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
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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
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City of Bainbridge Island
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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.
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City of Bainbridge Island
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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.
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City of Bainbridge Island
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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,
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City of Bainbridge Island
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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
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City of Bainbridge Island
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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