041604 Valley Road Farm CUP.
DECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of
9745 VALLEY ROAD FARM, LLC CUP12114
from a decision by the Director, Department
of
Planning & Community Development, on
the application of 9745 Valley Road Farm, LLC,
for a Conditional Use Permit
Introduction
The Applicant seeks a Conditional Use Permit to
allow construction of three single-family residences on a five-acre parcel. These residences (and the single-family residence currently developed) would be part of a 4-unit condominium
agreement with each unit having its own building site and the remainder of the property owned in common. The Director, Department of Planning and Community Development, issued an administrative
decision granting approval with conditions. The applicant appealed the condition requiring that a paved bike lane and gravel shoulder be constructed along both roads fronting the subject
property.
The Hearing Examiner held the appeal hearing on April 1, 2004. Parties represented at the hearing were: the Director, Planning and Community Development, by Marja Preston,
Planner; and, the Appellant/Applicant, 9745 Valley Road Farm, LLC, by Hilary S. Franz, attorney at law.
After due consideration of all the evidence in the record, the following shall
constitute the findings, conclusions, and decision of the Hearing Examiner on this appeal.
Findings
Site and Vicinity
1. The project site is addressed as 9745 NE Valley Road (assessor's
tax parcel identification number 142502-2-025-2006 [Exhibit 6]; see Exhibit 4 for legal description and survey information). The zoning is R-1 (residential, one unit per acre). The
Comprehensive Plan designation is OSR-1 (Open Space Residential, one unit per acre). In the past the property was in agricultural use and the property immediately to the south is currently
in agricultural use (i.e., growing holly and seasonal flowers). [Exhibit 51, pages 1-4]
2. The rectangular-shaped five-acre parcel is located at the southeast corner of the intersection
of Madison Avenue NE and NE Valley Road. Access to the property is from Valley Road via an unpaved driveway. Existing development includes a single-family residence. [Exhibit 51,
page 1] The property is situated on top of a north-south trending ridge with topography sloping east and west from the generally flat area where the existing small house and driveway
are located.
3. The rights-of-way of Madison Avenue and Valley Road border the west and north sides of property respectively [Exhibit 5]. These roadways are both secondary arterials
with adequate right-of-way width, but "are not constructed to current standards and have minimal shoulders of gravel…(they vary from a few inches to a few feet)" [Exhibit 51, page 6].
The grade of each roadway is lower than the subject property and each has a bank that slopes down to the right of way (along Valley Road the bank reaches to more than six feet higher
than the road grade). The tops of the banks and the banks themselves are heavily vegetated. There is a drainage ditch between base of the banks and the shoulders of the roadways.
Photographs in Exhibit 59M illustrate these conditions [see Valley Road photos labeled P3160007 and P3160017, and Madison Avenue photos labeled P3160027 and Utility Pole].
4. The
current traffic volume on Madison Avenue at the site is approximately 6,000 vehicles per day and Valley Road has approximately 3,300 [Exhibit 51, page 6; Exhibit 42, page 2]. The Bainbridge
Island Police Department records indicate that a total of nine accidents occurred in the vicinity of Madison and Valley during the four years between January 2000 and December 2003.
One accident involved an injury, and none involved a bicycle. [Exhibit 59F]
Proposal
5. The Applicant, 9745 Valley Road Farm, LLC (LLC), is an organization formed for the purpose
of developing the subject property "in a low impact and environmentally responsible manner". The Applicant proposes to restore part of the property to "active, commercially-viable farming…"
Some members of the condominium intend to grow food crops in the common areas. [Exhibit 27; Testimony of Peltier]
6. The LLC proposes to create a four-unit "air space" condominium
with each of four members owning an individual "unit" (i.e., a building site) and all holding the areas outside those units in common. Exhibit 4 depicts the four individual "units"
and the common elements; Exhibits 12-17 are other documents describing the proposed condominium. The individual "units" range in size from 5,940 sq. ft. to 6,071 sq. ft. Each unit
owner would be allowed to build and maintain a single-family residence on his/her "unit", subject to limitations imposed by the condominium documents (e.g., 2,000 sq. ft. maximum living
space). One dwelling already constructed [see photo "Unit D House", Exhibit 59M], is approximately 400 sq. ft. [Exhibits 4, 17, 27, 59A; Testimony of Peltier]
7. The residences would
be located near the middle of the property ("clustered" to the extent possible consistent with the 50 ft. separation required between residences). The proposal complies with single-family
zone development standards for yards, set backs, open space, lot coverage, and density, and with the Code requirements relative to agricultural lands, on-site parking, and tree preservation
[Exhibit 51, pages 4-5]. Access would be from Valley Road via a "loop" driveway (the existing residence, located where the loop driveway is proposed, would be moved to the Unit B building
site). Impervious surfaces would be minimized and the vast majority of the property would be open space and agriculture (building coverage would range from 3.2% to 4.8% and impervious
surfaces would total 7.1%). A 40 ft. wide vegetative "buffer" would extend along the northern and western boundaries. [Exhibits 6 and 27; Testimony of Peltier]
8. At the R-1 density
of one dwelling per acre, the five-acre property is large enough to accommodate five dwellings. However, because this proposal is on one lot, a Conditional Use Permit (CUP) is required.
More than one dwelling on a single family lot is within the definition of "multi-family dwelling" [BIMC 18.33.320 at Finding 18] and multifamily dwellings may only be allowed in the
R-1 zone as a Conditional Use [BIMC 18.33.030(H) at Finding 17.]
Director's Decision
9. The Planning and Community Development Department (Department) received the application on
April 8, 2003. The application was deemed complete on October 21, 2003 and Notice of Application was mailed on October 23, 2003, published on October 25, 2003, and posted on the property
on October 27, 2003. [Exhibits 41 and 43]
10. The project is exempt from SEPA review under WAC 197-11-800(1)(b)(i) as it minor new construction (i.e., four or fewer dwelling units)
[Exhibit 51, page 1].
11. The Department received several comments about the proposal during its consideration of the application. Three neighbors on Valley Road [Exhibits 47-49] were
supportive of the proposal, and two of the three specifically opposed the Director's condition requiring addition of bike lane and shoulder (i.e., Condition 6 see Finding 12). The neighboring
property owners to the south expressed concern that the proposed buildings be set back, away from their agricultural operation [Exhibit 45]. Another comment urged approval without a
bike path [Exhibit 46].
12. The Director issued a Notice of Administrative Decision on January 15, 2004 [Exhibit 52]. That decision was to approve of the CUP with the following conditions
[Exhibit 51, pages 2 & 3].
Conditions of Approval:
1. Prior to any construction, the applicant shall submit a building permit for the proposed residence. The building permit application
shall be in substantial conformance with the plans stamped April 8, 2003.
2. The applicant shall record notice to title that the property is adjacent to agricultural lands and that
a variety of commercial activities may occur that are not compatible with residential development. The recorded notice to title shall be submitted to the City prior to building permit
approval.
3. The applicant shall record a 25-foot southern perimeter buffer as a no-cut/no build buffer. If any trees within this buffer are considered hazardous by a professional
arborist, they may be removed after the City has approved a replanting plan. The ratio of replacement shall be 3-1, 3 trees of similar type shall be planted for every tree removed as
required by BIMC 18.85. Septic systems or drainfields shall not be located within the southern no-cut/no build buffer.
4. The proposed residences must be separated by at least 50 feet
in order to maintain compliance with the fire flow requirements, as required by City Resolution 98-34.
5. The interior road on the site must be constructed to "minimally adequate standards"
as defined by the City of Bainbridge Island Department of Public Works.
6. In order to provide safe and adequate access and movement for project occupants and their vehicles and bicycles,
the applicant shall provide a five-foot wide paved shoulder/bicycle lane with a three-foot gravel shoulder along the entire project site frontages along Valley Road and Madison Avenue.
These improvements shall be completed before any of the proposed dwellings are occupied.
7. Individual on site stormwater systems shall be required for each residence.
8. A recorded
Declaration of Covenant and a plan for the Operation and Maintenance of all constructed on-site facilities shall be submitted and approved prior to project approval/acceptance. The
condominium documents shall specifically address these items.
9. Inspection of all stormwater facilities is required prior to final inspection of the building permit.
10. The building
permit application shall include a site plan showing provision for two parking spaces for each residence on the property.
11. Prior to issuance of a building permit, the applicant shall
submit a significant tree retention plan in conformance with BIMC 18.85.060.
12. Prior to the issuance of a building permit, the applicant shall record notice to title indicating the
requirement to retain significant trees on the property.
13. The Department's Staff Report [Exhibit 51] concluded that the proposal is consistent with the Comprehensive Plan's Open
Space Policies 4.1 and 3.2 by following the development pattern of one dwelling per acre and developing residential use in a manner compatible with the preservation of open space, agricultural
activities, and natural systems.
14. Condition 6, requiring the Applicant to provide a bicycle lane and gravel shoulder along Valley Road and Madison Avenue frontages [see Finding 12],
is discussed in the Staff Report [Exhibit 51, page 4], as follows:
The City of Bainbridge Island Non-Motorized Transportation Plan, Policy NM1.7 requires residential subdivision meeting
the development thresholds set in the Municipal Code to provide non-motorized connections along public streets fronting the development. The improvements are to be consistent with the
location and design as identified in the Plan and to meet the standards requirements as set by the City Engineer. Map D of the Non-Motorized Transportation Plan indicates that bike
facilities are planned for both sides of Valley Road and NE Madison Avenue which front the subject property. The project has been conditioned to require the applicant to improve the
Valley Road and NE Madison Avenue street frontages with bike lanes meeting the design standards.
Land Use Code
15. BIMC 18.33.010 provides that the purpose of the R-1 zone is "to provide
residential neighborhoods in a rural environment consistent with other land uses such as agriculture and forestry, and the preservation of natural systems and open space. The low density
of housing does not require the full range of urban services and facilities."
16. The development standards for the R-1 zone, at BIMC 18.33.050 and .060 respectively, require lot coverage
not to exceed 15% and minimum yards of 10 ft. (rear yard) to 25 ft. (yards facing the street).
17. BIMC18.33.030(H) allows "Multiple-family dwellings" as a Conditonal Use in the R-1
zone "with additional criteria of a 25-foot perimeter natural vegetative easement and interior open space".
18. BIMC 18.06.320 defines “Multifamily dwelling” to include: "…more than
one dwelling unit on one lot..."
19. BIMC 18.108.040(A) provides that a conditional use may be approved or approved with modifications if:
1. The conditional use is harmonious and
appropriate in design, character and appearance with the existing or intended character and quality of development in the immediate vicinity of the subject property and with the physical
characteristics of the subject property;
2. The conditional use will be served by adequate public facilities including roads, water, fire protection, sewage disposal facilities and
storm drainage facilities;
3. The conditional use will not be materially detrimental to uses or property in the immediate vicinity of the subject property;
4. The conditional use
is in accord with the comprehensive plan;
5. The conditional use complies with all other provisions of this code;
6. The conditional use will not adversely affect the area or alter
the area’s predominantly residential nature; and
7. All necessary measures have been taken to eliminate the impacts that the proposed use may have on the surrounding area.
20. BIMC
2.16.130(F) authorizes the Hearing Examiner to hold a hearing and render a decision on appeals of administrative decisions. The Hearing Examiner must give substantial weight to the
decision of the department director and may: affirm the decision; affirm the decision with modifications; reverse the decision; or, remand the decision. The Hearing Examiner may include
conditions as part of a decision to ensure conformance with the City's Code, Comprehensive Plan, and other applicable laws or regulations.
Non-Motorized Transportation Plan
21. Both
parties referred to the Non-Motorized Transportation Plan (Plan) adopted by the Council in 2002. As neither party offered it for this record, the Hearing Examiner takes official notice
of it and has considered it in the preparation of this decision.
22. The Introduction section notes that the Plan "…reflects the desires of the Bainbridge Island community to promote
and develop a transportation system for bicyclists, pedestrians, and equestrians…The document establishes goals and policies, inventories the existing non-motorized system, identifies
the improvements needed to complete the system, and sets priorities and schedules for the implementation of the plan."
23. The Director relies on Policy NM 1.7 for the imposition of
Condition 6. Under "Goal 1: Mobility and Connectivity" [Chapter 1, Goals and Policies, page 2-3], it states (emphasis added) that Policy NM 1.7 of the Plan is to:
Require residential
subdivision and commercial projects that meet the development thresholds set in the Municipal Code, to provide non-motorized connections through the development where appropriate and
along public streets fronting the development. These improvements are to be consistent with the location and design as identified in the Plan and to meet the standards requirements
as set by the City Engineer.
24. The Plan calls for a "Type B: bicycle facility and shoulder" (i.e., 5-ft. bike lane + 3-ft. soft/gravel pedestrian path) on Madison Avenue from Manitou
on the south to Valley Road, and on Valley Road from Madison Avenue on the west to Sunrise Drive on the east [see map and legend in Non-Motorized Transportation Plan].
Appeal
25. The
applicant timely appealed the Director's administrative decision to approve the CUP, challenging several conditions of that approval [Exhibit 53].
26. At the hearing the Appellant
clarified that only Condition 6, requiring the provision of a 5 ft. wide paved bike lane and 3-ft gravel shoulder along the Valley Road (640 ft.) and Madison Avenue (320 ft.) frontages
(approximately 960-ft. total length), is being appealed [Exhibit 53; Testimony of Peltier]. Consequently, Condition 6 was the only issue considered at hearing and is the only issued
addressed by this decision.
27. Utilizing information gathered from several contractors, the appellant presented credible evidence that the required improvements could have costs ranging
as high as $100,000 to $200,000 [see "Bottom Line Estimate" and "Estimate - Upper Range" in Exhibit 59L; Testimony of Peltier]. A considerable portion of the expense anticipated is
due to the nature of the existing conditions. That is, to make space for the addition of a bike lane and gravel shoulder, the adjacent banks would have to be cut back and the drainage
ditches moved or covered. Photographs in Exhibit 59M illustrate these conditions [see Valley Road photos labeled P3160007 and P3160017, and Madison Avenue photos labeled P3160027 and
Utility Pole]. The construction actions would necessitate: the removal of trees near the top of the banks and most of the vegetation on the banks, plant replacement, slope stabilization,
and possibly the relocation of a utility pole. As engineered drawings were not the basis for the appellant's estimates, and some items (e.g., various contingencies, fertilizer for stressed
trees, drip irrigation, arborist services, etc.) could be unnecessary, the totals are not definitive. However, four contractors gave rough estimates for the basic widen/paving work
(i.e., $61,749, $69,900-$71,000, $70,500, and $77,000), that indicate $70,000 would be the likely minimum. [Exhibit 59L]
28. The Director did not prepare an independent estimate of
costs for the required improvements. The Staff Report [Exhibit 51, page 6] refers to $30,000, based upon an early estimate by the applicant [Exhibit 39: Peltier letter dated October
16, 2003, mentions "an estimated minimum cost of $35,000"]. There was also a June 18, 2003 estimate from a contractor for $31,890 that appears to not include the costs for several necessary
- and costly - items (e.g., cutting back the bank and associated tree removal, relocating or tight lining the drainage ditch, utility relocation, etc.)
29. The future residents of
the proposed condominium would use both Valley Road and Madison Avenue and therefore could benefit from the improvements required by Condition 6. (The improvements would benefit all
users.) The City Engineer expects the three additional residences would generate approximately 30 ADT. [Exhibit 50, pages 6-8; Exhibit 51, pages 6-8; Testimony of Hathaway] (The Director
incorrectly included the existing residence in the analysis of future trips for an estimated 38 ADT.) Some of the daily trips are expected to be via non-motorized means, but no breakdown
of those trips was provided.
30. The Assistant City Engineer gave his opinion that the proposed development would impact both the general transportation system and the immediately
adjacent roadways and that the required improvements are necessary for mitigation. [Exhibit 50, Section VI; Testimony of Hathaway] What the relative significance of the anticipated
"impacts" would be was not presented, but given the small numbers of residents and expected daily trips, it is not reasonable to presume that those impacts would be substantial enough
to warrant mitigation.
31. Exhibits 42 and 50 both include a draft of possible approaches to preparing nexus and proportionality analyses for assessing roadway improvement expenses.
This material was not utilized by the Director in imposing Condition 6 or defending it at hearing. Condition 6 does not rely upon an impact-based formula or the approaches included
in Exhibits 42 and 50. The Director required the subject improvements in order to implement Policy NM 1.7 of the Non-Motorized Transportation Plan [Exhibit 51, page 6, items "d", "e",
and "g"].
32. The appellant's transportation engineer [Exhibit 59D, page 2] estimates that the three additional residences would generate approximately 29 ADT, with 3 PM Peak Hour
trips. The new trips represent an increase in traffic on Valley Road of less than 1% and less than 0.5% on Madison Avenue. The engineer concludes that these additional trips would
not be noticeable and would not increase area accident rates or traffic safety hazards. [Exhibit 59D, page 3]
33. Based upon the number of trips generated by the proposal [see Findings
29 and 32], it would have insignificant impact on traffic conditions and traffic safety on the adjacent roads. If the small size and relative affordability of the proposed residences
[see Exhibit 26] results in fewer than an average number of occupants, fewer vehicles and fewer trips, then the impacts could be even less than expected [see Exhibit 59N].
34. The Appellant
asserts that the improvements necessitated by Condition 6 would have disproportionately high costs as compared to the costs for improvements required of other residential developments.
Larger proposals (subdivisions and multifamily developments) with more residents (and presumably more impacts relative to adjacent roadways) were able to make roadway improvements at
considerably less cost. In one instance (creating four lots at Valley Road and Hyla Avenue prior to the adoption of the Non-Motorized Transportation Plan), no improvements were required
on Valley Road. [Exhibits 39, 56, and 59G, H, I, J, and photos of Idelweiss, Thompson, and Madison in 59M; Testimony of Peltier and Preston]
35. The Appellant cites several cases
in support of its argument that Condition 6 cannot and should not be imposed. In particular, Benchmark Land Co. v. City of Battle Ground, 146 Wn.2d 685 (2002), has similarities to this
matter. In Benchmark, the Washington Supreme Court held that the imposition of street improvement conditions must be supported by substantial evidence that the required expenditures
are directly related to the impacts of the development. (The Supreme Court did not reach the constitutional issues of "rough proportionality" and "essential nexus" used by the by the
Court of Appeals in its decision below.)
Conclusions
1. The Hearing Examiner has jurisdiction to hear and decide this matter and is required by BIMC 2.16.130(F)(2) to give the Director's
recommendation substantial weight. That is, the decision of the Director must be clearly erroneous. To reverse the Director, the Hearing Examiner must be left with the definite and
firm conviction that a mistake has been made.
2. The only question presented here is whether the Director's imposition of Condition 6, requiring the Applicant to provide roadway improvements
in the form of a bike lane and shoulders on both the Valley Road and Madison Avenue frontages, is in error.
3. It may well be that the Appellant has the better argument regarding
what must be shown to establish the legitimacy of a street improvement condition such as Condition 6. That is, the facts in this record do not show a direct connection and/or an individualized
determination that the improvements required are related to the proposal's impacts. However, it is not necessary to look to case law, state statute, or interpretations of constitutional
law to decide this appeal.
4. Policy NM 1.7 of the Non-Motorized Transportation Plan relied on by the Director, requires that "residential subdivision and commercial projects" meeting
"development thresholds" set in the Code, are to provide improvements along their street frontages. This proposal is neither a subdivision nor a commercial development; Policy NM 1.7
does not apply. (Even if the proposal had presented as a subdivision, the Director has not established that the proposal meets the "development thresholds" or even what those threshold
are or where in the Code they are "set".)
5. Under these facts it was a mistake to require improvements pursuant to Policy NM 1.7 to facilitate non-motorized transportation and Condition
6 should be eliminated from the conditions of approval.
Decision
The decision of the Director to approve the application of 9745 Valley Road Farm, LLC, for a Conditional Use Permit
to construct three additional single-family residences on the subject property, is affirmed as modified as follows: Condition 6, requiring roadway improvements for the addition of a
bike lane and shoulders on both the Valley Road and Madison Avenue frontages, is eliminated.
Entered this 16th day of April 2004.
___________________________
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.
Request for judicial review of this decision by
a person with standing can be made by filing a land use petition in superior court within 21 days in accordance with the Land Use Petition Act, Revised Code of Washington, Chapter 36.70C.