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MUELLER-GRAY DECISION100303 (2)CITY OF BAINBRIDGE ISLAND APPEAL OF CERTAIN CONDITIONS OF JOINT ADMINISTRATIVE DECISION & REVISED SEPA MDNS. APPLICANTS /APPELLANTS : ANDREW MULLER/MULLER CONSTRUCTION /TERRY GRAY SPT 09-20-00-1 /PRJ-1 0566 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION FINDINGS OF FACT 1. This appeal involves real property located on NE Bay Hill Road, approximately 500 feet West of Miller Road. The parcel is approximately 3.64 acres in size, and is identified by Tax Parcel Number: 092502 -3 -106 -2003. The legal description for the property is as follows: LOT A OF SHORT PLAT SUBDIVISION NO. 4859R -1 PER AF 9007300036 DAF >> A PORTION OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 9, TOWNSHIP 25 NORTH, RANGE 2 EAST, W.M., KITSAP COUNTY, WASHINGTON; >> TOGETHER WITH A 20 FOOT EASEMENT OF RECORD PER AUDITORS FILE #1044933. >> SUBJECT TO AND TOGETHER WITH EASEMENTS, RESTRICTIONS AND RESERVATIONS OF RECORD. 2. The property is generally flat, with some slope south to north. A category IV stream runs along the east property line, and there is a category V drainage west of the center of the parcel that drains to the north. The parcel presently has a single family residence located near its northeast corner. The zoning designation for the property is Residential R -2. This zoning designation allows a development density of two residential dwelling units per acre. The Comprehensive Plan designation for the parcel is OSR -2. Exhibit 90. 3. A plat application was received by the City of Bainbridge Island on September 20, 2000. The initial application proposed to divide the parcel into four lots, and included significant open space and buffers. An amended application was filed in January, 2002, in which the applicants sought approval for a two lot division of the real property. Further revisions to the application were made in September and October, 2002. The revised plat proposal before the Hearing Examiner was filed with the City of Bainbridge Island on October 16, 2002. Exhibit 66A. This revision of the plat application once again sought approval for dividing the parcel into four lots, ranging in size from about 32,000 square feet to approximately 45,000 square feet. Access for the new parcels would be off of NE Bay Hill Road, which is an existing private road abutting the subject property. Three of the lots would be served by a new 20 -foot access road that would end in a circular turnaround area within the plat. Access for the fourth lot would be directly from NE Bay Hill Road. Id. The lots would be served by on -site septic systems. Exhibit 53. 4. This plat application was subject to a State Environmental Policy Act (SEPA) review. On March 24, 2003, the Responsible Official for the City of Bainbridge Island issued her Mitigated Determination of Nonsignificance (MDNS). Exhibit 86. The MDNS included 16 specific mitigation measures. On April 23, 2003, the applicants filed an appeal of the initial MDNS. 5. On April 29, 2003, the Responsible Official withdrew the initial MDNS. At that time, the Responsible Official and City of Bainbridge Island Department of Planning and Community Development also issued a "Joint Administrative Decision and Revised SEPA Mitigated Determination of Nonsignificance." Exhibit 89. The revised application was APPROVED by the Responsible Official and the City of Bainbridge Island Department of Planning and Community Development, subject to a total of 25 SEPA and Non -SEPA conditions. 6. The applicants filed timely comments on the revised decision on May 14, 2003, and made timely appeal of certain of the SEPA short plat conditions of approval on May 20, 2003. The applicants specifically challenge MDNS SEPA conditions 13 and 14 of the Joint Administrative Decision and Revised SEPA Mitigated Determination of Nonsignificance. These conditions, in relevant part, are as follows: 13. In order to comply with subsections B. 1 through B. 5 of BIMC 17.12.108, the following improvements must occur prior to final plat or a performance assurance shall be provided: a. SIGHT DISTANCE: Improvements need to be made to the intersection of Bay Hill Road and Miller Road to provide adequate sight distance. The required sight distance for the intersection of Bay Hill Road and Miller Road can be determined by using AASHTO "A Policy on Geometric Design of Highways and Streets" 1994 or the Washington State Department of Transportation Highway Design Manual. Note when using these manuals, adjustments must be made for proposed approach grades. b. MAXIMUM GRADE: The grade of Bay Hill Road at Miller Road needs to be improved to provide a satisfactory vehicle landing for adequate access. The grade of Bay Hill Road at the intersection of Bay Hill Road and Miller Road is very steep. This creates a condition where the landing slope for waiting vehicles is Hearing Examiner City of Bainbridge Island Page - 2 excessive for drivers entering onto Miller Road from the stopped condition. The required landing can be determined by using AASHTO "A Policy on Geometric Design of Highways and Streets" 1994 or the Washington State Department of Transportation Highway Design Manual. C. ROAD MAINTENANCE AGREEMENT: The roadway serving the subdivision must have a road maintenance agreement guaranteeing the roadway from the public right of way to and through the subdivision will be maintained in a safe passable condition at all times. This is necessary for satisfactory access. d. LANE WIDTH: The width of Bay Hill Road NE varies, but is approximately 10 feet wide. The road must be 12 feet wide with pull -outs at a maximum spacing of 300 feet between the proposed short plat and Two - Creeks Road; and 18 -feet wide between Two - Creeks Road and Miller Road. This does not require the roadway to be asphalt if it is to remain private although the grade may necessitate it. Further details may be found in the City's Design and Construction Standards and Specifications "suburban" standards; DWG 7 -065 (12 feet wide) to serve 20 or less lots (approximately 200 ADT), and DWG 7 -066 (18 feet wide) to serve greater than 20 lots (200 ADT). The improvements are needed if the subdivision is to be determined to have satisfactory access, and the access adequate to accommodate the anticipated traffic, including safe passage of automobiles, trucks and meeting fire and emergency services needs. e. SURFACE AND SUBGRADE REQUIREMENTS: Approval will require improvement of any significant deficiencies of the surface and subgrade of the roadway serving the plat. Specific concerns include the areas of the road subgrade, which may consist of timber cribbing and have been observed to pass surface water and stormwater through them. If these are part of the access they will require stabilization and proper stormwater conveyance. f. STREET ENDS: A permanent turn around is required to the satisfaction of the City Engineer. The City Design and Construction Standards and Specifications require a cul -de -sac; the City Engineer may grant a deviation to these standards and allow a hammer -head type turn around to the Fire Department's Hearing Examiner City of Bainbridge Island Page - 3 Satisfaction depending on the final layout. Deviations from the City's Standards must be in the public interest and based on sound engineering principals [sic] and practices. 14. Public and private improvements, facilities, and infrastructure, on and off the site that are required for the short plat shall be completed, have final inspection and approval prior to final plat approval. Approval of public facilities will be shown by a formal letter of acceptance from the City Engineer. An assurance device acceptable to the City may be used (in lieu of physical completion) to secure and provide for the completion of necessary facilities. Any such assurance device shall be in place prior to final plat approval, shall enumerate in detail the items being assured and shall require that all such items will be completed and approved by the City within one year of the date of final plat approval. While lots created by the recording of the final plat may be sold, no occupancy of any structure will be allowed until the required improvements are formally accepted by the City. Additionally, a prominent note on the face of the Final plat drawing shall state: "The lots created by this plat are subject to conditions of an assurance device held by the city for the completion of certain necessary facilities. Building permits may not be issued and /or occupancy may not be allowed until such necessary facilities are completed and approved by the City of Bainbridge Island. All purchasers shall satisfy themselves as to the status of completion of the necessary facilities." 7. Neither the applicants nor any other interested person appealed the APPROVAL of the revised application by the Responsible Official or the Department of Planning and Community Development, or any of the conditions of approval other than as set forth in paragraph 6 of these Findings of Fact. While they appeal the specific terms of Conditions 13 and 14, in their submitted materials and testimony before the Hearing Examiner, applicants voluntarily agreed to conditions of approval that would require them (1) to improve the existing shoulder of NE Bay Hill Road between the plat and Miller Road with gravel "where practicable" such that a 12 -foot drivable surface is provided, and (2) to improve two existing turnouts on NE Bay Hill Road with gravel to "ensure their proper functioning." See, Applicants' Plat Hearing Memorandum and Brief in Support of SEPA Appeal, at 2. At the hearing, the applicants further agreed (1) to participate in an improvement to the culvert area between their parcel and Miller Road, and (2) to participate in a road maintenance agreement, provided both arrangements were based on other property owners served by NE Bay Hill Road contributing their proportionate share of the cost of any improvements or maintenance. Hearing Examiner City of Bainbridge Island Page - 4 8. The applicants' professional engineer, Mark W. Eisses, P.E., filed his opinions with the Hearing Examiner by sworn declaration on August 4, 2003. Based on this testimony, the testimony of the applicants, the photographs presented at the hearing, the Hearing Examiner's site visit, and the Appeal Hearing Comments filed with the Hearing Examiner by the City of Bainbridge Island, Department of Public Works on August 5, 2003, the Hearing Examiner FINDS that the existing sight distances and vehicle landing area for the intersection of NE Bay Hill Road and Miller Road are adequate under the standards set forth in AASHTO "A Policy on Geometric Design of Highways and Streets 1994." 9. The estimated cost of completing the off -site road mitigation required by Condition 13 as required by the Responsible Official would be between $ 70,000.00 and $100,000.00. Exhibit 95C and testimony of Applicant Andrew Mueller. 10. There was no testimony that the roads depicted on the revised application within the proposed plat were inconsistent with City road requirements or standards. There was testimony and evidence that the circular turnaround as depicted in the revised application meets the requirements of the Department's Condition 13(f), Street Ends. Exhibit 90, Attachment G. The Hearing Examiner FINDS that the access roadway turnaround as depicted in the revised application meets Condition 13(f). 11. The City of Bainbridge Island, through its City Engineer, made a finding that the two lot proposal submitted by the applicants in January, 2002, would not require aM off -site road improvements. Exhibits 28, 39. The testimony at the hearing by the Assistant City Engineer, Mr. Ross Hathaway, confirmed that the City had not performed traffic studies that might establish significant deficiencies in the level of service on NE Bay Hill Road associated with the four lot revised application. Additionally, there was no information in the record as to how the City Engineer determined that a two lot short plat would require no off -site road improvements, while a four lot short plat would require substantial off -site road improvements. 12. Applicants did present photographs and testimony about the limited traffic impacts of the revised application on NE Bay Hill Road and Miller Road and the relatively small incidence of accidents at the intersection of NE Bay Hill Road and Miller Road. This testimony included supplemental exhibits admitted to the hearing without objection. The uncontroverted testimony was that the revised application would generate approximately thirty (30) new vehicle trips per day. Testimony also was provided that there had been a recent decrease in the level of traffic for NE Bay Hill Road of approximately eighty (80) vehicle trips per day associated with the closure of the "Leaps and Bounds Montessori Preschool" at 11704 Two Creeks Road. Based on the testimony at the hearing and the record, the Hearing Examiner FINDS that there is insufficient evidence in the record to establish that there will be either a significant traffic impact or a level - of- service deficiency associated with the revised application that will not be adequately mitigated by the road conditions agreed to by the applicants. Hearing Examiner City of Bainbridge Island Page - 5 13. The record provides that the applicants' objection to Condition 14 is limited to the extent that this condition is derivative to Condition 13. Applicants did not have an objection to most of the language in Condition 14. See, Exhibit 76 (outlining objection to language in what is now the Department's Condition 14). 14. On July 29, 2003, a Public Hearing was held before the Hearing Examiner to consider the applicants' appeal. Prior to the hearing, notice of the public hearing was mailed to the owners of property within 300 feet of the proposed project on July 2, 2003, and notices were posted at the City Hall, the Chamber of Commerce, and the Ferry Terminal on July 2, 2003. EXHIBIT 92. CONCLUSIONS OF LAW 1. This matter is properly before the Hearing Examiner pursuant to jurisdiction granted in BIMC 17.12.140 and BIMC 2.16.130. A timely appeal was filed by the applicants. An open record public hearing was held in this matter on July 29, 2003, and the record was left open until August 12, 2003. Adequate legal notice was given of the hearing. 2. The revised application is complete and is a vested application. Exhibit 60. The revised application is in accordance with the Comprehensive Plan for the City of Bainbridge Island. 3. This preliminary short subdivision application was reviewed by the Responsible Official, the City Engineer, the Department of Planning and Community Development and others. Exhibit 90. Approval of the revised application was granted with certain conditions. One of those conditions, Condition 13, required significant off -site improvements to a private road, NE Bay Hill Road. 4. BIMC 17.12.107(A) requires the Director to make written findings of fact and conclusions of law in approving a short plat application. These findings and conclusions are set forth in a Staff Report dated March 24, 2003. Exhibit 90. 5. Among other requirements, BIMC 17.12.090(d) requires that short subdivisions established under the flexible lot design process (1) connect to existing off -site roads, where practicable, (2) maintain existing roadway character, (3) use City engineering, design and construction standards for roads, and (4) vary from road requirements and standards only if reductions meet the purpose of the ordinance and are approved by the Director. Given the findings that the plat access connects to an existing off -site road, and the absence of any evidence that the easement roadways within the proposed plat fail to meet City engineering, design and construction standards, the Hearing Examiner CONCLUDES that the Department's Findings of Fact E(1)(d) (i),(v),(vi) and (vii), and the associated Conclusion at paragraph 4, Hearing Examiner City of Bainbridge Island Page - 6 Attachment H, to the Staff Report (also set forth at Exhibit 69) are not supported by substantial evidence in the record. 6. BIMC 17.12.107 (13)(1)(a) requires that a preliminary short subdivision make appropriate provisions for roads, and BIMC 17.12.108 (B)(4) requires the City Engineer to review the application and ascertain whether the streets, as proposed, are adequate to accommodate anticipated traffic. Given the record, the Hearing Examiner CONCLUDES that the Department's Finding of Fact E(4)(b)(1)(a), and the associated Conclusion of the City Engineer at paragraph 4, Attachment H, to the Staff Report (also set forth at Exhibit 69) are not supported by substantial evidence in the record. 7. While BIMC 2.16.130 requires the Hearing Examiner to give substantial weight to the Department Director when reviewing an administrative decision, in this case the Hearing Examiner CONCLUDES that Condition 13 of the preliminary short subdivision approval for the revised application is not supported by substantial evidence in the record. Testimony at the hearing and the record do not support the findings and conclusions of the Responsible Official and the City regarding the off -site road mitigation requirements set forth in its Condition 13. 8. The Hearing Examiner also CONCLUDES that Condition 13 requiring off -site road improvements as set forth in Exhibit 90 is not roughly proportional to the impact the proposed revised application will have on traffic on NE Bay Hill Road under Benehmark Land Co v.City of Battle Ground, 94 Wn. App. 537, 972 P.2d 944 (1999). The significant level of required off - site improvements cannot by reconciled with the finding that there is no substantial evidence of significant traffic impacts associated with the revised application that are not adequately mitigated by the proposals made by the applicants at the hearing and in their written materials. DECISION The Responsible Official's and the Director of Planning and Community Development's administrative decision APPROVING the revised Muellar /Gray short subdivision application with conditions 1 through 12, and 14 through 25 is AFFIRMED. Applicants' appeal is DENIED IN PART AND GRANTED IN PART. Condition 14 shall remain a condition of approval. Condition 13 is hereby AMENDED as follows: 13. In order to comply with subsections B. 1 through B. 5 of BIMC 17.12.108, the following improvements must occur prior to final plat or a performance assurance shall be provided: a.. ROAD MAINTENANCE AGREEMENT: Lot A, Lot C and Lot D of the subdivision shall be subject to a road maintenance agreement guaranteeing the twenty -foot (20') access and utility Hearing Examiner City of Bainbridge Island Page - 7 easement shown on the face of the October 16, 2002, revised application will be maintained in a safe, passable condition at all times. This is necessary for satisfactory access. In accordance with the applicants' agreement at the hearing before the Hearing Examiner, a covenant shall be recorded binding each Lot in the short subdivision to participate in future road maintenance on NE Bay Hill Road, including without limitation culvert/subsurface road repair and improvement (e.g., repair and/or replacement of timber cribbing) on a pro -rata basis with other real property served by NE Bay Hill Road. b. ROAD IMPROVEMENTS: In accordance with the applicants' agreement at the hearing before the Hearing Examiner and in their written submission to the Hearing Examiner, approval is conditioned upon (1) improvement of the existing shoulder of NE Bay Hill Road between the plat and Miller Road with gravel such that, where practicable, a 12 -foot drivable surface is provided, and (2) improvement of the two existing turnouts on NE Bay Hill Road with gravel to ensure their proper functioning. C. TWENTY -FOOT ACCESS AND UTILITY EASEMENT END: A permanent turn around is required to the satisfaction of the City Engineer. The City Design and Construction Standards and Specifications require a cul -de -sac; the City Engineer may grant a deviation to these standards and allow a hammer -head type turn around to the Fire Department's satisfaction depending on the final layout. Deviations from the City's Standards must be in the public interest and based on sound engineering principles and practices. Dated this 3rd day of October, 2003 Richard B. Shattuck Hearing Examiner Pro Tem APPEAL The decision of the Hearing Examiner shall be final unless, within 21 days after issuance of this decision, a person with standing appeals the decision in accordance with RCW Chapter 36.70. [BIMC 2.16.130(F)(6)]. Hearing Examiner City of Bainbridge Island Page - 8