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Miller Building THE CITY OF BAINBRIDGE ISLAND DEPARTMENT OF THE HEARING EXAMINER In the Matter of an Appeal } From An Amended Administrative } Decision Of the Director of } Planning & Community Development } SPR 10-16-97-1 FINDINGS OF FACT, CONCLUSIONS William & Jennifer Miller, Husband } OF LAW AND DECISION and Wife, Appellants } vs. City of Bainbridge Island, Respondent } _______________________________ } SUMMARY OF DECISION The Appeal from an Amended Administrative Decision of the Director of Planning & Community Development approving a site plan with conditions is DENIED. The Director’s approval of the site plan with conditions dated February 11, 1999 is MODIFIED AND AFFIRMED. BACKGROUND This appeal arises out of an amended Decision signed by the Planning Director on February 11, 1999. This matter has been before the Hearing Examiner previously on an Appeal of an Administrative Decision denying the applicant’s site plan review application. A Decision reversing that Denial of site plan review was filed by James M. Driscoll, a Hearing Examiner for the City of Bainbridge Island, and he further clarified his decision by Order dated December 22, 1998. In the decision granting the applicant’s appeal, the Hearing Examiner remanded this Site Plan Review application for further consideration by the Planning Department for purpose of imposition of conditions on the approval. A review was conducted by the Planning Department. The Planning Director then issued her amended Decision approving the site plan and imposing certain SEPA and NON-SEPA conditions on the project. The applicant then filed an Appeal by notice dated February 25, 1999, objecting to Conditions #3 and #8 of the Planning Director’s February 11, 1999 amended Decision. Before this hearing, the Applicant and the City agreed that Condition #3 had been resolved by the parties and was no longer an issue before the Hearing Examiner. The appeal hearing was held on April 22, 1999. The only issue before the Hearing Examiner was the applicant’s objection to the imposition of Condition #8 in the Planning Director’s amended decision. FINDINGS OF FACT William S. Miller and Jennifer Miller, husband and wife, are the owners of certain real property located at 271 Madison Avenue South in the City of Bainbridge Island; identified by tax account number 272502-4-108-2007. This property is legally described as shown on Attachment A, which is incorporated herein by reference. On February 11, 1999 the Director of Planning & Community Development issued an Administrative Decision approving the Site Plan with certain conditions imposed on the applicant’s project. Included in those Conditions was #8 which states: Regarding the access driveway along the site’s southern property line, the applicant shall comply with one of the following provisions, to the satisfaction of the City Engineer, prior to building permit issuance: 1) The applicant shall widen the access driveway to 22 feet along its entire 112-foot length; or 2) The applicant shall submit a traffic engineer’s analysis showing the type of vehicles that will utilize the driveway and demonstrating that those vehicles can enter and exit without encroaching into adjacent traffic lanes. Based on this analysis, the City Engineer may approve an access driveway that is narrower than 22ft in width. The applicant shall widen and/or improve the driveway in accordance with the City Engineer’s determination. As a part of the Site Plan Review Process, the City Engineer was asked to review the driveway and parking area requirements for the project. EXHIBIT 147 sets forth the City Engineer’s opinion regarding minimum dimensions for driveway width and access point width for this project. This project is being built on property adjacent to property already occupied by the Madison Avenue Retirement Center. The access road for this project and for the Madison Avenue Retirement Center is located over a strip of land which follows the South property line of the applicant’s property for 112 feet from the public right of way on Madison Avenue to the applicant’s western property line. The applicant proposes to use an access road leading to the Madison Avenue Retirement Center for access to the parking area for his proposed project. Applicant claims a right to use this access road because of his ownership of an easement for roadway purposes described in an instrument recorded January 13, 1960 under Kitsap County Auditors file #720324. The applicant’s right to use this access easement for the proposed purpose of this project is disputed by the adjoining property owner which owns the property underlying the easement. Therefore the Planning Director has imposed Condition #17 to her amended Administrative Decision approving the Site Plan. During the Planning Department review the uses of adjoining properties and present uses for the access driveway were considered by the City in determining what conditions were needed to assure that the access road was adequate to safely and efficiently serve the needs of all easement users. The Madison Avenue Retirement Center is home to elderly and disabled residents, including wheelchair users, who use this access driveway for access to Madison Avenue South from their residence. Before and after the public hearing, the Hearing Examiner visited the site. The applicant’s project as proposed would include a commercial space for businesses, which will be serviced by large commercial utility vehicles such as garbage trucks, and by delivery trucks. These commercial vehicles will be using the driveway to access a parking lot on the western portion of the applicant’s property where it adjoins the Madison Avenue Retirement Center property. There is a laurel hedge along the applicant’s western property line which is proposed to remain as a vegetation buffer between the two properties. Vehicles exiting the applicant’s parking lot will enter on to the access driveway immediately to the east of the hedge. A vehicle entering the access driveway from the Madison Avenue Retirement Center must make a right hand turn to enter the common driveway a few feet west of the access point for the applicant’s proposed parking lot. There is a sign in the Madison Avenue Retirement Center driving lane at this turn warning of a blind curve entering the access driveway. Vehicles backing in and out of applicant’s lot would enter the driveway very near this intersection. The present access driveway is paved at a width of 18 ½ feet and is lined by a sidewalk along its northern right of way line as it adjoins the applicant’s property. The City has no specific design requirements for the width of private driveways. The City Engineer’s usual engineering practices for reviewing private driveway dimensions are outlined in the memo from City Engineer, Jeff Jensen, to City Planner, Bob Katai. EXHIBIT 147.TESTIMONY OF BOB KATAI. The applicant asserts that the cost of widening the access of driveway to 22 feet in width should be borne by the Madison Avenue Retirement Center under the terms of its original Conditional Use Permit. At the hearing Planner Bob Katai, offered an amendment to Condition #8 as follows: Should parties other than the applicant widen the driveway to 22 feet prior to the applicant’s submittal of a building permit application, this condition shall be deemed satisfied. EXHIBIT 151 The applicant’s site plan shows a proposed parking lot aisle dimension of 22 feet and an access point width of 22 feet. The public hearing on this appeal was held on April 22, 1999. Notice of the public hearing was posted, mailed to interested parties and published in the newspaper as required by BIMC 2.16.EXHIBIT 1. CONCLUSIONS OF LAW This hearing was properly before the Hearing Examiner. Adequate legal notice was given in advance of the public hearing in accordance with BIMC 2.16. BIMC 18.105.060 sets forth the Decision criteria for Site Plan Review required of the Planning Director for this project application. As a part of that review process, the Planning Director must find that the proposed bicycle and vehicular circulation systems are adequate, safe and efficient and that the proposal will be served by adequate public facilities including roads and transit. Because the applicant’s property adjoins a property already occupied by a retirement center housing elderly and disabled residents and because the applicant’s project will share the access road for that retirement center, it is necessary for the City to consider all uses of the access road in determining whether the present width of the access road is adequate to safely and efficiently serve both the retirement center and the new mixed use commercial building proposed by the applicant. The Director concluded after a review of the uses of surrounding properties and the proposed use for the applicant’s property, as well as a review of the engineering practices of the City’s Department of Public Works, that the access road, as it presently exists, would be inadequate to ensure the safe and efficient vehicular and pedestrian use of this access road by all proposed users. Adequate evidence of these uses is contained in the extensive record produced both at the Planning Commission hearing and at the previous appeal hearings on the appeal for SEPA review and site plan review, to support the Director’s decision to require that the access roadway be widened to 22 feet in width along the entire length of the applicant’s southern property line (112 feet from the public right of way on Madison Avenue to its western property line where it is adjacent to the property occupied by the Madison Avenue Retirement Center). In her Condition #8, the Director has properly placed the burden on the applicant to show by a traffic engineer’s analysis that a narrower width access road would provide adequate, safe and efficient vehicular circulation and access for the applicant’s project and the retirement center. No such traffic study has been submitted by the applicant, therefore, the usual engineering practice of the City of Bainbridge Island Engineering Department requires that the access road be widened to a minimum width of 22 feet prior to issuance of any building permit on the applicant’s property. As a part of the applicant’s original Appeal of the Amended Administrative Decision the applicant had objected to Condition #3 as imposed by the Director. Prior to the Hearing an agreement was reached between the City and the Applicant satisfying the applicant’s objections to Condition #3. This agreement is described in EXHIBIT 150 a letter from Bob Katai, Associate Planner to Stuart M. Ainsley, Attorney for applicant, dated April 20, 1999. This Condition #1 therefore is not before the Hearing Examiner on this appeal. The remaining SEPA and NON-SEPA conditions imposed by the Planning Director as a part of her Amended Administrative Decision dated February 11, 1999 have not been appealed by the applicant and therefore are final. The Decision criteria for a Site Plan Review have been met by the Conditions imposed on this project by the Planning Director and the project complies with all requirements of BIMC land use provisions, its design and construction standards and specifications, and the project is in compliance with the City’s Comprehensive Plans Goals and Policies. This project is of a scale and design that is similar to neighboring structures and no harm for unhealthful conditions are likely to result from the proposed site plan, provided the applicant complies with the conditions imposed as a part of the Planning Director’s decision of approval. BIMC 2.16.130 BIMC18.105.060 Substantial weight must be given to the Decision of the Planning Director. A review of the record presented by the applicant and the City shows that there is substantial evidence to support the Amended Administrative Decision and the Conditions imposed on the project by the Planning Director and the decision should therefore be affirmed. The amendment offered by the Planning Department staff at the Hearing is reasonable and will not substantially change the intent of the original Condition #8 as drafted therefore Condition #8 is now amended to read as follows: Regarding the access driveway along the site’s southern property line, the applicant shall comply with one of the following provisions, to the satisfaction of the City Engineer, prior to building permit issuance: 1) The applicant shall widen the access driveway to 22 feet along its entire 112-foot length; or 2) The applicant shall submit a traffic engineer’s analysis showing the type of vehicles that will utilize the driveway and demonstrating that those vehicles can enter and exit without encroaching into adjacent traffic lanes. Based on this analysis, the City Engineer may approve an access driveway that is narrower than 22ft in width. The applicant shall widen and/or improve the driveway in accordance with the City Engineer’s determination. Should parties other than the applicant widen the driveway to 22 feet prior to the applicant’s submittal of a building permit application, this condition shall be deemed satisfied. NOW THEREFORE based upon the above Findings of Fact, and Conclusions of Law, the Appeal of Condition #8 of the Amended Administrative Decision of the Director of Planning & Community Development dated February 11, 1999 is hereby DENIED. The Amended Administrative Decision of the Planning Director is affirmed as modified in Conclusion #5. Dated this 21st day of May, 1999. _____________________________ Robin Thomas Baker Hearing Examiner Pro Tem THIS DECISION WILL BE FINAL UNLESS APPEALED WITHIN 21 DAYS AFTER ISSUANCE IN ACCORDANCE WITH RCW CHAPTER 36.70. (BIMC 2.16.130)