121694 OlsonDecision (2)DECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Application of
MICHAEL OLSON RUE09800
for a Reasonable Use Exception
Introduction
The Applicant seeks a Reasonable Use Exception to allow construction of a waterline
across an intermittent stream. The Hearing Examiner held a public hearing on this matter
and made a site visit on October 14, 2004. Parties represented at the hearing were the
Director, Planning and Community Development Department (PCD or Department), by
Thomas A. Bonsell, Planner, and the Applicant, Michael Olson, pro se. One member of
the public made a comment at the hearing in opposition to granting the exception. On
November 3, 2004 the Hearing Examiner ordered that the record be reopened so that the
parties could submit needed information and documentation. The Hearing Examiner also
ordered that the hearing be reconvened on December 2, 2004, for the receipt of that
information and documentation. The record was closed with the conclusion of the
reconvened hearing.
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 application.
Findings
Site Description
1. The subject property is located on the south side of Lofgren Road, south of
Murden Cove and is addressed as 9955 N.E. Lofgren Road. [Application, Exhibit 3, page
1; Staff Report, Exhibit 28, page 1] The legal description [Exhibit 5] is:
Lot 46 of the plat of Rolling Bay City, recorded in volume 3, page 11 of
the plats, records of Kitsap County, and situate in Government lot 2,
Section 23, Township 23 north, Range 2 East, W. M., City of Bainbridge
Island, Kitsap County, Washington.
2. The property is zoned R -2, for residential use, two units per acre. The
Comprehensive Plan designation is OSR -2, Open Space Residential, two units per acre.
[Exhibit 28, page 1; Exhibit 7]
3. This is a 4.5 acre parcel that, under application SUB09800, the applicant seeks to
subdivide into six lots [the plat is discussed in Exhibit 2, Hearing Examiner MDNS
Appeal Decision and Preliminary Plat Recommendation]. There is a single family
residence located in the eastern portion of the site in proposed Lot 5 (a detached garage is
located in proposed Lot 6). [Exhibit 7, Sheet 3]
4. The site is rectangular in shape and generally slopes to the north. Site topography
is dominated by a north - trending ravine containing a seasonal stream that, along with the
associated ravine slopes, occupies the central third of the property. The western portion
of the site is undeveloped forested land with moderate to dense vegetative cover. A well,
intended to serve water to the proposed lots, has been developed near the west edge of the
ravine on the north -south property line between Lots 2 and 3. [Exhibit 34]
5. The seasonal stream originates south of the site, flows along the ravine floor
within the slope- constrained channel, under the Lofgren roadway, and into a Category I
wetland to the north [Exhibit 28, page 4; Testimony of Bonsell]. On the subject property
the ravine deepens to the north and broadens slightly, with an elevation change from the
south property line to the north properly line of approximately 40- 50 -ft. At the north end
of the site the slopes flanking the ravine reach to a height of 50 ft. with angles of
approximately 40 degrees. At the south end of the property, the slope angles are more
moderate and generally range from 20 to 30 degrees. [Exhibit 34, pages 2 -3] The ravine
slopes have mature red cedar and western hemlock and a sparse herbaceous understory
[Exhibit 22, pages 3]
6. The geotechnical consultants who examined the site concluded in their report
[Exhibit 34] that the site has a low risk of slope instability and landsliding [page 3]. They
further concluded that the site could be developed "without adverse impact to slope
stability provided that adequate earthwork, drainage /erosion control, and site vegetation
management are incorporated into site development and construction practices" [page 4].
The limitations recommended include a 25 -ft. setback from the crest of the ravine for
residences, and a 10 -ft. minimum setback for the well. [Exhibit 34, pages 4 -5]
Background: Associated Subdivision and SEPA Appeal
7. On April 16, 2004, the Director issued a SEPA Mitigated Determination of
Significance (MDNS) in association with the underlying subdivision application. The
applicant appealed Conditions 6 and 7 of that MDNS. Condition 6 barred installation the
waterline across the stream and buffer, and instead allowed the line to be placed in the
Lofgren Road right of way or another well to be drilled. Condition 7 required that
Hemlock Street be improved.
8. After the appeal hearing, the Hearing Examiner issued a SEPA decision, as well
as a recommendation on the subdivision application. The decision on the SEPA appeal
was to uphold the Condition 6 prohibition on the waterline crossing the stream and to
eliminate the Condition 7 requirement to improve Hemlock Street. The Hearing
Examiner's recommendation on the subdivision application was that the City Council
should remand it to PCD until the applicant could obtain Health District approval for the
water and sanitary waste disposal systems [Exhibit 2, pages 24 -25].
9. The MDNS was withdrawn and reissued by PCD on August 14, 2004 [Exhibit 24]
to amend the conditions in conformance with the Hearing Examiner's decision and to
expand it's application to include the Reasonable Use Exception (RUE) that is the subject
of this decision. The reissued MDNS was not appealed.
RUE Application
10. The proposal consists of digging a trench and installing 670 linear feet of
waterline (from the well to proposed Lot 1 and from the well along the southern property
line to serve proposed Lots 4 -6). The hand -dug trench for the waterline would be a
maximum of 4 -ft. wide and would be located within a 25 ft. wide utility easement
[Exhibit 33, page 1; Exhibit 22, page 5]. The proposed north/south segments of the
waterline, along the east and west sides of the ravine, would be outside of the required 25
ft. buffer, but the east /west segment would be constructed across the Class IV stream and
buffer [see Exhibit 32].
11. As development cannot be allowed in a regulated stream and buffer without a
Reasonable Use Exception (RUE), the applicant applied for an RUE to allow
construction of the waterline with the proposed alignment [Exhibit 3]. Notice of that
application was given on April 17, 2004 [Exhibit 18].
12. Regarding the proposed waterline, the geotechnical consultants recommended
[see Finding #6] that it should "...cross the ravine in the area of modest ravine slope
height and angle... located in the extreme southern portion of the site..." They
recommended this route because they believed that the alignment "reduces slope soil and
vegetation disturbance and will not adversely impact ravine slope stability." [Exhibit 34,
pages 4 -5] The preliminary plat map, Exhibit 32, shows the proposed alignment.
13. The proposal includes restoration of the slope and vegetation via implementation
of a proposed Mitigation Plan (see Findings #20 and 21).
14. The geotechnical consultants (see Findings #6 and 12) recommend that the trench
be backfilled "as soon as possible" after the waterline has been installed and that the
disturbed soils be protected throughout the construction process. The post - installation
measures recommended include mulching, seeding and/or hydroseeding all areas where
vegetation has been removed or the soils disturbed. Standard erosion and sediment
controls (e.g., hay bales, silt fencing, quarry spall berms/blankets) should also be
employed during the trenching and waterline installation. [Exhibit 34, page 5]
15. PCD expects that HDPE (high density polyethylene) pipe will be required for the
waterline because it has little, if any, risk of leaking or failing [Testimony of Bonsell].
Director's Recommendation
16. On April 9, 2004, PCD notified the applicant that the application was complete
and gave public notice of application on April 17, 2004. [Exhibit 16].
17. One person submitted two written comments [Exhibits 20 and 25] to the
Department in response to the Notice of Application [see Finding #26 for discussion of
comments].
18. The Wetland Advisory Committee (WAC or Committee) reviewed the RUE
application and did a site inspection. Initially, in May 2004, the Committee found that
the application did not satisfy the requirements of BIMC 16.20.110 and advised that a
more thorough mitigation plan be prepared. The Committee expressed specific concerns
and suggestions in its report regarding this application. Included in these specifies were:
1) that the mitigation plan should expressly include that the trenching would be done by
hand and "undertaken in the summer (dry season) when no water is flowing in the
streambed "; and, 2) that the replanting, not ideally done in the dry season, should be
phased "to maximize plant survival." [Exhibit 21].
19. In response to the concerns of the Committee, the applicant had a Mitigation Plan
prepared by a wetlands biologist. That Plan [Exhibit 22], prepared by Myers
Biodynamics, Inc., was submitted to PCD in August 2004 [Exhibit 23]. PCD staff
reported that the Committee "was satisfied" with the Myer's Mitigation Plan [Exhibit 28,
page 3].
20. The Mitigation Plan regards the proposed alignment to be a mitigation, as the
positioning of the waterline operates "to present a small, confined impact to the riparian
buffer where the slopes are the least steep" [page 2]. Mitigation would also include
adding a 1 -ft. deep layer of native topsoil with the backfill and planting approximately 80
to 100 shrub and herb species (a 3 -for -1 replacement ratio) within areas disturbed by the
trenching. This restoration planting would be monitored to gauge its success and a
contingency plan would provide for additional plantings and/or other corrective actions if
the original plants fail. [Exhibit 22, pages 2 -5, Figures 2 -5 ]
21. The Mitigation Plan specifies that the trench is to be "hand- dug ", but does not
include the Wetland Advisory Committee's dry season -only limitation (the Plan assumes
that the trenching would be done in the Fall of 2004) [Exhibit 22, page 3]. (The
Committee's concern for the timing of replanting is addressed by Note #3 in Figure 5:
"All restoration planting shall occur after October 15th and before November 15th
following the trench work. ")
22. The Director recommends that all the conditions and recommendations set forth
in both the geotechnical report [Exhibit 34] and Mitigation Plan [Exhibit 22] be required.
23. The Director considered the alternative alignment of going north from the well,
through proposed Lots 1 and 2, east in the Lofgren Road right -of -way, and then south
through proposed Lots 4 and 5 (i.e., the alignment that was in Condition 6 upheld in the
SEPA appeal; see Finding #7). The Director determined that this Lofgren Road
alignment `alternative' did not provide a reasonable alternative to the RUE alignment
because it would cost more than the proposed alignment. [Exhibit 28, pages 5 and 7]
24. The Director recommends approval of the RUE based upon having concluded that
the proposal, as conditioned, would be consistent with the applicable provisions of the
Critical Areas Ordinance (BIMC 16.20.090: Wetlands and Streams; BIMC 16.20.110:
Mitigation Plan Requirements) and the Zoning Code (BIMC 18.30: R -2 Zone). [Exhibit
28, pages 4 -7]
Public Hearing
25. The public hearing on the application was properly noticed with posting, mailing,
and publication completed on September 25, 2004 [Exhibit 26].
26. One neighbor submitted two written comments [Exhibits 20 and 25] during
PCD's consideration of the application and submitted both written and oral comment at
the hearing. Vince Mattson expressed opposition to granting the requested exception
[Exhibit 29; Testimony of Mattson]. Mr. Mattson does not believe "that this proposal
qualifies for a Reasonable Use Exception..." as the only reason given for proposing the
alignment crossing the stream and its buffer, is that it would cost less than routing the line
along Lofgren Road. He also observed that because the applicant's 6 -lot subdivision
could be approved regardless of which alignment is used, the applicant would not be
denied all reasonable use of his property with denial of the RUE.
Alternative Alignment
27. At the reconvened hearing on December 2, 2004, the applicant documented that
the Lofgren Road `alternative' alignment would be expected to cost considerably more
than the alignment proposed with the RUE. The proposed alignment is estimated to cost
approximately $13,400 and the alternative in Lofgren Road approximately $23,500
(contingencies not included). The Lofgren Road estimate is based upon the alignment
being in the roadway itself, necessitating cutting the pavement, removing and replacing
asphalt, and providing traffic control during several days of construction. [Exhibit 33;
Testimony of Olson]
28. At the SEPA appeal hearing in 2003 the costs were estimated to be $12,000 for
the proposed alignment and $30- 50,000 for the alternative route. That alternative route
was presumed to be "placed in the steep slope on the roadside" along Lofgren Road and
not in the paved portion of the roadway. [Exhibit 2, pages 7 -8, Finding 17].
29. The roadbed for Lofgren Road in this vicinity is fill. The fill is quite deep and the
embankments that flank the roadway are, in some places, both narrow and steep
(characterized as 42 %; 1:1 slope). The roadway fill has been stable and it does not
appear likely that constructing the waterline in the roadway would destabilize it.
However, construction in the fill of the steeply sloping embankment would disturb the
vegetative cover and possibly disrupt the stability of the fill. [Testimony of Olson;
Testimony of Bonsell; Testimony of Mattson]
Pertinent Code Sections
30. BIMC 16.20.090.I.2.b provides that procedures for an other -than administrative
Reasonable Use Exception are "the procedures set forth in BIMC 2.16.100. "
31. The decision procedures of BIMC 2.16. 100 provide as follows:
A. Applicability. This section applies each time a provision of this code
authorizes a public hearing before the hearing examiner and a final decision by
the hearing examiner..
B. Purpose. The purpose of the public hearing is to review a proposed
project for consistency with the Bainbridge Island Municipal Code, appropriate
elements of the comprehensive plan and all other applicable law, and to provide
an opportunity for the public to comment on the project and its compliance with
the municipal code, the comprehensive plan and all other applicable law.
32. The Wetlands and Streams section of the Critical Areas Ordinance, at BIMC
16.20.090.H.2, requires a 25 ft. buffer on each side of a Class IV stream bank (here, the
bank is the crest of the ravine). A minimum 15 ft. building setback is also required.
33. BIMC 16.20.090.I.1 states the purpose of the provision of the Reasonable Use
Exception (RUE):
...Reasonable use exceptions are the mechanism by which the city may
grant relief from the provisions of this chapter where compliance with
certain provisions of this chapter leave no reasonable use of the property.
A reasonable use exception is authorized only for proposed alterations to
required buffers, regulated wetlands or streams...
34. The Reasonable Use Exception decision criteria of BIMC 16.20.090.I.4 provide
that:
A reasonable use exception may be approved or approved with
modifications if without the reasonable use exception the applicant would be
deprived of any reasonable use of the property and:
a. The proposed activities will result in the minimum intrusion,
alteration or impairment of the wetlands, stream or required buffer including
impacts to their functional characteristics, while permitting some reasonable use
of the property. In all cases, disturbance of a regulated wetland or stream shall
only occur if no reasonable use can be achieved by disturbance of the buffer
only;
c. The proposed activities include mitigation as appropriate to
avoid measurable degradation to groundwater or surface water quality;
d. The proposed activities comply with all relevant state, local and
federal laws, including those related to sediment control, pollution...
e. Alterations to ... streams and buffers will be mitigated to the
extent feasible considering the extent of the disturbance, the size of the site and
the necessity for the proposed activities;
f. There will be no damage to nearby public or private property
and no threat to the health or safety of people on or off the property;
g. The inability to derive reasonable use of the property is not the
result of actions by the applicant in segregating or dividing the property and
creating the undevelopable condition after the effective date of this chapter;
h. The reasonable use exception will not allow a use or activity that
is inconsistent with the uses and activities and limitations of other properties in
the vicinity and zone in which the property is located;
j. The reasonable use exception is the minimum necessary to
provide reasonable use of the property;
k. The reasonable use exception is consistent with all other
provisions of this code and is in accord with the comprehensive plan.
35. The requirement for mitigation plans for critical areas, at BIMC 16.20.110,
include that:
A. ...All critical area restoration, creation and /or enhancement projects
required pursuant to this... shall follow a mitigation plan prepared by an
expert approved by the director...
B. ...The mitigation plan shall recreate as nearly as possible the original
critical area in terms of its acreage, function, geographic location and
setting.
C.2.c. ...Specific criteria shall be provided for evaluating whether or not the
goals and objectives of the project are met and for beginning remedial action
or contingency measures...
e. ...A program outlining the approach for monitoring construction of the
compensation project and for assessing a completed project shall be
provided...
f. ...A protocol shall be included outlining how the monitoring data will be
evaluated ...A monitoring report shall be submitted annually...
g. ...Contingency Plan. Identification of potential courses of action, and any
corrective measures to be taken when monitoring or evaluation indicates
project performance standards are not being met.
F. Permit Conditions. Any compensation project prepared pursuant to this
section and approved by the director shall become part of the application for
the permit.
Anal
36. The single - family use proposed by the associated subdivision that would be
supported by the requested waterline is consistent with the residential use anticipated by
the zoning and Comprehensive Plan designations of the subject property.
37. There would have to be compliance with applicable Health District regulations
regarding the provision of domestic water service.
38. The alternative alignment in Lofgren Road would be substantially more expensive
than the RUE alignment. Given that the migating conditions required for the RUE stream
and buffer crossing would result in avoiding adverse impacts to the stream and restoring
vegetation removed or disturbed by construction, the alternative alignment in Lofgren
Road would not have a noteworthy environmental advantage. Constructing the waterline
in the steeply sloping fill along the roadside could have destabilizing effects on that fill
and associated adverse environmental consequences.
39. With proper implementation of the conditions recommended by the Director and
the Wetland Advisory Committee (including the Mitigation Plan and limiting the time
and manner of construction) the proposed waterline construction could be accomplished
with minimal intrusion and no environmental damage to the stream and downstream
environments. Construction as conditioned would have no damage to neighboring
properties or present a threat to the public health and safety. There would be little, if any,
long -term risk to the stream from pipe leak or failure.
Conclusions
1. The Hearing Examiner has jurisdiction to hear and decide this matter.
2. Appropriate notices of the application and the public hearing were given and the
hearing was properly convened and all comments, testimony, and other evidence
considered.
3. Monetary cost is one factor to be considered in determining what is "reasonable"
and whether denying a requested exception is a deprivation of reasonable use. It is not
the only consideration. Merely having a greater cost should not define an alternative as
"unreasonable" and routinely trigger the granting of a RUE. However, the magnitude of
the difference in cost, when combined with a large dollar amount, could help distinguish
what is and is not reasonable. (For example: A high cost alternative with a high
comparative cost difference - say, $20,000 for an alternative and $10,000 for the RUE -
could be persuasive in finding that a proposal is a reasonable exception. Relatively low
costs, even with a high comparative difference - in this example, something like $2,000
versus $1,000, would not.) Given that the goal of the Critical Areas Ordinance here is the
protection of streams, consideration of the environmental "costs" (i.e., adverse impacts)
should always be foremost when contemplating exceptions to the protective prohibitions.
Where, as in the RUE requested here, the adverse impacts would be effectively
minimized and /or avoided (thus fulfilling the purpose of the stream protections),
requiring an alternative that has substantially higher dollar costs (in both absolute and
comparative terms), would deprive the owner of reasonable use.
4. As noted in Findings #36 through 39, and consistent with the Director's
recommendation and that of the Wetland Advisory Committee, the requested Reasonable
Use Exception should be granted as it meets the requirements of BIMC 16.20.090.I.
Decision
The application of Michael Olson for a Reasonable Use Exception (associated with the 6-
lot subdivision application SUB09800) to allow construction of a waterline across an
intermittent stream, is hereby APPROVED WITH CONDITIONS (Conditions 1 -8 follow on
page 10).
Entered this day of December 2004.
Meredith A. Getches
City of Bainbridge Island
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.
RUE 09800
Conditions of Approval
[These conditions are only those related to the RUE approval; other and additional
conditions included with approval of subdivision SUB09800 must also be adhered to.]
SEPA Conditions
1. Prior to any clearing or other construction activities, the applicant shall obtain a plat
utilities permit from the Department of Planning and Community Development that includes an
approved Temporary Erosion and Sedimentation Control Plan addressing erosion and sediment
control issues specific to the construction and installation of the waterline. That plan must
specify the Best Management Practices (BMP) to be employed. All the BMPs specified shall be
implemented to the satisfaction of the Public Works Department.
2. All suitable excavated soil shall be re -used on -site, provided that neither the location of
nor the manner of that reuse would damage vegetation and/or contribute to or increase erosion or
sedimentation. That material determined by the Director to be unsuitable for on -site use shall be
disposed of at a disposal site approved by the Director.
3. To mitigate air quality impacts, contractors shall conform to Puget Sound Clean Air
Agency regulations and take all reasonable precautions to avoid dust emissions. Vegetation that
cannot be reused on -site as indicated in the Mitigation Plan, shall be removed from the site,
processed by chipper, or by some other method of disposal not requiring burning.
4. All conditions and recommendations set forth in the geotechnical report prepared by
Meyers Biodynamics, dated October 20, 1999 shall be followed without exception to the
satisfaction of the Public Works Department.
5. The trenching and installation activities for the waterline's east /west segment shall be
permitted only in the "dry season" when no water is flowing in the streambed. Trenching and
installation activities on the north -south segments of the waterline outside of the stream and its
buffer may be permitted without this seasonal limitation. Best management practices to control
erosion and sedimentation must be always utilized as appropriate - see Condition #1.)
6. All conditions of the Mitigation Plan (replanting, restoration, monitoring, contingency
and maintenance, including Figures and Tables), prepared by Meyers Biodynamics and dated July
29, 2004, shall be followed without exception to the satisfaction of the Public Works Department.
Non -SEPA Conditions
7. The waterline, where it crosses the stream, shall be constructed of heat welded HDPE (or
other material expressly found suitable by the Public Works Department) and/or shall be sleeved
to the satisfaction of the Public Works Department.