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MARSING VAR03-29-00-1AP~t[,ICATION FOR ) ZONING VARIANCE ) APPLICANT: DAVID AND VICKY ) MARSING ) ) CITY OF BAINBRIDGE ISLAND OFFICE OF THE HEARING EXAMINER VAR03-29-00-1 FINDINGS OF FACT CONCLUSIONS OF LAW AND DECISION SUMMARY David and Vicky Marsing, through their architect Roger Katz, have filed an application for a zoning variance to replace a garage located in the shoreline side yard of their property located at 15850 Euclid Avenue NE, in the City of Bainbridge Island. This residential property contained a residence and a garage at the time of the purchase of the property by the Marsings. The Marsings have replaced the residence on the property and now seek to replace the existing two story garage and guest quarters with a new two story garage located in substantially the same position as the existing garage. The existing garage is a non-conforming structure located in the shoreline side yard which encroaches onto the undeveloped public right-of-way of Beach Place. The Marsings wish to replace the garage after moving the building south so that it no longer encroaches on the public right-of-way A shed which was also located in the shoreline side yard has been removed. The new garage will be located entirely within the shoreline side yard and zoning front yard of the Marsing property. The Marsings have agreed to encumber their property with a view corridor to provide a clear view to the water from Euclid Avenue NE. A variance from the zoning code is required to replace the non-conforming garage with a new structure. The zoning variance is granted with conditions. FINDINGS OF FACT This application is for a zoning variance to build a new garage on property owned by David and Vicky Marsing, located at 15850 Euclid Avenue NE, Bainbridge Island, Washington. The Marsings are the legal owners of the project site which is legally described as: The north 67feet of Lot 4 and all of Lots 5 and 6, Plat of Port Madison, according to Plat recorded in Volume 3 of Plats, page three, in Kitsap County, Washington, together with second class tidelands as conveyed by the State of Washington, situate in .front of, adjacent to and abutting thereon. VAR03-29-01 David and Vicky Marsing Page No. 1 Hearing Examiner City of Bainbridge Island This parcel is identified by Tax Account No. 4167-000-004-0007. 2. The Marsing property is located on the shoreline of Port Madison Bay. The property has a zoning designation of R-2 and a Comprehensive Plan designation of OSR-2. 3. A permit to build a garage as an accessory to a single family residence is exempt from environmental review under the State Environmental Policy Act (SEPA). 4. The Marsing lots measure approximately 56, 192 sq.ft. The property measures 257 ft. by 217fl. A historic residence on the lot has recently been replaced by a new residence. The Marsings now wish to replace a garage and guest quarters, which are located in the north shoreline side yard. The existing garage is 1,384 sq.ft, in size. A shed was also attached to the garage on its west side. The shed footprint measured 133 sq.ft. The shed has been removed to provide for expansion of the garage 5. Beach Place is an undeveloped public tight-of-way approximately 60 fi. in width. It follows the Marsing property line from Euclid Avenue to the shoreline of Port Madison Bay. This public right-of-way has remained undeveloped as a roadway, however, the neighbor to the north of the Marsing property has developed driveway access over the public tight-of-way for his home. Neighbors have also landscaped the right-of-way with non-native vegetation and built a path to the shoreline. The shoreline has been bulkheaded Several large trees remain in the fight-of-way. 6. The Marsing property is located within 200 fi. of the Ordinary High Water Mark (OHWM) of Port Madison Bay, as such this property is under the jurisdiction of the Shoreline Master Program (SMP). The SMP requires that at least 30% of the lot width on such shoreline property be set aside as side yard. Side yards are to remain free of above ground structures and impervious surfaces. Fences up to 4 ft. high are allowed. The Marsing property has a width of 217 ft., therefore, side yards on the property must equal 65 ft. The side yard is measured from the property line perpendicular to the shoreline. The side yard on the Marsings' southern property line is 32 fi. in width. The side yard on the north property line is -0- fi., since the existing garage is located on the northern property line and encroaches over the property line onto adjoining Beach Place. A 33 ft. side yard is required under the SMP. The existing garage on the Marsing property obstructs views of the water from Euclid Avenue NE. The view is also partially obstructed by mature trees and other vegetation which are located to the east of the existing garage, between Euclid Avenue and the garage. In addition, the shed which had been attached to the garage extended farther to the south in front of the garage, further increasing the view blockage from east to west. 7. The applicants have proposed to establish by restrictive covenant a view corridor easement measuring 20 fi. in width, as measured from the front of the new garage south toward the new residence. This view corridor would begin on the east property line and continue west to VAR03-29-0 l David and Vicky Marsing Page No. 2 Hearing Examiner City of Bainbridge Island the Port Madison Bay shoreline. The view corridor will measure 25 fi. in height. By its terms, the easement would prohibit any above ground structures to be built within the easement area, except a split rail fence or other type of fencing no greater than 4 ft. in height, provided the fencing maintains the clear and undisturbed view to the water Native ground cover plantings will be allowed in the easement area, however, other vegetation which would block the view corridor would not be allowed. 8. The new garage will include guest quarters, however those guest quarters will not include kitchen facilities and will not be used as an accessory dwelling unit. 9. The Marsing property is zoned R-2 and is therefore governed by BIMC 18.30.020. The replacement of the garage and guest quarters is a permitted activity in the R-2 zone. The maximum lot coverage allowed in the R-2 zone for all buildings on the property cannot exceed 20%. If the new garage measuring 36 fi. by 22 fi. is built, the total lot coverage for all structures on the Marsing property will be approximately 16 % of the total lot area. 10. BIMC 18.30.060 sets forth the yard requirements in the R-2 zone. Front, rear andside yards facing streets shall not be less than 25fl. measured by the distance from the nearest right- of-way or road easements. The Marsing property has two front yards since it abuts both Euclid Avenue NE and Beach Place. The required 25 ft. front yard setback from Euclid Place has been set aside. The required 25 ft. front yard setback from Beach Place is encroached upon by the existing garage and the adjacent shed. The relocation of the existing garage, as proposed, would place the garage entirely within the required 25 ft. front yard setback from Beach Place. Replacement of the garage building within the front yard setback requires a zoning variance. 11 BIMC 18.30.070 describes the height limitations for buildings in the R-2 zone. The building height limitation is 30 ft unless a Conditional Use Permit allows a greater height. The new garage building proposed by the Marsings is in compliance with that 30 ft. height limitation. 12. The properties surrounding the Marsing residential lot have been developed as single family residential lots. Many of these lots have been developed with accessory buildings, including garages, for use by residents. 13. The proposed relocation of the Marsing garage will remove the encroachment from the Beach Place right-of-way. The public will benefit from the removal of this non-conforming structure from the right-of-way. Future development of the Beach Place road-end for more extensive public use will benefit from the removal of this encroachment. 14 The retention of this garage building perpendicular to the shoreline in the shoreline side yard will not decrease existing views of the shoreline presently available to other waterfront residences. Existing views of the shoreline from the public right-of-way on Euclid Avenue will VAR03-29-01 David and Vicky Marsing Page No. 3 Hearing Examiner City of Bainbridge Island not be substantially affected. The Marsings are willing to encumber their property with a view corridor easement for the benefit of the public. SMP Section 5(K)(4) encourages the establishment of open apace in side yards to preserve views both from the land and the water and to protect natural features and functions. If the new garage were required to be constructed outside the shoreline side yard and outside the zoning front yard, view blockage would substantially increase. Placing the garage adjacent to the new home and parallel to the shoreline, rather than perpendicular to the shoreline as now proposed, would create the effect of a wall of structures and block a view of the water from Euclid Avenue. The new garage is designed to be 36 fi. x 22 ft. Mature vegetation in the side yard also obstructs the view. The proposed view corridor easement will enhance the public and private view potential at this location providing an even clearer view than presently exists 15. Allowing a garage with guest quarters on this property in substantially the same footprint presently occupied by the historic garage would not be a granting of a special privilege inconsistent with uses put on other properties in this vicinity, Lots throughout the Port Madison Plat have been developed with accessory detached garages and guest quarters. 16. The existing garage and guest quarters is a legal non-conforming structure which may remain and be used without a variance. The public benefits from the removal of the garage encroachment on the public right-of-way and from the establishment ora view easement on the Marsing property. The new garage footprint will not increase the non-conformity since the redesign of the garage incorporates only the square footage transferred from the removal of the encroachment onto Beach Place and the removal of the attached shed to the original garage. 17. If a variance were granted to relocate this garage and rebuild it within the front yard setback the project would not be materially detrimental to the public welfare or injurious to property or improvement in the vicinity and zone where the property is located. The public will benefit from the removal of the existing garage building from the Beach Place right-of-way. The existing garage blocks a view to the water over the side yard. The view easement proposed for this property will benefit the public and neighboring properties by maintaining a clear and unobstructed view from Euclid Avenue to the water of Port Madison Bay. The possible future development of the Beach Place road-end will be enhanced by the removal of this legal non- conforming structure which encroaches on the right-of-way. Conditions attached to this variance will require revegetation of disturbed areas on Beach Place and a removal of all structures and construction materials from the right-of-way. 18. Shoreline Master Program policies recognize residential development on the shoreline, but recommend that structures and appurtenances be designed and located to blend into the site, preserving views from the shoreline and vistas of the shoreline and minimizing impacts on the environment. Rebuilding the garage on substantially the same footprint will allow the new garage VAR03-29-01 David and Vicky Marsing Page No. 4 Hearing Examiner City of Bainbridge Island to blend into the site as historically developed. The views from the shoreline and views to the shoreline will be enhanced by the view corridor easement encumbering the property. The design proposed by the applicant minimizes the removal of vegetation from the lot and preserves several large trees now located in the north shoreline side yard to the east of the existing garage. Since the garage is located adjacent to the 60 fi. wide Beach Place right-of-way, the new garage in the side yard will not directly impact the present use of the waterfront property north of Beach Place. Existing views from that property will not be affected. It is recognized that the retention of a garage in the side yard on the Marsing lot will impact Beach Place. The public benefits from the removal of the encroachment onto Beach Place and by the establishment of the view corridor easement on the Marsing property. These conditions help mitigate the impact of the garage building abutting Beach Place without a front yard setback. 19. The reconstruction of a garage and guest quarters on the Marsing property does not require removal of any vegetation from the native vegetation zone at the site. The garage will be located at least 60 fi. east of the native vegetation zone. Additional native vegetation will be planted between the garage and the shoreline to screen the new building from the shoreline view. 20. On April 24, 2001 a Public Hearing was held before the Hearing Examiner to consider the application. Prior to the hearing, notice was published in the Bainbridge Review on April 7, 2001; notice of the public hearing was mailed to the 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 April 4, 2001; notice was posted at the subject property on April 4, 2001. [EXHIBIT 25] CONCLUSIONS OF LAW 1. This matter is properly be£ore the Hearing Examiner as a regular zoning variance under BIMC 18.111. 2. David and Vicky Marsing are the legal owners of the project site located at 15850 Euclid Avenue NE, Bainbridge Island, Washington. 3. Adequate legal notice was given for the public hearing held in this matter. 4. The proposal to build a garage in the required front yard setback along Beach Place on the VAR03-29-01 David and Vick'y Marsing Page No. 5 Heating Examiner City of Bainbridge Island northern property line of the Marsing property requires a variance from the zoning code and must meet the criteria set forth in BIMC 18.111. 5. The Marsing property is located within 200 fi. of the Ordinary High Water Mark (OHWM) of Port Madison Bay and is under the jurisdiction of the Shoreline Master Program (SMP). 6. The existing garage on the Marsing property is a legal non-conforming structure which is located within the front yard setback on the north property line where it abuts Beach Place, an undeveloped public right-of-way. The existing garage encroaches onto the Beach Place right-of- way. BIMC 16.12.390(A)(2)(a) allows the repair, recortstruction and expansion of non~ conforming structures which do not increase the non-conformity. This project uses substantially the same building footprint as the previous garage with the exception that the encroachment onto Beach Place has been eliminated and that square footage has been added to the footprint located within the front yard setback. The new garage footprint has also been designed to include the area occupied by an attached garage shed which has been removed from the front yard. A rebuilding of the garage on substantially the same footprint will not increase the area of encroachment in the side yard. 7. The building of a garage with guest quarters as an accessor7 dwelling to the single family residence located on the Marsing lot is permitted in the R-2 zone. ;l'he design and location of this accessory structure will protect existing views from adjacent principal buildings on adjacent properties and will minimize adverse impacts to the environment by retaining the mature trees located next to the garage building and revegetating areas disturbed by construction. Accessory dwelling units are not allowed on lots abutting the shoreline unless permitted as a conditional use. No such conditional use permit has been applied for as a part of this project and these guest quarters will not be used as an accessory dwelling unit. 8 This garage is located within the required front yard setback for Beach Place right-of-way. Because it is located within the required 25 fi. front yard setback a zoning variance is required to replace the garage at this location. 9. BIMC 18.111.040 describes the decision criteria necessary for approval of a zoning variance 10. BIMC 18.111.040(A)(1) states: A variance may be approved or approvedwith modifications if: 1. The variance will not constitute a grant of special privilege inconsistent with the limitations upon uses (?f other properties in the vicinity and zone in which the property is VAR03-29-01 David and Vicky Marsing Page No. 6 Hearing Examiner City of Bainbridge Island located. The granting ora variance for the replacement of this garage on the Marsing property within the front yard setback will not constitute a grant of special privilege inconsistent with limitations upon uses of other properties within the vicinity. Lots in the Port Madison Plat have been developed for many years. Many of those lots have been developed with single family residences and detached garages with guest quarters above. This residential lot has historically been the site of both a single family residence and a garage with guest quarters. The continued use of this structure for that permitted purpose is consistent with the uses being made of other properties in the vicinity. 11. BIMC 18.111.040(A)(2) states: The granting ora variance will not be materially detrimental to the public welfare or ir!jurious to property or improvements in the vicinity and zone in which the property ia' located. A variance to allow the reconstruction ora garage and guest quarters in the front yard setback from Beach Place will benefit the public by eliminating the present encroachment onto the public right-of-way. The new garage will be rebuilt after moving the footprint entirely within the bounds of the Marsing property. The public will benefit from the granting of this variance both by the removal of the encroachment onto the public right-of-way and by the establishment of a view corridor easement across the Marsing property from Euclid Avenue to the shoreline of Port Madison Bay. This easement will measure 20 ff in width extending from the southern face of the new garage building south toward the residence. This view corridor will be maintained at a height of 25 ft. and will extend from Euclid Avenue to the Port Madison Bay shoreline. This view corridor easement will provide a view of the waters of Port Madison Bay for the public using Euclid Avenue and for nearby property owners. This view has not previously been available because of blockage by mature vegetation and historic structures on the property. No new view blockage to the shoreline is being created by this replacement structure since it is to be built within substantially the same footprint as the historic garage and adjoining shed. The future development of the Beach Place road-end will benefit from the removal of the encroachment. Revegetation of disturbed areas in the Beach Place right-of-way will lessen the impacts on Beach Place. Vegetation screening will be planted between the new garage and the shoreline to lessen the visual impact from the shoreline. 12. BIMC 18.111.040(A)(3) The variance ia' requested because of special circumstances related to the size, shape, topography, location or surroundings of the subject property andwill provide an applicant with use rights and privileges permitted to other properties in the vicinity and zone in which the property is located. This variance is requested because of the unique location of the Marsing property where two public rights-of-way border this shoreline. The need for this variance is created by the existence of the undeveloped public right-of-way which extends along the entire north property line of the Marsing property. The front yard setback on Euclid Avenue has been historically maintained on the property, however, the front yard setback required VAR03-29-01 David and Vicky Marsing Page No. 7 Hearing Examiner City of Bainbridge Island by the BIMC for the undeveloped Beach Place right-of-way is encroached upon by the existing garage. The zoning code requires a 25 fi. front yard setback from Beach Place. SMP policies protect the public's physical and visual access to the shoreline by requiring 30 % of a shoreline lot to remain open as side yards and discouraging structures being built to create a wall effect blocking the views to the shoreline. A legal non-conforming garage exists on the site. The approval of a variance for this project permits the applicants to retain their garage and guest quarters and also benefits the public by providing the view corridor encouraged by SMP policy and removing the encroachment onto Beach Place. 13. BIMC 18.111.040(A)(4): The need for a variance has not arisen from actions taken or proposedby the applicant. This application for variance is required because of the existence of a non-conforming structure on the Marsing property which needs to be. replaced The variance is required because that structure has existed for many years in the front yard setback of Beach Place. The Marsing lot is somewhat unique as a shoreline lot because it is bordered on two sides by public rights-of-way. The SMP would not allow a new garage to be built in the shoreline side yard. Legal non-conforming structures, however, may be repaired and/or replaced in the same location. The Marsings are further restricted since this historic garage is also a non-conforming structure under the Zoning Code. The garage is located within the required 25 ft. front yard setback from the public right-of-way of Beach Place. The garage presently on the site was built by prior owners of the Marsing property. The SIVIP policies state that new development should provide adequate setbacks and native vegetation buffers from the water, and ample open space in side yards to preserve views from both land and water and to protect natural features and functions. If the Marsings were to build their new garage outside the 25 f~. front yard setback from Beach Place, the location of that garage would create the effect of a wall of structures blocking the view of the shoreline from Euclid Avenue NE. This "wall" effect is also discouraged under the policies of the SMP. To meet the requirements of both the zoning ordinance and the SMP policies and regulations, the applicant has proposed to reconstruct a garage building within the from yard setback from Beach Place and as a part of that project to record a view corridor easement 20 fl. in width, extending from Euclid Avenue to the Port Madison Bay shoreline. The existing garage could remain in use by the applicant without a variance. To remove the Beach Place encroachment and establish a view corridor as proposed, a variance is needed. 14. BIMC 18.111.040(A)(5): The variance is necessary for the preservation and enjoyment ora *~ubstantial property right possessed by other property in the same vicinity and zone but which is denied to the property in question because ora special circumstances on the property in question. The granting of this variance will allow the applicant to continue to have the use ora garage and guest quarters on their property while preserving a view of Port Madison Bay from Euclid Avenue NE. This variance will allow the continued use ora garage and guest quarters on VAR03-29-01 David and Vicky Marsing Page No. 8 Hearing Examiner City of Bainbridge Island the premises similar to the uses made of other properties in the vicinity. Because of the special circumstances for this lot being located both on the shoreline as well as on the comer of two public rights-of-way, shoreline and zoning regulations require conflicting placement for the garage and guest quarters. Since the existing garage is a legal non-conforming structure it could remain in place for use by the residents, however, the granting of this variance will benefit the public by removing that historic building's encroachment on the public right-of-way and establishing a new view corridor to Port Madison Bay over the property. 15. BIMC 18.111.040(A)(6); The variance is' the minimum necessary to fulfill the need of the applicant. This variance will allow the Marsings the opportunity to replace an existing garage and guest quarters with a new garage and guest quarters of substantially the same size as the one being replaced. Access to the garage from the driveway as proposed requires placement of the garage in the front yard setback at this distance from the residence to provide adequate space for vehicle entry. 16 BIMC 18.111.040(A)(7): The variance is' consistent with all other provisions of this code and ia' in accord with the Comprehensive Plan. Conditions can be attached to this variance application to ensure that it meets the requirements of both the BIMC and the Comprehensive Plan. A variance has been sought to reduce the front yard setback requirement on the north property line along the unopened public right-of-way of Beach Place. This garage and guest quarters is a permitted accessory building on a single family residential lot in the R-2 zone. The establishment of a view corridor between the new garage and the new residence on the property conforms with the policies of the SMP The view corridor helps achieve one of the purposes for setting aside required side yards on shoreline lots, the preservation of views from land and water. Since there is a legal non-conforming structure located in the shoreline side yard, it may be replaced so long as it does not expand the area of non-conformity. Here the applicant is replacing the existing garage and shed with a new garage which has a footprint not exceeding the total area covered by non-conforming structures prior to the application. The building of an accessory garage and guest quarters on a lot in this R-2 zone is consistent with the permitted uses in the R-2 zone. The proposed building meets the requirements for maximum lot coverage in the zone and tbr the limitations placed on building height in the R-2 zone. 17. This variance meets the decision criteria ofBIMC 18.111.040 provided certain conditions are attached to the variance to ensure compliance with the SMP and the BIMC. The following conditions are necessary to ensure that compliance: The applicant shall obtain an approved building permit from the Department of Planning and Community Development prior to beginnmg constmction for the new VAR03-29-0 I David and Vicky Marsing Page No. 9 Hearing Examiner City of Bainbridge Island garage and guest quarters 2. In order to meet the policy requirements of the SMP and preserve a view corridor from Euclid Avenue NE right-of-way to the Port Madison Bay, a view corridor easement shall be recorded with the Kitsap County Auditor. This view corridor easement must be recorded prior to issuance of any building permit for the garage and guest quarters The view corridor easement must describe an easement measuring at least 20 ft. in width which extends from Euclid Avenue NE to the Port Madison Bay shoreline. The view corridor will be measured from the southernmost portion of the garage and guest quarters, extending south toward the Marsiag residence. The height of this view corridor easement shall be at least 25 ft. as measured from a location directly in front of the garage and guest quarters proposed footprint. Under the terms of that view corridor agreement it shall be stated that the purpose of the view corridor easement is to retain a view of the water from the public right-of-way on Euclid Avenue NE. The easement shall include a restriction that no structures can be built above ground in the view corridor easement area except a split rail fence or other type of fencing that would retain a clear and undisturbed view to thc water. The view corridor easement shall state that native ground cover plantings may be planted in the easement area, however, no other vegetation that would block the view corridor may be planted in the easement area. This view corridor easement shall be delineated by a professional survey. The applicant shall submit a recordable document to the Department of Planmng and Community Development and the City Attorney for the City of Bainbridge Island for approval prior to recording with Kitsap County. This view corridor casement will remain a permanent encumbrance on the Marsing property and be binding on all successors in interest. 3. All construction debris shall be removed from Beach Place. No clearing shall occur in the right-of-way of Beach Place without the consent of the City of Bainbridge Island. After demolition of the existing garage encroachment, all materials shall be removed from the public right-of-way and the disturbed area shall be revegetated with native vegetation. Existing trees and vegetation that screen the existing garage/guest quarters from Euclid Avenue and the shoreline shall be retained. All vegetation shall be protected during construction of the new garage/guest quarters on the lot. Construction netting shall be placed on the site prior to any construction activities so that protected areas are delineated. The Department of Planning and Community Development staff shall inspect the fencing prior to construction. Any areas disturbed around the garage site during construction shall be revegetated immediately after the work is complete. 5. To provide screening of the new building from Port Madison Bay, additional native vegetation including trees, shrubs and ground cover shall be planted in the front yard setback from Beach Place between the bulkhead and the new garage. A planting VAR03-29-01 David and Vicky Marsing Page No. 10 Hearing Examiner City of Bainbridge Island plan detailing the revegetation of this area, as well as revegetation plans for any disturbed areas around the garage construction site shall be submitted to the Department of Planning and Community Development for approval prior to issuance of a building permit for the garage and guest quarters. This planting plan shall include provisions for the maintenance of new vegetation after planting and the replacement of any vegetation not surviving. The approval of this variance to build a new garage and guest quarters in the front yard setback of Beach Place on the north property line of the Mars ing residential lot is approved based on the plan submitted by the applicant dated April 10, 2001. It is understood that the new replacement garage will be built with a footprint no greater in area than the combined footprint of the existing historic garage and its adjoining shed so that the area of non-conformity in the front yard setback is no greater than the area of non-conformity, including the encroachment area onto Beach Place, which existed prior to the application. 7. This garage/guest quarters shall not be constructed with kitchen facilities and shall not be used as an accessory dwelling unit. DECISION This application for zoning variance allowing a reconstruction of a garage with guest quarters in the 25 fi. front yard setback from Beach Place on the north property line of the Marsing property is approved subject to the conditions listed in Conclusion of Law 17. Dated this 6th day of August, 2001 Robin Thomas Baker Hearing Examiner Pro Tern APPEAL This Hearing Examiner's Decision is final unless it is appealed to the City Council in accordance with the provisions of BIMC 2.16.140. VAR03-29-01 David and Vicky Marsing Page No. 11 Hearing Examiner City of Bainbridge Island