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