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BRIGHT, JOHN & PENNEY (2)FINDINGS AND DECISION OF THE HEARING EXAMINER CITY OF BAINBRIDGE ISLAND In the Matter of the Appeal of JOHN AND PENNEY BRIGHT BLD13509SFR of the Issuance of a Building Permit to Ray and Sheri Heskew by the Director, Planning and Community Development Introduction The Director issued a building permit [BLD13509] for construction of a single- family residence on property owned by Ray and Sheri Heskew. The adjacent property owners, 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 Heskew, by their attorney, Heidi J. 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 of Yeomalt 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 off 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 northwest corner, 200 ft. away, elevation is 74 ft.). The slope descends steeply toward Lot D and a concrete driveway down to Lot D begins in the northeastern corner of the lot. [Staff Report, Exhibit 39; Exhibit 1, page 1 of 6] 3. The undeveloped site is bordered on the east, west and south 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 and Lot D is between the subject property and water's edge. [Staff Report, Exhibit 39] 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 inl982), into two lots: Lot C (the subject property) and Lot D (referred to as the Kelley property). The subject property is the "upper" or upland portion of original Lot C. Lot D, the "lower" portion of original Lot C, is located within the shoreline and shares the steep slope noted in Finding 2 with Lot C. [Staff Report, 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]. Background: Geotechnical Reports and Recommendations 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, 1991, noted the following SEPA condition in the Department of Community Development "Comments" section: Approval is conditioned upon site development meeting all recommendations of the September 20, 1988 geotech report and February 15, 1991 amendment to that report prepared by Geological Consulting Services. 6. The "recommendations" referred to in the condition of approval are in Geological Consulting Services' September 20, 1988 report [Staff Report, Exhibit 39, Attachment D]. This report described the steep slope shared by Lots C and D as being located about 200 ft. back from water's edge, approximately 40 ft. high, with several large maple trees at the edge of the bluff and a very large maple half way down 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: 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. Starting at the toe of the bluff, and behind each gabion, subsurface drainage across the face should be established with all drainage piped to a collector system and tight -lined to the beach. It should also be assured that the existing drain line from the north abutting property is also tight -lined to the beach. Potential surface water run -off from the upland area should be collected and diverted away from the top edge of the bluff and tight -lined to the beach. We recommend ... in the lower area, a curtain drain... periphery subsurface drains... and all drainage collected and tight -lined to the beach. In the event it is decided to construct a home in the upland area, we recommend a set -back distance of 75 feet from the top of the bluff. If bluff stabilization has been improved by terracing with gabions, a closer set -back may be justified... Subsurface drainage should still be established... [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 February 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 from 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 35 ft. onto Lot D. The remediation (lowering the water table with subsurface drains and adding buttress fill) was completed in 1994. [Exhibit 41, pages 1 -4] 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 property" and it would be unlikely that instability at Lot D would adversely affect the Bright property. 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 D not be constructed closer than 80 ft. from the northern top of the buttress fill. (The location shown for a residence on Lot D in the drainfield design plans [Exhibit 7] does not appear to observe this recommendation [Exhibit 41, Figure 2].) No specific recommendations were made for Lot C. 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 wall along part of the driveway. [Testimony of Fredricks] 12. Leland B. Jones, the geotechnical engineer who wrote the 1994 report [Exhibit 41], testified that when Shannon & Wilson 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 D would cause instability on the Bright property. (I.e., the report says that the Bright property is "isolated" and unlikely to be affected by Lot D events, but hearing testimony was that sloughing on the Brights' property could "eventually" be a result of bluff failure on Lot D.) 13. Along with 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 northeast 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 driveway 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. tall rockery along the toe of the slope formed at the driveway [see Exhibit 124]. [Staff Report, Exhibit 39, Attachment G; Testimony of Fredricks; E] 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 D from the original Lot C. Director's Decision 15. In June 2005, the Heskews filed a building permit application (BP13509SFR) for construction of a residence on the subject property (i.e., Lot Q. The application is for a 3,016 square foot house set 37 -54 feet back from the top of the slope at the northerly end of the property. Drainfield easements take up approximately the southern third of the lot and a 25 -ft. wide access and utility easement extends along the eastern side of the property. Other building setbacks are: 10 ft. (rear yard) on the west; 25 ft. (front yard) on the east (in addition to the access and utility easement); 10 ft. to the south between the building and the drainfield easement; and, 5 ft. between the drainfield easement and the southern property line. [Exhibit 2; Staff Report, Exhibit 39, Attachment B; Exhibit 40] 16. Included with the application submittal was the City- required geotechnical analysis [Exhibit 1 ] and a Geologic Slope Reconnaissance report, by Aspect Consulting, dated March 25, 2005 [included in Exhibit 1; also Attachment G in Staff Report, Exhibit 39]. The report includes recommendations for the setback from the top of the slope. 17. The report by Aspect Consulting [Attachment G in Staff Report, Exhibit 39] describes the northeastern slope of the property as having a elevation change on the order of 30 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 of former landslide activity can be observed in the lack of mature vegetation on the north - facing slope and accumulations of loose 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 & Wilson report [Exhibit 41 ] are not mentioned in Aspect Consulting's report. (At hearing, the geotechnical engineer testified as to having reviewed the Shannon & Wilson report, but when 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 35 ft. 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 other parties to implement required stabilization, and concern about possible future damage to their property. The 1988 and 1991 Geological Consulting Services' reports [see Findings 6 and 7] are mentioned; including the recommendation for a 75 -ft. setback. 20. The Director required that the Applicants' geotechnical engineer consider whether 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 1991. The consultant cited the driveway construction 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 provided. 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] 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] 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; Staff Report, Exhibit 39, Attachment B] 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. 24. In a letter to the City's planning department dated May 11, 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. 25. The Applicants and the Appellants both presented expert testimony regarding stability of the slope and the appropriate building setback. [Testimony of Jones; 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 D are supported 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. 26. The Appellants contention that a required retaining wall /rockery has not been installed is inaccurate. Evidence in the form of witness 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 Municipal Code (BIMC) 27. BIMC Chapter 2.16 of the Bainbridge Island Municipal Code includes decisions on "Building and other construction permits" as among the administrative land use decisions to be made by the Director [see BIMC 2.16.025]. Such decisions are to be "processed in accordance with BIMC 2.16.095." 28. The administrative decision procedures of BIMC 2.16.095G.1 exempt building and other construction permits from the requirements for public notice, public comment, and notice of decision. 29. The decision procedures of BIMC 2.16.095D provide that; In making a decision, the department director shall consider the applicable decision criteria of this code, all other applicable law, and any necessary documents and approvals. 30. BIMC 2.16.095E further provides that the Director "may approve, approve with modifications or deny the application, based on the decision criteria and findings of fact." 31. Pursuant to BIMC 2.16.095H, decisions of the Director may be appealed to the Hearing Examiner in accord with the procedures of BIMC 2.16.130. The procedures of BIMC 2.16.130E call for a hearing before the Hearing Examiner and BIMC 2.16.130F authorizes the Hearing Examiner to affirm, affirm with modifications, reverse, or remand the decision of the Director. In making the appeal decision, the Hearing Examiner is required by BIMC 2.16.130F.2 to give "substantial weight to the decision of the department director." 32. Regarding building permits, the Building Code, at BIMC 15.04.040A, includes the following (emphasis added): The complete application and building plans shall be reviewed by the building official for compliance with codes adopted by this chapter and other pertinent laws and ordinances in effect in the city of Bainbridge Island. When the building official is satisfied that the work as described in the application satisfies the requirements of this code and conforms to other pertinent laws and ordinances, the applicant will be required to pay the calculated building permit fee. A building permit shall then be issued to the applicant for the work described. Conclusions 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 [see Finding 31]. 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 firm conviction that a mistake has been made. 3. 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. 4. When issuing a building permit the Director is to ensure "compliance with codes adopted by [the Building Code] and other pertinent laws and ordinances in effect in the city of Bainbridge Island" [Finding 32]. That was done here. It is not a mistake to issue a permit that complies with all the City's pertinent laws and ordinances. 5. The Director also is required to "consider the applicable decision criteria of this code, all other applicable law, and any necessary 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. 6. The Director would be remiss to issue the subject permit without considering the setback condition included in the County's short plat approval. However, it was carefully considered and that consideration resulted in the condition being modified [see Finding 18]. The modification was based upon qualified expert 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 Short 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. Decision 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- Ol 3- 0306], is hereby AFFIRMED. Entered this 6th day of October 2005. /S/ Meredith A. Getches City of Bainbridge Island Hearing Examiner pro tem CONCERNING FURTHER REVIEW NOTE: It is the responsibility of a person seeking review of a Hearing Examiner decision to consult applicable Code sections and other appropriate sources, including State law, to determine his/her rights and responsibilities relative to appeal. Request for judicial review of this decision by a person with standing can be made by filing a land use petition in superior court within 21 days in accordance with the Land Use Petition Act, Revised Code of Washington (RCW), Chapter 36.70C.