BROWN, DANIELDECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Application of
DANI-EL BROWN
for Shoreline and Zoning Variances
SVARNARI0041
Introduction
The Applicant seeks shoreline and zoning variances to facilitate construction of a tingle-
family residence on each of two adjacent lots. The Hearing Examiner held a public
hearing on this matter on April 14, 2005. Parties represented at the hearing were the
Director, Planning and Community Development Department, by Marja Preston, Planner,
and the Applicant, Daniel Brown, pro se.
A~er due consideration of all the evidence in the record, the following constitutes the
findings, conclusions, and decision of the Hearing Examiner on this application.
Findings
Site
1. The subject site, addressed as 3348 Point White Drive, is located on Point White
overlooking Rich Passage and consists of Lot 29 (4,523 sq. ft.) and Lot 30 (4,000 sq. fl.).
Both lots are roughly square in shape and both include tidelands. The north-south
dimension (inland to shoreline) is shorter (Lot 30 is 64.48 feet X 80.28 feet and Lot 29 is
76.90 feet X 83.25 feet. These are tax parcels: 042402-3-029-2003 and 042402-3-030-
2000 [for legal description see Exhibit 20]. [Exhibit 12; Exhibit 40, StaffReport]
2. The site slopes steeply down from Point White Drive to a level shelf
approximately 30 ft. wide. This level area is bordered by an existing concrete bulkhead
that spans both lots. The site is poorly vegetated, having only a few small trees and
grasses. The lots are undeveloped (remnants ora building foundation is visible on Lot 30
and neighbors report that a house was located there at one time). [Exhibit 12; Exhibit 25;
Exhibit 36; Exhibit 40, Staff Report; Testimony of Cole, Kane, and Brown]
3. The zoning on the subject property is R-2, residential - two units per acre. The
Comprehensive Plan designates it Open Space Residential, OSR-2, It has a Semi-Rural
Environment designation under the shoreline master program.
SVA1UVARI0041
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4. The neighborhood consists of single-family residences. The residence on the lot
adjacent to Lot 29 has a native vegetation zone of less than 25-ft. The lot adjacent to Lot
30 is undeveloped. On the shoreward side of White Point Drive many residences are
built up to and possibly within the right-of-way. [Exhibit 40, Staff Report; Testimony of
Preston; Testimony of Cole]
Proposal
5. The Applicant seeks to construct two 3-story houses; one house on each of the two
previously platted lots. The houses would be located at the edge of the White Point Drive
right-of-way (i.e., a 0 f~. from yard setback), but would be approximately 15 feet away
from the edge of the pavement. Each house would have a 1,268 sq. ft. "footprint" with
lot coverage proposed to exceed the applicable development standard by approximately
8% on Lot 29 and 11% on Lot 30. [Exhibit 37; Testimony of Preston; Testimony of
Brown]
6. The houses would extend one story above the grade of the road. Standard side
yard setbacks would be observed, as would a 25 ft. setback from the bulkhead. [Exhibit
38; Exhibit 40; Testimony of Preston]
7. In order to be able to build a single-family residence on each of these two lots, the
Applicant seeks variances to: 1) reduce the front setback along Point White Drive fi-om
25 R. to 0 fi. on both lots; 2) increase maximum permitted lot coverage from 20% to
28% on Lot 29 and from 20% to 31% on Lot 30; and, 3) reduce the native vegetation
zone from 50 fi. to 25 ft. on both lots.
8. Vehicular access to the subject property is off of Point White Drive. The
applicant has proposed driveways within the right-of-way of Point White Drive and two
parking spaces for each lot to be located inside the footprint of the buildings. The
variance to allow a 0 ff. front setback would be necessary for achieve this parking
arrangement. [Exhibit 38; Exhibit 40, pages 4,
Director's Analysis and Recommendation
9. Both a shoreline variance (SVAR) and zoning variance are required for this
proposal. [Exhibit 40; Testimony of Preston]
I0. The geoteclmical report [Exhibit 36] indicates that the steeper slopes (i.e., greater
than 2:1) are susceptible to sloughing. Drainage is considered a critical element for
future construction, and a drainage system would have to be incorporated into project
retaining walls and other measures taken to intercept and manage water across the site.
The existing bulkhead has been undermined by wave action and there is evidence of a
previous effort to add material as "beach nourishment". Most of this material has been
S VAR/VAR 10O41
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eroded and the engineer recommends that the footing be extended at least 2 t~. (landward)
into the very dense soil layer. A silt barrier would be necessary around the downslope
perimeter during construction and as soon as grading, drainage and foundation work is
completed, native plants should be planted to stabilize the slopes. [Exhibit 36]
11. Several comment letters were submitted to the Director during the Department's
review of the application. The owners of the adjacent vacant lot to the east expressed
their support for granting the requested variances noting that construction of "reasonably
sized" residences would be impossible without the variances, that other nearby homes
have features that protrude into the right of way and, when the lots were platted, the
intent was for "homes densely situated along the waterfront" [Exhibits 39]. The several
other persons who wrote letters are opposed to allowing two residences and stated that:
the proposed houses would be large and out of character for the neighborhood; a zero
front setback would create an undesirable and unsafe situation for parking and travel
along the road; drainage and slope stability are problems on this property; and, allowing a
reduction in the size of the native vegetation zone would be environmentally unsound and
unfair to others who have complied with the requirement. These neighbors suggested
that the two lots be combined and one house be built, rather than building one on each
lot. [Exhibits 28; Exhibits 29; Exhibits 32]
12. A Determination of Non-Significance, in accordance with the State
Environmental Policy Act (SEPA) WAC 197-11-355, was issued by the SEPA Official
on February 19, 2005. This determination was not appealed. [Exhibit 33; Exhibit 40,
page 2]
13. The Department of Public Works reviewed the application and recommended
approval as long as no portion of the structures would intrude into the fight-of-way and
there is no increased slope instability or risk of instability. [Exhibit 42]
I4. The Director also received written comments from the Suquamish Tribe and from
the State's Office of Archaeology and Historic Preservation recommending
archaeological review of the property. Recommended Conditions 10 and 17 would
require work to be stopped and the Office of Archaeology and Historic Preservation
notified immediately in the event that "any historical or archaeological artifacts are
uncovered during excavation or construction." [Exhibit 30; Exhibit 35; Exhibit 40, page
2]
15. To limit the impact on the shoreline environment, the Director recommends that
that the building footprints be limited to 1270 sq. fL (Recommended Condition 2). This
would minimize impervious surface and provide for the 25 R. wide native vegetation
zone. [Exhibit 40, page 10; Testimony of Preston]
16. Regarding the request for zero front yard setback, the Director observed that the
Department of Public Works does not object to the variance because many houses
SVAR/VAR 10041
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already exist along White Point Drive that are close to or within the right-of-way, making
future pavement widening unlikely. [Exhibit 40, page 10; Testimony of Preston]
17. The Director's recommended conditions include measures to: limit coverage to
28% on Lot 29 and 31% on Lot 30 (Condition 3); disallow any intrusion of buildings into
the right-of-way (Condition 20); limit reduction of the native vegetation zone to 25 f~.
(Condition 5); require that the native vegetation zone be planted with native vegetation
per approved plan (Conditions 7 and 8); require silt fences and other BMPs during
construction (Conditions 6 and 12); allow construction only during the April 1 to October
1 "dry season" (Condition 13); require standard geotechnieal certification and
indemnification for development on steep slopes (Conditions 18-19); and, several
requirements and restrictions to ensure protection of water quality (Conditions 1 I, 14-
16). [Exhibit 40, pages 2-5]
18. The Staff Report includes a thorough analysis of the proposal's consistency with
the Code requirements for approval of the requested shoreline and zoning variances.
That analysis, including the discussion of and references to the Recommended Conditions
[Exhibit 40, pages 6 through 13], is hereby adopted by reference into these Findings.
19. The Director concluded that, as conditioned, the proposal would be consistent
with the applicable provisions of the Shoreline Master Program (BIMC 16.12.040,
16.12.050, 16. I2.060, 16. I2.070, 16.12.090, 16.12.260, and 16.12.380), the Critical
Areas Ordinance (BIMC 16.20.080), and the Zoning Ordinance (BI/vIC 18.30.050,
18.30.060, 18.30.07018.78.060, and 18.111.040). [Exhibit 40, pages 6-10]
20. The Director recommends that the requested variances be approved with
numerous conditions [Exhibit 40, pages 2-4]. [See Conditions 1-22 included in this
decision on pages 11 through 13.] At heating the Director recommended the addition of
a condition regarding the bulkhead (see Finding 22). [Exhibit 43]
Hearing
21. The public hearing on the application was properly noticed with posting, mailing,
and publication completed by March 30, 2005 [Exhibit 4].
22. PCD staff reported that an extension of the footing to stabilize the bulkhead was
discussed at a meeting with the Public Works staff and the applicant's engineer. The
Director has added this repair work (i.e., new footings tied to the existing wall with
epoxied rebar and 3" diameter weep holes installed in the bulkhead for drainage
purposes; see Exhibit 36, pages 4-5) to the subject permit review. Bulkhead repair is
exempt from shoreline permits. The Director has recommended an additional condition
to ensure the avoidance and/or mitigation of impact;. This additional condition is
Conditions 23 [23(a) through 23(d) noted on page I3]. [Exhibit 43; Testimony of
Preston]
SVAR/VAR10041
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23. Comments fi-om concerned neighbors were received at the public hearing. Three
individuals spoke and one of those also submitted a writtcm comment [Exhibit 44].
Speakers confirmed that a house (and the bulkhead) had been located on the subject site
approximately 50 years ago and the house was barged from the site sometime prior to
1968 [Testimony of Kane; Testimony of Cole]. Another neighbor spoke strongly in
opposition to the application and commented that the subject property had long been
thought to be undevelopable, the applicant must have know of the limitations, and before
the sewer was extended along White Point Drive, development had not been possible
[Testimony of Olsoe].
Bainbridge island Municipal Code
24. The standard minimum front yard setback (measured distance from the nearest
right-of way) for a single-family residence in the R-2 zone is 25 ft. [BIMC
18.30.060(A)], minimum lots size is 20,000 sq. tt. [BIMC 18.30.0400))], and the
maximum coverage is 20% [BIMC 18.30.050(A)].
25. The Shoreline Master Program, at BIMC 16.12.090, requires a native vegetation
zone immediately upland of the OHWM. In the Semi-Rural shoreline environment, a 50
f~. wide native vegetation zone is the standard for residential uses [BIMC 16.12.150,
Development Standards, Table 4-2].
26. BIMC 2.16100(G) provides that on a decision such as a zoning variance, "the
hearing examiner may approve, approve with tnodifications, deny or remand an
application" and "in making a decision, the hearing examiner shah consider the
applicable decision criteria of this code, all other applicable law, and any necessary
documents and approvals."
27. Applications for shoreline variances not determined by the director to be minor
and all shoreline conditional use permits shall be decided by the hearing examiner
following the procedures in BIMC 2.16.100(D).
28. Regards shoreline variance decisions, BIMC 16.12.350(B) provides that:
1. The city of Bainbridge Island hearing examiner is vested with
authority to:
a. ~qpprove, approve with conditions, or deny shoreline
variance and shoreline conditional use permit applications after a public
hearing and after considering the findings and recommendations of the
director, which shall be given substantial weight; provided that decisions
may be appealed in accordance with BIMC 16.12.370.B.
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29. The decision criteria for zoning variances, BI/vIC 18.111.040(A), provide that a
variance may be approved or approved with modifications if.'
1. 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;
2. 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 m which the property is located;
3. The variance is requested because of special circumstances
related to the size, shape, topography, location or surroundings of the
subject property and will provide an applicant with use rights and
privileges permitted to other properties in the vicinity and zone m which
the property is located;
4. The need for a variance has not arisen from actions taken or
proposed by the applicant;
5. 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;
6. The variance is the minimum necessary to fulfill the need of the
applicant; and
7. The variance is consistent with all other provisions of this code
and is m accord with the comprehensive plan.
30. The Shoreline Master Program (SMP), BIMC Chap. 16.12, regulates development
in the shoreline. The provisions for shoreline variances, BIMC 16.12.380, includes that:
B. Shoreline Variance. The purpose of a shoreline variance permit is
strictly limited to granting relief to specific bulk, dimensional, or
performance standards set forth in the master program, where there are
extraordinary or unique circumstances relating to the property such that
the strict implementation of the master program would impose
unnecessary hardships on the applicant or thwart the Shoreline
Management ~Ict policies as stated in RCFfr 90.58.020 or its successor.
2. Criteria for Granting Shoreline Variances. Shoreline variance
permits for development that will be located landward of the ordinary
high water...may be authorized provided the applicant can demonstrate
all of the following:
a. The strict requirements of the bulk, dimensional, or
performance standards...preclude or sign~cantly interfere with a
reasonable economic use of the property not otherwise prohibited by the
master program.
SVARIVAR10041
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b. The hardship described above is specifically related to the
property and is the result of unique conditions, such as irregular lot
shape, size, natural features, and the application of the master program...
c. The design of the project will be compatible with other
permitted activities in the area and will not cause adverse effects to
adjacent properties or the shoreline environment.
d. The shoreline variance authorized does not conslitute a
grant of special privilege not enjoyed by the other properties in the area
and will be the minimum necessary to afford relief.
e. The public interest will suffer no substantial detrimental
effect...
Conclusions
1. The Hearing Examiner has jurisdiction to hear and decide this matter and, with
regard to the Shoreline Variance decision, the Code requires that the Director's
recommendation be given substantial weight [see Finding 29].
2. Require notice of the application and notice of hearing were made and comments
were considered.
3. The zoning variances may be granted as they meet the criteria of BIMC
18.111.040(A) [see Finding 30]:
1. Does not constitute a grant of special privilege. Construction of a
single-family house on each of the two lots is not inconsistent with the
privileges and limitations of other properties in the vicinity and in this
zone. Many of the homes in the vicinity are similarly located at or near
the Point White Drive right-of-way. Allowing the house footprints this
close to the right-of-way moves them away from the shoreline and allows
for creation and maintenance of a 25 ff. wide native vegetation zone.
2. Will not be materially detrimental. With the variance to allow the
reduction of the fi'ont yard requirement to 0 feet, the proposed homes
would still he fifteen feet fi'om the edge of the pavement. Since many of
the houses on Point White Drive are already located within the right-of-
way and close to the pavement, mad widening is infeasible whether this
variance is granted or not. The 15-t~. distance between the proposed
houses and the edge of the pavement, would still allow for parking and
pedestrian use of the unpaved portion of the right-of-way. The variance
would not be materially detrimental to the public welfare or injurious to
the property or improvements in the vicinity.
SVAR/VARI 0O41
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3. There are special circumstances (size, topography, etc,) Lots 29 and
30 have steep slopes and are considerably smaller than the current
minimum lot size for the zone. These conditions result in customary
development being unusually constricted by zoning setbacks, shoreline
setbacks, and the shoreline native vegetation zone. Building envelopes
could not exist without variance to some regulations.
4. Not caused by actions of the applicant. The need for variances has
not arisen from actions of the applicant. These are existing legal lots.
5. Necessary_ for enjoyment of a substantial property right. Variances
would allow the applicant to build single-family residences. This is a
property right enjoyed by the other property owners in this vicinity and
zone. Without variance approval building envelopes do not exist on these
lots.
6. Is the minimum necessary. Buildings with footprints limited to no
more than i270 sq. fl,., including space of the required off-street parking,
is not more than the minimum necessary to provide relief.
7. Is consistent with the Code and Comprehensive Plan. As
conditioned, the variances would allow single-family development that is
consistent with the provisions of the Bainbridge Island Municipal Code
and the Comprehensive Plan.
4. The requested shoreline variance meets the requirements for approval of BIMC
16.12.380(BX2):
a. SIMP requirements interfere with reasonable economic use. The
small lots are so constrained by zoning setbacks and the native vegetation
zone, that them is no building envelope without variance relief.
b. Hardship is property-related and resulting from SMP requirements.
Similar to other shoreline lots in the vicinity, these legally platted lots are
small. Wkhout a variance from the requirement for a 50-ff. wide native
vegetation zone, there would be no building envelope possible.
c. The design will be compatible and not cause adverse effects. The
requested variances would allow for construction of two single-family
residences consistent with other residential development in the
neighborhood. By locating the proposed houses behind the shoreline
structure setback and observing the standard side setbacks, views ii'om
adjacent properties would not be adversely affected. The project would be
conditioned to ensure adverse impacts to the shoreline environment are
avoided.
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d. Not a grant of special privilege and is the minimum necessary.. The
existing residence on the property adjacent to Lot 29 has a native
vegetation zone less than 25 t~. A variance here to allow reduction of the
native vegetation zone to 25-~. would not be a grant of special privilege
inconsistent with the development in the vicinity. At 25 i~. wide, the
proposed native vegetation zone would allow for house footprints
approximately 25 t~. wide. The variance is the minimum necessary to
allow for reasonable single-family house construction.
e. No substantial detrimental effect. A native vegetation zone would
be established where there is little vegetation. The single-story height at
the road grade, along with standard side yard setbacks, would preserve
some views of the shoreline fi-om the road. Granting the variance would
not result in detrimental effects to the public interest (also see "d" above).
5. The two properties are small shoreline lots, platted before the shoreline
regulations were adopted. Single-family residences can be constructed on these lots
while maintaining a 25-foot vegetation zone. As conditioned, the project proposed is
consistent with the applicable provisions for granting the requested variances. With the
conditions recommended by the Director, the application should be approved.
Decision
The application of Daniel Brown for variances to allow: 1) the front setback along Point
White Drive to be 0 ft.; 2) lot coverage of 28% on Lot 29 and 31% on Lot 30; and, 3) the
required native vegetation zone to be 25 t~. wide, is hereby APPROVED WITI-I CONDITIONS
1 through 23 that follow on pages 11 through 13.
Entered this 16th day of May 2005.
'~'Meredith A. Geteh~' '] '
City of Bainbridge Island
Heating Examiner pro tern
SVAR/VAR10041
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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 responsibilitics relative to
The decision of the Hearing Examiner is the final decision the City in this matter. Appeal of the
shoreline decision is to the Washington State Shorelines Hearings Board [sec as provided by
RCW 90.58.180 (or its successor) and Chapter 461-08 WAC (or its successor). To be timely,
petition for review must be filed within the 21-day appeal period [see BIMC 16.12.3'/0]. Request
for judicial review of the zoning decision can be made by filing a land usc petition in superior
court within 21 days in accordance with the Land Use Petition Act, Revised Code of Washington,
Chapter 36.70C.
SVAR/VAR 10041
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10.
SVAR/VAR 10041
CONDITIONS OF APPROVAL
May 16, 2005
The applicant shall obtain an approved building permit from the Department of
Planning and Community Development prior to construction of single-family
homes on Lots 29 and 30,
The footprints of the houses on Lots 29 and 30 shall be no greater than 1,270 square
feet.
Lot coverage on Lot 29 shall not exceed 28 percent of the lot area, and lot coverage
on Lot 30 shall not exceed 31 percent of the lot area, as measured to Ordinary High
Water Mark.
The front yard setback, measured from the property line along Point White Drive
may be reduced to 0 feet.
The native vegetation zone shall be reduced to no less than 25 feet in width,
measured from the Ordinary High Water Mark.
The native vegetation zone shall be demarked by installation of a silt fence prior to
construction on each of the lots. The silt fence shall be inspected by the
Department prior to issuance of a building permit, and shall remain in place until
construction is complete.
The native vegetation zone shall be planted with native plants, A
restoratiordplaming plan shall be submitted and approved by the Department prior
to issuance ora building permit. The plantings shall be installed and inspected prior
to final inspection of the residence on each lot.
Within the native vegetation zone, normal nondestructive pruning and limbing of
native vegetation for maintenance and view shall be allowed provided it does not
threaten the health of the vegetation. Individual tree curing to remove a hazard
may be allowed by the Director, subject to approval of a report by an arborist or
other approved expert.
To mitigate potential off-site glare, lights shall be hooded and shielded so that the
light or glare does not extend beyond the property boundary in accordance with the
standards listed in BIMC Chapter 15.34.
The applicant 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
SVAR/VARI0041
Page 11 of 13
are uncovered during excavation or construction. This provision shall appear as a
note on construction drawings submitted as part of the building permit application.
11. Herbicides and pesticides shall not be allowed to directly enter water bodies or
wetlands unless approved for such use by the appropriate agencies (Washington
State Depa~'hnent of Agriculture or Washington State Department of Ecology, U. $.
Department of Agriculture, Environmental Protection Agency).
12. Prior to site disturbance, a set of Best Management Practices (BMP's) for erosion
and sediment control shall be submitted to and approved by the City of Bainbridge
Island City Engineer, to avoid degradation of water quality and shoreline bluff
stability during temporary construction activities and on-going maintenance of the
site.
13. No clearing, grading or construction shall occur outside of the dry season, April 1 to
October 1. Disturbed soils shall be mulched or seeded immediately. No disturbed
soils shall remain exposed for more than three days.
14. New or used creosote treated wood materials shall be prohibited on the site, to
prevent degradation of'water quality and habitat.
15. No over-water application of paira, preservative treatment or other chemical
compounds shall be permitted, to avoid degradation of water quality. Extreme care
shall be taken to prevent petroleum products, chemicals, or other toxic or
deleterious materials from entering the water and degrading water quality. Ifa spill
does occur, or if an oil sheen or distressed or dying fish are observed in the project
vicinity, work shall cease immediately and Washington Department of Ecology
shall be notified of such conditions. Contact: Northwest Regional Spill Response
Section at (206) 649-7000.
16. Equipment for the transportation, storage, handling, or application of such materials
shall be maintained in a safe and leak-proof condition. If there is evidence of
leakage, the further use of such equipment shall be suspended until the deficiency
has been satisfactorily corrected_
17. In order to prevent loss of significant archaeological resources, the following
measures shall be taken in the event phenomena of possible archaeological interest
are uncovered during placement of the staircase: all work will stop immediately
and notification shall be promptly given to the City and State Office of Archaeology
and Historic Preservation. In such a case, the applicant shall be required to provide
for a site inspection and evaluation by a professional archaeologist to ensure that all
possible valuable archaeological data is properly salvaged. The applicant shall
receive permission from the State Office of Archaeology and Historic Preservation
prior to further disturbance of the site (RCW 27.53.070 or its successor).
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