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STAFFORD SSDP12-15-97-1 CITY OF BAINBRIDGE ISLAND OFFICE OF THE HEARING EXAMINEI¥-'i APPLICATION FOR SHORELINE VARIANCE AND ZONING VARIANCE APPLICANT: SHANNON STAFFORD SSDP12-15-97-1 FINDINGS OF FACT CONCLUSIONS OF LAW AND DECISION SUMMARY Mr. Stafford filed an application for shoreline variance and zoning variance to allow construction ora single family residence on two non-conforming lots he owns on the Point Monroe Sandspit. At the public hearing he withdrew his request for a zoning variance from the rear yard setback. The combined Lots 124 and 125 are 100 feet wide x 50 to 60 feet in depth. The required native vegetation zone for these shoreline lots measures 100 feet wide x 50 feet in depth. This property is zoned for single family residential development. A residence cannot be built on the lots without a variance. A 1,800 square foot, two bedroom home will be built 15 feet west of the bulkhead on pilings above the ground. Lots 33 and 34, also owned by Mr. Stafford, will remain undeveloped and will be bound by a restrictive covenant prohibiting their development in the future. FINDINGS OF FACT 1. Shannon Stafford has applied for a Shoreline Variance to build a single family residence on property he owns with his wife and daughter on the Sandspit of Point Monroe in the City of Bainbridge Island. Mr. Stafford's property consists of 4 lots in the Madison Beach Plat, originally platted in 1931. The Stafford lots are numbered 124, 125, 33 and 34. Lots 124 and 125 are located on the eastern side of the Sandspit bordering Puget Sound. Lots 33 and 34 are located on the western side of the Sandspit bordering Madison Beach waterway (aJk/a The Lagoon). Point Monroe Drive separates Lots 33 and 34 from Lots 124 and 125. The lots are identified as Kitsap County Tax Account 4155-000-033 -0006 and 4155 -000-034-0005. The Stafford property is located at the north end of Bainbridge Island in an area known as the Sandspit, or Point Monroe. Point Monroe is a unique geographic feature that is sandy and narrow and extends into the Puget Sound in a "Y' shape form. A majority of the lots along Point Monroe have been developed for single family homes. Most of the homes were built several decades ago. SSDP 12-15 -97-1 Hearing Examiner Stafford Page - 1- City of Bainbridge Island 2. An application for Shoreline Variance has been filed to reduce the required area and dimensions of the native vegetation zone on Lots 124 and 125. The Staffords wish to build a single family residence which will span a portion of Lots 124 and 125. Earlier plans sited the house close to the bulkhead on the property and a zoning variance would have been required to allow encroachment into the rear yard setback. Mr. Stafford testified at the May 25, 2001 public hearing that he now agrees to site his residence at least 15 feet to the west of the bulkhead and will not encroach on the rear yard. 3. Lots 124, 125, 33 and 34 have a zoning designation of Residential R-6 and a shoreline designation of Semi-Rural/Aquatic. The lots have a Comprehensive Plan designation of Open Space Residential OSR-6. The property has a FEMA Floodzone designation of A-1. 4. Lots 124 and 125, as well as Lots 33 and 34, are non-conforming lots in the R-6 zone. Lots 124 and 125 are each 50 feet wide and approximately 50-60 feet deep. The depth of the lot varies due to the bowed configuration of the bulkhead along the Puget Sound shoreline. Both lots are level from the edge of Point Monroe Drive to the bulkhead. The lots are undeveloped except for the bulkhead. Vegetation on the lots is limited to a few patches of grass and Scot's Broom. The lots are covered with beach deposits of both sand and gravel. The beaches are above mean-tide but are occasionally swept by storm waves. The highest portions of the site are estimated to be 3 to 4 feet above the high tide line. [See Report of Geotechnical Engineers. EXHIBIT 85.] 5. Mr. and Mrs. Stafford purchased their Point Monroe property in 1986. At the time of pumhase, the lots were undeveloped. In the winter of 1990, a fierce winter storm caused substantial damage to bulkheads protecting residences along the Point Monroe Sandspit. In response to that storm event, applications were filed by Point Monroe residents to replace bulkheads which had been damaged in the storm and to make improvements to their shoreline armoring to help prevent similar damage in the future. Mr. Stafford's lot was used as a staging area for construction materials used in the replacement of bulkheads damaged in the storm. The applications for permits for bulkhead repair and construction were prepared by ADA Engineering. The applications were administered by Kitsap County Department of Community Development. (KCDCD), however, the building permits for the bulkhead repairs were issued by the Building Official of the City ofWinslow [EXHIBITSBP and 6BP]. Mr. Stafford was issued building permit No. 1943 (dated 3/4/91), which authorized the placement of a shoreline bulkhead across the width of Lots 124 and 125. This bulkhead connected to the newly repaired bulkheads protecting Lots 123 and 126. Sand fill was added behind the bulkhead. [~IBIT124.] The construction of most bulkheads along the Sandspit was completed by ADA Engineering and Sealevel Bulkhead Builders by July of 1991. [See EXHIBIT4BP.] Mr. Stafford also filed a Hydraulic Project Application with the State of Washington on February 2, 1991. He received Hydraulic Project Approval from the State of Washington by permit dated April 10, 1991. [See EXHIBIT 52.] This Hydraulic Project Application approval allowed placement of a new bulkhead SSDP 12-15-97-1 Hearing Examiner Stafford Page -2- City of Bainbridge Island provided that bulkhead was placed landward of the +11 foot tide elevation. Construction of the bulkhead was completed in late Summer of 199]. [See EXHIBIT 1 for Final Inspection Report for the Point Monroe bulkhead repair.] No further development has occurred on the site since that time. 6. Mr. Craig Powell of Sealevel Bulkhead Builders testified about regulatory procedures for placement of bulkheads on the Stafford property in 1991. Mr. Powell testified that the Washington State Department of Fish and Wildlife (WSDFW) made the determination as to where the bulkhead on the Stafford property should be placed, and required revisions to the original permit issued by the City. The first building permit had allowed a bulkhead straight across the property line connecting to the bulkheads on the properties to the north and south. [EXHIBIT 6BP.] Mr. Powell testified that WSDFW required ADA Engineering to redesign the Stafford bulkhead to pull the bulkhead back, as shown on Building Permit No. 1943. Mr. Powell testified that to the best of his knowledge the bulkhead was built in compliance with the permit requirements. Mr. Powell stated that in 1991 the usual procedure was for the WSDFW to inspect and approve the location of a bulkhead after placement. In addition, ADA Engineering had an inspector on the site to assure compliance with the bulkhead building permit. Mr. Powell assumed this procedure was followed. He did not receive a call to modify the bulkhead so he assumed it had passed inspection. The Stafford property was damaged while being used as a staging area for repairs to the bulkheads. To repair this damage, sand fill was added to bring the lots' elevation back to original grade and backfill the bulkhead. 7. In 1996 ADA Engineering surveyed the Stafford lots. The survey is included in the record as EXHIBIT9BP. The ADA Engineering survey confirms that the Stafford bulkhead was built landward of the +11 foot tide elevation as required by the HPA. 8. Mr. Stafford filed an application for a Shoreline Setback Variance and a Reasonable Use Exception in December, 1997 to allow construction ora single family residence on Lots 124 and 125. After considerable work on the application, a Mitigated Determination of NonSignificance (MDNS) was issued by the City of Bainbridge Island in March of 1999. Public comment letters were received on the application and during the public comment period for the MDNS. Comment letters from the neighbors detailed some of the history of the Sandspit and objected to the development of Mr. Stafford's lots. [See ~IB1TS 2 through 6.] In spite of those objections, however, no appeal of the MDNS was filed and the MDNS became final in April of 1999. 9. The Ordinary High Water Mark (OHWM) on the Stafford property is used to determine both the rear yard setback and the native vegetation zone requirements for the lots (BIMC 18.06.885 and BIMC 16.12.030(117)). The OHWM is defined in RCW 90.58.030(2)(b) as: Ordinary High Water Mark on all lakes', streams, and tidewater is that mark that will be found by examintng the bed and banks and ascertaining where the presence and actions of waters are so common and usual, and so long continued in all ordinary years, as to mark upon the soil a character distinct from that of the abutting upland, in respect to vegetation as' that condition exists on June 1, 1971, as it may change naturally thereafter, or as it may change thereafter in accordance with permits' issued by a local government or the Department: Provided that in area where the Ordinary High Water Mark cannot be found, the Ordinary High Water Mark adjoining salt water shall be the line of mean higher SSDP 12-15-97-1 Hearing Examiner Stafford Page -3- City of Balnbridgn Island high tide and the Ordinary High I'Vater Mark adjoining fresh water shall be the line of mean high water. (Also see BIMC 16.12.030(127)). 10. At the request of the City of Bainbridge Island and the Washington State Department of Ecology 0NSDE), Ann Boeholt, a wetland specialist for WSDE, visited the Stafford lots to determine the OHWM along Lots 124 and 125. Ms. Boeholt determined that the current OHWM on the Stafford property is approximately equal to the elevation of the bottom of the rock stairway built into the bulkhead. Ms. Boeholt based her determination upon her observation ora line of algae growing on the rocks of the bulkhead. The lower limit of the algae corresponds to the OHWM. Mr. Wayne Daley also visited the site for the purposes of determining the OHWM on the Stafford property. Mr. Daley testified on May 10, 2001 that in his opinion there is no well defined line of vegetation or barnacles on the Stafford bulkhead which would define the OHWM at the bulkhead. The absence of a clear indication of a line of vegetation then requires that the OHWM be set at the tidal datums for the north Puget Sound region. That title datum is included in the record as EXHIBIT 112 and shows the OI-IWM at 11.4 elevation. Mr. Daley later testified on May 25, 2001 that he had revisited the site and had observed some algae on the rock bulkhead which could be aligned with the barnacles on neighboring properties to establish the OHWM on the Stafford property at the toe of the bulkhead. In response to cross examination by Mr. Bricklin, Mr. Daley confirmed that the OHWM is at the toe of the bulkhead. Kris Morrison, Planner for the City, agreed that the OHWM is now at the toe of the bulkhead on the Stafford property. [See Morrison testimony 5/10/01.) 11. Mr. Stafford testified that his application for Shoreline Variance is based on the site plan marked EXHIBIT 116. Exhibit 116 is a site plan, prepared by Miles Yanick and Co., which proposes a single family residence located on both Lots 124 and 125. Mr. Stafford agreed to make any modifications to his site plan necessary to comply with the required 15 foot rear yard setback from the OHWM. This single family residence will be built landward of the OHWM on the property. A single family residential use is a permitted use in the R-6 zone. If the area of all four lots are combined, the property site for this application totals 9,100 square feet. The approximate square footage for Lots 124 and 125 is 5,600 square feet. The Stafford lots are legal non-conforming lots. 12. The proposed location for the residence on the Stafford lots encroaches on the area required to be preserved as a native vegetation zone. BIMC 16.12.090 defines the native vegetation zone required on the lots upland from the OHWM. The Stafford lots are designated as a Semi-Rural shoreline environment. Table 42 in BIMC 16.12.150 requires a 50 foot native vegetation zone be retained on the property. Since the Stafford lots vary from 50 to 60 feet in depth from the OHW]M to the edge of the Point Monroe Drive right-of-way, this native vegetation zone occupies most of the level upland of Lots 124 and 125. These lots have been zoned for single family residential development, however, no reasonably sized building envelope remains on the lots. The applicant has applied for a Variance to encroach into that native vegetation zone. A Habitat Management Plan was designed by Wayne Daley of Daley Design to recommend measures to reduce impacts on the site. Mr. Miles Yanick described the home planned for the Stafford lots. The home site proposed includes a building roofed with a "green roof' that will support a grass sod system that will function similarly to a lawn. The proposed SSDP 12-15-97-1 Hearing Examiner Stafford Page -4- City of Bainbridge Island building footprint will measure 24 feet x 50 feet, with a 1,200 square foot first floor, and a 600 square foot second floor. The green roof area will cover 1,200 square feet. Lots 33 and 34 will remain undeveloped. If developed in accordance with the Habitat Management Plan designed by Mr. Daley, all of the site, outside the building footprint and access areas, will be maintained as a natural area of shrubs, shore grasses, and/or salt tolerant vegetation. Since this proposed residence will be built behind an existing bulkhead, no modifications will not be made to the beach or shoreline area waterward of the bulkhead. Shoreline habitat will improve by the addition of native vegetation on the lots. 13. No bulkhead will be constructed on the western shore of Lots 33 or 34. Lots 33 and 34 will be revegetated with salt tolerant native grasses and Nootka Rose in the upper reaches [EXttlBITIll]. Mr. Stafford agreed to the proposed Conditions of Approval listed in the City's March 1, 2001 StaffReport which include mitigation from the MDNS, as well as additional conditions of approval (Conditions 2-16 in the StaffReport.) Mr. Stafford also agreed to comply with the recommendations made by Mr. Daley in his Habitat Management Plan [EXHIBIT 111]. 14. The native vegetation zone on the Stafford property is a sandy area, sparsely covered with non-native grasses. The natural shoreline along the Sandspit, does not support a large variety of native vegetation. The Sandspit has been developed with single family residential lots for more than 50 years and alterations to the natural environment on the Sandspit are substantial. A replanting of native vegetation in the areas not used for home site or access will improve the shoreline habitat on the Stafford lots. Wave action along the bulkhead at extreme tides prevents the establishment of any vegetation in the beach area, however, sand and gravel in that area provides some habitat for marine organisms. [See EXHIBIT 111.] The addition of vegetation on all four lots will improve the habitat characteristics of the native vegetation zone on the property. The applicant's proposal is for a house to be built with a "green roof'; that is it will support a grass sod system that will function as a normal lawn and will provide additional vegetative habitat on the site. Chemicals and pesticides will not be used on the site. [EXH1BITlll.] 15. Kris Morrison, City Planner, testified that several different house plan proposals were considered by the City before recommending this variance. Comparisons were made to other homes on the Sandspit. Environmental review for the MDNS considered the impacts from the size of the house, the fact that the house was to be elevated off'the ground, and that the bulkhead and house are westerly of the front of the two adjoining residences. The staffrequested the development restrictions for Lots 33 and 34 as a condition of approval to protect the natural shoreline, to retain views of the water, and to minimize bulk development of the shoreline. 16. R-6 zoning in a Semi-Rural shoreline environment requires side yards which total at least 30% of the lot width and remain free of above ground structures and impervious surfaces. The applicant's proposal will comply with these requirements. There are no accessory structures proposed to be built on this lot. No additional bulkheading is proposed for the property. 17. Revisions must be made to the Site Plan proposed by the applicant to reflect the agreement by the applicant that the proposed residence will be located outside the rear yard setback. SSDP 12-15-97-1 Hearing Examiner Stafford Page -5- City of Bainbridge Island 18. The use of these lots for of a single family residence is a reasonable economic use of the property. Although the legal non-conforming lots are smaller in area than present zoning would require, the area is sufficient to meet all other requirements of the R-6 zone. The shoreline native vegetation zone, if not reduced, prohibits use of the site as a reasonably sized homesite. Mr. Stafford has proposed combining two undersized lots to site his residence. 19. BIMC 16.12 requires a 5,000 square foot native vegetation zone on the Stafford lots. A native vegetation zone has not been established on most other lots developed along the Sandspit. Other properties were developed prior to the adoption of the requirement for a 50 foot native vegetation zone, thus many of the homes are built up to the bulkhead along the shoreline. 20 The StaffReport dated March 1, 2001, [EXHIBIT 91] discusses the Comprehensive Plan Goals and Policies relevant to this project. Those goals and policies concern establishment of native vegetation zones in the semi-rural shoreline environment and discuss policies related to residential development on the shoreline. This project can be conditioned to minimize disturbance of natural environmental systems located at the site and comply with the Comprehensive Plan Goals and Policies. 21. The Bremerton-Kitsap County Health District has granted building site approval for a two bedroom home with a septic drainfield for this lot. A letter received from the Health District during the public hearing, however, indicated that this approval may be under review. [See EXHIBIT 119] The proposed septic system will be set back from the OHWM and will be located adjacent to Point Monroe Drive. A geotechnical engineer's report discusses the septic system design with respect to saltwater intrusion. [EXHIBIT 122.] John Peterson of Associated Earth Sciences, Inc., concludes that saltwater intrusion will not be detrimental to the elective alternative septic system designed for the site. Final BSA will be required as a condition of approval of this variance. The applicant will be required to comply with the City's storm water control ordinances. Surface water runoffwill be treated on site. [See Habitat Management Plan EXHIBIT 111.] No dredging is proposed with this application. 22. The proposed development of this property as a single family residential lot is consistent with the development of the surrounding shorelands. Access, utilities and public services will be available and adequate to serve the existing needs of the occupants of this residence. The proposal is consistent with the zoning, lot coverage and height requirements for the R-6 Zone and will also comply with the yard setback requirements. The site will be landscaped with native vegetation to improve shoreline habitat and to reduce aesthetic impacts along the shoreline. 23. At the time this bulkhead was permitted, the Point Monroe area was regulated by the Kitsap County Shoreline Master Program (adopted in 1977). Under the terms of that Shoreline Master Program bulkheads were excepted from the definition of a substantial development which required an SSDP. A substantial development was defined as Any development of which the total cost, or fair market value, exceeds $1,000, or any development which materially interferes with the normal public use of the water or shorelines of the State, except that the.following shall not be considered substantial developments for the purposes of these regulations...2. Construction SSDP 12-15-97-1 Hearing Examiner Stafford Page -6- City of Bainbridge Island of the normal protective bulkhead common to single family residences .... Mr. Powell testified that a Shoreline Substantial Development Permit was not required by Kitsap County for the building of the Stafford bulkhead in 1991. 24. Mr. Greg Poels, a Senior Ecologist for King County, testified at the heating on behalf of neighbors objecting to the application for Shoreline Variance. Mr. Poels testified that the Point Monroe Sandspit has 37 non-bulkheaded prope~ies, and about 24 bulkheaded properties. He indicated there are 11 open lots remaining undeveloped on the Sandspit. 25. Mr. Greg Poels, who is also a neighbor on the Point Monroe Sandspit, testified regarding his experience with establishing an OHWM. Mr. Poels presented EXHIBIT 134 which contained two photographs which show, according to his testimony, a line of barnacles 10 to 12 inches above the rock line, where the bulkhead intercepts the beach sand. It was Mr. Poels opinion that these photographs confirm a clear demarcation for an OHWM on the rock face of the bulkhead. An examination of the photographs included in EXHIBIT 134 reveals two photographs of the step portion of the rock bulkhead in place on the Stafford property. The faces of the rock steps are in shadow on the photograph and the line of barnacles identified by Mr. Poels in his testimony cannot be clearly distinguished. On a visit to the site, a distinct line of barnacles could be observed on the comers of the property where the bulkheads from two adjoining properties curve onto the Stafford property. This distinct line of barnacles disappears on the eastern rock face of the Stafford bulkhead. Mr. Daley was able to align the OHWM from neighboring properties using the line of barnacles to establish an OHWM at the toe of the bulkhead. Mr. Daley testified that the line of barnacles is a clear indicator of the OHWM. [See testimony on 5/10/01 and 5/25/01] 26. The placement of the bulkhead on the property in 1991 permanently changed the conditions which existed on the beach. According to Ms. Boeholt's letter, the beach has been accreting sand and gravel in the ten years since the placement of the bulkhead. The slope of the beach has, in all likelihood, changed to a steeper grade than was present in 1991, making projections of the historic OHWM difficult and unreliable using present beach conditions. Historic photos of the site [EXHIBIT 88] show the historic driftline at the site but are not distinct enough to distinguish saltwater tolerant vegetation from fresh water plants, or to determine a distinct vegetation line that can be measured. [See testimony of Wayne Daley 5/25/01.] 27. The site plan offered by the applicant differs from the proposal approved by the DPCD staff EXH1BITI16 (Site Alternative No. 4~ was offered by the applicant as his proposal for a home on his lots. This site plan describes a 1 ~/2 story home of 1,800 square feet, whose building footprint is placed on the ground. The site plan approved by the DPCD more closely resembled Site Plan Alternative No. 3 [EXHIBIT 115] [See Testimony of Planner Kris Morrison at the public hearing]. Site Plan No. 3 contemplated a home which would be built on elevated wood pilings, nine feet above the existing grade. The environmental review also considered an elevated house plan. Mr. Daley s recommendat'ons were based upon an elevated house plan. [EXI-IIBIT 111 and testimony 5/10/01.] The geotechnical engineer's report also evaluates an elevated house design. [EXHIBIT 85.] SSDPI2-15-97-1 Hearing Examiner Stafford Page -7- City of Bainbridge Island 28. The establishment of the OHWM either at the toe of the bulkhead as requested by the City, or at the mean higher high water mark of 11.4 tidal elevation as requested by the applicant, confirms that the bulkhead in place on the Stafford property is located landward of the OHWM When the residential lot extends to tidal water as does the Stafford lot, the rear lot line is the OHWM. [See BIMC 18.06.670.] The rear yard setback therefore must be measured from the OHWM. The toe of the bulkhead is located at the tidal elevation of 11.9 according to the ADA Engineering Survey [EXHIBIT 9BP]. 29. Mr. Wayne Daley testified that the native vegetation zone on the Stafford lots would be enhanced by this building project. The addition ora green roof design on the residence will provide a vegetation habitat greater than the impermeable roof surfaces on other houses in the area. The removal of non-native vegetation and replacement with native saltwater tolerant vegetation will enhance the upland habitat. Stormwater will be absorbed on site. [Daley testimony 5/10/01 and 5/25/01.] 30. Mr. Stafford testified that when he purchased his lots the seller made no representations as to whether the lots were buildable. At the time he bought the lots, he did not inquire as to whether a septic system could be placed on the lot. He began his inquiries about building on the lots between 1992 and 1994. Mrs. Gayle Robbins (15668 Point Monroe Drive) testified at the public heating that the Stafford lots were 15 to 20 feet deep at the time of his purchase in 1986. Drit~wood logs shown in the historic photographs from 1980 and 1990 appear to confirm a very narrow strip of vegetated uplands behind the log line on the Stafford property [EXttlBIT88]. The 1990 OHWM on the property was not surveyed prior to placement of the bulkhead on the lot. Mr. Stafford testified that he was told, after the storm in 1990, that his neighbors needed the bulkhead across his property to protect the wing-walls of the bulkheads on their property to prevent the tide water from continuing to erode the beach. The bulkhead was not built under an emergency permit. The bulkhead was designed to increase the longevity of bulkheads protecting residences already built at the bulkheads along Lots 123 and 126. 31. On May 1't, May 10~, May 25th and June 5~, 2001, a Public Hearing was held before the Heating Examiner to consider the application. Prior to the hearing, notice was published in the Bainbridge Review on Mamh 3, 2001; notice of the public hearing was mailed to the owners of property within 300 feet of the proposed project on February 21, 2001, and notices were posted at the City Hall, the Chamber of Commerce, and the Ferry Terminal on February 21, 2001; notice was posted at the subject property on February 26, 2001. [EXHIBIT84.] The heating had been continued from March 8a~, 2001 to May 1't, 2001 at the request of the applicant. [EXHIBIT95.] CONCLUSIONS OF LAW 1. This application for Shoreline/Zoning Variance has been filed by Shannon Stafford on behalf of himself, his wife Donna and his daughter Jane, co-owners of the property. This Shoreline Variance application is properly before the Hearing Examiner in accordance with the requirements of BIMC 16.12.380(C)(4). The applicant has the burden of proof to show that the proposal complies with the decision criteria set forth in BIMC 16.12.380(B) and with all other SSDP 12-15-97-1 Hearing Examiner Stafford Page -8- City of Bainbridge Island applicable requirements in the Code. 2. A public heating was held in this matter, proper legal notice was given of the public hearings held on this application. The public hearings began on May 1, 2001 and continued on May 10, May 25, and June 5, 2001. 3. An MDNS was issued by the City of Bainbridge Island in March of 1999 and was not appealed. The MDNS became final in April of 1999. 4. A bulkhead was placed on the property site in 1991 under permits issued by the City of Winslow/Bainbridge Island and the State of Washington. The shoreline applications were administered by Kitsap County under the guidance of the Shoreline Management Master Program for Kitsap County adopted in 1977. A Shoreline Substantial Development Permit was not required of the applicant by either the City or the County for this bulkhead project. No appeal of those permits nor any action for injunctive relief has been filed by any party. 5. The establishment of the rear yard setback line, as well as the determination of the native vegetation zone on the site are dependent on the location of the OI--1VCM on this shoreline property. The OHWM has been changed on the property by the placement of a permitted bulkhead in the Summer of 1991. The OHWM, for the purposes of this shoreline application proceeding, is the OHW'M established after the building of the bulkhead on the property. It was difficult to establish a clear line of vegetation along the shoreline because of tidal action against the bulkhead. A wetland specialist from WSDFW and the applicant's certified Fisheries Professional determined the OHWM on the Stafford property using observations made on site and on adjoining properties. The OHWM has been established at the toe of the bulkhead on the Stafford property. This tidal elevation must be used in measuring the shoreline building setback for the rear yard, as well as the native vegetation zone on the property. 6. The BIMC requires a native vegetation zone on Lots 124 and 125 of 50 feet in depth measured upland from the OHWM. The Stafford lots measure 100 feet in width and 50 to 60 feet in depth from the bulkhead to the edge of the right-of-way on Point Monroe Drive. 7. The applicant has agreed to place his residence on the lot so that it does not encroach into the rear yard setback which is measured from the OI-IWlVl 15 feet upland to the west. The site plan must be amended to reflect this relocation. 8. The applicant has filed an application for Shoreline Variance to allow a home to be built in the native vegetation zone required on these shoreline lots. The applicant has agreed that the home will not exceed 1,800 square feet, and its first floor footprint will not exceed 1,200 square feet. No other structures will be built on Lots 124 and 125 and no decking or other impervious materials will cover any portion of the lot outside the building footprint. The applicant has agreed to revegetate the lot with native vegetation in accordance with a native vegetation plan approved by the DPCD. Compliance with the recommendations made by Mr. Daley in his Habitat Management Plan [EXHIBIT 111] is necessary to minimize environmental impacts to this shoreline habitat. SSDPI2-15-97-1 Heating Examiner Stafford Page -9- City of Bainbridge Island 9. This single family residence is to be built landward of the OHWM on the Stafford property. An application for shoreline variance (BIMC 16.12.380(B)) requires that the applicant demonstrate the following: a) The strict requirements of the bulk, dimensional, or performance standards set forth in the Master Program preclude or stgnificantly interfere with a reasonable economic use of the property not otherwise prohibited by the Master Program. This property has been platted for single family residential development since 1931. The lots purchased by Mr. Stafford in 1986 are legal non-conforming lots now zoned R-6. The use of the lots for a single family residence is a permitted use under BIMC 18.18.020. The Shoreline Master Program allows residential development in a Semi -Rural shoreline environment. A residential development in a semi-rural shoreline environment is required to maintain a 50 foot native vegetation zone. BIMC 16.12.030(117) defines the native vegetation zone as: "a required vegetation buffer measured horizontally upland from and perpendicular to the OHWM." The Staffords' application proposes to build a residence on Lots 124 and 125 which measure 100 feet from north to south, and from 50 to 60 feet in depth between the existing bulkhead and the edge of the right-of-way for Point Monroe Drive. The application proposes to use both lots for the siting of a single personal residence. Compliance with the requirements of the Shoreline Management Act for a native vegetation zone on shoreline properties would prohibit the building of a single family residence on these two lots. A review of the applicant's site plan and testimony at the hearing demonstrates that a small house which meets zoning requirements could be designed for this lot, provided encroachment is allowed into the native vegetation zone. The lot coverage, setback and height restrictions could be met by combining the two lots as one residential site. The use of this lot as a single family residential lot is a reasonable economic use of the property and is consistent with the uses made of other platted lots along the Point Monroe Sandspit. The Sandspit has been developed for more than 50 years as a residential community. ~IBIT 121 shows the large number of lots platted for development on the Sandspit. A majority of these lots have been developed for single family residences. Only 11 lots remain undeveloped, including those owned by Mr. Stafford 10. The applicant must also demonstrate: b) The hardship described above is specifically related to the property and is a result of unique conditions' such as: irregular lot shape, size, natural features, and the application of the Master Program, and is' not for example from deed restrictions or the applicant's own actions. Mr. Stafford's application for shoreline development on his property is restricted by the application of the Shoreline Master Program native vegetation zone requirement. His lots are smaller non-conforming lots which are bordered by the waters of Puget Sound on the East and Point Monroe Drive on the West. The natural features of the lots create the need for a specially designed septic system. The dimensions of the lot are limited by the location of a bulkhead along the eastern shoreline. The R-6 zoning requirements for lot coverage, side yard setback, front and rear yard setback and height limitations can be met by the applicant ifa variance is allowed for building within the native vegetation zone. SSDP12-15~97-1 Hearing Examiner Stafford Page - 10- City of Bainbridge Island 11. The applicant must also demonstrate: c~) The design of the project will be compatible with other permitted activities in the area and will not cause adverse effects to the adjacent properties, or to the shoreline environment. This house will be placed 15 feet back from the OHWM and will not encroach upon the rear yard setback required for the property. The house will be setback from the bulkhead located on the eastern shoreline and will not require additional bulkheading for its protection. The applicant has proposed to revegetate, with native plant species, portions of the lot not used for access or the building footprint. Lot 123 to the north and Lot 126 to the south have been developed for many years with single family residences built on bulkheads at the shoreline. The proposed home will be built landward of the Stafford bulkhead, which in turn is located several feet west of the bulkheads on adjoining properties. Views of Puget Sound from adjacent homes will not be impaired by building at this site. Most homes on the Point Monroe Sandspit have been developed for single family residences. The Point Monroe Sandspit is a fragile beach environment which has been substantially degraded by the presence of single family residences on lots along its entire length. Mr. Daley testified that the Stafford lot has already been significantly degraded as a fisheries habitat environment because the lot was bulkheaded in mid 1991 and historic development along the Sandspit has degraded the natural environment. The proposed residence will not extend beyond the bulkhead and will not adversely affect the intertidal beach or the waters of Puget Sound. Stormwater will be collected and absorbed on site. No evidence was presented at the hearing to show any adverse effect to adjacent properties from the building of this residence. No specific adverse impacts to the shoreline environment were described at the hearing, other than those changes made to the property at the time of bulkhead construction in 1991. Bulkheads on adjoining properties are being protected by the continuity of bulkheading the Stafford lots. A geotechnical engineer's report [EXHIBIT 85 and EXHIBIT 122] concluded that building a residence on this site is feasible provided certain recommendations for site preparation and construction are followed. 12. The applicant also must demonstrate: dj The shoreline variance authorized does not constitute a grant of special privilege not enjoyed by other properties itt the area, aud will be the minimum necessary to afford relief. The granting ora shoreline variance for this property will not grant a special privilege. By granting the shoreline variance the Stafford property will enjoy similar use rights enjoyed by other property owners on the Sandspit. The house proposed by Mr. Stafford is significantly smaller in footprint than a majority of the other houses built on lots on the Point Monroe Sandspit. During review of the application, City staff discussed with the applicant the size of residence which would be appropriate for this shoreline residential site. The size of the residence was reduced. The septic system designed for building site approval is for a two bedroom home [EXItlBIT 24.] Staff agreed that an 1,800 square foot residence is the minimum size necessary to meet the needs of the applicant for a single family residence. 13. The applicant must also demonstrate: SSDP 12-15-97-1 Hearing Examiner Stafford Page -11- City of Bainbridge Island e) the public interest will a~tffer no substantial detrimental effect. This residence is to be built on a sandy lot which presently is covered by non-native grasses. The lot has been previously bulkheaded and the shoreline is no longer in its natural condition. Shoreline habitat has been lost as a result of the bulkheading on the property. The addition of a single family residence with a limited building footprint of 1,200 square feet will allow the applicant a reasonable economic use of his property and will not significantly degrade the shoreline habitat available on this lot. The residence will not encroach upon any shoreline of statewide significance and will not affect the views of any adjoining properties. As a part of the applicant's proposal he has agreed to place a restrictive covenant on Lots 33 and 34 of Madison Beach Plat. These lots border on the Port Madison Waterway (The Lagoon) and are not bulkheaded The applicant has agreed to record a restrictive covenant which prohibits any development on Lots 33 and 34. The public will benefit by the establishment of this permanent open space along the shoreline of the Sandspit. The applicant has also agreed to revegntate all areas of Lots 124 and 125 not covered by the building footprint or the access driveway. Maintenance of that native vegetation will enhance the shoreline habitat and improve the native vegetation zone. Conditions can be placed on the use of this property to protect the remaining native vegetation zone by prohibiting the use of pesticides, fertilizers, or other chemicals, and prohibiting the establishment of lawns or other non-native vegetation on the lots. A vegetation maintenance plan will be required of the applicant. 14. Consideration has been given to the cumulative impact of additional requests for single family residential development on the Sandspit. EXHIBIT 120 shows 16 vacant lots on the Sandspit which are potentially available for development. Several of these 10ts are unbulkheaded. The size and dimensions of the other undeveloped lots were not provided at the hearing, however, an examination of EXT-IIBITS 120 and 121 shows a variety of lot shapes and sizes along the spit. The circumstances which allow a variance to be granted for the Stafford lots are affected by Mr. Stafford's proposal to combine and restrict his 4 lots for one single family residential site. Other undeveloped lots along the Sandspit may not have this potential since most appear to be isolated single lots. Similar circumstances appear only to exist for lots identified on EXHIBIT 121 as 075 and 076, and identified in green on EXHIBIT 120. A development of the other single lots is less probable, since the size of the lots would making siting ora single family residence difficult. The entire Sandspit has been platted and zoned for single family residential development. Sewer system restrictions, lot coverage maximums, and setback requirements will limit the development of other single lots. Zoning and Shoreline Master Program requirements severely limit bulkheading on the shoreline. Undeveloped lots without a bulkhead will face additional difficulties when applying for development. It is unlikely that the granting ora shoreline variance for the Stafford properties will increase the likelihood of a variance being granted for any other property along the Sandspit. 15. A shoreline variance for development of a single family residence on the Stafford properties must be conditioned to reduce adverse impacts on neighboring properties, and on the shoreline. The following conditions are imposed on the approval of this variance: 1. Conditions from MDNS: SSDPI 2-15-97-1 Hearing Examiner Stafford Page - 12- City of Bainbridge Island Prior to any clearing, grading or building activities, the applicant shall submit a Temporary Erosion and Sedimentation Control Plan to the City Engineer for review and approval. This plan shall incorporate Best Management Practices. A special erosion control plan shall be submitted and approved by the City Engineer prior to any clearing and grading proposed outside of the dry season, April I to October 1. The plan shall specifically identify, methods of erosion control for we~ weather conditions. In order to mitigate the noise impact on adjacent properties, exterior construction and grading activities shall be limited from 7:30 a.m. to 6:00 p.m. Monday through Friday. During clearing, grading and building activities disturbance of the beach and the adjacent Iow bank shall be prohibited. With sixty (60) days of the date of this determination (March 20, 1999) the appheant shall provide expert verification by a geotcehnical engineer that demonstrates (at a minimum) the following: the proposal will not impact the stability of the site, the structure envelope is adequately located to avoid potential risk to public health and safety, the cumulative impacts of the site development will not negatively impact or require further modification of the shoreline environment, and site development recommendations. If shoreline modification would be required or is recommended, what are the alternatives to armoring the shoreline with a larger bulkhead. (The required geotechnical report was received on August 4, 2000 see EXHIBIT 90). The area of the site between the residence and shoreline, across the width of the two parcels (parallel to the shoreline), shall be replanted with native vegetation to enhance site stability, and reduce the erosion potential of soils adjacent to the bulkhead. A native vegetation plan provided by a professional with shoreline ecology and landscape expertise shall be submitted to the Department of planning and Community development for review and approval prior to building permit approval. g. A flood elevation certificate is required prior to building permit approval. All construction debris shall be disposed of at an approved upland site. A City of Bainbridge Island building permit is required prior to construction. A Boundary Line Adjustment combining Lots 124 and 125 must be approved by the City of Bainbridge Island and recorded with Kitsap County prior to issuance of a building permit for the construction of the proposed single family residence. A copy of this permit with conditions and drawings shall be provided to all contractors performing any of the authorized work. Ail construction and demolition debris shall be properly disposed of on land in such a manner that it cannot enter into the waterway or cause water quality degradation to United States and State waters. SSDP12-15-97-1 Hearing Examiner Stafford Page - 13- City of Bainbridge Island 10. 11. 12. 13. 14. 15. 16. Extreme care shall be taken to prevent any petroleum products, chemicals, or other toxic or deleterious materials from entering the water. Ifa spill does oeeur, or if an oil sheen or distressed or dying fish are observed in the project vicinity, work shall cease immediately and DOE shall be notified of such conditions. Contact DOE's Northwest Regional Spill Response Section at (206) 649-7000. No over-water field applications of paint, preservative treatment, or other chemical compounds shall be permitted. All shoreline development shall minimize any increase in surface water runoffthrough control, treatment, release of surface water runoffso that the receiving water quality and shore properties and features are not adversely affected. Control measures include, but are not limited to, dikes, catch basins or settling ponds, oil interceptor drains, grassy swales, planted buffers and fugitive dust controls. A plan shall be approved prior to building permit issuance. Surface water runoff shall be treated on-site, unless precluded by slope or other sensitive area conditions. All shoreline development shall comply with the applicable requirements of the Stormwater Management Manual for Puget Sound Basin (DOE Manual publication 91- 75) as amended by the City's Engineering Design and Development Standards Manual. Permittee is required to stop work and immediately notify the Department of planning and Community Development and the Washington State Office of Archaeology and Historic Preservation if any historical or archaeological artifacts are uncovered during excavation or construction. A variance automatically expires and is void if the applicant fails to file for a building permit or other necessary development permit within three years of the effective date of the variance unless: (a) The applicant has received an extension of the variance; or {b) The variance approval provides for an extended time period. (Ord. 94-03 § 1, 1994) The total square footage of the single-family residence shall be no greater than 1800 square feet. The home shall be placed on pilings elevated above the ground. In addition to the planting requirements of SEPA condition If, the side yards within the native vegetation zone shall be replanted with native vegetation to enhance site stability and reduce the erosion potential of soils adjacent to the bulkhead. A native vegetation plan provided by a professional with shoreline ecology and landscape expertise shall be submitted to the Department of Planning and Community Development for review and approval prior to building permit approval. This vegetation plan shall include a prohibition against the use of chemicals, such as fertilizers and pesticides. Prior to issuance of a certificate of occupancy for the residence, a restrictive covenant shall be recorded against Lots 033 and 034 stating that the two lots shall not be developed with any structures. No parking shall be allowed on Lots 33 or 34 and signage shall be placed along Point Monroe Drive designating the ama west of Point SSDP 12~ 15-97-1 Hearing Examiner Stafford Page - 14- City of Bainbridge Island 17. 18. 19. 20. Monroe Drive on Lots 33 and 34 as a "no parking" zone. The applicant is required to provide the Department of Planning and Community Development with a revised site plm~ which accurately depicts the location of the residence on the lots, using the toe of the bulkhead as the OHWM on the property. A 15 foot rear yard setback is required. The native vegetation zone must be shown on the site plan. The site plan must include an elevated house design similar to the design reviewed by DPCD and recommended for approval in the Staff Report. Approval of the new site plan must be obtained from DPCD prior to building permit issuance. Prior to building permit approval, a final BSA must be obtained from the Bremerton- Kitsap County Health District and filed with the Department of Planmng and Community Development. No building or impervious surfaces shall cover any portion of Lots 124 or 125 outside the building footprint shown on the site plan. No accessory buildings shall be built on Lots 124, 125, 33 or 34 of Madison Beach Plat. This variance approval is based upon the site plan [EXHIBIT 116] amended by these conditions. DECISION The application for shoreline variance is approved with Conditions la - lg and Conditions 2-20 as contained in Conclusion of Law 15. The application for zoning variance was withdrawn by the applicant. Dated this 5th day of November, 2001. Robin Thomas Baker Hearing Examiner Pro Tem APPEAL This Hearing Examiner's Decision may be appealed to the City Council within 21 calendar days of the date of decision. The City Council will review the decision on the record according to the procedures and criteria established in BIMC 2.16.140. SSDP 12-15-97-1 Hearing Examiner Stafford Page - 15- City of Bainbridge Island