MAINLANDER SERVICES CORPORATION CITY OF BAINBRIDGE ISLAND
OFFICE OF THE HEARING EXAMINER
) VARl1441B (PRJ0011441)
APPEAL OF ADMINISTRATIVE ) FINDINGS OF FACT
DECISION GRANTING VARIANCE ) CONCLUSIONS OF LAW
FROM THE FRONT YARD SETBACK ) AND DECISION
APPLICANT: MAINLANDER SERVICES )
CORPORATION. )
APPELLANTS: BELFAIR AVENUE )
NEIGHBORS )
)
FINDINGS OF FACT
1. Mainlander Services Corporation and Roy Marvin are the owners of the following
property:
Lots 15, 16, 17, 18 and 19 in Block 5, Fort Ward Estates, Division No. 3, which plat is
recorded in Volume 10 of Plats, Pages 39 and 40 in the Plat Records of Kitsap County,
Washington.
These lots are identified by Kitsap County Tax Assessors Parcel Numbers 4148-005-015-
0007, 4148-005-016-0006, 4148-005-017-0005, 4148-005-018-0004 and 4148-005-019-0003.
Mainlander Services Corporation is the owner of Lots 16 and 18 and Mr. Roy Marvin is the
owner of Lots 15, 17 and 19. Mr. Marvin and Mainlander Services Corporation have appointed
John Niemeyer as their representative in these proceedings [EXHIBITS 5 and 8].
2. On April 29, 2003, Mr. Niemeyer filed this application for a zoning variance. The
application was reviewed as an administrative variance following the procedures set forth in
BIMC 2.16.095. The Planning Director determined that the projects planned for these lots are
exempt from review under the State Environmental Policy Act (SEPA) since the project proposed
for each of the five lots is the construction of a single-family residence. The variance application
seeks a 15-foot reduction in the required 25-foot front yard setback along the western property
lines of Lots 15-19. The Planning Director (Director), Larry Frazier, did not submit the
application to the Planning Commission for recommendation. Ms. Marja Preston, Planner,
prepared a staffreport making recommendations to Mr. Frazier for a partial approval of the
variance application with conditions. On June 24, 2003, Mr. Frazier issued his Administrative
Decision approving the variance application with certain conditions. On July 8, 2003, an appeal
of the Administrative Decision was filed by the Belfair Avenue Neighbors. The Belfair Avenue
Neighbors were identified as the following residents of B elfair Avenue: Gordon Black, Dick and
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Sally Frampton, Alan and Ferrin Gatzke, Mark and Portia Nadler and Jim and Georgia Reynolds.
The neighborhood group retained Mr. Ryan Vancil to represent them at the public hearing on this
appeal. A public hearing was held in this matter on August 29, 2003.
3. The five lots which are the subject of this variance application were platted in 1962 by a
previous owner. Some preliminary road work and sewer and waterline installation was done by
Mr. Joseph Singh in the late 1980's or early 1990's. Mainlander Services Corporation
(Mainlander) purchased Mr. Singh's interest in the properties in the early 1990's [EXT]IBIT53].
Mainlander now proposes to develop each of these lots with a single-family residence. According
to the application, Mainlander plans to build single-family homes which range in size from 1,800
to 3,000 square feet. Small garages are also planned on the lots. These garages range in size
from 400 to 620 square feet. The five lots considered under this application range in size from
15,520 square feet to 18,960 square feet. Lot 15 has a lot area of 15,520 square feet and lot
dimensions of 194 feet by 84 feet. Lot 16 has a lot area of 17,284 square feet with lot dimensions
of 212 feet by 82 feet. Lot 17 has a lot area of 17,920 square feet with lot dimensions of 224 feet
by 80 feet. Lot 18 has a lot area of 18,400 square feet and lot dimensions of 230 feet by 80 feet.
Lot 19 has a lot area of 18,960 square feet with lot dimensions of 237 feet by 80 feet. All of these
lots are zoned R-2 with a Comprehensive Plan designation of OSR-2. Lots included in the R-2
zoning district are required to maintain a 25-foot front yard setback for all yards facing streets.
The west property line of each of these five lots abuts Belfair Avenue, therefore, a 25-foot front
yard setback is required along that property line. The applicant proposed a 15-foot reduction in
that front yard setback for each lot. The Director approved a 5-foot reduction in the required
front yard setback for Lots 17-19 and a 15-foot reduction in the front yard setback for Lots 15
and 16 subject to certain conditions [EXHIBIT35].
4. A Class III wetland has been delineated inthe center of Lots 16, 17, 18 and 19. BIMC
16.20 requires a 50-foot wetland buffer around this wetland. The wetland buffer also extends
onto Lot 15. In 1999, the City of Bainbridge Island (COBI) approved a buffer averaging
proposal which reduced the required buffer on the west side of this wetland to 25-feet and
increased the wetland buffer on the east side of the wetland. The wetland buffer now extends to
the east property line. A 25-foot buffer extends from the south end of the wetland onto Lot 15
[EXHIBIT35, Pg. 4]. BIMC 16.20 also requires a 15-foot building setback from the edge of a
Class III wetland buffer (BIMC 16.20.090(H)). The remaining building area onLots 16-19is
located between the building setback line and the front yard setback line on the western half of
each lot. The buildable area on Lot 19 has been reduced to 3,477 square feet. The buildable area
on Lot 18 has been reduced to 2,795 square feet. The buildable area on Lot 17 has been reduced
to 2,600 square feet. The buildable area on Lot 16 has been reduced to approximately 2,000
square feet. The buildable area on Lot 15 has been reduced to 3,600 square feet. [Testimony of
Maria Preston]. The depth of the building area on Lots 17-19 has been reduced to
approximately 40-feet. The depth of the building area on Lot 16 has been reduced to 25-feet.
Lot 15 is encumbered by the wetland buffer and building setback in the center of the northern half
of the lot. Lot 15 is L-shaped with a depth of approximately 25-feet from Belfair Avenue to the
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edge of the building setback on the north half of the lot. The building area remaining on the south
half of the lot is approximately 105' x 30'.
5. The applicant wishes to build a three-bedroom home with a small garage on each of the
lots, however, no specific site plans have been submitted for any of the lots. The lots are located
within the Fort Ward Historic District and are subject to the Fort Ward Design Guidelines (BIMC
18.40).
6. Lots 15-19 will have access onto Belfair Avenue, a public right-of-way which abuts their
western property lines. Belfalr Avenue is a 60-foot right-of-way, however, only 20-feet of paved
road has been developed in the center of the right-of-way. This residential street, if developed to
Residential-Urban standards, would require 40-feet of right-of-way for improvements. The
Department of Public Works (DPW) has approved the applicant's proposal to reduce from yard
setbacks on these five lots [EXHIBIT 33].
7. The need for this variance application has not arisen from actions taken or proposed by the
applicant. Each of these lots is a nonconforming lot platted in 1962. The lots were platted in an
area containing a series of large wetlands. In the early 1990's, the City of Bainbridge Island
adopted its Critical Areas Ordinance (BIMC 16.20) which requires buffers for protection of
wetland areas within the city. The delineation of the Class III wetland and its buffers on these lots
has significantly reduced the building area available to the property owner. These lots are located
in an area of the city which has been platted and developed for single-family residential use.
Residential development within the Fort Ward Historic District is characterized by an eclectic mix
of home styles and sizes. The home sizes proposed by the applicant are consistent with the
pattern of development seen throughout the Fort Ward area. Homes can be built on each of these
lots without causing adverse impacts to the wetland if proper stormwater management and
erosion control measures are adopted. Each of these lots will be connected to the public sewer
system available in the Fort Ward area (Sewer District No.7). A stormwater detention system has
been built to service this neighborhood. These lots will be connected to that system so that
stormwater mnoffwill not adversely affect the wetland. [Testimony of John Niemeyer].
8. The variance granted for Lot 15 allows building placement within 1 O-feet of the eastern
edge of the Belfalr Avenue right-of-way. Lot 15 is located at a curve in the roadway. The
appellants argued that a house built within 10-feet of the property line would block sight distances
for persons traveling north on Belfair Avenue approaching Lot 15. The edge of the pavement on
Belfalr Avenue is located approximately 20-feet west of the west property lines of Lots 15 and
16. A house built at the location approved by the Director would be at least 30-feet from the
edge of the paved roadway in Belfair Avenue fight-of-way. Engineered sightlines were not
documented by the appellants. The west property line of Lot 15 follows the curve of Belfair
Avenue with the north comer of the lot extending farther west than the south comer and the yard
setback line will parallel the property line. There is insufficient evidence in the record to support
the appellants' allegation that sight distances would be significantly diminished by the approval of
a reduction in the front yard setback on Lots 15 or 16 as approved.
9. The appellants allege in their July 8, 2003 appeal letter, that the applicant is the subject of
unresolved ongoing US Army Corps of Engineers (USACE) enforcement proceedings for wetland
violations in wetlands near this site [EXHIBIT 36] (Issue No.7). Mr. John Powell of the USACE
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notified Ms. Preston that the USACE files regarding a possible wetland violation by Mainlander
has now been closed [EXHIBIT 43].
10. On December 12, 2003, the applicant submitted a letter to COBI requesting that Lots 17,
18 and 19 be removed from his variance application.
11. On August 29, 2003, a Public Hearing was held before the Heating Examiner to consider
the application. Prior to the hearing, notice was published in the Bainbridge Review on August
9, 2003; notice of the public hearing was mailed to the owners of property within 300 feet of the
proposed project on August 8, 2003 and notices were posted at the City Hall, the Chamber of
Commerce, and the Ferry Terminal on August 8, 2003; notice was posted at the subject property
on August 14, 2003. [EXHIBIT37].
CONCLUSIONS OF LAW
1. This matter is properly before the Hearing Examiner for review in accordance with the
provisions of BIMC 18.111.080 and BIMC 2.16.130. The appellants filed a timely appeal of the
Director's Administrative Decision on July 8, 2003 [EXHIBIT 36].
2. The Hearing Examiner must give substantial weight to the decision of the Director in
reviewing this Administrative Decision on appeal. The decision criteria of BIMC 18.111.040
must be met by this application, ifa variance is to be granted. The Director's decision was based
upon the Findings of Fact and Conclusions of Law contained in the Planning Department Staff
Report dated June 10, 2003.
3. BIMC 18.111.040.(A)(1): A variance may be approved or approved with modifications
if: The variance will not constitute a grant of special privilege inconsistent with the limitations
upon uses of other properties in the vicinity and zone in which the property is located.
The Director determined that granting a reduction in the front yard setback on each o£
these five lots to facilitate construction of single-family homes would not constitute a grant of
special privilege inconsistent with the limitations upon uses of other properties in the vicinity and
zone in which these lots are located. These lots are located within the Fort Ward Historic
District. Surrounding properties have also been zoned for residential development. A majority of
the lots in this area have been, or are presently planned for, development for single-family
residential use. The Director's findings are supported by the hearing record.
4. BIMC 18.111.040.(A)(2): A variance may be approved or approved with modifications
if'. The granting of the variance will not be materially detrimental to the public welfare or
injurious to the property or improvements in the vicinity and zone in which the property is
located
The Director concluded that the granting of a variance to allow a front yard reduction of
15-feet on Lots 15 and 16, and 5-feet on Lots 17, 18 and 19 would not be materially detrimental
to the public welfare or injurious to the property or improvements in the vicinity and zone. A
reduction in the front yard setback on these lots will allow the applicant to build the homes closer
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to Belfair Avenue. Belfair Avenue has a 60-foot right-of-way. The western property line of each
of these lots is located at least 20-feet east of the edge of the current paved roadway. The
Department of Public Works (DPW) reviewed this application and concluded that a reduction in
the front yard setback would not interfere with the City's future development of Belfair Avenue as
a residential street. DPW determined that if sidewalks were developed on the east and west sides
of Belfair Avenue to comply with Residential-Urban road design standards, the maximum right-
of-way needed for those improvements is 40-feet. If the front yards on these five lots were
reduced, as approved by the Director, buildings on Lots 17, 18, and 19 would be built no closer
than 30-feet to the edge of those future roadway improvements. Buildings on Lots 15 and 16
would be built no closer than 20-feet from those new roadway improvements. The remaining
front yard will provide an area for landscaping between the roadway and the new homes. The
building envelopes on each lot are of sufficient size to build the small homes proposed by the
applicant. These homes, if designed to be consistent with the Fort Ward Design Guidelines,
should be compatible in size and scale with other homes in the area and maintain the character of
the neighborhood. The granting of a variance to the front yard setbacks on these lots is not
materially detrimental to the public welfare, or injurious to property or improvements in the
vicinity.
5. BIMC 18.111.040.(A)(3): A variance may be approved or approved with modifications
if: The variance is requested because of special circumstances related to the size, shape,
topography, location or surroundings' of the subject property and will provide the applicant with
use rights and privileges permitted to other properties in the vicinity and zone in which the
property is located
The Director determined that the variances were requested because of building area
constrictions due to wetlands and wetland buffers on the site. A review of the record supports
this finding. Exhibit 6 demonstrates the topography challenges presented to the property owner
by the Class III wetland delineated in the center of Lots 16, 17, 18 and 19. Once the wetland
buffer and building setback areas have been deducted from the lot area, the only buildable area on
Lots 16, 17, 18 and 19 are the portion of the lot located between the western wetland buffer
building setback line and the front yard setback line. Without the variances, the property owner
has approximately 3,477 square feet of building area on Lot 19, 2,795 square feet on Lot 18 and
2,600 square feet of building area on Lot 17. These remaining building areas are of sufficient size
to build the small homes proposed by the applicant. The 5-foot variances on Lots 17, 18 and 19
granted by the Director are not supported by the hearing record. The building areas available to
the property owner on these three lots, without a reduction in the front yard, will provide the
property owner with use, rights and privileges similar to those permitted to other properties in the
vicinity. The Fort Ward District has been developed with many small homes on restricted lots due
to the wet topography in this area. This property owner can build homes which are designed to
meet the Fort Ward Historic District Guidelines and are of a minimum size required by the
CC&Rs on this property and comply with R-2 zoning regulations.
Lot 16 is more severely compromised by the buffer and building setback restrictions. Lot
16 has a remaining buildable area of 2,000 square feet or less between the wetland building
setback line and the front yard setback line without the variance. This buildable area is only 25-
feet in depth. The lot's western property line is curved, creating a more shallow building
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envelope on the south portion of the lot than on the north portion. A variance to the front yard
setback is necessary to provide the property owner with use, rights and privileges permitted to
other properties in the vicinity. If the property owner is to build a small three bedroom home and
garage on this lot, a reduction in the front yard setback will be necessary. The 15-foot reduction
in the front yard adds approximately 1,000 square feet to the building area. The Director's
approval of a 15-foot reduction in the front yard setback on Lot 16 provides the property owner
with a similar size building envelope to those available on Lots 17, 18 and 19.
Lot 15 is also constrained by its location near a Class III wetland. The buffer for the
wetland extends onto Lot 15 in a semicircle which encroaches across almost half of the lot. In
addition, the west property line curves significantly from north to south, reducing the building
area available to the property owner on the western portion of the lot. The remaining building
area is 3,600 square feet, however, that square footage is primarily located in the southern half of
the lot in a long rectangle. Without the variance approved by the Director, the building envelope
available to the property owner between the wetland building setback line and the front yard
setback line measures only 25-feet in depth. The Director has approved a 15-foot reduction in the
front yard setback on Lot 15. This yard reduction provides the property owner a minimum
building area depth of 40-feet to construct a home as proposed. The appellants have shown that a
home designed with a rectangular floor plan could be constructed on the northern half of Lot 15
without a variance. Although no house plans or site plans were submitted by the applicant to
show the design of homes proposed for these lots, it can be assumed that the property owner
wishes to place the new residence along Belfair Avenue in a similar location to that available on
Lots 16, 17, 18 and 19. Placement of a new home on the western portion of Lot 15 would clearly
require a reduction in the front yard setback because of the restraints on Lot 15 caused by the
wetland buffer and wetland building setback requirements. Placement of the home on the Belfair
Avenue frontage will reduce potential adverse impacts to the wetland buffer from household
activities.
6. BIMC 18.111.040.(A)(4): A variance may be approved or approved with modifications
if'. The need for a variance has not arisen from actions taken or proposed by the applicant.
The Director has found that the need for a variance on Lots 15-19 did not arise from the
actions of the applicant. The applicant purchased lots which were platted in 1962 for single-
family residential development. The need for the variance has been created by the imposition of
zoning and environmental regulations which limit the buildable area available on the lots. The
Director's conclusion that the need for this variance has not arisen from the actions taken or
proposed by the applicant is supported by the documents in the record. There is no evidence that
the applicant has changed the topography or dimensions of any of the lots which are the subject of
this application.
7. B1MC 18.111.040.(A)(5): A variance may be approved or approved with modifications
if: The variance is necessary for the preservation and enjoyment of a substantial property right
possessed by other property in the same vicinity and zone, but which is denied to the property in
question because of special circumstances on the property in question.
The Director determined that a variance of 5-feet was necessary to allow the applicant to
build single-family residences on Lots 17-19. Ms. Preston testified that the building envelope
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remaining on Lot 17 is 2,600 square feet, on Lot 18 is 2,795 and on Lot 19 is 3,477 square feet
without the variance. These numbers differ from the citation in the StaffReport which states that
the buildable area with the 5-foot variance on Lots 17, 18 and 19 is approximately 2,700 to 2,900
square feet. The 5-foot variance would increase the square footage available on each of these lots
by approximately 325 square feet. The applicant notified the City that he has withdrawn his
request for a variance on Lots 17-19. Home sizes proposed by the applicant in his original
variance application are small enough to be accommodated on Lots 17, 18 and 19 without a
variance. The applicant will be able to build single-family residences which are comparable in size
and scale to other homes in the Fort Ward neighborhood. This is a property right enjoyed by
other property owners in this neighborhood.
It would be difficult, without a front yard reduction, to construct a single-family residence
on the western portion of Lots 15 and 16. The 15-foot reduction approved by the Director
creates a building envelope which is comparable in size to the building envelope available on Lots
17-19. The variance for the front yard setback is necessary to allow the property owner to
construct a single-family residence on Lot 16 without encroaching on the wetland or its buffer.
The placement of the home closer to Belfair Avenue will maintain a 40-foot buffer and setback
area between the wetland and the building envelope to help reduce impacts to the wetland and its
buffer. A 15-foot variance will provide an additional 1,000 square feet of building area to
accommodate the small three bedroom home and garage proposed by the applicant.
Lot 15 also presents construction problems for the property owner because of buffer and
building setbacks for the Class III wetland. A 15-foot reduction in the front yard setback on Lot
15 will increase the available building envelope on that lot by approximately 1,030 square feet.
The additional building area will allow the property owner to place the new home along the
Belfair Avenue frontage and maintain a streetscape that is consistent in style and scale with the
Fort Ward Historic District Guidelines. The placement of the house on the western portion of the
lot will allow construction of the garage to the rear of the residence as recommended by the Fort
Ward Design Guidelines. Without the variance, it would be difficult, if not impossible, to
construct a home which is consistent with the Guidelines and is of a comparable size to other
homes in this neighborhood. A variance to the front yard setback is necessary for the presen, ation
of this property owner's right to build a small single-family residence and garage similar in size
and scale to those built by other property owners in the same vicinity and zone.
8. BIMC 18.111.040.(A)(6): A varinnce mcty be approved or approved with modlfications
if'. The variance is the minimum necessary to fulfill the needs of the applicant.
The Director determined that a variance on all five lots would be necessary to allow
construction of single-family residences. The applicant has not provided a site plan showing the
design or proposed location of the homes proposed for each lot. The variance application states
that homes which range in size from 1,800 square feet to 3,000 square feet, with garages which
range in size from 400-620 square feet are planned for these lots. Homes of this size can be
accommodated on Lots 17, 18 and 19 without a reduction in the front yard. The building areas
remaining on the western portion of Lots 17, 18 and 19 are adequate to fulfill the needs of the
applicant to build homes with garages as described in his application. The variances approved by
the Director on Lots 15 and 16 increase the building areas on the western portion of each of those
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lots. An increase in the building area by approximately 1,000 square feet on Lots 15 and 16, is
the minimum increase necessary to reasonably fulfill the need of the applicant to build homes of
the size proposed in his variance application. These homes will be compatible in size and scale
with other homes located in the neighborhood. Homes on these lots can be designed to meet the
requirements of the Fort Ward Historic District Guidelines and the restrictions of the CC&R's
adopted for these properties [EXItlBIT 47].
9. BIMC 18.111.040.(A)(7): A variance may be approved or approved with modifications
if'. The variance is consistent with all provisions of this code and is in accord with the
Comprehensive Plan.
Variances allowing a reduction of front yard setback on Lots 15 and 16 are consistent
with the provisions of BIMC and the Comprehensive Plan. Variances on these two lots will allow
a sufficient building area so that the property owner can design homes which are consistent with
the Fort Ward Historic District Guidelines and will meet the requirements of the CC&R's of Fort
Ward Estates recorded in December of 1997. The proposed construction of homes on these five
lots will comply with the zoning regulations in the R-2 zone and the regulations of BIMC 16.20.
10. The Director's decision to grant a variance for Lots 17, 18 and 19 must be reversed. The
conditions imposed by the Director's June 24, 2003 decision must be modified to conform to this
decision. Condition No. 2 shall be modified as follows:
Location of the single family residences shall substantially conform to the Site
Plan date stamped Apri129, 2003, except to comply with the conditions of this
Decision. The single-family residences on Lots 17, 18 and 19 shall not be closer
than 25-feet to the front property line (edge of the 60-foot right-of-way). The
single-family residences on Lots 15 and 16 shall not be closer than 10-feet to the
front property line. Ail Iota' shall comply with the side yard requirements of
BIMC 18. 3O.
11. The granting of a variance from the front yard setback requirements on Lots 15 and 16 is
consistent with the BIMC and is in accord with the Comprehensive Plan if certain conditions are
attached to the variance approval. Those conditions are as follows:
1. The applicant shall obtain an approved building permit from the Department
of Planning and Community Development prior to construction on each of the lots.
2. Location of the single family residences shall substantially conform to the Site
Plan date stamped April 29, 2003, except to comply with the conditions of this Decision.
The single-family residences on Lots 17, 18 and 19 shall not be closer than 25-feet to the
front property line (edge of the 60-foot right-of-way). The single-family residences on
Lots 15 and 16 shall not be closer than 10-feet to the front property line. All lots shall
comply with the side yard requirements of BIMC 18.:}0.
3. Lots 15-19 are not eligible for the reductions in yard setbacks provided in the
Fort Ward Design Guidelines.
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4. Tandem parking may be utilized by lots 15-19 as allowed in Section
18.81.020(G).
5. A temporary erosion and sediment control plan shall be submitted with the
building permit.
6. Any clearing and grading proposed outside of the dry season, April 1 to October 1,
shall require an erosion control plan that specifically identifies methods of erosion control
for wet weather conditions, which shall be approved by the City Engineer prior to any
activlty. No clearing or grading shall occur in the wetland or the averaged wetland buffer
(see Buffer Width Averaging permit BWAR02-09-99-1).
7. A storm water drainage plan shall be submitted and approved prior to buildin~g
permit issuance.
8. The eonstructinn staging areas shall be outside critical areas and their buffers.
Construction fencing and/or sbt fencing shall be placed adjacent to critical area
buffers prior to clearing adjacent to such buffers. No construction activity, storage of
materials or vehicles, or soil stockpiling shah take place within the designated wetland
or buffer.
9. Prior to building permit issuance, a spilt-rail or similar type fence shall be
installed along the averaged wetland buffer (see Buffer Width Averaging permit
BWAR02-09-~9-1). Signs indicating the presence of a critical area shall be installed
along the fence at 50-foot intervals with at least one sign per lot.
10. Permittee is required to stop work and immediately notify the Department of
Planning and Community Development and the Washington State Office of
Archaeology and Historic Preservation if any historical or archaeological artifacts are
uncovered during excavation or construction.
11. Construction noise shall be controlled in compliance with Bainbridge Island
Municipal Code 16.16.
12. Site Plans submitted for building permit approval on Lots 15 and 16 shah
include a topographic survey of each lot which shows the wetland, wetland buffer and
wetland building setback boundary lines. Buildings proposed on these two lots must
be located in the western portion of the lots, away from the wetland areas.
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DECISION
The appeal of the Director's decision granting a variance on Lots 15 through 19 in Block 5, Fort
Ward Estates, Division 3 is approved in part and denied in part. The Director's granting ora 5-
foot variance for Lots 17, 18 and 19 is reversed. The Director's granting of a 15-foot variance on
Lots 15 and 16 is affirmed with the conditions listed in Conclusion of Law 11 above.
Dated this 14th day of January, 2004.
Robin Thomas Baker
Hearing Examiner Pro Tem
APPEAL
This Hearing Examiner's Decision shall be final unless within 21 days after issuance of the
Decision a person with standing appeals the Decision in accordance with RCW 36.70.
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BEFORE THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of the
BELFAIR AVENUE NEIGHBORS Department Reference:
VARll41B (PR J0011441)
from a decision by the Director,
Department of Planning & Community
Development, granting the Applicant, ORDER
MAINLANDER SERVICES CORP. ON MOTION FOR
variances from required front yard setback RECONSIDERATION
Background
On January 14, 2004, Hearing Examiner pro tern Robin Baker issued a decision on this
appeal. That decision in part affirmed the Director's decision on the requested variances
and in part reversed the Director's decision. The Examiner affirmed approval of
variances to reduce the front yard setback for Lots 15 and 16 and reversed the Director's
approval of variances for Lots 17, 18, and 19 (i.e., denying the requested front yard
setbacks for those lots).
On January 26, 2004, Appellant filed a Motion for Reconsideration of the Examiner's
decision. The Director and the Applicant filed responses to this Motion.
Code and Rule Regarding Reconsideration
The Hearing Examiner decisions procedures, as specified in the Bainbridge Island
Municipal Code (BIMC) at BIMC 2.16.100J, provide for a Motion for Reconsideration as
follows:
A motion for reconsideration may be filed to correct obvious errors. Such
motion shall be filed in writing 10 days from the date the hearing examiner's
decision was filed. Such motion shall be decided on the record unless, at the
hearing examiner's discretion, further public hearing is necessary. If a timely
and appropriate request for reconsideration is filed, the appeal period shall
begin from the date the decision on the reconsideration is issued.
The Hearing Examiner Rules, Chapter III, Section 12, Rule 12.1, further provide that
reconsideration be granted on a showing of one or more of the following:
a. Irregularity in the proceedings by which the moving party was
prevented from having a fair heating;
Order on Motion for Reconsideration
Page I of 3
b. Newly discovered evidence of a material nature which could not,
with reasonable diligence, have been produced at heating;
c. Clear mistake as to a material fact.
Discussion
The Appellant argues that the Motion for Reconsideration should be granted and the
Hearing Examiner reverse the Director's decision regarding Lots 15 and 16 (i.e., to deny
the variances for Lots 15 and 16 in addition to denying the variances for Lots 17, 18, and
19). The Motion alleges that reconsideration is necessary and appropriate "to correct
obvious errors of law and fact in the Hearing Examiner's Decision" [page 1]. The Motion
does not cite any of the bases for granting reconsideration included in Rule 12.1; instead,
Appellant argues that the error is the "failure of the applicant to fulfill the requirements of
BIMC 18.111.040, variance criteria" [page 10].
Errors of law and fact
The Motion argues that a variance can only appropriately be granted in instances where,
without the variance, "all economically viable use of a property would otherwise be
denied." This is not correct. The criteria in BIMC 18.111.040 do not require such an
extreme showing for approval of a variance.
The record of hearing includes as an undisputed (and inexact) "fact" that homes in the
area range in size from 1200 to 3000 square feet. Appellant asserts that the Examiner
erred in affirming the grant of variances that could facilitate houses of t800 to 3000
square feet because the "right and privilege" in the vicinity is "to build single-family
homes as small as 1200 square feet" [page 5, emphasis added]. The Appellant does not
specify what kind of error allowing a house size other than the lowest in the range would
be, but arguing either would be unpersuasive. What is typical, reasonable, and the "right
and privilege" in the vicinity, from the facts in this record, is any size house within the
range. The Examiner's decision has no "clear mistake as to a material fact" in this regard.
Ex parte communication
The cover letter that accompanied the Motion suggests an irregularity in the proceedings
in the form of alleged ex parte contact after the close of the hearing. This "contact" was
the applicant's letter with&tawing Lots 17, 18, and 19 from the application for variance of
the front yard set back. The Hearing Examiner's decision notes this at Finding #10.
Appellant complains of lack of opportunity to "review or respond" to the Applicant's
letter and indicates that the Examiner's inclusion of this information in her decision raises
"issues concerning the appearance of fairness in the Examiner's decision". The Appellant
does not expressly claim that the communication was an "irregularity in the proceedings".
In any event, it would not be credible to claim that it prevented Appellant from "having a
fair heating", as the Examiner's denial of variances for Lots 17, 18, and 19 is the result
sought by the Appellant.
Order on Motion for Reconsideration
Page 2 of 3
The withdrawal of Lots 17, 18, and 19 from the variance application has not been
characterized as, nor shown to have been, "newly discovered evidence of a material
Timely filing
The Applicant argues in its response, that the Motion for Reconsideration was not timely
filed because, although it arrived on the last day to be timely, it was addressed to the
Director and copied to the City Administrator. The Motion should have been addressed
to the Hearing Examiner, however, because the Office of the Hearing Examiner is
organizationally a part of the Executive Department (and there is no separate, physical
"office"), filing with the City Administrator is filing with the Hearing Examiner. The
Motion here was timely filed.
Ruling
The Appellant argues the merits of the variance decision and fails to show any cognizable
basis for granting a Motion for Reconsideration, therefore the Motion should be, and
hereby is, DENIED.
Hearing Examiner pro tem
Order on Motion for Reconsideration
Page 3 of 3