WINSLOW/ERICKSEN MIXED USE CITY OF BAINBRIDGE ISLAND
OFFICE OF THE HEARING EXAMINER
APPEAL OF ADMINISTRATIVE ) SPR01-29-01-1
DECISION AND NOTICE OF SEPA ) BWAR 01-29-01-1
MITIGATED DETERMINATION ) FINDINGS OF FACT, CONCLUSIONS OF
OF NON SIGNIFICANCE ) LAW AND DECISION
DATED JULY 30, 2001. )
THE PROJECT: WINSLOW ERICKSEN )
MIXED USE PROJECT. )
APPLICANT: ELMQUIST ASSOCIATES )
APPELLANT: ELMQUIST ASSOCIATES )
AND SHEILA CROFUT FOR FRIENDS )
OF THE RAVINE AND SAVE ERICKSEN )
COMMITTEE )
)
INTRODUCTION
This application for site plan review received considerable scrutiny during an extended
review by the Department of Planning and Community Development (DPCD). When this project
was first proposed, neighborhood meetings were held to review the project and receive public
comment. After the staff review, the application was referred to the Planning Commission for
review and recommendation. The Director then reviewed the compiled record and entered her
decision approving the site plan and stream buffer width reduction. A SEPA Mitigated
Determination ofNonsignificance (MDNS) was also issued by the Director.
Two appeals were filed. The applicants' appeal issues were resolved. A Stipulation and
Order of Dismissal was entered which amended the administrative decision of the Director and
amended some of the mitigation measures of the SEPA MDNS.
A pre-hearing conference was held. All parties agreed to a limited list of issues to be
decided at the public hearing before the Hearing Examiner. A public hearing was held on October
29, 2001.
Two appeal issues remain:
(1) Does the reduction of the Class III stream buffer create significant adverse environmental
impacts which will not be mitigated by the conditions attached to the Director's SEPA
MDNS?
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(2) Does the Director's decision approving a 50% reduction in the width of the Class III
stream buffer comply with the requirements of BIMC 16.20.090 and the decision criteria
of BIMC 18.111.040?
FINDINGS OF FACT
1. The Winslow/Ericksen Mixed Use project is to be built on property owned by MJM
Family Investments located at the corner of Winslow Way and Ericksen Avenue in the City of
Bainbridge Island. This property is identified by Tax Account Number: 2625-02-3-038-2005.
2. The project proposes construction of a mixed use development consisting of retail space,
office space, nine residential units and an underground parking garage. The project will be
located in the Central Core Overlay District at the corner of Ericksen Avenue and Winslow Way.
The project site is an L-shaped lot which measures approximately 29,345 sq.ft. The lot is
bordered on the east by "the ravine" which contains a Class III stream and has slopes exceeding a
70% gradient. The city's environmental maps describe the ravine as an area of unstable slopes
and potential slope hazards. The ravine has been classified as a geologically hazardous area. A
required 50 foot buffer is measured from the top of the ravine bank. The applicant's eastern
property line is located near the top of the ravine bank. The ravine bank is contiguous with the
east property line in most areas but extends as much as five feet to the east of the property in
some areas. A majority of the 50 foot buffer required for protection of the ravine stream is,
therefore, located on the applicant's property. The applicant requested a 50% reduction in the
width of this stream buffer to accommodate their project design. The Director approved their site
plan and allowed a 50% reduction in the stream buffer width along the east property line of this
project site.
3. This parcel was previously developed for commercial use. A restaurant with a large paved
parking lot operated on the premises for many years. The paved parking lot extended from west
to east, covering the land behind the restaurant building and extending to within five feet of the
top of the ravine bank along the eastern property line. The restaurant building has not been
demolished, however, the parking lot remains on the site. The parking lot is now being used for
interim paid parking. The parking lot is a legal non-conforming use of this site. The-parking lot
was established prior to the City's adoption of its critical areas ordinance. The stream buffer and
building setback requirements of BIMC 16.20.090 were not in effect when the parking lot was
developed.
A redevelopment of this parcel and a change in use has been proposed. The restaurant
parking lot will be removed and replaced with a mixed use project which includes underground
parking. To accommodate the proposed design, a portion of the stream buffer will be occupied
by buildings.
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4. A 40 foot vegetated buffer will be permanently established along the eastern property line
of the site. This buffer will include the 25 foot reduced stream buffer and the required 15 foot
building setback. The buffer will be planted and maintained with native plant materials that are
layered from Iow growing ground cover to medium height shrubs to full size trees. The
reestablishment of a vegetated buffer on the eastern 40 feet of the site will improve the stream
buffer function and help protect the steep slopes and Class III stream in the ravine. This new
native vegetation will create more shade by providing a denser understory at the top of the ravine.
A vegetation management plan will be adopted to ensure that the new plantings become
established and are functioning as a naturalized plant community. During the public hearing,
appellants raised concern about the removal of Himalayan Blackberry from the banks of the ravine
and possible destabilization of the steep bank from erosion. No vegetation will be removed from
the ravine bank. The applicants' property does not extend beyond the top of the ravine bank.
Himalayan Blackberry will be removed only from the stream buffer area and will be replaced with
native plantings as outlined in the landscape plan drafted by Verdigris, Landscape Architects.
Erosion will be controlled through construction staging and a redirection of stormwater runoff
from the site.
5. Appellants also raised concerns about possible damage to the riparian habitat of the
stream. Browne engineering has studied the drainage and water quality issues at this site.
Currently, nearly 20,000 square feet of impervious surface drains directly and without treatment
across the ravine slope face and into the stream below. The new project will reduce by 85% the
asphalt area on the site that will drain directly into the stream. Drainage from the new parking lot
under the buildings will be routed to the City's sewer system. Water runoff.from the new
driveway will now be passed through an oil filter and catch basin system before entering drainage
ditches offsite The stormwater runoff over the slope will be eliminated except for direct
precipitation that falls on the buffer area or on the slope itself. The project will not increase the
percentage of impervious surface on the site and, therefore, the volume of stormwater runoff will
remain unchanged. This project will result in a significant improvement in water quality for the
portion of the ravine stream affected by runoff from this site. Browne Engineering concluded that
the project will not significantly increase runoff which reaches the stream and should not create
any increased erosion in the streambed which could cause degradation offish habitat or
downstream sedimentation.
6. Slope stability has been considered by the geotechnical engineers consulted for this
project, Myers Biodynamics, Inc. The proposed site development will reduce slope stability risk
by controlling stormwater runoff, placing the building back from the top of the ravine, and
establishing foundation support by footing foundations on the very dense glacial till soils which
underlie the site. Site grades will slope away from the ravine or there will be a surface water
collection system in place to route water away from the ravine slope. The building is setback
from the top of the ravine such that a sufficient slope stability "factor of safety" is provided for the
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structure and its occupants. Due to the project foundation support requirements, the building
excavation will be below the existing site grade. Storm water will therefore collect within the
excavation and will not flow toward the ravine or offsite. An erosion control plan for the
construction phase of the project will be approved by the City Engineer and implemented at the
site. [Myers Reports, EXHIBIT 8 and EXHIBIT 39.]
7. The requested buffer width reduction will not be a grant of special privilege inconsistent
with the limitations upon the uses of other properties in this neighborhood. This proposed
reduction in buffer width would allow approximately 3,500 sq.fi, of asphalt parking lot to be
replaced with native vegetation. The proposal will restore a portion of the project site to its
natural state, rather than continue its use as an asphalt parking lot. The buffer established at the
top of the ravine will measure 40 feet in width, which will include the reduced 25 foot stream
buffer and the revegetated 15 foot building setback. A review of the historic development pattern
along the west side of the ravine reveals an average 35 foot setback from the top of the ravine.
These properties were developed prior to the City's adoption of the 50 foot stream buffer
requirement. The project site has an established non-conforming use in the required stream buffer
area which will be removed. The overall design of the project shows a reduced scale in the height
of buildings on the northern portion of the site which will increase compatibility with historic
homes located on lots immediately to the north. This project site is in the Central Core Overlay
District and other properties in that district have been developed over 100% of their site. This
project, even with the reduced buffer width, will be developed at only 84% of the site.
8. The granting of a buffer width reduction on this project site will not be materially
detrimental to the public welfare or injurious to the property or improvements in the vicinity and
zone where the property is located. Extensive environmental review has been done for this
project. The results of that review confirm that no significant adverse environmental impacts will
result from this project which are not mitigated by conditions attached to the SEPA MDNS and
conditions of approval for the buffer width reduction. Impacts to the ravine stream have been
addressed through buffer enhancement and revegetation, water quality improvement, and storm
water runoff control. This is a property located in an urban setting which has been commercially
developed for decades. The redevelopment of this property for a new commercial mixed use will
significantly lessen the project's impact on the stream and ravine. The site plan provides for
compatible development which minimizes the impact on these critical areas through an engineered
drainage design, geotechnical consultation for building siting, and environmental consultation for
vegetation enhancement in the newly established stream buffer area. The development of this
project site as a commercial mixed use site is consistent with the zoning and comprehensive plan
designation for the property.
9. This buffer width reduction is requested because of special circumstances related to the
shape of the property and its location and surroundings. The project site is located in the Central
Core Overlay District. Other properties in this District along Winslow Way have been fully
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developed for commercial uses. This property historically has been used as a commercial site.
The property adjoins on its north side, historic homes built along Eficksen Avenue. Many of
these historic properties have been developed for commercial use, including the historic houses
immediately to north of the project site. This site is an L-shaped comer property that fronts on
both Winslow Way and Ericksen Avenue. The shape of the lot, as well as its relatively small size
(29,345 square feet) create design limitations for a commercial project. This site is further
restricted by the requirement that the project maintain a 50 foot buffer from the top of the ravine
bank on the eastern property line. The Bainbridge Island Municipal Code (BIMC) also requires a
15 foot building setback from that stream buffer, siting the building a minimum of 65 feet from the
top of the ravine bank. This commercial property is located in the most intense commercial area of
the city. The Comprehensive Plan encourages a vertical mix of uses in this Central Core Overlay
District. The project envisioned by the applicant cannot be built within the restricted footprint
remaining after a set aside of the eastern 65 feet of the property for stream buffer and building
setback. The applicant has therefore asked for a 50% reduction in the stream buffer.
10. The applicant's need for a buffer width reduction has not arisen from actions taken or
proposed by the applicant. The need for the buffer width reduction arises from the small building
envelope remaining after a deduction of the required setback and stream and slope buffers. The
City has required a dedication of right-of-way along both Winslow Way and Ericksen Avenue as
SEPA mitigation measures. The dedication of this additional right-of-way to the City has reduced
the building envelope available to the property owner. A combination of factors, the unique shape
of the lot, the remaining reduced building envelope after dedication, and the location of the
project site near a Class III stream, have created the applicant's need for a buffer width reduction.
In order to accommodate underground parking and to create a viable mixed use commercial
project, the applicant requires certain minimum square footage for development on this parcel. A
reduction in the buffer area from 50 to 25 feet in width, allows sufficient expansion of the building
envelope to accommodate the applicant's project.
11. This buffer width reduction is necessary for the preservation and enjoyment of a
substantial property right possessed by other property in the same vicinity and zone, but which is
denied to this property because of special circumstances. Other properties located in the Central
Core Overlay District have been developed up to 100% of their sites. Without a reduction in the
required stream buffer, this property owner would lose the ability to develop almost 25% of his
commercial property. This property owner has an established legal non-conforming use in the
buffer area, which is being relinquished to mitigate the impacts of the requested buffer reduction.
The present undeveloped stream buffer on the project site measures only 5 feet in width, this
proposal will expand that buffer to 40 feet in width. The buffer area is now devoid of vegetation,
but will be revegetated with native plantings after the asphalt parking lot is removed. The
reduction in the stream buffer from 50 to 25 feet will allow a commercial development on this
property which is consistent with the uses allowed to other commercial properties in the Central
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Core Overlay District.
12. The buffer width reduction is the minimum necessary to fulfill the need of the applicant.
The applicant has designed a project which provides underground parking to accommodate retail
and residential users of this property. To counter the cost of underground parking, the applicant
requires a project containing a minimum amount of square footage for residential and commercial
use. The requested buffer reduction will provide sufficient square footage at the site to meet the
minimum needs required by the applicant's proposed mixed use project.
13. This buffer width reduction is consistent with zoning and comprehensive plan provisions.
A thorough review for zoning and comprehensive plan compliance was made through the site plan
review process. The planning staffmade an extensive review, then the Planning Commission held
public hearings and made a recommendation on the project, prior to a decision by the Director.
Conditions of approval and SEPA mitigation measures have been attached to this project to
ensure that it will be consistent with applicable code provisions.
14. On October 29, 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 October
13, 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 October 8, 2001; notice was posted at the subject property. [EXHIBIT 97.]
CONCLUSIONS OF LAW
1. This appeal of an administrative decision and a SEPA MDNS is properly before the
Hearing Examiner pursuant to BIMC 2.16.130 and BIMC 16.04.170.
2. The Hearing Examiner's review of an administrative decision by the Director of DPCD
must give substantial weight to the Director's decision (B1MC 2.16.130 (F)(2)). An extensive
hearing record demonstrates that the Director followed legal procedures established in the BIMC
to gather evidence to support her decision. Substantial evidence in the record supports the
Director's findings and conclusions that the decision criteria ofBIMC 18.111.040 have been met
by this application for a buffer width reduction.
This application also meets the requirements of BIMC 16.20.090 (H)(3). Under that code
provision, a decreased buffer may be approved which measures up to 50% of the width of the
standard buffer, provided the remaining buffer measures no less than 25 feet in width. The
applicant's request meets those limitations. The applicant has submitted written documentation
demonstrating how each of the variance criteria is met. The applicant's experts have concluded
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that the remaining buffer (a defacto 40 foot buffer area) will protect functions and values
identified for Class III stream buffers. A qualified wetlands biologist has reviewed this buffer
width reduction proposal and has determined that the proposed buffer will protect the regulated
stream adjoining the property from direct or indirect, short term or long term adverse impacts.
The function and benefits of the stream buffer on the applicant's property will be increased as a
result of this project. Because of an existing legal non-conforming use on the property, the
present designated stream buffer does not provide the protections for the stream intended by a
stream buffer requirement. This project will restore 40 feet of the required buffer area and
revegetate that buffer with native plantings to restore function and value to that area. Since the
stream buffer area has been highly disturbed through previous commercial development, there is
no natural condition in this buffer area to preserve, rather the natural condition of the protective
stream buffer will be recreated through a revegetation plan under the guidance of a wetland
biologist and a landscape architect. Water quality on-site and stormwater runoff into the ravine
will be improved as a result of the stormwater drainage plan developed for this project. Slope
stability will be enhanced by decreased water runoff from the site.
3. The appellants contend that the mitigation measures required by the director as conditions
attached to the SEPA IVIDNS are inadequate to mitigate probable adverse environmental impacts
to the ravine and its stream from the construction of this mixed use project. The appellants assert
that an Environmental Impact Statement (EIS) should be required to assess probable adverse
environmental impacts from this project. A withdrawal of the SEPA MDNS requires a showing
that the proposal will continue to have probable significant adverse environmental impacts even
after compliance with the mitigation measures required in the MDNS. That showing has not been
made by these appellants. The environmental impacts identified by the appellants' witnesses
during the public hearing have been addressed by environmental assessments made by the
applicant's consultants. The SEPA MDNS issued by the Director requires compliance with 13
mitigation measures which will minimize environmental impacts from this project. Those
mitigation measures directly address the probable significant adverse environmental impacts which
may result from a stream buffer width reduction on the site's eastern property line. The buffer
width reduction impacts are directly addressed by mitigation requiring revegetation of the building
setback and stream buffer areas with native vegetation; erosion and sedimentation control plans;
the requirement for geotechnical engineer review and approval of building and site plans and the
stormwater conveyance system design~ the requirements for stormwater control throhgh
stormwater management plan and mitigation measures relating to noise and offsite lighting
impacts. The director's environmental review meets the standard of review required for
environmental review under the State Environmental Policy Act and must be affirmed. No EIS is
required for this project since probable adverse environmental impacts can be mitigated by
conditions attached to the DNS. There is substantial evidence in the record to support the
Director's decision that this proposal will not have any probable significant adverse impacts if the
measures required for mitigation are met.
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DECISION
The Director's decision approving the Site Plan and buffer width reduction for the
Winslow/Ericksen Mixed Use Project is affirmed. The Director's issuance of the SEPA MDNS
is affirmed. No Environmental Impact Statement is required for this project.
Dated this 26th day of February, 2002
~ ~..~c~' -~.. i,v~',,,v,d,. ~
Robin Thomas Baker
Hearing Examiner Pro Tem
APPEAL
This Hearing Examiner's decision affirming the decision of the Director of Planning and
Community Development is final unless within 21 days after issuance of the decision a person
with standing appeals the decision in accordance with RCW Chapter 36.0. This decision affirming
the SEPA MDNS issued by the Director of DPCD on July 30, 2001 is final unless an appeal is
filed with the Superior Court.
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