ELLINGSEN, RONALD CITY OF BAINBRIDGE ISLAND
OFFICE OF THE HEARING-EXAMINER
. PR 1 Ff112:25
) RUE02-23-01-1 (PRJ-0010996)
APPLICATION FOR REASONABLE ) FINDINGS OF FACT
USE EXCEPTION ) CONCLUSIONS OF LAW
APPLICANT: RONALD C. ELLINGSEN ) AND DECISION
)
FINDINGS OF FACT
1. Ron Ellingsen Construction, Inc., is the legal owner of Lots A, B and D of Kitsap County
Short Plat No. 1672. These lots are identified by Tax Account No's: 162502-1-024-2007,
162502-1-0025-2006 and 162502-1-002-2007. The legal descriptions for these three parcels are
attached as "EXHIBIT A" to this Decision.
2 The three lots owned by Mr. Ellingsen have a zoning designation of R-2 and a
Comprehensive Plan designation of OSR.2. Parcels to the north, east and west have also been
zoned R-2. Property to the south is zoned R-0.4. The Comprehensive Plan designations for
those properties is consistent with their zoning designation. This short plat is bordered on the
north by Meadowmeer Golf Course and on the south by the Bainbridge Island Park District's
Grand Forest. Property immediately to the west has been developed with single family residences.
Properties to the east are undeveloped.
3. Water service will be provided by the Meadowmeer Community Water System and on-site
septic systems will provide sewage disposal.
4. The applicant has filed a Reasonable Use Exception (RUE) application to obtain after-the-
fact approval for construction of an access road across Lot D and a driveway along the west
property line of Lot A. The access road on Lot D serves all four parcels in the short plat. The
RUE application also requests approval of a previously constructed driveway along the western
property line of Lot A. Both the access road and the driveway cross through regulated wetlands
and wetland buffers.
5. Lots in this plat have the potential to be further subdivided since they are located in the R-
2 zone. Lot A measures 40,075 square feet, Lot B measures 47,480 square feet and Lot D
measures 213,444 square feet.
6. Kitsap County Short Plat No. 1672 was approved by Kitsap County prior to the
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incorporation of the City of Bainbridge Island. The short plat was accessed by a 30 foot e~sement'
road to be built along the southern property line of Lots C, A and B and the northern property
line of Lot D. This access easement has never been developed.
7. On October 7, 1999 the City of Bainbridge Island Engineering Department issued Permit
No. RA99-175 which approved development of the access road offBevefly Lane, a public street
[EXHIBIT25.] Development of the access road required encroachments into wetlands and
wetland buffers located on the property. No application for Reasonable Use Exception to allow
this wetland and wetland buffer encroachment was filed by Mr. Ellingsen prior to his road
construction. The road was built along an existing logging road rather than in the access
easement. This RUE application seeks retroactive approval for that new location. Wetland
restoration is proposed. A wetland and buffer restoration and mitigation plan has been prepared
by Wiltermood Associates, Inc. [EXHIBITS 59 AND 60.]
8. This application was reviewed by the Wetlands Advisory Committee on two occasions.
On October 4, 2002, the Wetlands Advisory Committee recommended approval of the RUE with
the following conditions:
1. All critical areas adjacent to the access road and building sites shall be isolated
with split rail fences.
The City shall monitor the placement and maintenance of these
fences for a period of five years and require repairs as identified in
the annual inspections.
3. Wetland restoration shall be monitored for a period of five years
and summary reports prepared and delivered to the Wetland
Advisory Committee on an annual basis.
4. Final building plans shall be submitted to the Wetlands Advisory
Committee for review prior to issuing a building permit.
9. On December 6, 2002, a public hearing was held on this application. During the public
hearing, the applicant's attorney, Mr. Tracy, objected to several conditions recommended by the
planning staff as conditions of approval for this RUE. Mr. Tracy requested an opportunity to
provide further legal briefing and documentation to support his objections to those conditions.
The Hearing Examiner granted Mr. Tracy's request and the heating record remained open for
receipt of those documents. By Memo dated January 28, 2003, Mr. Machen (Associate Planner,
City of Bainbridge Island) informed the Hearing Examiner that Mr. Tracy and Mr. Ellingsen had
withdrawn their objections to the conditions proposed by the Planning Department in their Staff
Report dated October 22, 2002, except for Condition 7 [EXHIBIT 71]. The City and the
applicant agreed that Condition 7 requires that fencing be installed in the highlighted locations
shown on the map attached to Mr~ Tracy's January 27, 2003 letter [EXHIBIT 72.] Those fence
locations are located across the northwest comer of Lot A and in the northwest comer of Lot B.
10. During the public hearing, Mr. Machen requested an amendment to SEPA Condition No.
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11 and his proposed Non-SEPA Condition No. 19. Mr. Tracy had no objections to the
amendments proposed by Mr. Machen. Condition 11 should be modified to delete the words "as
shown on the site plan." Condition 11 will be modified to read as follows: "The stormwater
infiltration system on Lot A is allowed to be installed in the wetland buffer as long as no trees are
removed and the native shrubs and groundcover is replanted." Condition 19 should be amended
to delete the words "a temporary certificate of occupancy being issued." Condition 19 is
amended to read as follows: "All conditions shall be fulfilled prior to final inspection for
construction of any single-family residence."
11. Wiltermood and Associates has identified both Category III and Category II wetlands on
the Ellingsen property. In addition, a Class IV stream has been identified. The previously
constructed access road and Lot A driveway cross through these wetland and stream areas.
BIMC 16.20.090(F) allows certain uses within a regulated stream or wetland under certain
conditions. The building of access roads and driveways are not included in the list of permitted
uses in regulated streams and wetlands under BIMC 16.20.090(F). BIMC 16.20.090(G) also lists
certain permitted activities and uses within the areas for regulated wetlands and streams. BIMC
16.20.090(G) does not permit roadways or driveways to be constructed within the required buffer
areas for regulated wetlands or streams. The Ellingsen property contains regulated wetlands on
all lots within the plat. The access easement originally approved for Kitsap County Short Plat
1672 would require road construction within a regulated wetland. The alternative site, chosen by
the applicant, also requires road construction through regulated wetland areas and across
regulated streams.
The applicant has provided a topographical survey of the short plat which includes the
gravel access drive constructed on the property in 1999 and early 2000. That survey shows the
existing gravel drive and delineated wetlands on the property. This topographical map confirms
that the access driveway constructed by the applicant encroaches on regulated wetlands and their
buffers. [EXHIBIT 12.]
Four wetland areas were identified within the short plat. These wetlands were identified
as Wetland A, B, C and D. Wetland A was a small wetland under 5,000 square feet in size
which, due to construction activities, is no longer viable on the site. Wetland B is described as a
forested wetland system approximately 1 acre in size. Wetland C is described as an 11,000 square
foot wetland. The Class IV stream traverses Lot A diagonally from southwest to northeast.
The applicant's access road is located within the buffer area for Wetland B and encroaches
on the southeastern coruer of that wetland. The access road also encroaches into the buffer area
around Wetland C on Lot D~ The driveway constructed along the west property line of Lot A
crosses a portion of Wetland B and its buffer. The Lot A driveway also crosses the Class IV
stream. Building sites on Lots C, A and B are available only on the northern coruers of the lots.
Driveway access for potential building sites on Lots C and A must cross regulated wetlands and
their buffers and must cross the Class IV stream. Alternative access outside wetland buffers is not
available for building sites on Lots C and A.
12. These lots have been platted and zoned for single-family residential development.
Compliance with the requirements of the Critical Areas Ordinance (BIMC 16.20) would leave no
reasonable use of the property. BIMC 16.20.090(1) authorizes a Reasonable Use Exception only
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for alternations to required buffers, regulated wetlands or streams. Reasonable Use Exceptions
are not authorized for changes in density requirements, building height requirements, permitted
uses or expanding a use otherwise prohibited, and may not be used to achieve the maximum
density allowed without critical areas. This application does not request a change in density
requirements, building height requirements, permitted uses or expansion of a use otherwise
prohibited and will not allow a use which achieves the maximum density allowed without the
critical areas.
13. This application for Reasonable Use Permit is not the result of actions by the applicant in
segregating or dividing these properties. These lots were created through a short plat process
allowed under the zoning ordinances of Kitsap County, prior to incorporation of the City of
Bainbridge Island and prior to the adoption of B1MC 16.20. The configuration of the lots in the
short plat and the location of wetlands, wetland buffers and streams on the property has created a
circumstance wherein the property owner is unable to access residential lots without encroaching
on wetlands or wetland buffers on the property. The only public right-of-way adjacent to the
Short Plat is Beverly Lane on the west side. This inability to obtain access to the lots without
disturbing the wetland and wetland buffers on the property has created the need for a Reasonable
Use Exception to the Critical Areas Ordinance of the City.
14. The thirty-foot roadway easement approved with the original plat will be extinguished by
agreement of all plat owners. Lot C in the short plat is owned by Ronald C. Portelance and
Letitia M. Portelance. Lots A, B and D in the short plat are owned by Ronald C. Ellingsen. The
Portelances and Mr. Ellingsen entered into an agreement to vacate the original access easement of
Short Plat 1672. That agreement has now expired. It is the intention of the parties to extinguish
the original access easement once approval for the alternative access had been given by the City.
15. The applicant has proposed a joint use driveway for access to building sites on Lots C and
A. This joint use driveway will help minimize the impacts to wetlands and wetland buffers on the
site by reducing the number of driveways which are required to cross Wetland B. The access
driveway for the proposed building site on Lot B can be constructed outside the wetland and
wetland buffers located on Lot B. Access driveways for possible building sites on Lot D will be
considered in a future RUE application.
16. At the public hearing on December 6, 2002, Mr. Ellingsen testified that he had submitted a
revised site plan to the Wetland Advisory Committee during their meeting on August 20, 2002.
The Wetland Advisory Committee signed a revised recommendation on October 4, 2002, which
was based on the additional site meetings and the additional information presented at the August
20th meeting. Mr. Ellingsen filed a copy of that revised site plan with the City on December 6,
2002. [EXI-IIBIT 70.] This revised site plan is substantially the same as the site plan submitted to
the City on September 26, 2002, [EXHIBIT 64] except for modifications made to the proposed
building site on Lot C. The circular driveway was removed from the buffer area and a notation on
the face of the plan indicates that the building envelope will be limited to areas outside the buffer
areas.
17. The City Engineer has determined that this new access road must be developed to the
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"Minimally Adequate" standard described in the Bainbridge Island Road Design and Construction
Standards. Mr. David Nelson, from the Public Works Department, testified that the current road
has been developed at a width of approximately 12-feet which is the minimum width required for
the "Minimally Adequate" standard. Some road improvements will be required to meet the design
standards of the City and the emergency access turnaround requirements of the Fire Department.
During the construction of the access road, some disturbance of wetland area occurred which was
not necessary to accommodate the developmenL Those disturbed wetland areas will be restored
[EXHIBIT 59./
18. No known endangered, threatened, rare, sensitive or monitored species have been
identified on or in close proximity to the applicant's property.
19. The SEPA Mitigated Determination ofNonsignificance (MDNS) was issued by the City of
Bainbridge Island on October 30, 2002. No appeals were filed. The time for appealing the
MDNS is has passed.
20. These lots contain significant natural systems, including both Category I1 and Category III
wetlands and a Class IV stream. Residential development on lots containing critical areas must
occur in areas of the lot which would minimize impacts to those critical areas. Mr. Ellingsen has
agreed to construct rail fencing on the outside perimeter of the building setback buffer on each
homesite on Lots A and B to help preserve the buffer area and creek bed from the impact of
future development. Buildings and construction on all lots will be allowed only outside of
wetlands, wetland buffers and the 15-foot building setbacks on the lots. In order to protect the
groundwater and the wetland flora and fauna, the application of fertilizers, pesticides and
herbicides have been prohibited on the property. Stormwater management and temporary erosion
controls have been required as a condition of approval.
21. On December 6, 2002, 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
November 16, 2002; notice of the public hearing was mailed to the owners of property within 300
feet of the proposed project on November 11, 2002, and notices were posted at the City Hall, the
Chamber of Commerce, and the Ferry Terminal on November 11, 2002; notice was posted at the
subject property on November 21, 2002. [EXHIBIT68.] The Hearing Examiner visited the site
on December 5, 2002.
CONCLUSIONS OF LAW
1. This matter is properly before the Hearing Examiner pursuant to jurisdiction established in
BIMC 16.20.090(I)(2)(e). Prior to review by the Hearing Examiner, the Wetlands Advisory
Committee reviewed the project and made recommendations for approval. [EXHIBIT 62.]
Adequate legal notice was given of the public hearing held in this matter on December 6, 2002.
The record remained open until January 30, 2003 for the submission ofadditionai documents as
requested by the applicant. The hearing record closed on January 30, 2003.
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2. Compliance with the Critical Area Ordinance prohibitions against road and driveway
construction in wetland and stream areas would prevent development of these short plat lots for
single-family residential uses. No reasonable use of the property can be made without an
exception to the provisions of BIMC 16.20 through a Reasonable Use Exception (RUE). An
application for RUE must comply with all of the decision criteria listed in B1MC 16.20.090(I)(4).
3. BLMC 16.20.090(1)(4): Decision Criteria. A Reasonable Use Exception may be
approved, or approved with modifications if without the Reasonable Use Exception the applicant
wouM be deprived of any reasonable use of property and:
(a) the proposed activities will result in the minimum intrusion, alteration or impairment
of the wetlands, stream or required buffer including impacts to their functional characteristics,
while permitting some reasonable use of the property. In all cases, disturbance of the regulated
wetland or stream shall only occur if no reasonable use can be achieved by disturbance of the
buffer only;
This application requests after-the-fact approval of an alternative access road for Short
Plat 1672. A road permit was issued by the City of Bainbridge Island in October of 1999 which
allowed construction of an access road for the Short Plat. The applicant failed to apply for a
Reasonable Use Exemption to allow construction over wetlands, wetland buffers and streams.
This application for a Reasonable Use Exception is supported by a Wetland and Buffer
Restoration and Mitigation Plan prepared by Wiltermood Associates, Inc. and dated August 29,
2002. Work done under this mitigation plan will replace wetland vegetation and restore
predevelopment hydrology to both Wetland C and to the buffers of Wetlands B and C A yearly
monitoring plan will be supported by an implementation bond which will be released at the end of
the five-year monitoring period, after City acceptance of the final monitoring report. The Wetland
Advisory Committee has recommended approval of this RUE, even though the road encroaches
into the wetland and wetland buffers areas. The Committee determined that a relocation of the
road may cause further wetland disturbance and the probable loss of significant trees on Lot D
The building envelopes for Lots A, B and C are all located in the northern corners of the property.
Access to those building areas must cross wetland buffer areas. The applicant has proposed a
joint use driveway to access both Lot C and Lot A. The owners of Lot C and Lot A have
tentatively agreed to vacate the original access easement and limit their access to this joint use
driveway. The driveway to the building site on Lot B can be placed outside the wetland and
wetland buffers areas. Building sites on Lot D can be accessed by driveways outside the wetland
and wetland buffer areas on the lot. The applicant's proposal to maintain the existing access road
across Lot D will result in the minimum intrusion, alteration or impairment of the wetlands,
stream and buffer areas in the short plat. This access road will be developed to "Minimally
Adequate" standards, in compliance with the Roadway Design and Construction Standards
adopted by the City. The access road, as presently built, is approximately 12-feet in width and
will not be widened beyond 12-feet. Maintaining this narrow roadway will minimize wetland and
wetland buffer encroachments in the plat. Lot A is traversed diagonally by a Class IV stream.
Access to the building site on Lot A must cross this streambed. The driveway on Lot A was
constructed in a location where the wetland and stream are the narrowest on the lot. The
mitigation ptan submitted by the applicant will help protect that streambed and minimize impact to
the natural systems on the lot. No reasonable use could be made of Lot A without providing an
access driveway to the building envelope across this Class IV stream. The main access road
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encroaches on the southeastern edge of Wetland B. The access road was constructed in the
location ora historic logging road. Allowing this small encroachment across Wetland B will
cause less disturbance to the total wetland system than a relocation of the roadway further south
into the wetland buffer area. The disturbance has already occurred and the loss of this wetland
area is compensated in the applicant's Wetland and Buffer Restoration and Mitigation Plan
[EXHIBIT 59.]
4. BIMC 16.20.090(1)(4): Decision Criteria. A Reasonable Use Exception may be
approved, or approved with modifications if without the Reasonable Use Exception the applicant
wouM be deprived of any reasonable use of property and:
... (b) The proposed activities are located to minimize impacts' to the continued existence
of endangered, threatened, rare, sensitive, or monitor species as listed by the federal government
or the State of Washington;
No known endangered, threatened, rare, sensitive, or monitored species as listed by the
federal government or the State of Washington have been identified on this property.
5. BIMC 16.20.090(1)(4): Decision Criteria. A Reasonable Use Exception may be
approved, or approved with modifications if without the Reasonable Use Exception the applicant
wouM be deprived of any reasonable use of property and:
... (c) The proposed activities include mitigation as appropriate to avoid measurable
degradation to groundwater or surface water quality;
Mitigation measures have been required for SEPA approval. Those measures include
prohibitions against use of fertilizers, pesticides and herbicides on the property. Stormwater
management plans have been required to control stormwater runoff and protect wetland
hydrology. Clearing and grading will be performed only in the dry season unless an erosion
control plan is approved by the City Engineer. No farm animals will be allowed on the property.
This prohibition will help to protect water quality and wetland vegetation. On-site septic systems
will be require approval by the Bremerton-Kitsap County Health District. Temporary erosion
controls and revegetation requirements will help avoid degradation to the surface or groundwater
quality during and after construction. Wetland hydrology will be monitored and reports will be
submitted to the City for five years after RUE approval. This monitoring will help ensure
maintenance of wetland hydrology, and the restoration of wetland areas.
6. BIMC 16.20.090(1)(4): Decision Criteria. A Reasonable Use Exception may be
approved, or approved with modifications if without the Reasonable Use Exception the applicant
wouM be deprived of any reasonable use of property and:
... (d) The proposed activities comply with all relevant state, local and federal laws,
including those related to sediment control, pollution control, floodplain restrictions, and on-site
wastewater disposal;
Conditions of approval will be attached to this RUE to ensure consistency with the
requirements ofBIMC. A stormwater management plan will be submitted by the applicant.
Compliance with BIMC 15.20 and 15.21 is required. The applicants will be required to comply
with all State and federal laws pertaining to sediment and pollution control. The on-site septic
disposal systems proposed by the applicant, must be approved by the Bremerton-Kitsap County
Health District. This property is not subject to floodplain restrictions.
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7. BIMC 16.20.090(I)(4): Decision Criteria. A Reasonable Use Exception may be
approved, or approved with modifications if without the Reasonable Use Exception the applicant
wouM be deprived of any reasonable use of property and:
... (e) Alterations to wetland, streams and buffers will be mitigated to the extent feasible
considering the extent of the disturbance, the size of the site and the necessity for the proposed
activities;
This property has been platted for single-family residential development. The plat access
road has been relocated in an attempt to minimize disturbance of wetland and wetland buffer areas
on the site. Some disturbance of wetland buffer areas and stream areas is needed to allow access
and construction of single-family residences and their associated drainfield areas on the platted
lots. The applicant has submitted a Wetland and Buffer Restoration and Mitigation Plan which
will restore previously disturbed wetland areas, and help mitigate future impacts to the natural
systems on the property. This Restoration and Mitigation Plan will be monitored for a period of
five years after approval of the RUE to ensure compliance. These lots are zoned R-2, however,
due to the existence of extensive wetland systems on the property, Lots A and B will be limited to
the development of one home site on each lot. Further subdivision of Lot D is not allowed
without further review by the Department of Planning and Community Development.
8. B1MC 16.20.090(1)(4): Decision Criteria. A Reasonable Use Exception may be
approved, or approved with modifications if without the Reasonable Use Exception the applicant
wouM be deprived of any reasonable use of property and:
... 09 There will be no damage to nearby public or private property and no threat to the
health or safety of people on or off the property;
Approval of this joint access road and joint driveway to allow development of the lots in
this short plat should not cause damage to any nearby public or private property, nor cause any
threat to the health and safety of people on or off the property. The use of these lots for single-
family residential development is consistent with the use of surrounding properties. The access
roadway was constructed more than three years ago and no damage to adjoining property has
occurred as a result of that construction.
9. B1MC 16.20.090(I)(4): Decision Criteria. A Reasonable Use Exception may be
approved, or approved with modifications if without the Reasonable Use Exception the applicant
wouM be deprived of any reasonable use of property and:
... (g,) The inability to derive reasonable use of the property is not the result of actions by
the applicant in segregating or dividing the property and creating the undevelopable condition
after the effective date of this chapter;
This RUE is required to allow construction of a joint access road for a short plat which
was approved by Kitsap County prior to 1990. The RUE is required because of the configuration
of the lots, and the inability of the lot owners to construct access roads to those lots outside of the
wetlands and wetland buffer areas on the property. The configuration of these lots is not the
result of the actions of the applicant in segregating or dividing the property and creating the
undevelopable conditions after the effective date of BIMC 16.20. The properties were created
through the short plat process prior to the incorporation of the City of Bainbridge Island.
This short plat is bordered on the north by Meadowmeer Golf Course, on the south by the
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Bainbridge Island Park District's Grand Forest, and on the east by vacant land. Beverly Lane, a
public fight-of-way, provides the only access to the property.
10. B1MC 16.20.090(1)(4): Decision Criteria. A Reasonable Use Exception may be
approved, or approved with modifications if without the Reasonable Use Exception the applicant
wouM be deprived of any reasonable use of property and:
... (h) The reasonable use exception will not allow a use or activity that is inconsistent
with the uses and activities and limitations of other properties in the vicinity and zone in which
the property is locate&
This short plat is located in an area which has been densely developed for single-family
residential use. Properties to the north have been developed for Meadowmeer Golf Course which
is surrounded by single-family residential development. These lots have been zoned R-2 and the
use of the properties for single-family residences is consistent with other uses in the vicinity and
zone. Lots A and B have been limited to one building site, even though they are zoned R-2 and
measure 40,075 square feet and 47,480 square feet respectively. This limitation will help protect
natural systems on the property.
11. BIMC 16.20.090(1)(4): Decision Criteria. A Reasonable Use Exception may be
approved, or approved with modifications if without the Reasonable Use Exception the applicant
wouM be deprived of any reasonable use of property
... (0 For a nonresidentially zone site, the reasonable use exception shouM consider
alternative uses that minimize impacts to wetlands, streams, and buffers, as well as the
applicant's proposed use;
This is a residentially zoned site, therefore, this section of the decision criteria is not
applicable.
12. BIMC 16.20.090(1)(4): Decision Criteria. A Reasonable Use Exception may be
approved, or approved with modifications if without the Reasonable Use Exception the applicant
wouM be deprived of any reasonable use of property and:
... (j,) The reasonable use exception is the minimum necessary to provide reasonable use
of the property;
Providing a joint access road to these four lots, along with a joint access driveway to Lots
A and C, provides the minimum access needed to allow a reasonable development of building sites
on Lots A, B and C in this short plat. Development of these lots for a single-family residence is
consistent with the R-2 zoning. Lots A and B will be allowed only one building site, even though
the area of the lot may allow two building sites under current zoning. Protection of extensive
wetland areas on all lots requires a limitation on the number of building sites on each lot.
Providing aocess to these single building sites on Lots A, B and C, is the minimum necessary to
provide for the reasonable use of those properties.
13. BIMC 16.20.090(1)(4): Decision Criteria. A Reasonable Use Exception may be
approved, or approved with modifications if without the Reasonable Use Exception the applicant
wouM be deprived of any reasonable use of property and:
... (k) The reasonable use exception is consistent with all other provisions of this code and
is in accordwith the comprehensive plan.
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This joint access roadway will be constructed to the "Minimally Adequate" standard
required by the City's Road Design and Construction Standards. The use of these properties for
single-family residential development is consistent with the goals of the Comprehensive Plan. The
restrictions on the lots to protect wetland and wetland buffers areas and streams helps meet the
Comprehensive Plan goal for residential development to be compatible with the preservation of
natural systems on property. A five year monitoring plan will ensure that natural systems on the
property are protected during and after construction. The Comprehensive Plan makes
recommendations for the development of property adjoining or adjacent to critical areas (EN 1.2)
The Wetland and Buffer Restoration and Mitigation Plan submitted by the applicant, along with
the mitigating conditions attached to the MDNS will help ensure that the natural systems on the
property are protected while the property is developed for single-family residential use.
Maintenance of wetland buffers and restoration of wetland areas on the properties will help retain
the wildlife habitat on the property. Restrictions on vegetation removal and clearing and grading
activities will help protect the water quality and the hydrology of those wetland systems.
Unnecessary disturbance of wetlands and wetland buffers occurred during the construction of the
access road. Those areas of disturbed wetlands and wetland buffers are being restored or
replaced as a part of the Wetland and Buffer Restoration and Mitigation Plan submitted by the
applicant. This plan was prepared by qualified wetland biologists and has been approved by the
Director of Planning and Community Development. As conditioned, this plan will include a
performance and maintenance assurance device, along with a five year monitoring plan to ensure
protection of wetland hydrology on the lots. Comprehensive Plan policies discourage herbicide or
pesticide use in wetland, streams and buffer areas, and in areas that drain into wetland, streams or
buffer areas. Use of herbicides or pesticides will be prohibited on these properties. No farm
animals will be allowed on these properties to help protect natural systems on the site.
Development activities will take place, as much as possible, outside all wetland buffers and
wetland areas on the site. Any disturbance of those areas will be restored. The goals and policies
of the Comprehensive Plan intended to protect natural systems on properties zoned for residential
development, have been met by the conditions attached to this RUE approval.
Conditions of approval will be attached to this RUE to ensure compliance with all
provisions of the BIMC
14. A SEPA MDNS was issued on October 30, 2002. The MDNS was not appealed by any
party and is now final.
15. To ensure compliance with the provisions of BIMC and the Comprehensive Plan, and to
meet the decision criteria for RUE under BIMC 16.20.090, certain conditions must be attached to
this approval. Those conditions are as follows:
SEPA Conditions:
1. Stormwater management plans including measures to control temporary sediment
and erosion shall be approved by the City prior to beginning any construction
activity.
2. Any clearing and grading proposed outside of the dry season, April 1 to October
1, shall require an erosion control plan that specifically identifies methods of
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26, 2001. No additional trees or significant vegetation shall be removed for the
access road.
Non-SEPA conditions:
16. Lot A and Lot B of Kitsap County Short Plat No. 1672, shall not be further
subdivided and Lot D shall proceed through a new reasonable use exception, or
the required process at the time a subdivision is proposed for that property.
17. A legal agreement shall be prepared and recorded vacating the original access
easement of Short Plat No. 1672 and recording a new access easement for all lots
of Short Plat No. 1672 in the location of the existing roads and driveways
approved in this Reasonable Use Exception.
18. A notice on title in accordance with BIMC16.20.130 shall be recorded on each
property prior to building permit issuance. The notice shall include all the
conditions of this Reasonable Use Exception.
19. All conditions shall be fulfilled prior to final inspection for construction of any
single-family residence.
DECISION
A Reasonable Use Exception is granted to allow a joint access road on Lot D of Kitsap
County Short Plat 1672 and a joint access driveway along the west property line of Lot A of
Kitsap County Short Plan 1672 as shown on the site plan received by the City on December 6,
2002. This Reasonable Use Exception is subject to the Conditions of Approval listed in
RUE02-23-01-1 (PR J-0010996) Hearing Examiner
Ellingsen Page - 12- City of Bainbridge Island
Conclusion of Law 15 in this decision. This Reasonable Use Exception automatically expires and
is void if the property owner(s) fails to file for a building permit or other necessary development
permit within three years of the effective date of this Decision, unless the property owner(s) has
received an extension in writing from the Director of the Department of Planning and Community
Development.
Dated this 15m day of April, 2003.
Robin Thomas Baker
Hearing Examiner Pro Tem
APPEAL
This Decision is final unless within 21 days an appeal is filed seeking review by the City
Council under the procedures set forth in BIMC 2.16.140.
RUE02~23 -01-1 (PR J-0010996) Hearing Examiner
Ellingsen Page -13- City of Bainbridge Island
~a'~IBIT 'A'
Office Fila NO.~ R-124307
D~CRiPTION:
PARCEL I:
T~AT ~ORTION OF TH~ NO~T~AST O~ART~a, NOR~T ~. S~ION 16,
~SHIP 2~ NOR~, ~GE 2 ~, W.M., IN KI~
DES~IB~ ~ ~S =
BEGI~ING AT ~ ~R~ ~ OF ~ SE~I~ 16; ~ ~ 0o5~,23~
~ST ~,319.76 P~ ~ ~ S~ ~ OF ~D NOR~
NOR~T ~ ~ ~ ~ S~ L~ 0F ~D ~O~D~ISI~, N~
89°07'10w ~ST, 1,078.35 ~; ~ N~ lO00'28s ~ 150.00 ~;
~CE N~ 9°43'03~ ~ 30.36 ~ ~ ~ uX.; ~ ~ 89~07,10~
~T 395.03 F~ ~ ~ ~ ~ OF B~I~0; ~ S~ 89o07'~0~ ~T
1~7.1& W~r; ~ 'NOR~ 0°52'50~ ~T 250.8S ~;
~ST 90.00 ~; ~ S~ 82°2~'03u ~ 63.99 P~r; ~ S~
0052'50. ~T 27%.12 F~ ~ ~ ~ ~ OF B~O.
(~SO ~ ~ ~ A OF S~T ~T NO. 1672,
NO. 7811070~2}.
P~C~ II:
~T ~RTI~ OF ~ NOR~ ~, HORST ~R, S~ 16,
~SHIP 2S N~, ~E 2 ~T, W.M.; IN KI~
DKSCRIBED ~ ~WS:
BEG~0 AT ~ NOR~T ~ OF ~D SE~I~ 16; ~ ~ 0os6,23a
~ 1,319.76 ~ ~ ~ ~'~T ~ OF ~D NOR~T
89°07'10~ ~ ~,078.35 ~; ~ ~R~ 1°00'28u
NOR~ 90~3'03~ ~ 30.36 FK~ ~ ~I~ ~XS~ ~ S~I'H 89°07'10u ~T
542.17 F~ ~ ~ ~ ~ OF B~O; ~ S~ 89°07'10u ~T
223.23 ~; ~CE ~ 16o55,18m ~ 128.S3
~ 202.10 F~; ~ ~ 67e%9,0S~ ~ 86.73 ~ET; ~ ~-A~
0°S2'50~ ~ 250.85 ~ ~ ~ ~ ~I~ OF ~.
NO. 781~070142) .
P~L III: ~
~T ~O~I~ O~ ~ N~T ~, ~ ~R, SB~I~ 16,
~SHIP 25 NOR~, ~g 2 ~T, W.M., IN ~T~
BEOI~G AT ~ NOR~ ~ OF S~D SBC~'I~ 16; ~ S~ 0~56,23~
~ 1,319.76 ~ ~ ~ S~T ~ OF ~D ~T ~'1'~, _
N~ ~; ~ ~ ~ S~l~ L~ OF ~ ~ISI~ N~
89~07'10' ~ST 78.35 ~ ~ ~ ~ ~ OF
89°~7'*10u ~ 1,000.00 ~; ~ ~ lO00,28
N0~ 9o13,03s ~T 30.36 ~.~ ~ sXm;
765.40 ~; ~ N~ 16o55,18~ ~ ~28.53
~ 88.42 ~; ~ S~ 66o07,~0w ~ 175.05
(~0 ~ ~ ~ D OF SH~T P~T ~. 1672, ~
N0. 78110701~2).
THE LAW OFFICES OF
JAMES C. TRACY
ATTORNEY & COUNSELOR AT LAW
OLYMPIC PEAKS BUILDING
18887 STATE HWy #305 NE - SUITE 800
POULSBO, WA. 98370-7401
Ph: (360) 779-7889 Fax: (360) 779-8197 C:[',I'~ 0 F
January 27, 2003 [/AINi3~IDG~ IS AND
Mr. Joshua Machen JAN ~ 8 ~003
Department of Planning and Development DEPT. OF PLANNI~G &
City of Bainbridge Island C0MMIJNITY DE¥ /0P ENT
Bainbridge Island, WA 98110
In re: RUE 02-23-01-1, PRJ-0010996 - Ron Ellingson/Reasonable Use Exception
Dear Josh:
Thank you for discussing the above referenced matter with both me and my client, Ron
Ellingson, with regard to specification of the fencing condition you wish to apply to your staff
recommended approval of Mr. Ellingson's Reasonable Use Exception.
As you will recall, Mr. Ellingson has communicated that he can and will accept the conditions
you have proposed to the Hearing Examiner but wanted specification of the fencing you
recommend beyond that fencing contained in the Wiltermood Associates Mitigation Plan to
which he has already agreed.
Attached please find a map which identifies the areas of additional fencing you have identified
and to which Mr. Ellingson is prepared to agree. If this highlighted map accurately represents the
additional fencing you recommend be incorporated into the conditions of approval, please
forward this map along with this letter and your concurrence to the Hearing Examiner so that she
can complete her decision in this matter.
Assuming, arguendo, that the supplementary fencing identified on this map is satisfactory to you
and the Examiner, then Mr. Ellingson is prepared to accept the proposed conditions of approval
of his Reasonable Use Exception as modified by this letter.
Please feel free to call me at your earliest convenience should you have questions or desire
additional information.
Sincerely,
james C. Tracy, WI~BA #15656
-. Counsel for Ellingson