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021104 Hansen DecisionDECISION OF THE HEARING EXAMINER CITY OF BAINBRIDGE ISLAND In the Matter of the Application of HANSEN LANDING, LLC SCUP12568 for a Shoreline Conditional Use Permit Introduction The Applicant seeks a Shoreline Conditional Use Permit for a stormwater outfall within the shoreline Conservancy Environment. The Hearing Examiner held public hearing on this matter on January 29, 2004. Parties represented at the hearing were the Director, Planning and Community Development Department, by Marja Preston, Planner, and the Applicant, Hansen Landing LLC, by Ted Francis and the property owner Paul Molden. After due consideration of all the evidence in the record, the following shall constitute the findings of fact, conclusions of law, and decision of the Hearing Examiner on this application. Findings of Fact Application 1. The project site is addressed as 8253 Hansen Road NE and includes tax parcel 20250230052000 and 20250230062009. The zoning is R-2, residential, two units per acre; the Comprehensive Plan designation is OSR-2, Open Space Residential, two units per acre. A portion of the site has a Conservancy Environment designation under the shoreline master program. Because single-family residences and their accessory utilities are conditional uses in the Conservancy Environment, a Shoreline Conditional Use Permit ("SCUP") is required for the stormwater outfall. [Staff Report, Exhibit 16, pages 1 and 2]. 2. The Planning and Community Development Department ("Department") received application for a SCUP for the stormwater outfall pipe from Hansen Landing, LLC ("Applicant"), on October 29, 2003. [Staff Report, Exhibit 16, pages 1 and 2] 3. The application is an after-the fact request as the outfall pipe was installed, in accordance with approved plans, during construction of an upland single-family residence. The outfall is part of a drainage system to collect runoff from impervious surfaces within the subject site. Currently, the outfall serves two lots, each developed with a single-family residence. It is anticipated that it will also serve five new lots that are being created under a separate short plat application. [Staff Report, Exhibit 16, pages 1 and 2] 4. The 12-inch outfall pipe is laid on the surface down the slope toward the Sound. The outfall terminates at the diffuser, a perforated pipe connected at right-angles to the outfall, which is located above the ordinary high water line. The diffuser, in a bed of riprap rock, disperses the stormwater across its length. Included in the completed collection system are: oil/water separators to serve all driveways, five catch basins, and two bioswales. All the components of the system have been sized to accommodate the stormwater drainage from the seven lots mentioned in Finding #3. [Exhibit 18 and Testimony of J. Brown] 5. Notice of Application was given on November 19, 2003. No comments about the outfall were received. One neighboring property owner inquired about the short plat application. [Exhibit 13] 6. The Director issued a SEPA Mitigated Determination of Significance (MDNS) on December 16, 2003 and at that time gave notice of right to appeal that threshold determination. The MDNS was not appealed. 7. The public hearing on the application was properly noticed with posting on January 9, 2004, mailing on January 8, 2004, and publication on January 12, 2004 [Exhibit 15]. Land Use Code 8. Shoreline Master Program, BIMC Chap. 16.12, regulates development in the shoreline. 9. BIMC 16.12.150, Table 4-1, designates that single-family residential uses are conditional uses in the conservancy shoreline environment. The stormwater outfall, an accessory utility (see BIMC 16.12.120) to serve single-family residential lots, can be permitted as a shoreline conditional use. 10. BIMC 16.12.380C "applies to all applications for shoreline…conditional use permits" and provides, in pertinent part, as follows: 1. Uses classified as conditional uses may be authorized; provided, that the applicant can demonstrate all of the following: a. The proposed use will be consistent with the policies of RCW 90.58.020 or its successor and the policies of the master program. b. The proposed use will not interfere with the normal public use of the public shorelines. c. The proposed use of the site and design of the project will be compatible with other permitted uses within the area. d. The proposed use will cause no unreasonably adverse effects to the shoreline environment designation in which it is located. e. The public interest suffers no substantial detrimental effect. f. The proposed use is consistent with the provisions of the zoning ordinance…and the comprehensive plan… 11. BIMC 16.12.350 provides that: 1. The city of Bainbridge Island hearing examiner is vested with authority to: a. Approve, approve with conditions, or deny shoreline variance and shoreline conditional use permit applications after a public hearing and after considering the findings and recommendations of the director, which shall be given substantial weight…. Analysis 12. The Director evaluated the outfall's compliance with the following applicable regulations: BIMC 16.12.040, General Regulations; BIMC 16.12.060, Clearing and Grading; BIMC 16.12.070, Environmental Impacts; BIMC 16.12.090, Native Vegetation Zone; BIMC 16.12.120, Utilities). [Staff Report, Exhibit 16, pages 3 and 4] The outfall complies with each of the applicable shoreline regulations. 13. As required by BIMC 16.12.380C.1 (see Finding #10), the application [Exhibits 1, 6, and 7], the applicant's presentation at hearing [Exhibits 18 and 19; Testimony of J. Brown and T. Francis], and the information and analysis provided by the Director [Exhibits 14 and 16; Testimony of Preston] demonstrates as follows: a. The outfall is consistent with the policies of the Shoreline Management Act and with the City's Shoreline Master Program. b. Because the structure terminates on the slope above the beach and there is a trail adjacent to the above-ground pipe to facilitate access to the beach, the outfall would not interfere with the normal public use of the public shorelines. c. Native shrubs are to be planted on both sides of the length of the outfall pipe to screen the relatively small-scale structure from view. Effectively screened with native vegetation, the outfall is consistent with the upland residential uses and the uses of the shoreline. d. As conditioned, the outfall causes no unreasonably adverse effects to the shoreline environment. The outfall pipe was designed by a licensed engineer to have appropriate components (e.g., catch basins, oil/water separators, swales) and sufficient capacity to properly control, treat, and release runoff from the site. The outfall is equipped with a diffuser to prevent erosion of the beach by slowing and spreading the stormwater discharge. This structure, located above ordinary high water mark, also allows the stormwater to be filtered through vegetation and sediment before entering the sound. e. By mitigating environmental impacts and providing a path for access to the beach, the outfall has no substantial detrimental effect to the public interest. f. The outfall, accessory to the residential use of the zone, is consistent with the provisions of the zoning ordinance. The existing and future residences to be served by the outfall are consistent with the type and density of use anticipated by the Comprehensive Plan. 14. BIMC 16.20.080 provides requirements for development in geologically hazardous areas. The outfall, as conditioned, meets the requirements regarding erosion control, location, design, and landscaping. Director's Recommendation 15. The Director determined that the outfall, with the following recommended conditions [Staff Report, Exhibit 16, pages 2-6], would be consistent with the applicable provisions of the Shoreline Master Program (i.e., BIMC 16.12.040, 16.12.060, 16.12.070, 16.12.090, 16.12.120, 16.12.150, and 16.12.380). SEPA Conditions 1. To the satisfaction of the Director of planning, the exposed soils in the area of the trail to the shoreline shall be mulched and replanted with native trees and shrubs within 90 days of approval of this permit. 2. The rock installed against the existing stormwater drainage pipe shall be removed within 90 days of approval of this permit. In order to stabilize the pipe, anchored logs may be placed as appropriate. 3. The applicant shall immediately apply for a Hydraulic Project Approval (HPA) for the storm water drainage pipe. A copy of the HPA shall be submitted to the City. Non-SEPA Conditions 4. The area surrounding the existing stormwater drainage pipe shall be replanted with native shrubs prior [sic] to within 90 days of approval of this permit. 16. Based upon discussion with the Department of Fish and Wildlife (DFW) indicating that DFW would not require a hydraulic project permit for this project, the Director withdrew recommended Condition #3 at hearing [Testimony of M. Preston]. 17. Conditions 1, 2, and 4 are necessary to ensure consistency with the shoreline provisions regarding minimizing/repairing disturbance from earthwork by replanting with native species (see BIMC 16.12.060, 16.12.090, 16.12.120, and 16.20.080). Conclusions of Law 1. The Hearing Examiner has jurisdiction to hear and decide this matter and is required to give the Director's recommendation substantial weight. 2. Appropriate notice of the application was made and comments were considered. 3. As conditioned, the outfall is consistent with the applicable provisions of the Shoreline Master Program for granting a Shoreline Conditional Use Permit and the application should be approved with conditions as noted in Finding 17. Decision The application of Hansen Landing LLC for a Shoreline Conditional Use Permit to allow a twelve-inch diameter stormwater outfall in a shoreline conservancy environment, is hereby approved with conditions as follows: 1. To the satisfaction of the Director, within 90 days of approval of this permit, the exposed soils in the area of the trail to the shoreline shall be mulched and replanted with native trees and shrubs. 2. To the satisfaction of the Director, within 90 days of approval of this permit, the rock installed against the existing stormwater drainage pipe shall be removed. In order to stabilize the pipe, anchored logs may be placed as appropriate. 3. To the satisfaction of the Director, within 90 days of approval of this permit, the area surrounding the stormwater drainage pipe shall be replanted with native shrubs. Entered this 11th day of February, 2004. /S/ Meredith A. Getches Hearing Examiner pro tem Concerning Further Review NOTE: It is the responsibility of a person seeking review of a Hearing Examiner decision to consult applicable Code sections and other appropriate sources, including State law, to determine his/her rights and responsibilities relative to appeal. The decision of the Hearing Examiner is the final decision the City in this matter. Appeal of this decision is to the Washington State Shorelines Hearings Board as provided by RCW 90.58.180 (or its successor) and Chapter 461-08 WAC (or its successor). To be timely, petition for review must be filed within the 21-day appeal period [see BIMC 16.12.370].