041604 Valley Road Farm CUP (2)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
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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
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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].
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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.
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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).
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17. BIMC 18.33.030(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;
S. 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.
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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 l: 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 -fl. 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 fl. wide paved bike lane and 3 -ft gravel shoulder along the Valley Road
(640 ft.) and Madison Avenue (320 fl.) frontages (approximately 960 -f1. 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
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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
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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
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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 fling 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.
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