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090904 Hobbs (2)FINDINGS AND DECISION OF THE HEARING EXAMINER CITY OF BAINBRIDGE ISLAND In the Matter of the Appeal of CRAIG HOBBS ADM10165B from a Ruling made by the Director, Planning and Community Development Department Introduction Under application SPTA10165, Craig Hobbs seeks to amend a short plat that was previously approved. In the course of reviewing the application for amendment, the Director determined that a Reasonable Use Exception is required for the road widening necessary to provide access to one of the proposed lots. Mr. Hobbs here appeals that ruling (file number ADM 10165B). The Hearing Examiner held the hearing on this matter on September 9, 2004. Parties represented at the hearing were the Director, Planning and Community Development Department, by Kathy James, Senior Planner, and the Appellant, Craig S. Hobbs, pro se. 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 of Fact Proposal 1. The subject property of 18.71 acres is generally addressed as 9750 and 9780 Mandus Olson Road and is located near the center of Bainbridge Island, north of New Brooklyn Road. 2. On June 15, 2004, the appellant here, Craig Hobbs, filed a plat amendment application [SPTA10165; see Exhibit 20] seeking to reconfigure a 4 -lot short plat. Exhibit 31 shows the configuration of the short plat to be amended [ "Hobbs Short Plat ", Lots A through D; see also Exhibit 9]. Exhibit 3 shows the boundaries of the four lots after the proposed amendment. 3. The amendment proposes to reconfigure Lots B, C, and D; the boundaries of Lot A would not be changed. In the current configuration [see Exhibit 31 ], Lot C is located in the northeastern portion of the subject property with an access roadway extending across part of Lot B from Mandus Olson Road. In the proposed amendment [see Exhibit 31 ], Lot C is located in the northwestern corner of the subject property. 4. Access to proposed Lot C would be by way of an existing gravel road within a 30- ft. wide unnamed right -of -way that extends north from Mandus Olson Road, parallel to the western boundary of the subject property. As anticipated by the original Hobbs Short Plat [see Item 8, Page 4, Staff Report and Decision, in Exhibit 9], in order to serve Lot D the road has been widened, resurfaced with gravel, and drainage ditches added. These improvements extend north to and including the hammerhead/tumaround at the southwest corner of Lot D, but they do not extend into the buffer [see Exhibit 3]. 5. To meet the minimum roadway width standard of 12 ft., the existing road [approximately 8 to 10 ft. wide] would have to be widened from just north of the hammerhead/tumaround serving Lot D, northward to Lot C to provide access to it. [Exhibit 3; Exhibit 29; Testimony of James and Hobbs] 6. For approximately 225 linear feet, the required road widening would be in a wetland buffer "no disturbance" area that was established with the original short plat [Exhibit 3; Staff Report and Decision in Exhibit 9; Exhibit 29; Testimony of James and Hobbs]. This buffer begins just north of the hammerhead/tumaround serving Lot D and, as depicted in Sheet 1 of Exhibit 31, extends to about 25 ft. south of Lot C. 7. Beginning about 50 ft. north of the boundary of Lot D, there is another wetland buffer that covers much of the western third of proposed Lot C. Road widening would not occur in this buffer; a hammerhead/turnaround, providing access to Lot C, would be located outside the buffer at the southwest corner of Lot C. This buffer and the proposed access improvements are indicated on Sheet 1 of Exhibit 3. Director's Ruling 8. By a letter dated July 6, 2004, Kathy James, the planner conducting the review of his application to amend the short plat, advised Mr. Hobbs that he needed to apply for a Reasonable Use Exception (RUE) for the road widening necessitated by the reconfiguration of the short plat with Lot C being served by the existing road west of the subject property. [Exhibit 23] 9. After Mr. Hobbs protested the RUE requirement noted in Ms. James' letter [Exhibit 24], the Director responded with an administrative determination [Exhibit 25] stating that: Under the Bainbridge Island Municipal Code (Section 16.20.090) roads are not a permitted use in wetland buffers. Therefore, the city requires that a Reasonable Use Exception (RUE) be granted prior to roadway incursions into wetland buffers. When existing roadways already intrude into wetland buffers, an RUE is required if the proposed improvements (travel lanes, shoulders, drainage ditches) extend beyond the existing prism. Appeal 10. Mr. Hobbs timely filed an appeal of the Director's administrative determination [Exhibit 26]. Required notice of the appeal hearing was completed as of August 21, 2004 [Exhibit 27] and hearing was held on September 9, 2004. 11. In his appeal statement and at hearing, the appellant asserts that: 1) the RUE is not required because the widening would be done on the east side of the road, away from the wetland, and would have insignificant or no impact on the functioning of the buffer and the wetland; 2) the Director can and should waive the RUE requirement and use the process /interpretation that is least onerous on the applicant; and/or, 3) the RUE is not required because, consistent with BIMC 16.20.090(G)(4), it would be "normal maintenance, repair or operation" of an existing serviceable facility. [Exhibit 24; Exhibit 26; Exhibit 30; Testimony of Hobbs] 12. The appellant's major line of reasoning is that the road was approved years ago by the County at 10 -ft. wide which was the standard at the time to provide an access driveway for what was then a new house at the end of the right -of -way on the east side of the road [see parcel marked "008" in Exhibit 24; Page 1, Application, in Exhibit 25; Sheet 3, in Exhibit 3; and, Exhibit 31]. Appellant further reasons that it would be "repair" and/or "maintenance" to widen the road to meet today's 12 -ft. standard for a minimally adequate access. That is, it was originally "authorized" to meet the minimum standard, and widening would "restore" it to (today's) minimum standard. [Exhibit 30; Testimony of Hobbs] Bainbridge Island Municipal Code 13. The Bainbridge Island Municipal Code (BIMC), at BIMC 16.20.010 includes 'protective buffer lands" within Critical Areas and, with regard to wetlands and streams, provides the following, at BIMC 16.20.030: A. Greater Restrictions. When any provision of any other chapter of the BIMC conflicts with this chapter (or any existing regulations, easements, covenants, or deed restrictions), that which provides more protection to critical areas shall apply. B. Interpretation. The provisions of this chapter shall be held to be minimum requirements in their interpretation and application and shall be liberally construed to serve the purposes of this chapter. C. Applicability. This chapter establishes regulations for the protection of sites which contain critical areas or are adjacent to sites which contain critical areas... 14. Those "activities and uses" that may be permitted in required buffers are listed in BIMC 16.20.090; if a proposed action or use is not listed, it is not permitted. The list of permitted activities and uses includes: 4. Normal maintenance, repair, or operation of existing serviceable structures, facilities, or improved areas not including the construction of a maintenance road. 15. "Repair" and "maintenance" are defined in the Critical Areas Code, at BIMC 16.20.020(31), as "activities that restore the character, size, or scope of a project only to the previously authorized condition. " 16. BIMC 16.20.090(I) provides that a Reasonable Use Exception (RUE) may be granted only "...for proposed alterations to required buffers, regulated wetlands or streams ". 17. BIMC 2.16.095(H) provides that appeals to the Hearing Examiner are to be "in accordance with the procedures of BIMC 2.16.130". BIMC 2.16.130 expressly applies to appeals of "administrative decisions, departmental rulings and interpretations... " In considering such appeals, BIMC 2.16.130(F) authorizes the Hearing Examiner to: affirm the decision, affirm with modifications, reverse the decision, or remand it to the Director. That section of the Code also requires that the Hearing Examiner give "substantial weight to the decision of the department director. " Conclusions of Law 1. The Hearing Examiner has jurisdiction to hear and decide this matter and, in making that decision, must give substantial weight to the decision of the department director. 2. To overcome the substantial weight accorded the Director, an appellant has to show that the Director's decision is "clearly erroneous ". Brown v. Tacoma, 30 Wn. App. 762 (1981). Under this standard of review, the Director can be reversed if the Hearing Examiner is left with the "definite and firm conviction" that a mistake has been made. Cougar Mt. Assoc. v King County, 111 Wn. 2d 742, 747 (1988). 3. To meet the 12 -ft. minimum roadway width standard, the existing road would have to be widened by approximately 2 -ft. to provide access to proposed Lot C. Widening the road by two feet would be physical change (i.e., an "alteration ") and, for 225 ft. of its length, this alteration would be within a wetland buffer. 4. The Director determined that the road widening would be an alteration in a buffer and therefore could only be permitted if it were granted a Reasonable Use Exception under BIMC 16.20.090(I). The only issue for the Hearing Examiner to decide is whether or not the Director erred in requiring that the appellant to seek a Reasonable Use Exception. 5. The appellant's argument that a Reasonable Use Exception is not required because little physical change would accompany the road widening, is not persuasive. It is not an error to require the RUE for an activity or use that may have a relatively small impact on the buffer or the protected wetland. The threshold for the RUE requirement is location (i.e., within a buffer), not relative degree of impact. 6. The appellant's argument that the Director has a duty to utilize a procedure that is the least onerous for the applicant is not supported by the Code. There is no "least onerous" rule requiring the Director to interpret the Code in manner having the smallest possible burden on an applicant. The Director does have a duty to process applications for permits in the manner and within the standards prescribed by the Bainbridge Island Municipal Code. While no Code section has been cited that supports appellant's position, BIMC 16.20.030 does requires the Director to liberally construe the provisions the Critical Areas Code and to treat them as minimum standards for the protection of wetlands and their buffers. 7. While it has not been shown that the Director has the discretion to waive a requirement in this situation, if such discretion did exist, using it would be just that: the exercise of discretion (and not a reversible error on appeal). 8. The appellant's major argument is that the proposed road widening is a permitted activity of normal maintenance and repair under BIMC 16.20.090(G)(4). That is, what was 'previously authorized" is a road built to meet the minimum standard, so widening it to today's minimum standard would restore it to the minimally adequate condition and thus it would be repair and maintenance. This interpretation is strained. The Director's more narrow, physical interpretation: that anything beyond the original construction is expansion, enlargement, or alteration, is the better reasoning. However, the Director doesn't have to have the best answer, or even a better one. The standard here is clear error, and the Director's interpretation has not been shown to be erroneous. It is not a mistake to view increasing the width of a road a couple of feet, over 225 ft. of its length, as an expanding the size of the road. Decision The ruling by the Director that the proposed road widening requires a Reasonable Use Exception is hereby AFFIRMED. Entered this 24th day of September 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. 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 (RCW), Chapter 36.70C.