HOBBS, CRAIGFINDINGS AND DECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of
CRAIG HOBBS
from a Ruling made by the Director,
Planning and Community Development
Department
ADMI016$B
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 ADM10165B).
The Hearing Examiner held the hearing on this matter on September 9, 2004. Parties
represented at the heating were the Director, Planning and Community Development
Department, by Kathy James, Senior Planner, and the Appellant, Craig S. Hobbs, pro se.
At~er 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 amendmem.
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
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across part of Lot B from Mandus Olson Road. In thc proposed amendment [see Exhibit
31 ], Lot C is located in the northwestern comer 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/turnaround at the southwest
.. ,comer 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/turnaround 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/turnaround serving Lot D and,
as depicted in Sheet 1 of Exhibit 31, extends to about 25 ft. south of Lot C.
?. 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 comer of Lot C. This buffer and the proposed
access improvements are indicated on Sheet I of Exhibit 3.
Directors Ruling
8. By a letter dated July 6, 2004, Kathy lames, 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
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(travel lanes, shoulders, drainage ditches) extend beyond the existing
prism.
Appeal
10. Mr. Hobbs timely filed an appeal of the Dkecto~'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: l) the RUE is not
required bec~,,.~e 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(O)(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-~. 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-i~. 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. [Exhibi~ 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 B13/IC 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...
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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 ora project only to
the previously authorized condition."
16. BIMC 16.20.090(1) provides that a Reasonable Use Exception (RUE) may be
granted only "...for proposed alterations to required buffers, regulated wetlands or
st~ealtts".
17. BIMC 2.16.095(}1) 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 Heating
Examiner is left with the Mdefinite and firm conviction" that a mistake has been made.
CougarMt. Assoc. v King County, 111 Wn. 2d 742, 747 (1988).
3. To meet the 12-tt. minimum roadway width standard, the existing road would
have to be widened by approximately 2-tt. 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(1). The only issue for the Hearing Examiner to decide is whether
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or not thc Director erred in requiting 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 requiting the Director to interpret the Code in manner having the smallest
possible burden on an applicant. The Director does have a du~y to process applications
for p~rmits in the manner and within the standards prescribed by the Bainbridge Island
Murficipal 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 ctttthorized' 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 ora road a couple of feet, over 225 ff. 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 AIeFIRMIgD.
Entered this ~'~%/']d~ °f September 2004' ~.~./"~..~C,~' ~~_,: 5~
"~-~]~ge~lith A. Getches - .~'
Hearing Examiner pro tern
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CONCERNING FURT~R 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.
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