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Lane_Decision CITY OF BAINBRIDGE ISLAND OFFICE OF THE HEARING EXAMINER APPEAL OF ADMINISTRATIVE ) SSDE04-07-00-1 DECISION PARTIALLY ) FINDINGS OF FACT APPROVING A SHORELINE ) CONCLUSIONS OF LAW LETTER OF EXEMPTION REQUEST ) AND DECISION APPELLANT: ROBERT LANE. ) ____________________________________) SUMMARY This application for Shoreline Letter of Exemption sought approval for the removal of a portion of an existing rock bulkhead which protects the shoreline of the Lane property located on Port Madison Bay. The Lanes sought permission from the City of Bainbridge Island to eliminate an “end wall” which presently extends waterward of the Ordinary High Water Mark (OHWM) on the north end of their bulkhead. The rocks from this end wall extension are to be moved and placed along the remaining unprotected shoreline 16 ft. to the Lanes’ northerly property line. The City of Bainbridge Island has given the Lanes a partial approval of their request. The approval letter allows the removal of the end wall and a softening of the bulkhead profile along the shoreline within its existing footprint. The extension of the bulkhead along the remaining 16 ft. of shoreline has been denied. The Lanes have appealed that denial. FINDINGS OF FACT 1. Robert and Terri Lane are the legal owners of residential property located at 15660 Euclid Avenue, NE, in the City of Bainbridge Island. Their residential parcel is identified by Tax Assessor No. 4167-000-019-0000. 2. An application for Shoreline Letter of Exemption was filed by the Lanes on April 7, 2000. This application sought approval to modify an existing rock bulkhead and to extend that rock bulkhead an additional 16 ft. to the northerly property line of the Lanes’ residential lot. 3. After reviewing the application, the Director of the Department of Planning and Community Development issued a Shoreline Letter of Exemption approving only a portion of the project proposed by the Lanes. The City allowed the removal of the end wall on the northerly end of a rock bulkhead and the reconfiguration of the bulkhead within the existing footprint. However, the extension of that rock bulkhead an additional 16 ft. to the north property line was denied. 4. The Lanes have appealed the Director’s decision. Mr. William Sibbett of Caicos Corporation represented the Lanes in their appeal. At the public hearing, Mr. Sibbett offered a new drawing of the project [EXHIBIT 41]. This new drawing, however, does not indicate the location of the new bulkhead along the shoreline. The location of the OHWM on the unprotected 16 ft. of shoreline has not been determined. This identification is essential to an evaluation by the Department of Planning and Community Development. Shoreline Master Program (SMP) regulations require armoring structures to be located landward of the OHWM, (SMP Section VI, C, Regulations, Location, (3)). 5. Mr. Sibbett testified that the end wall rocks which he proposes to relocate along the unprotected shoreline are massive in size. One rock is estimated to weight in excess of 20,000 lbs., and two additional rocks are estimated to weight in excess of 15,000 lbs. The largest of these rocks is approximately 4 ft. wide, by 5 ft. high, by 8.5 ft. long. 6. The appellants application provides inadequate information to determine what probable environmental impact will result from the movement of the large end wall rocks from their present location to a new rock revetment along the northerly portion of the Lanes’ shoreline. Clearly, placement of rocks of this size along the shoreline will result in a loss of upper intertidal beach habitat which now exists on the unprotected portion of the shoreline. Without an accurate determination of the relocation position of the rock bulkhead, the Director is unable to make an assessment of the environmental impacts expected from the project, or to determine what mitigation measures may be necessary as required under the SMP. 7. The north 16 ft. of the Lane property is an undeveloped, naturally vegetated slope which is referred to in the Staff Report as a geologically hazardous slope. BIMC 16.20 requires protection for these critical areas. The placement of a rock bulkhead into the toe of that slope would require design approval by a Geotechnical Engineer. No such report has been provided by the applicant. 8. At the public hearing, Mr. Sibbett testified that no undercutting of the toe of the bank is proposed. The hand drawn design provided by Caicos Corporation does not accurately depict the relocation site for the rock bulkhead. It is impossible to determine from the information in the file whether the slope will be compromised by the extension of the bulkhead along the shoreline. 9. This proposal was reviewed by the Washington State Department of Fish and Wildlife (WSDFW) at the request of the City of Bainbridge Island. Mr. Steve Theisfeld commented on the proposal in his letter of April 26, 2000 [EXHIBIT 13.] Mr. Theisfeld agreed with the applicant that the proposal would not result in the loss of intertidal beach habitat, however, he cautioned that the project would result in the loss of a sediment source. Mr. Theisfeld recommended that periodic beach nourishment be provided. Mr. Theisfeld also attended the public hearing. After hearing testimony detailing the proposal, Mr. Theisfeld changed his opinion about the loss of intertidal habitat. He testified that the placement of the new rock bulkhead along the remaining 16 ft. of the Lanes’ property would result in a loss of upper intertidal beach habitat; however, the square footage of the beach on the Lanes’ property would remain the same. Mr. Theisfeld stated that with the applicants’ assurance that there would be no excavation of the bank and that there would be a replacement of beach sediment at this location, the WSDFW would have no objection to this project. 10. This application was filed as a joint application with two adjoining property owners. It was the Lanes’ intention to assist their neighbors in protecting shoreline which had begun to slump due to erosion caused by the end wall effect of the Lane bulkhead. This application was filed to remedy that problem, as well as to protect the soft bank protection being installed on the Biggers’ shoreline. The softening of the profile of the Lane bulkhead will eliminate that end wall effect and will dissipate wave action out into Port Madison Bay. The end wall effect from the Lane bulkhead is also causing a scouring of the toe of the bank which remains unprotected on the northerly most 16 ft. of the Lane property. Mr. Sibbett testified that this scouring at the toe of the bank will ultimately cause the bank to slump. Similar slumping has occurred on the adjacent Biggers property 30 ft. to the north. The SMP Section VI, C, Regulations, General(3), requires evidence of professional design if there are uncertainties: (1) about the potential effect of a proposed structure on adjacent property; (2) where there is inadequate data on local geophysical conditions, such as the impact on the geologically hazardous slope located on this portion of the Lane property, and (3) an assessment of the adverse effects on the beach seaward of the structure. This record contains inadequate information to determine the potential effect of this project on the neighbors’ shoreline protection; inadequate identification of the OHWM, so that the location of the rock bulkhead can be determined; uncertainties as to the impacts, if any, on the shoreline steep slope; and, inadequate information about possible adverse impacts to the natural beach, seaward of the proposed rock bulkhead. 11. The SMP Section VI, C, Policies, (5), states “neighboring property owners should be encouraged to coordinate planning and development of revetments or other solutions, for an entire sector to avoid erosion of down-draft properties.” The applicants are to be commended for joining with their neighbors in supporting the policies of the SMP, however, that program requires more design specificity and evaluation of alternative solutions in an application for shoreline armoring. 12. The Lane project is somewhat unique in that the size of the rocks already in place in the end wall of the bulkhead makes it somewhat infeasible to remove the rocks from the site. In order to gain the benefits of the removal of the end wall, both for the Lanes’ property and for the Biggers’ property, a loss of upper intertidal beach habitat would necessarily occur. Without the removal of the end wall from the Lane bulkhead, the shoreline protection measures being taken by the Biggers will not be as effective. Slumping has already occurred on the Biggers’ property and the Lane end wall bulkhead is suspected to be a contributing cause of the erosion on the toe of the slope. Facts provided in this application appear to support the need for additional shoreline protection and an elimination of the end wall. The application does not provide sufficient information to determine what type of protection would be appropriate at this site. CONCLUSIONS OF LAW 1. This appeal of an Administrative Decision approving a Shoreline Letter of Exemption is properly before the Hearing Examiner for Decision. 2. On November 21, 2000, a public hearing was held before the Hearing Examiner to consider the appeal application. Prior to the hearing, notice was published in the Bainbridge Review on November 4, 2000. 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 3rd day of November, 2000. In addition, notice was posted at the site on the 7th day of November, 2000. 3. The appeal of the Shoreline Letter of Exemption by the applicant does not address the SMP application requirements. The SMP Section VI, A, Regulations (4), describes the information required to be provided to the city for review of an application of this kind. The information required by 4(b) 2, 3 and 5, and the information required by 4(c) 2 and 3, and the information required by 4 (d) and (e) are not provided by this application. Some information has been provided on the design, construction materials and methods; however, the exact location of the new rock bulkhead is essential to this application and has not been provided. A determination of the location of the OHWM on this property, at the location for placement of this rock bulkhead extension, is essential to the application, (SMP VI, c, Regulations, Location 3). 4. SMP Section VI, A, Regulations 4(d), requires the applicant to provide information on the potential impact of the project on the area’s shore and hydraulic processes, upland stability, adjacent properties, and shoreline and water uses. General information is included in EXHIBIT 17 and the application, however, many of the necessary facts for evaluation of shoreline impacts are not provided. Inadequate information has been provided to satisfy this portion of the SMP. 5. SMP, Section VI, A, Regulations 4(e), requires the applicant consider alternative measures, including nonstructural measures, which will achieve the same purpose as that proposed by the extension of this rock bulkhead. The application contains no discussion of alternative shoreline protection. 6. SMP, Section VI, A, Regulations 5(c), requires that shoreline stabilization shall not be designed in a manner that will cause scouring of the beach at the toe of the protective devices, nor erosion on the level of the seaward beach or impact to adjacent properties. A discussion of possible impacts to the shoreline from this new shoreline stabilization feature has not been provided in the application. A determination of adequate mitigation for unavoidable impacts requires this information from the applicant. 7. In reviewing an Administrative Decision by the Director of Planning and Community Development, the Hearing Examiner must give substantial weight to the interpretations and decisions made by the Director (BIMC 2.16.130.F(2)). A review of this application file shows a detailed review by the Planning Staff. The partial approval of the application properly separates an application for repair of the bulkhead from an application for extension of the bulkhead. The Director has properly determined that the application is too incomplete to evaluate the request for extension of the bulkhead along the shoreline. DECISION The Administrative Decision of the Director of the Department of Planning and Community Development approving a Shoreline Letter of Exemption request for repair of an existing shoreline protective feature on property owned by Robert Lane is affirmed. The Director’s decision to deny the application for extension of the rock bulkhead on the Lane shoreline an additional 16 feet north to the property line is affirmed. The appeal is denied. Dated this 12th day of January, 2001, /ss/Robin Thomas Baker Hearing Examiner Pro Tem APPEAL The Decision of the Hearing Examiner shall be final unless within 21 days after issuance of this Decision a person with standing appeals the Decision in accordance with the provisions of Chapter 36.70 RCW.