LAVON/GATEWAY CUP01-13-92-1 CITY OF BAINBRIDGE ISLAND
DEPARTMENT OF THE HEARING EXAMINER
In the matter of an Application
for a Conditional Use Permit,
Lavon Enterprises,
Applicant
CUP01-13-92-1
FINDINGS OF FACT,
CONCLUSIONS OF LAW
AND ORDER
SUIvlMARY
On January 19, 1993, at 10:00 a.m., City of Bainbridge Island Heating Examiner J.
Robin Hunt conducted a public hearing at the Madison Avenue Fire Station to consider
the application of Lavon Enterprises for an expanded commercial parking lot to add 92
new parking stalls at the northwest corner of State Highway 305 and Winslow Way on
Bainbridge Island. Larry Stutsman appeared on behalf of Applicant Lavon Enterprises.
Kathy James, associate planner with the Department of Planning and Community
Development (DCPD) appeared on behalf of the City of Bainbridge Island (the City).
Joan Cooper monitored recording of the hearing. No other persons appeared.
The file contains letters from several members of the public raising questions about
the following issues: increased traffic congestion on Winslow Way caused by extra
vehicular trips in and out of the parking lot at peak commuter traffic hours; the possibility
of increased noise across the highway toward the condominiums on Cave Avenue to the
east; whether the berm along the ravine would be cut.
In a memo dated December 9, 1992, Police Chief John Sutton expressed concern to
Stephanie Warren, director of the City Planning Department, that the addition of 92
parking spaces at this proposed location might further congest overly-congested Winslow
Way at commuter time. He suggested that the parking expansion be limited to 50 or 60
stalls until it is seen how easily Winslow Way can absorb the increased traffic. He also
expressed concern that placing a fight-turn-only lane onto Winslow Way is not something
the police department can enforce on private property. Mr. Stutsman and Ms. James,
however, testified that most of the commuter traffic gridlock has dissipated by the time
people get from the ferry to their cars at the proposed location. It is their opinion that the
additional proposed parking spaces would not have a significant impact on the traffic
congestion on Winslow Way.
Another issue was whether or not the buffer between the east side of the expanded
parking lot and State Highway 305 should be five feet, as recommended by the Planning
Agency, with the other ten feet dispersed throughout the parking area to screen the
parking area from Winslow Way to the south, or whether or not the buffer should be 15
feet as recommended by the City Department of Planning and Communicty Development.
Ms. James also raised the legal issue of whether anyone other than the Director of the
Planning Department could make changes in the mitigated DNS which originated the
requirement that 15 percent of the parking be set aside for car pool parking. Mr.
Stutsman originally had no objection to setting aside fifteen percent of the parking for car
pools when it appeared that all 92 of his requested spaces would be allowed. However,
with City's recent recommendation of a 15-foot buffer between the east side of the parking
lot and State Highway 305, would cause him to reconfigure the lot and lose a substantial
number of parking spaces, thus rendering the project economically unfeasible.
The hearing was continued to January 27, 1993, at 9:30 a.m. at the City Hall to give
the City and the Applicant an opportunity to address some questions raised by the Hearing
Examiner: (1) whether or not the recommendation that fifteen percent of the parking
spaces be set aside for car pools was supported by a demand for such spaces; (2)whether
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construction of the expanded parking lot would create a problem warranting mitigation by
such additional carpool parking; and (3) whether or not persons tiding in carpools would
be willing to park this far from the ferry terminal.
At the January 27 supplemental heating, Wayne Daley, chairman of the City Planning
Agency, testified that the Planning Agency carefully considered the issue of whether or not
there should be a 15-foot buffer between the proposed parking lot and State Highway 305
and whether or not 10 feet of that buffer should be reallocated to interior screening of the
site. He testified that the proposed parking is well above the highway and therefore not
visible from the highway; there is also an existing greenbelt along State Highway 305. He
said that the Planning Agency was concerned about a discrepancy between the existing
five-foot buffer in the lower parking lot suddenly changing to a 15-foot buffer in the
proposed new upper lot. His opinion is that the proposed lot, which is higher in elevation
than the lower lot and therefore less visible from the highway, should continue the same
five-foot buffer as the lower lot. He explained that in making this recommendation, the
Planning Agency carefully reviewed the plans and looked at the site. They felt that it
would be a hardship and conflict for the property owner to be required to plant a 15-foot
buffer, which, due to the irregular configuration of the lot, would cause him to lose a
significant number of parking spaces and cause inconsistency between the buffers of the
upper and lower parking lots. The Planning Agency felt that it was more important to
screen, soften and enhance the visual impact of the parking from the downtown
community along Winslow Way than from the State Highway from which the parking
would not be visible.
Mr. Daley testified that the Planning Agency did take into account the issue of noise
raised by the Cave Avenue residents to the east. He noted the site would be used
primarily twice a day - in the morning and late afternoon when ferry commuters come and
go, whereas most of the Cave Avenue neighbors would be home in the evenings, by which
time the parking traffic would have diminished. The Planning Agency did not believe that
the proposed parking lot would contribute significantly to noise problems for those
residents; the noise comes from the highway, not from parking.
Mr. Stutsman testified that he would not remove the existing trees between the
parking lot and the highway. Mr. Daley testified that the remaining five-foot buffer would
be intensively planted and would be adequate. There ensued a discussion of whether or
not the screening effect would occur more quickly if eight or ten feet high trees were
planted. Mr. Stutsman then expressed concern about evergreen trees falling down. Mr.
Daley responded that a type of tree like cedar or juniper could be chosen which would
have less danger of falling and suggested that Mr. Stutsman work closely with a landscape
architect in choosing the trees. Mr. Stutsman expressed concern about the safety of
people at night, particularly the further away from Winslow Way the stalls are located,
especially if screened by landscaping. Mr. Daley pointed out that the lighting was
designed to enhance security.
Ms. James testified that this site alone will not generate such additional traffic as to
warrant the 15 percent car pool parking. Existing car pool parking is almost fully
subscribed, and there is expected to be more demand in the future, from many sites, not
just this one. There are 80 car pool parking stalls near the ferry, 76 of which are used,
with a waiting list. Mr. Daley testified that car pool parking is usually utilized closer to
the ferry than the proposed site would provide. There presently is no known City plan
requiring expansion of car pool parking near the ferry. The Hearing Examiner raised the
possibility of requiring dedication of car pool parking for a while and then allowing the
spaces to revert to single-occupant parking if the demand did not materialize in the future.
Ms. James pointed out that because the 15 percent car pool parking was one of the
conditions of the mitigated DNS, the Hearing Examiner could not change this requirement
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without a withdrawal of the SEPA determination and revisiting that process. Mr.
Stutsman reiterated that he had no objection to the 15 percent of parking stalls being
allocated to car pools as long as the total number of stalls was not reduced from the
requested 92 by either the increased 15-foot buffer or by the police chiefs request for
reduction to 50 to 60 stalls.
The Hearing Examiner raised the issue of whether or not parking could be phased in,
starting with the 50 or 60 new spaces as recommended by the police and fire chiefs, then
adding the other 30 spaces later if the feared congestion did not materialize. In response,
however, Mr. Stutsman pointed out that it makes more sense both economically and in
terms of disruption of the soil to do all the grading and paving at one time. He would not
want to incur the expense of grading and paving the extra 30 spaces if it was unlikely that
they were going to be utilized in the future. He would be in a dilemma as to how to
proceed if phasing were recommended.
Based on the testimony at the public hearing, a review of the documents and exhibits
in the file, and a walking of the site, the Hearing Examiner now makes and enters the
following:
FINDINGS OF FACT
Applicants Larry and Von Stutsman, operating as Lavon Enterprises, filed an
application for a conditional use permit on January 13, 1992. (Exhibit 9C). They seek to
install up to 92 new commercial parking stalls north of an existing 94 stall commercial
parking lot and auto repair facility located at the northwest coruer of State Highway 305
and Winslow Way East, Bainbridge Island, Washington. The legal description can be
found on Exhibit I and is incorporated by reference.
II.
Applicant's lot is 1.07 acres in size and is currently undeveloped. The ground cover is
low grasses, scotch broom, alder saplings and blackberries. A barrier of trees exists offsite
to the east between the subject property and the highway. The property is oddly
configured, tapering from 105 feet on the south edge to 32 feet on the north edge. The lot
slopes downward from north to south. This configuration renders arrangement of parking
stalls and access drives somewhat difficult. To the west lies the Hall Brothers Creek and
Slough, commonly known as "the Ravine." A drop of about 15 feet exists between the
subject property and State Highway 305 to the east. The west edge of the proposed
parking area is relatively flush with the lip of the ravine; thus there is no plan for cut into
the ravine berm as was done in the lower lot by previous owners.
The City expressed concern that if Highway 305 were fully developed and widened,
there would be insufficient screening unless a 15-foot wide buffer were required. Because
of the height differential, the proposed parking area is not visible from the State Highway
below. However, because of the upward slope of the land, the proposed parking area
would be visible from Winslow Way to the south if not screened.
III.
The site was used as a junk yard by former owners. The previous owners also
installed the existing 94 stall commercial parking lot to the south, surrounding the auto
impound repair facility. Applicants cleaned the junk from the site and since that time the
site has been vacant and unused. The site is not the closest parking area to the
Washington State Ferry Terminal, but it is within walking distance. Mr. Stutsman hopes
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that because it is farther away, he can charge rates that are more appealing to budget
conscious commuters.
IV.
When the site to the south was developed for parking, the storm drainage installed
was designed to handle potential expansion for the proposed parking area to the north.
Oil and water separators are already in place and have been monitored by Applicant Mr.
Stutsman. So far he has not found any oil. The current storm drainage system does not
appear to be having any negative effect on the Ravine to the west.
City water and sewer would be used.
VI.
The lighting design for the parking area will be the same as the lighting design in the
lot to the south. The Planning Agency has recommended hooded lights to direct glare
downward rather than offsite.
VII.
Egress would be by right turn only from the parking lot onto Window Way East, as is
currently required from the existing parking. Entrance is primarily by right turn into the
parking lot while heading west on Window Way. There is already a sidewalk in place,
installed during previous development. There are pedestrian crossings, push buttons and
crosswalks at the traffic light at the comer of Highway 305 and Window Way.
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VIII.
On October 15, 1991, Applicant met with City staff from the Department of Planning
and Community Development (DCPD) for a preliminmy application conference. On
November 23, 1992, DCPD issued a mitigated determination of non-significance,
determining that the proposal for 92 parking stalls would not have a significant adverse
impact on the environment if three mitigation measures were used. Those measures are as
follows:
1. Fifteen percent of the parking lot is to be reserved for car pools. For
convenient locations, the carpool stalls may be placed in the adjacent parking
lot to the south, which is also owned by the applicant.
2. The applicant is to maintain the oil/water separators required by the City.
3. Erosion control devices shall be placed at appropriate locations as
required by the City engineer to ameliorate effects of any grading on the site.
Exhibit 9-D
IX.
On December 16, 1992, the City Planning Agency recommended approval of the
proposal as recommended by the City DCPD, with the following modifications:
Instead of 15 feet of landscape buffer between the east side of the parking lot and
Highway 305, the Planning Agency recommends that the buffer be five feet wide,
with the remainingl0 feet reallocated to the interior of the lot;
2. Any equipment operation will be limited to the area of the parking lot.
The City engineers, Kato & Warren, recommended approval with various conditions
relating to drainage, right turn only egress, and the car pool parking. See Exhibit 9-E.
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Although the City police department has expressed concern about the possibility of
increased traffic congestion on Winslow Way, it appears from the testimony that the most
congestion will have dissipated by the time ferry commuters walk from the ferry to their
cars parked at the proposed parking lot. Thus, although there would be additional cars
driving down Winslow Way, it appears unlikely that they would exacerbate existing
backups. Moreover, not all 92 spots will be utilized immediately, nor will all commuters
be arriving home on the same ferry.
XII.
Although a 15-foot buffer between the parking lot and the highway might be ideal,
especially if the highway is widened in the future, this does not appear to be necessary for
screening the parking lot, primarily because of the height differential between the parking
lot and the highway below. Rather the landscaping would provide more softening and
mitigating screening effect if it were reallocated to other places in the parking lot as was
done with the lower lot to the south.
XIII.
Notice of the Public Hearing was published in the Bainbridge Review on January 6,
1993 (Exhibit 10). Notice was published in the Bremerton Sun on January 6, 1993.
(Exhibit 11). Notice was posted at City Hall and the Chamber of Commerce on December
29, 1992, and posted at the ferry terminal on December 30, 1992. (Exhibit 12). Notice
was posted on the site on December 30, 1992. (Exhibit 13). Notice was mailed to
property owners within 300 feet of the site on January 4 and January 6, 1993. (Exhibit
14). Notice was also posted at the Tillicum Apartments, across Winslow Way to the
southwest of the site on January 8, 1993. (Exhibit 15).
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CONCLUSIONS OF LAW
This matter is properly before the Heating Examiner.
II.
Notice of the Public Hearing was legal and more than adequate.
III.
The site lies in an area zoned Commercial - Gateway District. The Comprehensive
Plan designation is commercial subdistrict. The new Environmentally Sensitive Areas
Ordinance does not apply because the application was made under Ordinance 87-30,
before the new Environmentally Sensitive Areas Ordinance became effective. Because the
application was made before the March 1992 effective date of the new Bainbridge Island
Municipal Code, the old Municipal Code, Ordinance 87-30 applies.
IV.
BIMC18.76030F allows commercial parking lots as a conditional use in the Gateway
District zone.
V.
BIMC18.76.010 lists the purpose of the Commercial Zone Gateway District to
provide:
A. Retail and personal services to the residents of the city and the
visiting public.
B. The opportunity for small scale production and commercial enterprises
that benefit from a visible location, but enhance the economic diversity of
Winslow and that do not adversely impact other activites of this or adjacent
zones.
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C. An attractive entry point into Winslow that emphasizes the City's intimate
character and natural setting.
BIMC18.76.070A requires that in addition to normal parking regulations, the parking
in the Gateway area:
shall be separated from the public street right-of-way by a landscaped strip
with a minimum width of 15 feet. The plant material in the landscaped
strip shall be approved by the Planning Agency.
B. Exceptions
1. Where the development of the 15 feet wide landscaped strip
would preclude effective development of the site due to unusual
circumstances or property configuration, an equivalent amount
of landscaped area may be substituted for the 15 foot strip if
approved during the project review process.
Development of a 15-foot wide landscaped strip between the parking lot and the
highway would preclude effective development of the site due to the unusual triangular
configuration of the property, narrowing dramatically from south to north. Therefore the
Planning Agency recommendation that 10 feet of the buffer be redistributed in other areas
of the parking lot should be affirmed. Moreover, by screening the parking lot from the
south, such redistribution of landscaping would further the purpose of the Commercial
Zone/Gateway District by making this entry point into Winslow more attractive and
emphasizing the City's "intimate character and natural setting." BIMCI8.76.010C.
Because of the height differential between the parking lot and Highway 305 and the
resultant lack of visibility of the parking lot from the highway, a 15-foot buffer would not
appear to contribute additional screening effect or add to the natural character as much as
would screening the view of the parking lot from the south.
VI.
BIMC18.89 sets forth parking and access requirements. Parking spaces appear to
meet the requirement of BIMC18.89.020, that they be at least eight and one-half feet wide
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and 20 feet long, exclusive of access drives. Small car spaces are limited to 30 percent of
the required total, and shall be a minimum of seven and one-half by 16 feet. Stalls #36
through #61, plus stall #89 are designated for small or compact cars only, for a total of 27
stalls or slightly less than thirty percent of the 92 proposed stalls.
VII.
BIMC 18.89.060 regulates the surfacing of the parking areas. The proposal is that the
access road be asphalt paved, with crushed rock in the parking spaces. BIMC18.89.090
regulates access to the parking lot. The access drive will be 12 feet of paved surface with
six feet on either side of crushed rock. Considering both the crushed rock and the asphalt
to consitute "paving" for purposes of BIMC18.89.060, the 24-foot wide strip will
accommodate either two-way access drives abutted by parking or one-way for purposes of
BIMC18.89.090. The pavement and crushed rock will eliminate dust and mud as
required. Adequate storm drainage facilities are already in place.
VIII.
BIMC18.89.070 requires that the grade of the parking area shall not exceed six
percent. The proposal has been designed for grading such that the grade will not exceed
six percent. Applicant will need to prepare and present to the Planning Department
detailed grading plans to show how the area will conform to the six percent grade
requirement.
IX.
BIMC18.89.080 requires that all lights be hooded or shaded so that the direct light
from the lamp is not a nuisance to adjacent properties or public rights of way. This
requirement will be met.
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BIMC18.90.040 requires that no less than 10 percent of the parking lot shall be in
landscaping and regulates how the landscaping shall be distributed. This requirement
appears to have been satisfied. Applicant, however, has not developed a full landscape
plan, awaiting the results of his conditional permit application.
BIMC18.100.040 sets forth the
applications for conditional use permits:
XI.
criteria to be demonstrated at hearings on
A. The proposed conditional use is in harmony with the spirit and intent of this title;
B. Development of the proposed use would not adversely affect the health,
welfare, safety, land and rights of other persons;
C. The proposed conditional use meets all the criteria otherwise applicable to
the zone in which it is to be developed.
XII.
As explained in Conclusion of Law V, the proposal is in harmony with the spirit and
intent of the Gateway District Zoning Ordinance, especially subsection C of
BIMC18.76.010, to provide an attractive entry point into Winslow, so long as the
landscaped screening is accomplished. It does not further purposes A and B, however, of
providing additional retail and personal services to the residents and visiting public or
opportunity for small-scale production and commercial enterprise. However, it does
indirectly further those purposes by providing additional ferry commuter parking space,
thus alleviating the pressure for ferry parking in the retail zone of Winslow. Except for
possible traffic impact, development of the proposed use will not adversely affect health,
welfare and safety and lands and rights of other persons, so long as the required conditions
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are met. Otherwise, the proposed conditional use meets all the criteria otherwise
applicable to the zone in which it is to be developed.
XIII.
It is not clear whether or not addition of these 92 stalls will adversely impact the
traffic congestion on Winslow Way. Such congestion appears unlikely because of the
staggered arrival and departure times of the commuters parking their cars and also the
amount of time it takes to walk from the ferry terminal to the cars before exiting the
parking lot; by this time the bulk of the congestion has cleared Winslow Way. However, it
is not known for sure what the effects will be on the traffic congestion. The Hearing
Examiner is thus left with two alternatives:
1. Be conservative, and allow only 50 or 60 stalls to be constructed now as requested by
the police chief, with the remaining stalls phased in the future if increased congestion
does not materilize; or
2. Rely on the prediction that traffic congestion is not likely to be exacerbated and allow
the project to go forward as proposed, with the caveat that if congestion does
materialize, the police chief will have the right to reopen this hearing to consider
further mitigation measures.
XIV.
Although the requested dedication of 15 percent of the parking stalls to car pool
parking was agreed to by the Applicant, he agreed only because he was operating under
the assumption that all 92 requested spots would be approved. Had he known at that
point that the City would recommend an increase in the buffer between the lot and the
highway from five feet to 15 feet, he probably would not have agreed to the car pool
parking. The proposed parking lot does not appear to create a car pool parking or traffic
problem which would be ameliorated by the 15 percent car pool parking dedication. But
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for Applicant's agreement to this condition, the Heating Examiner would question whether
or not the City has the constitutional power to require such mitigation. Moreover, the
Hearing Examiner does not have the power to change a mitigated DNS (Determination of
Non-Significance). Therefore, the Heating Examiner will uphold the City Planning
Department's recommendation for 15 percent of parking to be allocated to car pool
parking.
XV.
It is only by Applicant's agreement that this 15 percent car pool dedication becomes
enforceable. Applicant's agreement was not predicated upon the City's recommendation
of an increase in the buffer to 15 feet, thereby reducing the number of parking stalls.
Thus, the Hearing Examiner will uphold the Planning Agency's recommendation of the
five foot buffer, with the other ten feet distributed throughout the parking lot, in addition
to the 10 percent of parking lot area to be landscaped pursuant to BIMC 18.90.040.
Therefore the Planning Department's recommendation that the Hearing Examiner overrule
the Planning Agency's decision and require a full 15-foot buffer along Highway 305 is
denied.
ORDER
Applicant's Conditional Use Permit to build 92 additional parking stalls north of the
existing commercial parking lot at the northwest comer of Highway 305 and Winslow
Way East is granted on the following conditions:
Fifteen percent of the parking lot is to be reserved for car pools. For convenient
locations, the car pool stalls may be placed in the adjacent parking lot to the south,
which is also owned by the Applicant. If future demand for car pool parking does
not materialize at this location, then Applicant may petition the City Land Use
Department for permission to reallocate reserved car pool parking to individual
passenger parking. The City may then reserve the tight, however, to reiinstitute
the car pool parking at an even later future date, if the demand so warrants.
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2. The Applicant must maintain the oil/water separators required by the City.
3. Erosion control devices shall be placed at appropriate locations as required by the
City engineer to ameliorate effects of any grading on the site.
Conditions placed by contract City engineer Kato & Warren, Inc., shall be considered
conditions of approval. These conditions include (a) verification of the maintenance
agreement for oil/water separators; (b) all permits required for development shall be
obtained by applicant; (c) the landscaping proposal shall be reviewed by landscape
architect; (d) more detailed drawings for cuts and fills are required; and (e) if the
slope or top of the ravine's vegetation is jeopardized by installation of the project,
the permit shall be disallowed or revoked.
5. Handicapped stalls shall be provided if required by the state Barrier-Free Facilities
regulations (WAC51-10) or the American Disabilities Act.
6. Patrons will turn west fi.om the parking facility onto Winslow Way East (right turn
only).
7. The rockery at the south end of the site that separates the existing parking lot from
the proposed parking lot is to be completed prior to use of the upland driveway.
Ten of the 15 feet of required landscaping along Highway 305 shall be redistributed
into the parking lot landscaping. This shall be in addition to the requirement that 10
percent of the parking lot be in landscaping. Applicant shall provide intense
landscaping along the five foot strip adjacent to Highway 305.
9. The combination of gravel and paving approved in the existing parking lot to the
south shall be utilized in the proposed parking lot.
10. The final layout design of the parking lot is to be approved administratively by the
department director after consultation with City engineer and fire marshall. Approval
shall be based on the slope and landscape requirements of Ordinance 87-30,
as well as equirements for fire access.
11. Prior to execution of this permit, erosion control plans, grading plans and
construction plans shall be approved by the City engineer, and a landscape plan shall
be approved by the Planning Director. The City engineer shall ensure that equipment
operation during installation of the parking lot shall be restricted to the actual
parking lot area as shown on plans received by the city January 13, 1992.
12 A written agreement for oil/water separator maintenance shall be supplied to the City
prior to execution of this permit.
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13. If within the future it appears to the City police chief that these additional 92 parking
stalls are significantly adversely affecting the traffic congestion on Winslow Way,
the police chief may petition the Hearing Examiner to reopen the Conditional Use
Permit and explore with the Applicant ways to mitigate such congestion.
Robin Hu~t ' -
Hearing Examiner
Dated this ~/~t of February 1993.
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