. Replacement
species, quantity and locations shall be specified within the plan.
3. A maintenance schedule shall be included in the plan, to ensure on-going health of vegetation across the bluff
face. Minor trimming of vegetation may occur to prevent fouling of the staircase steps with vegetation.
1b. Prior to site disturbance, a set of Best Management Practices (BMP’s) for
erosion and sediment control shall be submitted to and approved by the City of Bainbridge Island City Engineer, 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 with expertise in such measures.
1c. Design of the staircase
and permanent storm water features shall be reviewed and approved by the private, consulting professional engineer. Final City of Bainbridge Island acceptance of the project shall require
professional engineer stamped certification by that consulting engineer that the project has been designed, inspected, and has been constructed and functions as recommended by that consulting
engineer. Final certification by the City shall also include operation and maintenance recommendations for the staircase and storm water features. All information, including risk and
indemnification, must be made available to all future purchasers of the property. Final certification shall be submitted to the City of Bainbridge Island City Engineer for acceptance,
prior to building permit certification for occupancy (use) of the staircase.
1d. The staircase design shall not utilize support pilings composed of new or used creosote treated
wood materials, to prevent degradation of water quality and habitat.
1e. 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.
1f. To avoid the need for further shoreline structural features,
future protection of the staircase by shoreline armoring will not in and of itself be reason for approval of such armoring (for example, a rock bulkhead at the toe of the slope to prevent
the
staircase from falling down).
1g. In order to prevent loss of significant archaeological resources, the following measures shall be taken in the event phenomena of possible archaeological
interest is uncovered during placement of the staircase: 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 applicants 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 applicants 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).
Non-SEPA Conditions:
1. Vegetation not proposed for trimming or clearing during construction activities shall be clearly marked by paint application or flagging
to avoid inappropriate removal. Due diligence shall be taken to identify and keep equipment operations and construction activities within a minimal construction activity area. All
necessary permits shall be obtained before any disturbance of the site.
2. Any and all construction activities, waterward of the ordinary high water mark on the shoreline, shall not
be permitted from March 15 through June 14 to protect juvenile salmonids, unless otherwise permitted in writing by the Washington State Department of Fish & Wildlife.
3 To obscure the
staircase from view and to camouflage the structure to blend into the natural vegetated bluff, the staircase and storm water conveyance pipe shall be constructed of non-reflective materials
that are compatible in color and texture with the surrounding area. If the structure is colored or painted, neutral or flat grays, browns or tans must be used to blend in with the colors
of the bluff soils and vegetation.
4. Prior to site disturbance, an approved building permit shall be secured for the staircase. Design of the feature shall be engineered and stamped
by a professional engineer licensed in the State of Washington with expertise in such features. The final site plan design for the staircase must include a written determination by
the applicants’ consulting geotechnical engineer that the site chosen for the staircase is the location on the shoreline bluff on the Paup property least susceptible to landslide or
erosions risks. Approval of the final site plan design and location for the staircase on the slope must be given by the City Engineer prior to any construction beginning at the site.
5. Prior to site disturbance, a hold harmless agreement for all activities and structures on the shoreline bluff shall be duly executed in a form approved by the City Attorney, pursuant
to BIMC 16.20.080(C)(2)(g). This signed indemnification agreement shall be recorded with the Kitsap County Auditor to give notice of the risk and indemnification responsibilities to
all subsequent owners of the property.
6. Copies of all public agency approvals and approved drawings shall be given to all contractors performing work at the site. Mitigation measures
required for the project shall be clearly emphasized on all documents.
7. This beach access stairway must be built entirely on the applicants’ property above the ordinary high water
mark on the shoreline. The staircase must be designed and located on the site in a manner that will prevent the need for future shoreline stabilization measures to protect the staircase
structure. Any future application for placement of shoreline armoring on the Paup property cannot be based solely on the need for protection for this beach access staircase.
8. A vegetation
management plan must be approved by the Department of Planning and Community Development prior to issuance of a building permit for the project. The disturbed area of the development
site shall be protected by erosion control measures during construction. Vegetation removed from the development site must be replaced with trees and shrubs that are native to the Puget
Sound region. Prior to any disturbance on the site, a listing of approved native vegetation acceptable for replanting in the native vegetation zone must be included in the vegetation
management plan provided to the DPCD for approval.
9. The construction of a beach access staircase on the Paup property shall be done in such a manner that it shall not increase the
rate of surface water runoff or sedimentation runoff from the site and shall not increase the geological hazard for adjacent properties.
10. Prior to the commencement of construction
on this project, the applicant shall notify the City Engineer of the method of operation to be used for construction of this staircase at the site. Prior to any site disturbance, a
determination must be made by the applicant as to whether access for construction activities will be from the upland portion of the property, or from the shoreline at the toe of the
bluff. After the City Engineer has approved this
decision, then all necessary permits must be obtained for the chosen access. In addition to City building permits, access from the water side will require additional permits from the
State of Washington and may require additional permits from the National Marine Fisheries Service, since access would be over the waters of Puget Sound. All necessary permits must be
obtained before any disturbance of the site.
11. This approval of application for Shoreline Substantial Development/Conditional Use Permit is based on drawings submitted by E. Frank Hofmeister, PE., dated January 13, 2000, and
date stamped by the City of Bainbridge Island on January 14, 2000 [EXHIBIT 1].
DECISION
The application of Everett P. and Gladys A. Paup for a Shoreline Substantial Development /Conditional Use Permit to construct a beach access staircase on their residential property
located at 6964 Wing Point Road NE, in the City of Bainbridge Island, is approved subject to the conditions listed above in Conclusion of Law 13. This Decision is final, unless it is
appealed to the City Council for review in accordance with the provisions of BIMC 2.16.100. The final Decision approving the Substantial Shoreline Development/Conditional Use Permit
shall be forwarded to the Washington State Department of Ecology for approval. A copy of the Decision shall also be sent to the Washington State Attorney General in accordance with
SMP Section VII, J, 6.
Dated this 8th day of August, 2000
/S/: Robin Thomas Baker
Hearing Examiner Pro Tem