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BOTTLES, KIM & SUSAN CITY OF BAINB~E ISLAND OFFICE OF THE HEARING EXAMINER APPEAL OF CONDITIONS OF SEPA ) $SDP07-06-00-I~R~-0010387 lVIDNS AND CONDITIONS OF AN ) AD~S~~ DECISION ) FINDINGS OF FACT APPLICANTS'KlM AND SUSAN ) CONCLUSIONS OF LAW aOTTLES XSD DECI APPELL~S: KlM AND SUSAN ) } OTTLES ) ) FINDINGS OF FACT 1. Kim and Susan Bottles are the legal owners of property located at 10335 NE Se~om Road in the City of Bainbridge Island. This property is a waterfront parcel located along Blakely Itmbor. The parcel has been developed with a single-family residence and a floating dock. The dock extends into Blakely Harbor over privately owned second class tidelands. 2. The Bottles' floating dock was constructed in September, 2002. A Shoreline Substantial Devdopm~t Permit (SSDP) for dock construction was issued by the City on August 13, 2002 [EXHIBIT 91]. A Hydraulic Permit Approval (HPA) for dock construction was issued by the Slate of Washington on June 17, 2002 [EXHIBIT 84]. Approval for dock construction was received from the U.S. Army Corps of Engineers on September 12, 2002 [EXHIBIT 133]. 3. The Bottles' property is bordered on the east by the private residence of Steve and Sharon Soames. It is bordered on the west by the newly established Blakely Harbor Park. No docks have been built on either property. [EXHIBIT 144, 142 AND 141.] Site visits were made by the Hearing Examiner on October 31 and November 4, 2002. 4. Kim and Susan Bottles filed a timely appeal of the City's SEPA Mitigated Determination ofNonsignificance (MDNS) issuext May 22, 2002 and thc Administrative Decision approving thc SSDP issued August 13, 2002. 5. At the besinning of the public hearing, the appellants and the City notified the hearing e~miner that certain appeal issues had been resolved between the parties. A stipulation outlining the parties' agreement was signed and entered into the record [EXHIBIT 148]. The only issues rem~g for decision at the public heating were the appeal of SEPA MDNS Conditions of Approval 1.(g), and 1 .(j). Throughout this decision, the appeal issues will be identifi~ by the ~ SSDP07-06-00-1/PRJ4~ 10387 Hearing Examiner Battle~ Page-1- City of Bainbridge Ialand same numbering system used in the SEPA MDNS. 6. The Plam~.g Director has confirmed that a building permit was not required for this flo~ting dock structure [~IBIT 95]. Conditions requiring a building permit have been stricken. 7. SEPA Condition l(g) limits the length of the appellants' dock to the private tidelands. The appellants' application requestext a permit to extend the dock onto state owned aquatic lands to a depth of-8.5 below MLLW (an additional 18 fc~). 8. Second class tidelands owned by the appellants extend from the shoreline of their property to extreme a extreme low tide (-4.5 feet below MLLW). Within the city's jurisdiction, all those ar~as lying seaward from the line of extreme low tide are shorelines of statewide significance [t~~96. 58. 030(l) (e) (iiO and B1MC 16.12. 030(A)(166)]. 9. The floating dock is composed of low density polyethylene materials that are non- re~~ve. The dock system is self-contained. No permanent structures or piles were used to b~d the dock. The dock is anchored in place by floating lines attached to six helic~d screw anchors. The orientation of the dock is from north to south across Blakely Harbor. 10. The proposed length for the floating dock was 98-feet. The width of Blakely Harbor as m~asur~ from the Bottles' shoreline due south across the harbor is 980-feet. [Staff Report, P. 11.) The size and length of the floating dock are smaller in length and scale than other docks now built in Blakely Harbor. [EXHIBIT 143] 11. The Bottles' tidelands are not identified by the City of Bainbridge Island, the Washington State Department ofFish and Wildlife (WSDFW) or by the Washington State Department of Natural Resources (DNR) as a site having a high environmental value for shellfish, fishlife or wild ~e. [EXHIBI TS 4 3, 5 0,4 ND 13 3] 12. The Planning Director determined that the public would not benefit from an extension of a private dock onto public aquatic lands. [Staff Report, P. 6]. Although the extension of a dock onto state aquatic lands is allowed under certain circumstances, the Director decided that it was nec~saary to shorten the Bottles' dock to 80-feet to minimize interference with surface navigation over public aquatic lands in Blakely Harbor. [RCW 79.90.105 and Staff Report, P. 11.] The Director found that a longer dock would be a partial hindrance to navigation. [Staff Report, 13. Conditions l(g) and l(j) were also imposed to ensure safe unhindered fish passage across tho Bottles' shoreline durin8 the critical migration seasons of the year. [$taffReport, P. 11.] The dock was conditioned to be shorter in length because of Planning Commission and public comn~nts and to reduce impacts to public access (visual and physicS) and to maint~ navigation through publicly owned aquatic lands. [$taffRe~rt, P. 15.] A~I SSDP07-06-00- I/PRJ-0010387 Heating Examiner Boales Page-2- City of Bainbridge Island 14. The Director determined that the length of the dock would not impact habitat values. [S~aff Report, P. 14.] 15. A biological evaluation of the Bottles' shoreline property was prepared by Caicos Corporation [EXHIBIT 50.] The report describes the Bottles' site as an extremely unusual site which consists of brown pea gravel from the extreme high tide line to below the extreme low tide line. Marine floras and fauna were found to be virtually absent from the Bottles' beach. The Bottles' site lies at the location of one of the old wharfs for the Port Blakely Mill. The report speculates that the gravel and pea gravel substrate may have been imported. [EXHIBIT 50, P. 13 am116.] The sites' beach is steeply sloping gravel and is conspicuous in the absence of microalgae, eelgrass vegetation, sessile and burrowing marine organisms. [EXHIBIT 50, P. 7 and 15.] The floating dock will cause no permanent shading since it will move with the wind and tide on floating lines secured to screw anchors [EXHIBIT 50, P. 24.] The jet floats have a very shallow draft and will not create an impediment to fish passage. The floats draw only one inch of water when installed and floating. [EXHIBIT 50, P. 21.] The biological evaluation concludes that the environmental indicators of water temperature, salinity, contaminates, sediments, habitat and substrate will all remain unchanged by the project. [EXHIBIT 50, P. 23.] 16. The dock will alter the natural shoreline. Mitigation measures have been required to compensate for changes to the natural shoreline. [Staff Report, P. 9.] 17. The City's review of pot~ntial environmental impacts included a review of the environmental checklist, supporting documents, and public comments. [$taffReport, P. 12.] The environmental documents relied on by the City included letters from WSDFW [EXHIBITS 22, 43, 72 ard 125] and the Biological Evaluation provided by Caicos Corporation [EXHIBIT 50] and the Jones and Stokes Associates 1992 study of Blakely Harbor [EXHIBIT 99]. The Director acknowledges that the Biological Evaluation concludes that the Bottles' dc~k will not affect fish and wildlife habitat [$taffReport, P. 8 and 11.] Mr. Morrison, City Plmmer, testified at the public hearing that Condition 10) was based on the opinion of WSDFW [EXHIBIT 72] and the Jones and Stokes study [EXHIBIT 99.] The Cit-j was concerned about furore cumulative environmental impacts from similar applications by other shoreline owners. [Morrison testimony 10-31-02]. The City speculates [Staff Report, P.8.] that "the proposed dock may force juvenile salmon into deeper water where they may be more vulnerable to predation. The removal of the sections of dock (Condition 1 (j)) that ground out at low tide from Match 15 through June 14 may prevent adverse impacts to juvenile salmon." The City relies on Exhibit 72 for this conclusion. 18. After the City issued its MDNS, additional environmental documents~vere submitted by the appellants to support the conclusions made in the Biological Evaluation and clarify the May 9~ letter from WSDFW. The Bottles retained Dr. Jonathan P. Houghton of Pentec Environmental to make an independent site specific evaluation of the potential impacts of the Bottles' dock on juvenile salmonids in Blakely Harbor. Dr. Houghton concluded "there is no scientific justification for requiring the removal of this structure [the Bottles'dock] during the Spring period when juvemle salmomds may be present in the area. .... I see no evidence from the Appeal SSDP074)6-00-1/PRJ-0010387 Hearing Examiner Bottles Page-3- City of Bainbridge Island littrature or my personal experiences in observing behavior of juvende salmonids upon encountering over water and fl~ng structures to indicate a significant probability tt~ the Bottles' structure wouM adversely impact juvenile salmonid migration timing, feeding success, or vulnerability to predation. "[EXHIBIT 111, P. 5.] Dr. Houghton also concluded that the grounding of the dock's walkway floats at low tide should not significantly reduce epibemhic prey availability for juvenile salmonids [EXHIBIT 111, P. 5]. Dr. Houghton concludes that extending the Bottles' dock a few more feet waterward should not significantly alter the effects of the structure on juvenile salmonids. [EXHIBIT 111, P. 5.] 19. The appellants also requested a clarification from WSDFW of their position on the mi~gation measure imposed as Condition l(j) in the MDNS. WSDFW submitted a letter of clarification dated September 16, 2002 [EXHIBIT 109]. WSDFW states "Based on best available science, the dock design and the north-south orientation of the Bottles' dock, WDFW does not dispute the biological opinion of the National Marine Fisheries Service (NMI:S) that the dock may ~t but was not likely to adversely affect threatened anadromous salmonids or designated critical habitat. Thus, WSDFW would not oppose permanent installation of the dock." [E. MtlBIT 109, P. 1] 20. The appellants also received authorization from the United States Department of the Army Corps of Engineers to install a permanent dock of 5-feet wide by 100-feet in length [EXHIBIT 133]. As a pan of this approval, Colonel Graves stated "You must implement the Endangered Species Act requirements and/or agreements set forth in the Biological Evaluation for Bottles Floating Dock Application dated 3-28-01 and the adde~m dated 6-07-01 in their entirety. The U.S. Fish and Wildlife Service (US~S) concurred with the finding of "may affect, not likely to adversely affect" based on this document on June 12, 2002 (US~S reference # 1-3-02-1- 1493). The National Marine Fisheries Service (N34FS) concurred with the finding of "may affect, not likely to adversely affect" based on this document on June 5, 2002, (NMFS reference # WHB-02-214)." These approvals were not available to the City of Bainbridge Island at the time it made its environmental evaluation for the MDNS. 21. Blakely Harbor is the most undeveloped~ harbor in the city of Bainbridge Island. The Pl~m~g Commi~don voted unanimously ag~st all dock construction in Blakely Harbor, stating "construction of a new dock in this historical and mostly undeveloped harbor serves neither the public interest nor environmental stewardship called for by the Comprehensive Plan and the Shoreline Management Master Program." The Planning Commission cited concerns with the potential cumulative impacts on the eco-system of a dock in Blakely Harbor. The Planning Commission Vice-Chair also stated that construction of a dock would impede both shoreline and navig~bl~ water access in this harbor [EXHIBIT 80]. 22. There are no docks on properties immediately adjacent to the Bottles' property. The prol~~ immedi&tely west of the Bottles' lot is being develop~l as a city park. The installation of a floating dock on the Bottles' property which extends onto State aquatic lands, would minim~y irn~ct navigation opportunities in the inner harbor. The Director of Planning and Community D~elopment (Director) determined that the cumulative impact of additional public aquatic land encroachmems by future dock installations would create a significant adverse environmental A~ SSDP07-06-00- I~RJ~ 10387 Hearing Exan~er Boaies Page-4- City of Bainbridge Island i~act on the navigation opportunities in Blakely Harbor. To preserve the present level of access to State aquatic lands in the harbor, the Director reduced the length of the Bottles' dock to that leagth which would not encroach on State owned land. 23. The State of Washington does not require a lease from residential owners abutting State owned shorelands, tidelands, or beds of navigable waters for the installation and maintenance of a dock on such areas if used exclusively for private recreation purposes and the area is not subject to prior rights [RCW 79.90.105]. This permission, however, is subject to applicable local regulation governing construction, size and length of the dock. BIMC 16.12.340 lists regulations for piers, docks, recreational floats and mooting buoys. Regulation D states that piers, floats, buoys and docks shall not interfere with the use of navigable waters. An extension of the Bottles' dock onto State aquatic lands would reduce navigation opportunities in Blakely Harbor. The impact to navigation would be minimal because of the location of the Bottles' property in the harbor and the absence of docks or piers on adjoining properties. BIMC 16.12.340.E., states piers and docks may be limited in length or prohibited where necessary to protect navigation, public use or habitat values. The City has determined that the proposed length of the dock will not impact habitat values [Staff Report, P. 14]. The dock is built on privately owned second class tidelands. The extension of the dock onto adjoining State aquatic lands would limit the public use of a small area in Blakely Harbor. The harbor is not heavily developed with docks which extend over public land. The proliferation of docks on state lands in Blakely Harbor would significantly in,pact he public use and enjoyment of the harbor. 24. The appellants requested a Shoreline Substantial Development Permit (SSDP) from the City. In making a decision on a SSDP, the Director is required "to consider whether the cumulative impact of additional past and future requests that reasonably may be made in ac~rdance with the Comprehensive Plan, or similar planning document, for like actions in the area will result in substantial adverse 'effects on the shoreline environment and shoreline resources." [BIMC16.12. 3 60(E) (4) Co)]. The City staff' s analysis of the cumulative impacts of the Bottles' project is explained in tha StaffReport on pages 17, 18, 19 and 20. The staff made the following conclusions: 1. Dock scale- The proposed dock would likely have the least amount of impact of any additional docks within the harbor because of the unique site location and characteristics. Other properties along the harbor would not be able to utilize this floating design because of shoreline topography. 2. Public visual/scenic access- In order to gain adequate moorage, dock development in other areas of Blakely Harbor would require longer docks than the Bottles' dock. Longer docks would significantly diminish existing public visual/scenic access to the harbor. The Bottles' dock is shorter than existing docks on the north side of the harbor. The Bottles' dock as conditioned will have a minimal impact on the public visual/scenic access to the harbor. 3. Navigation- Longer docks would be needed to gain adequate moorage from other sites in the harbor. To allow extension onto public aquatic lands to gain adequate moorage would reduce the area of navigable waters available in the harbor and adversely impact navigation. Aplnal SSDP07-06-00-1/PRJ-0010387 Hearing Exarrfiner Bottles Page-5- City of Bainbridge Island 4. Fish and wildlife- The cumulative impacts of additional longer docks in the harbor will result in more impacts to coastal drffi of sediment and add more obstacles for fish and wildlife in Blakely Harbor. 5. Environment - The cumulative impacts of additional docks in Blakely Harbor would have a significant adverse impact on the environment. The Bottles' dock is a unique design and would not be adequate in most other locations in Blakely Harbor, therefore, projects with a similar design are unlikely. Other new private docks would likely have greater environmental impacts on the harbor. The harbor is not heavily developed with docks which extend over public aquatic land. The proliferation of docks on State lands in Blakely Harbor would significantly impact the public use and enjoyment of the harbor. The limitation on the length of the Bottles dock will balance the needs of the apphcant with the public use of the harbor. 25. The applicants were the only appellants of the SEPA MDNS or the Administrative D~cision issued by the City. 25. On October 31, 2002, a Public Hearing was held before the Hearing Examiner to consider the al~lication, the hearing was continued to November 4, 2002. Prior to the hearing, notice was p~lished in the Bainbridge Review on October 12, 2002; notice of the public hearing was mailed to the owners of property within 300 feet of the proposed project on October 8, 2002, and notices were posted at the City Hall, the Chamber of Commerce, and the Ferry Terminal on October 9, 2002; notice was posted at the subject property on October 17, 2002. [EXHIBIT 98]. CONCLUSIONS OF LAW 1. The Bottles' appeals of the SEPA MDNS and the Administrative Decision approving a SSDP issued by the City of B~inbridge Island on May 22~ and August 13~, 2002, are proPerly before the Heahn8 Examiner pursuant to appeal procedures of BIMC 16.04.170 and BIMC 16.12.370. A public hearing was held in this matter on October 31, 2002, the hearing was continued to November 4, 2002. The record remained open for receipt of additional exhibits until November 15, 2002. The public hearing was limited to the appeal of SEPA MDNS Conditions l(g) and l(j). Adequate legal notice as given of all public hearings on this appeal. 2. The Director may attach conditions to a permit or approval for a proposal so long as the co~gtifions are necessary to mitigate specific probable adverse environmental impacts identified in environmental documents prepared pursuant to policies and regulations adopted by the City of Bainbridge Island. The conditions, or mitigation measures included in such conditions, must be reasonable and capable of being accomplished and must be based on one or more of the policies cited in BIMC 16.04.16003). The applicant has appealed two conditions imposed by the Director as a condition of her approval of the SSDP for a floating dock facility at the Bottles' residence. 3. Conclusions drawn by the Director about probable significant adverse environmental impacts expected from the Bottles' dock project have been refuted by more specific A~I SSDP07-06-00-1/PRJ-0010387 Hearing Examiner Bo~les Page-6- City of Bainbridge Island environmental documents filed by the appellants in support of their appeal. Findings made by the WSDFW, the National Marine Fisheries Service, and the US Fish and Wildlife Service, contradict the City's conclusion that the installation of a permanent floating dock on the Bottles' property would cause a probable significant adverse environmental impact to the near shore habitat for juvenile salmon migration and other fish species along the shoreline. Each of those agencies accepted the Caicos Corporation Biological Evaluation dated March 24, 2001 and its addendum dated June 7, 2001, [EXttlBIT57, Attachment C]. A US Army Corps of Engineers permit was issued on September 12, 2002 allowing permanent installation of a S-foot x 100-foot float with a 6.5 foot x 40-foot T-float on the Bottles' property in Blakely Harbor. The environmental analysis of Dr. Houghton also contradicts environmental conclusions made in the Staff Report. The Jones and Stokes Study [EXHIBIT 99] is a report on the aquatic resources of Blakely Harbor and surrounding properties. This report is consistent with the environmental evaluations m~de by the state and federal agencies. The study confirmed the use of near shore habitats within Blakely Harbor by juvenile salmonids, including Chum, Pink and Chinook salmon. The biological evaluations made by Caicos Corporation and Dr. Houghton are site specific. These studies evaluate the uniqueness of the site and the dock design to determine that critical habitat will not likely be adversely affected by this dock facility. Condition l(j) of the SEPA MDNS issued by the City on May 22, 2002 is not supported by the environmental an~ysis done on the Bottles' property. The information relied on by the Director during the SEPA environmental review has been clarified by additional documents filed in ~upport of the appeal. The Biological Evaluation submitted by the applicants has been confirmed by later agency review and private consultants' reports. MDNS Condition (1)(j) is not neces~ to mitigate a specific probable adverse impact identified in the environmental documents. Conditions l(j) is not a reasonable condition for this specific dock project because it does not mitigate a specific adverse impact identified by the environmental review. 4. The Director concluded that the extension of the Bottles' dock onto state aquatic lands would interfere with surface navigation in Blakely Harbor and adversely impact the public's visual and physical access to the harbor. The Director's cumulative impact analysis concludes that a longer dock would set a precedent in the harbor which would result in substantial adverse impacts to the shoreline environment from. A proliferation of private docks in Blakely Harbor which must extend onto state aquatic lands to provide adequate moorage, would cause significant adverse environmental impacts to the harbor. 5. RCW 79.90.105 allows installation of a private dock on state owned shorelands, tidelands, or beds of navigable water subject to local regulations governing the construction, size and length of the dock. Local regulations governing the construction, size and length of a private dock are included in the Shoreline Master Program (SMP). The Director must determine whether an application complies with those regulations before issuing an SSDP. The Director concluded that an extension of the Bottles' dock was not supported by SMP policies and regulations. [Staff Report, P. 13 and 16]. BIMC 16.12.230(BX5) states: "Piers and docks may be limited in length or prohibited A~ SSDP07-06-00-I/PRJ-0010387 Hearing Examiner Bo~es Page -7- City of Bainbridge Island wl~re noces~, to protect navigation, public use, or habitat values." The Director determined that the length of the Bottles' dock must be limited to private tidelands to protect navigation and public access to state aquatic lands. This determination was made after the required analysis of the past and future requests that reasonably may be made for similar projects in Blakely Harbor. [BIMC 16.12. 360 (E)(4)(b)]. The Heating Examiner is required to give substantial weight to the decision of the Director as the responsible official under BIMC 16.04.170. The Heating Examiner does not find that the decision of the Director to impose Condition 1 (g) is clearly erroneous. The hearing record contains substantial evidence to support the decision of the Director to limit the length of the Bottles' dock as required in SEPA Condition l(g). MDNS Condition l(g) is a reasonable condition which helps mitigate the environmental impacts identified in the environmental review. 6. The appellants have built the dock as conditioned and are using it for deep water moorage for their boats. This use is consistent with tho application request for protecte~ deep water moorage. BIMC 16.12.340(cx10) sets the maximum length for a private dock or pier. The Bottles' dock as approved will not violate BIMC 16.12.340(C)(10). DECISION Based on the foregoing Findings of Fact and Conclusions of Law, the appeal of MDNS Conditions l(j) is granted. MDNS Condition 10) is stricken. The appeal of MDNS Condition 1 (Il) is denied. The SEPA MDNS dated May 22, 2002 and the Administrative Decision dated August 13, 2002 are amended to conform to the stipulation between the parties dated November 4, 2002 [~IBIT 148] and to this Decision. D~ted this 30~ day of January, 2003 RObin Thomas Baker Ha~ri~g Examiner Pro T em APPEAL The decision of the Hearing Examiner shall be final unless, within 21 days after issuance of this deeisio~ a person with standing appeals the decision in accordance with RCW36.70. Apjmal SSDP07-06-O0-1/PRJ-0010387 Hearing Examiner Boltles Page-$- City of Bainbridge Island CITY CLERK CITY OF BAINBRIDGE ISLAND OFFICE OF THE HE~G EXAMINER APPEAL OF CONDITIONS OF SEPA ) $$IH~7-06-00-1/P~-~10587 MDNS AND CONDITIONS OF AN ) ADMINISTRATIVE DECISION ) AMENDMENT TO FINDINGS OF FACT APPLICANTS' KIM AND SUSAN ) CONCLUSIONS OF LAW BOTTLES ) AND DECISION A1}PELL~S: KIM AND SUSAN ) BOTTLES ) ) The appeal statement on the decision dated January 30, 2003 is in error. The decision is now amended by striking the appeal statement on page 8 and substituting the following statement: This decision is the final action of the City, the decision will be forwarded to the Department of Ecology and the Washington State Attorney General. The decision may be appealed using the procedures set forth in BIMC 16.12.370(B). D~ted this 7TM day of January, 2003 Robin Thomas Baker Hearing Examiner Pro T em Am~t to Decision Hearing Examiner A.~I SSDP07-06-00-1/PRJ~ 10387 Boedes Page -1- City of Bainbridge Island