OLSON, MICHAELDECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
CITY CLERK
In the Matter of the Application of
MICHAEL OLSON
for a Reasonable Usc Exception
RUE09800
Introduction
The Applicant seeks a Reasonable Use Exception to allow construction of a waterline
across an imermittent stream. The Hearing Examine, held a public heari ig on this matter
and made a site visit on October 14, 2004. Parties represented at the hearing were the
Dkector, Planning and Community Development Department (PCD or Department), by
Thomas A. Bonseil, Planner, and the Applicant, Michael Olson, pro se. One member of
the public made a comment at the hearing in opposition to granting the excel0tion. 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 Decemb~ 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
Mm-den Cove and is addressed as 9955 N.E. Lofgren Road. [Application, Exhibit 3, page
1; StaffReport, 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 noah, 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]
SCUP12566 Page I of 10
3. This is a 4.5 acre parcel that, under application SUB09800, the applicam seeks to
subdivide into six lots [the plat is discussed in Exhibit 2, Heating Examiner MI)NS
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 imo a Category I
wetland to the north [Exhibit 28, page 4; Testimony of Bonseil]. 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 property line of approximately 40-50-ff. At the north end
of' the site the slopes flanking the ravine reach to a height of 50 ff. 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 geoteclmical 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-fl. setback fi-om 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 MI)NS. 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. Alter 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
SCUP12566 Page 2 of 10
eliminate the Condition 7 requirement to improve llemlock 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 MI)NS 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 (fi.om the well to proposed Lot I and from the well along the southern p~opexty
line to serve proposed Lots 4-6). The hand-dug trench for the waterline would be a
maximum of 4-fl. wide and would be located within a 25 ff 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
tt. 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
constauction of the waterline with the proposed alignmem [Exhibit 3]. Notice of that
application was given on April 17, 2004 [Exhibit 18].
12. Regarding the proposed waterline, the geoteehnicai consultants reconnnended
[see Finding//6] that it should "...cross the ravine in the area of modest ravine slope
height and angle...Iocated 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." [F_~ibit 34,
pages 4-51 The preliminary plat map, Exhibit 32, shows the proposed alignment.
13. The proposal includes restoration of the slope and vegetation via implementation
ora 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
distmbed soils be pro~ecled throughout the comma~on process. The post-installation
measures recommended include muiching~ seeding and/or hydroseeding all areas where
vegetation has been removed or the softs 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]
SCUP12566 Page 3 of 10
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 complele
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].
I$. 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 th~ r~luirements of BIMC 16.20.110 and advised that a
more thorough mitigation plan be prepared. The Committee expressed specific eonc, erns
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 "undertak~ in the summer (dry season) when no wata- is flowiag in the
~rvamhed": and. 2~ that the reolaming, not ideally done in the dry season, should be
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
embankmems 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 comtructing the waterline in the roadway would destabilize it.
However, co~ 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 Bonseli; 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 BOriC 2.16.100."
31. The decision proced~ of BIMC 2.16.100 provide as follows:
A. Applicability. This section applies each time a prov~ion 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 ts to review a proposed
project for consistency with the Bainbridge Island Munic~pol Code, appropriate
elements of the comprehensive plan and all other applicable law, and to provide
an opportune.tv for the public to comment on the project and its compliance with
the rnurdcipal code, the comprehensive plan and all other applicable law.
a. The proposed acn~ities will result in the minimum intrusion;
alteration or impairment of the wetlands, stream or required buffer including
impacts to their functional characteristics, while permim'ng some reasonable use
of the property. In ali cases, a~'sturbance ora 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;
f 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 ~s 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 th~s~..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
c'ritical 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 shah be
provided...
f. ...,4 protocol shall be included outlining how the morntoring data will be
evaluated...A monitoring report shall be submitted annually...
SCUP12566 Page 7 of 10
g .... Contingency Plan. Identification ofpotential courses ofactior~ and any
corrective measures to be taken when monitoring or evaluation indicates
project performance standards are not being met.
Permit Conditions. Any compensation project prepared pursuant to th~s
section and approved by the dlrector shall become part of the application for
the permit.
Analysis
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 ofthe 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 migatin8 conditions required for the RUE stream
and buffer crossing would result in avoiding adverse impa~ts to tbe 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 propomM waterlim~ ~amalmcfion could be aeeom~$]~l
with minimal intrusion and no environmental damage to the stream and downstream
emdmnnmax C~ as ~mtitioned 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
I. The Heating Examiner has jurisdiction to hear and decide Ibis matter.
2. ApproVe notices of the application and the public heating were given and the
hearing was properly convened and all comments, testimony, and other evidence
considered.
3. Monetanf 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 slmuld no~ define an ait~ as
"unreasonable" and routinely trigger the granting of a RLIE. However, the magnitude of
SCUP12566 Page 8 of 10
tho difference in cost, when combined with a large dollar amount, could help distinguish
what is and is not reasonable. (For example: A high cost altemative 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 comemplating exceptions to the protective prohibitions.
Where, as in the RUE requested here, tbe adverse impacls would be effegtively
minimized and/or avoided (thus fulfilling the purpose of the stream protections),
requiting an alt~nafiw tl~ has subs~mJally 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 coasistem with th~ Director's
recommendation and that of the Wetland Advismy Committee, the requested gamsonable
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 APPRov'go wrnt ~o~ (Comfitions ]-g follow on
page 10).
Entered this ' [,-;X,~ day
i _ of December 2004. ,~ : ~
~IV~eredith A. Getches J
City of Bainbridge Island
Hearing Examiner pro tern
CONCERNING FIJRTHF. R REVIEW
NOTE: k is the ~sponsibility ofa pers~ seeking review of a Hearing Examiner
decision to consult aoplicabl¢ Code sections and other appropriate sources,
including Stat~ la~; to d~termin¢ his/Imf ~ and mspo~biliti~s mlatiw to
Request for judicial ~vie~- of this decision by a tnnsoa with standing can be made by filing a
land use l~6/ion in superior court within 21 days in aecor~¢ with the Land Use Petition Act,
Revised Code of Washington (RCW), Chapte~ 36.70(2.
SCUP12566 Page 9 of 10
RUE 098OO
Conditions of Approval
[These conditions arc only those relaled to the RUE approval; other and additional
conditions included with approval of subdivision SUB09SO0 must also be adhered to.]
SEPA Conditions
1. Prior to any ctemring or other construction activities, thc applicant shall obtain a pl~t
utilities permit from thc Department of Planning and Community Development that includes an
approved Temporary Erosion and Scdimentalion Control Plan addressing erosion and sediment
control issues specific to Ibc construction and instnllmion of the waterline. That plan must
specify the Best Mamgemcnt Practices (BMP) to be employed. All the BMPs specified shall be
implcmcntcd to the satisfaction of the Public Works Department.
2. All suitable excavat~xl soil shaH be m-used ~m-site, provided that neither the Io~____.'.lkm of
nor tho manner of that r~use would damage vegem6on and/or contribute to or increase erosion or
sedimentation. Tha~ material dctermincd by thc Director to be tmsuitablc for on-site usc shall be
disposed of at a disposal site approved by thc Director.
3. To mitigate air quality impac~ cmmactom slmll confrere to Paget Sound Clean Air
Agency regulations and take all reasonable promutions to avoid dust emissions. Vet~ation that
cannot bo mus~xi on-site as ~ in li~ Mitigation Plan, shall I~ removed from thc si~¢,
processed by chipper, or by some oltm- m~thod of disposal not requiring burning.
4. All conditions and recommeaan6ons set forth in the gemtr, hnical repmt ~ by
Meyers Biodynamics, dated October 20, 1999 shall be followed withont exception to the
satisfaction of the Public Works Depamnent.
5. The trenching and i~allntion activities for tl~ w-al~41n~_.'s east/west segm~ shall be
permitted only in lhe "dry semson:' wben no water is flowing in the strenmbed. Trenching and
buffer may- be pcrmittecI w/thout this seasonal lira/ration. Best manag~nt practices to control
erosion and scdimemation must be always utilized as zppropriatc - scc Condition #1.)
6. All comlitions of ~ Mitigation Plan (rcptan~g, restoration, monitoring contingency
and malntenan~, including Figur~ and Tabim), prepared by Meyers Biodynamics and dated July
29, 2004, sh~ll bc followed withoat exception to tbe satisfaction of the Public Works Departmcnt.
Non-SEPA Conditions
7. Tho wat~ine, where it crosses thc abeam, shall be constmc~d of heat welded HDPE (or
other material cxprmsly found suitable by the Public Works Department) and/or _~hnll be sleeved
to the satisfaction of thc Public Works Department.
SCUP!2566 Page 10 of 10
BEFORE THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Application of
MICHAEL OLSON
for a Reasonable Use Exception
RUE09800
ORDER
CLARIFYING
DECISION
BIMC I6.20.100 provides that the Heating Examiner may clarify a decision. The
Director, Planning and Community Development, has questioned the inclusion, on page
10, of the headings "SEPA Conditions" and "Non-SEPA Conditions". As these headings
are unnecessary to the decision process and immaterial to the implementation of the
required conditions, they can and should be eliminated.
It is ho~y ORIna~ that the Hearing Examiner's decision issued in this matter on
December 16, 2004 is CLAR~F~O by eliminating the headings on page l0 and
substituting the aRached page 10 for the original.
Entered this 20th day of December 2004.
_ ~
Meredith A. Getches
Hearing Examiner pro tern
City of Bainbridge Island