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BRIGHT, JOHN & PENNEY CITY CLERK FINDINGS AND DECISION OF THE HJ~ARlNG Ej(i\r~HNER CITY OF BAINBRIDGE ISl,AND In the Matter oftlle Appeal of JOHN AND FENNEY BRIGHT BLD13509SFH. of the Issuance ofa Building Permit tu Ray and Sheri Beske\v by the Director, Planning and Community Development Introdurgon The DirecTor issued a building permit [BLD 13 509J for constmction of a single-family residence Ot). property owned by Ray and Sheri He~;kcw. The adjacent property ovvners, John and Penny Bright, appealed the issuance of that permit. The Hearing Examiner held the hearing on this matter on September 8, 2005. Parties represented at the hearing were the Director, Planning and Community Development, by Rosemary Larson, Assistant City Attorney; Appellants, John and Penny Bright, by their attorney, John Waldo; and, the Applicants, Ray and Sheri He~;kew, by their attorney, Heidi 1. Gassman. After due consideration of all the evidence in the record, the following shall constitute the findings, conclusions, and decision of the Hearing Examiner on this appeal. Findings of Fact Subject Property 1. The subject property, located on a northeast facing bluff overlooking Puget Sound north ofYeomalt Point, is approximately 20,400 sq. ft. in size. The property is identified as Tax Parcel No. 4120-000--013-0306 or, as it is not yet addressed, is referred to as "Lot C, Grand Avenue". Access is via a driveway easement ofT of Grand Avenue. [Staff Report, Exhibit 39] 2. Except for the steep slope in the northern portion of the lot, the site is relatively flat (elevation at the southern property line is 82-83 ft. and at the n0l1hwest corner, 200 ft. away, To improve the stability of the bluff separating the upper and lower sections. .. we suggest terracing the face of the bluff with gabion type containment areas. StaI1ing at the toe of the bluff, and behind each gabion, 6. The "recommendations" referred to in the condition of approval are in Geological Consulting Services' September 20, 1988 report [Staff Rep0I1, Exhibit 39, Attachment D]. This report described the steep slope shared by Lots C and D as being located about 200 ft. back from \vater' s edge, approximately 40 ft. high, with several large maple trees at the edge of the bluff and a very large maple half way dowr the slope. The trees were observed to be straight and it was concluded that the slope was "seemingly stable at this time and has been for quite a number of years." Despite this conclusion regarding stability, the following recommendations were made: Approval is conditioned upon site development meeting all recommendations of the September 20, 1988 geotech rep0I1 and Febmary 15, 1991 amendment to that repoI1 prepared by Geological Consulting Services. 5. At the time the short plat amendment was approved, this area was part of unincorporated Kitsap County. The County's approval [Staff Report, Exhibit 39 Attachment C], marked as having been recorded March 11, ] 991, noted the following SEP A condition in the Department of Community Development "Comments" section: Background: Geotechnical Reports and Recommendations 4. The subject lot was created in 1991 through a Short Subdivision Amendment pursuant to an application made by the owners at that time, Michael and Kinam Kelley. This amendment divided Lot C of the original short plat (i.e., Short Plat No. 2925; recorded in1982), i.nto two lots: Lot C (the subject propel1y) and Lot D (reterred to as the Kelley property). The subject propeI1y is the "upper" or upland portion of original Lot C. Lot D, the "lower" p0I1ion of original Lot C, is located within the shoreline and shares the steep slope noted in Finding 2 \vith Lot C. [StatfRepo11, Exhibit 39, Attachments A-D; Testimony of Preston] Lot C includes the top 15 ft. of the slope; the toe of the slope is on Lot D [see GIS topo/parcel maps included in Exhibit 14 for lot lines relative to topography; also Exhibit 2; Exhibit 7; and Amended Short Plat maps]. 3. The undeveloped site is bordered on the east, west and soutb by single-family residences (including Lots A and B directly south, between the subject lot and Grand Avenue). Zoning is R-2, single-family residential, two units to the acre. The Comprehensive Plan designation is OSR 2 (Open Space Residential, 2 units per acre). The subject property is more than 200 feet from the shoreline dnd Lot 0 is between the subject property and water's edge. [Staif Rep011, Exhibit 39] elevation is 74 ft.). The slope descends stef~ply toward Lot 0 and a concrete driveway down to Lut D begins in the 1l0l1heasU'fn corner of the lot. [Staff Report, Exhibit 39; Exhibit 1, page 1 of 6] subsurface drainage across t.he face should be established with all drainage piped to a collF~ctor system and tight-lined to the beach. It should also be assured that the eXlsting drain line from the north abutting property is also tight-lined to the beach. Potential surface water run-oiTfrom the upland area should be collected and diverted away from the top edge of the bluff and tight-lined to the beach. VVe reGommend... in the lower area, a cU11ain drain... periphery subsurface drains... and all drainage collected and tight-lined to the beach. J1L.lh~.~vet!t U~S clec19~L1o COJ1stCIJ.~t Lhome in the_\lp-IaIl(La~s;a, w~ r~QJmm~I)Q..~l)~~t-bac!~slist.il.rrce of~l) feelJ'romJJ~j:gp ofl11~J?~Jjf rr.hh.lff ~tl12j.lii@Jion b.'ls b~~n improved bY.J_~n:\s;inl.u;yitll-&hi.Ql.1')_~ a closer s2l-bl!~k m~f'Jgstifjed... Subsurface drainage should still be c~tablished... [emphasis added] . .. the large maples at the edge of the slope of the bluff should be cut to remove excessive weight. The stumps should not be removed. In order to protect bare portions of the slope, some type of vegetation, such as ivy, should be established... [emphasis in original] 7. In Febnmry 1991, Geological Consulting Services reviewed their 1988 report "in regards to the possibility of residence( s) [ sic] construction on both the upper and lower portions of Lot C" and opined that such residential construction "would be possible as long as the recommendations listed in our report are followed..." [Exhibit 3, Attachment E] 8. Sometime in the spring of 1991, after Lots C and D had been cleared and a driveway down to Lot D constructed, a slide developed fi-om the northerly portion of Lot D. By June 1992, considerable damage had occurred along the east side of Lot D and on the adjacent property east of Lot D (i.e., referred to as the King-Aexel property). Geotechnical consultants Shannon & Wilson were employed to determine the cause of the sliding and if the slide mass could be stabilized. The findings from that investigation are contained in a 1992 report that is mentioned in Exhibit 41, but was not made part of this record. The Appellants indicate that the slide damage included loss of part of their bluff and contend that the slope clearing and driveway construction initiated the instability that resulted in the slide event. [Exhibit 9; Exhibit 41, page 1; Staff Report, Exhibit 39, Attachment I; Testimony of P. Bright] 9. A 1994 Shannon & Wilson report [Exhibit 41] recounts the steps taken in response to the slide noted in Finding 8. Drains were installed and buttress fill was added on the beach on Lot D and on the King-Aexel property, in an attempt to stabilize the slide mass by providing resistance to the material sliding from landward of the beach. To protect the buttress fill, a bulkhead was constructed on the King-Aexel property and 35ft. onto Lot D. The remediation (Jowering the water table with subsurface drains and adding buttress fill) was completed in 1994. [Exhibit 41, pages 1-4] 15. In June 2005, the Heskews filed a building permit application (BP 13 509SfR) for construction of a residence on the subject property (i.e., Lot C). The application is for a 3,016 square foot house set 37-54 feet back iI'om the top of the slope at the northerly end of Director's Decision 14. The record does not establish when the Heskews became owners of Lot C and if, during that transaction, they were specifically advised about of the setback condition imposed with the short plat amendment that created Lot C and Lot 0 from the original Lot C. 13. Along wlth the clearing that was done in 1991, a driveway was excavated down the bluff to Lot D. That driveway, which begins about 60 ft. back from the nOliheast corner of Lot C [see location and relative scale in Exhibit 2 and Exhibit 7], heads straight downslope then turns rather abruptly toward the west, just south of the where the drivevvay enters Lot D. The driveway is paved with concrete about 10-12 ft. wide [see Exhibit 124] and one drainage catch basin is located at the top and another at a place downslope. Along the west (upslope) side of the first section of the driveway (i.e., between the top of the slope [at about elevation 74, see Exhibit 2] to and somewhat beyond the curve toward the west), there is a 3 ft. taU rockery along the toe of the slope formed at the driveway [see Exhibit 124]. [Staff Report, Exhibit 39, Attachment G; Testimony of Fredricks; E] 12. Leland B. Jones, the geotechnical engineer who wrote the 1994 report [Exhibit 41], testified that when Shannon & \Vilson looked at Lot D in 1994 it was an active slide area and the subsurface water had to be drained and controlled before a building could be constructed. He spoke of the steep bluff as being "above" Lot D rather than a part of it and gave conflicting testimony as to whether or not instability on Lot 0 would cause instability on the Bnght property. (I.e., the report says that the Bright property is "isolated" and unlikely to be affected by Lot 0 events, but hearing testimony was that sloughing on the Brights' property could "eventually" be a result of bluff failure on Lot D.) 11. Consistent with the recommendations of Shannon & Wilson, various measures were taken to stabilize the shifting soils, including: 2-ft. diameter pilings driven 40 ft. deep, a bulkhead constructed along the beach frontage, drainage tight-lined, and a rockery/retaining wail along part of the driveway. [Testimony of Fredricks] 10. The 1994 Shannon & Wilson report [Exhibit 41, pages 6-7] concludes that the stability of the King-Aexel property is dependent upon the stability of Lot D, but that Lot D "is isolated from the Bright pn1perty" and it would be unlikely that instability at Lot D would adversely affect the Bright properiy. The consultants recommended that all drains be properly maintained, that specific steps be taken to isolate Lot D from the King-Aexel property wall, and that a residence on Lot 0 not be ceo lstnlcted closer than 80 ft. from the northern top of the buttress till. (The location shown for a residence on Lot D in the draintleld design plans [Exhibit 7] does not appear to observe this recommendation [Exhibit 41, Figure 2].) No specifIc recommendations were made for Lot C. the property. Drainfield easements take up approximately the southern third of the lot and a 25-ft. wide a(:cess and utility easement extends along the eastern side of the property. Other building setbacks are: 10ft. (rear yard) on the west; 25 ft. (front yard) on the east (in addition to the access and utility easement); 10 tl. to the south between the building and the drainfield casement; and, 5 ft. between the drainfield easement and the southern property line. [Exhibit 2; StatTReport, Exhibit 39, Attachment B; Exhibit 40] 16. Included with the application submittal was the City-required geotechnical analysis [Exhibit 1] and a Geolc)gic Slope Reconnaissance repoli, by Aspect Consulting, dated March 25. 2005 [includ~d in Exhibit 1; also Attachment G in Staff Report, Exhibit 39]. The repOli ili\Judes recommewlat ns for the setback from the top of the slope. 17. The repOli by Aspect Consulting [Attachment Gin Staff Report, Exhibit 39] describ(~s the northeastern slope of the property as having a elevation change on the order of30 ft. from the top of the slope to the driveway where it curves to the northwest, and another 20-25 ft. elevation change below the driveway (within Lot D) to the flat portion of Lot D. The angle of the slope above the driveway varies, generally ranging from 1. 2H: 1 V, to near-vertical. Evidence offormer landslide activity can be observed in the lack of mature vegetation on the nortb-facing slope and accumulations ofloose soil debris in the more gently slope above the beach on Lot D. The most recent slide activity, occurring in the upper foot of weathered soil, is considered to have been small, isolated surficial slides. The geotechnical engineer saw the age of the slope vegetation as suggesting that the last "notable toppling failure" had occurred during the severe storms of the winter of 1996-1997. The events and remediation that occurred in 1991-1994 and the 1994 Shannon & \Vilson report [Exhibit 41] are not mentioned in Aspect Consulting's repmi. (At hearing, the geotechnical engineer testified as to having revie\vcd the Shannon & Wilson report, but \vhen this occurred was not established. ) 18. Aspect Consulting recommends that the appropriate setback from the top of the bluff on Lot C is one-foot for every foot of vertical relief from the top to the driveway below, plus five feet. The consultant estimates that, if the observed slope retreat of 2-3 inches per year (on average) continues, it would be 80-100 years before structures setback this recommended distance would be close enough to the edge of the bluff to become "involved with slope movement". [Staff Report, Exhibit 39, Attachment G, pages 3-5; Testimony of Peterson] The recommended setback would require a minimum distance of 35ft. from the top of the bluff [assuming 30 ft. vertical relief]. 19. On July 27, 2005, the Director received two letters [Exhibits 8 and 9] from the Appellants, owners of the adjacent property to the west. Both letters include information about previous slide events, the failure of uther parties to implement required stabilization, and concern about possible future damage to their property. The 1988 and 1991 Geological Consulting Services' repOlis [see Findings 6 and 7] are mentioned; including the recommendation for a 75-tt. setback. 20. The Director required that the Applicants' geotechnical engineer consider whether 25. The Applicants and the Appellants both presented expert testimony regarding stability of the slope and the appropriate building setback. [Testimony of .Tones; Testimony of Peterson] The experts disagree about what setback would be appropriate in these circumstances. Neither presentation was wholly persuasive, but the following facts about the steep slope shared by Lot C and Lot Dare supPOlied by the record: the slope has been the source of the landslide materials deposited onto Lot D; there have been changes to the slope since 1991 (e.g, cleared of mature trees, driveway cut down and across the slope, 1991 slide and the remediation efforts that followed it); seismic induced landslides are possible; storm water collecting near the top of the slope or flowing over it would increase instability; and, slumping/soil creep is occurring. 24. In a letter to the City's planning department dated May II, 2005 [Staff Report, Exhibit 39, Attachment I], Penny Bright had noted that the location of the proposed house would be waterward of the front of her house and would block her view. Review of the Site Plan [Exhibit 2] and the aerial photo in the Staff Report [Exhibit 39, Attachment A], supports this assertion. However, as the subject property is not within the City's shoreline jurisdiction, the view protections of the Shoreline Code are not applicable. By the time of hearing, Appellants had withdrawn the shoreline setback issue from the appeal. 23. On August 15,2005, John and Penny Bright timely filed an appeal [Exhibit 33]. Required notice of the appeal hearing was completed as of August 19,2005 [Exhibit 37] and hearing was held on September 8, 2005. Appeal 22. On August 12, 2005, having determined all the City's requirements were met, the Department issued a building permit (BP# 13509SFR) to the Heskews for construction of a single-family residence as indicated on the site plan and permit drawings. [Exhibit 2; Statr Rep0l1, Exhibit 39, Attachment B] 21. The City Engineer reviewed the consulting engineer's report and the required submittals [Exhibits 1 and 5], and concluded that they met City's requirements. No errors or need to do reanalysis was found. [Testimony of Hathaway] slope stabilization had been accomplished "in conformance with the recommendations of the previous geotechnical reports" [Staff Report, Exhibit 39, page 3]. In a letter dated July 21, 2005, Aspect Consulting responded [Exhibit 10]. The geotechnical engineer reviewed the short plat conditions and the 1988 and 1991 geotechnical reports and concluded that a 75-ft. setback is not necessary given the physical changes that had occurred since 199 I. The consultant cited the driveway constmction as having flattened a portion of slope and now provides a bench so that the slope is "substantially stabilized to at least the degree" that gabion terracing would have provined. Aspect Consulting asserts that the setback they recommend, in addition to site improvements already made, "fully addresses the old plat recommendation". [Exhibit 1 or Staff Report, Exhibit 39, Attachment F; Testimony of Peterson] 26. The Appellants contention that a required retaining vlal!/rockery has not been installed is inaccurate. Evidence in the form cfwitness testimony [Fredericks] and a photo [Exhibit 124], are convincing evidence that there is a rockery on the upslope side of the driveway at least through Lot C. Bainbridge Island rvlunicipa~ Code (BLv1C) 27. BlI"1C Chapter 2.16 of the Bainbridge Island f\l1unicipal Code includes decisions on "Building and other con:.;truclion permits" as among the administrative land use decisions to be rnade by the Director [see BllVlC 2.1t).025]. Such decisions are to be "processed in accordance lvith BIA~1C 2.16.095.' 28. The administrative decision procedures of BIl\JIC 2,16.095G.1 exempt building and other construction permits fI'om the rcqu.rcments for public notice, public comment, and notice of decision. 2.9. The decision procedures ofBIl\;IC 2.16.095D provide that; In making a (}eci.'J'irm, the dCptirttnent director sholl consider the applicahle decision criteria (1' this code, all other ttpplicable law, and any nece,)',)'{HY documents and approvals. 30. BI!\,lC 2.16.095E further provides that the Director "may approve, approve with rnodifications or deny the application, hased on the decision criteria andfinding)' offact." 31. Pursuant to Bll\1C 2.16.095H, decisions of the Director may be appealed to the Hearing Examim:'r in accOld with the procedures of BI?\..1C 2.] 6.130. The procedures of BIlVie 2.16.130E ell for a hearing before the Hearing Examir:er and BUvIC 2.16.130F authorizes the Hearing Examiner to aniI'm, affirm with modifications, reverse, or remand the decision of the Directer. In making the appeal decision, the Hearing Examiner is required by BIl\1C 2.16 ] 30F.2 to give "suhsfantial ~vei;;ht to the decision (~f the department director." 32. Regarding building perrnits, the Building Code, at BlivlC 1504.040A, includes the following (emphasis added): * * * The complete application and hudding plans shall be reviewed hy the building (~Ulciul.ii!.r.c;.!)n1J2ii.f.l!ic~Jflth, COdi':..\J:!!Jppteglnbis f.!zf!J)ter and atflg!" !l.e rt i lien '-Ji!~~~5- and on!/ Jj(Jl!f:~~j.!Lil12~.U!.Ll he -.f.iJL91 B a in h ri ~IslaJ L4.:- 'VVhen the huilding (dfidal is sati4ied that th~ }vork as descrihed in the application .J..fYi.5fies JJJ..?_j]}qllireme.!Jt.\'_~2i.1!J.L5.SJ)Je alld corljQrrns to othe!~ J2.f;l..tlinelJ.L.!i'J+~ ar!J.D!!"!d.inances, the applicant will he required to pay the calculated huilding pennitfee. A huilding permit .'Ihall then he i.....sued to the applicant for the l,vork deseri hed. * * * The decision of the Director to issue Building Permit No. BLD13509SFR for construction of a single-family residence on Lot C Grand Avenue [Tax parcel 4120-000-013.-0306], is Decision 6. The Director would be remiss to issue the subject permit without considering the setback condition included in the County's short plat approval. Hov.'ever, it was carefijlly considered and that consideration resulted in the condition being modified r see Finding 18]. The modification was based upon qualifIed expeli advice and, although other choices could have been made, it has not been shown to have been a mistake. Circumstances have changed considerably since the Amended Shari Plat was approved in 1991, and requiring a 75-ft. setback or, in the alternative, gabion terracing of the entire slope face, is not warranted now. 5. The Director also is required to "consider the applicable decision criteria of this code, all other applicable lmv, and (lilY necesswy documents and approvals" [Finding 29]. The approval of the Amended Short Plat that created the subject lot is a necessary approval and the Director did consider it. The Director considered the setback condition and the referenced technical reports and required a review and evaluation by a qualified geotechnical engineer. This record does not show that it was an error for the Director to rely upon the updated geotechnical report and its assurance that the stability of the slope is comparable to that intended by the 1988 recommendations. 4. When issuiu~ a buildir.g permit the Director is to ensure "compliance 1vi:h codes adopted h)-I [the Building Code] and other pertinent l([H'."; and ordinances i/1 effect in the city (~/Bajnhridge Island" [Finding 32]. That was done here. It is not a mi,)take to issue a permit that complies with all the City's pertinent laws and ordinances. J. The subject property is not within the shoreline and shoreline regulations that would prescribe a setback determined by the location of adjacent residences, do not apply. Appellants properly withdrew the shoreline setback question from their appeal. 2. To overcome the substantial weight accorded the Director, an appellant has to show that the Director's decision is clearly erroneous. Under this standard of review, the Director can be reversed only if the Hearing Examiner is left with the definite and film conviction that a mistake has been made. ]. The Hearing Examiner has jurisdiction to hear and decide this matter an.J, in making that decision, must give substantial weight to the decision of the department director [see Finding 31]. Conclusions hereby AFFIRJVIED. Entered this 6th day of O\~tober 2005. ISI rV1eredith A. Getchcs City or Bainbridge Island Hearing Examiner pro tem C>NCERNING FURTHER REVIEW NCTE: It is the rcspo!1sibdity of a person seeking rcvic\v of a Hearing Examiner decision to consult applicable Code sections and other appropri;lte sources, including State law, to dch.:nllinc his/her rights and responsibilities relative to appeal. Request for judicia;! review of this decision by a p~rson with standing can be made by filing a land use petition in superior court:'.vitliin 21 days in accordance \vith the Land Use Petition Act, Revised Code of Washington (RCvV), Chapter 3670C.