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CASCADE EVERGREEN DECISION OF THE HEARING EXAMINER CITY OF BAINBRIDGE ISLAND In the Matter of the Application of CASCADE EVERGREEN SSDP/SCUP12828 for a Shoreline Conditional Use Permit Associated with the Bean Point Short Plat Introduction The Applicant seeks a Shoreline Conditional Use Permit for a stormwater outfall within the shoreline Semi-Rural Environment. The Hearing Examiner held a public hearing on this matter on June 9, 2005. Parties represented at the hearing were the Director, Planning and Community Development Department, by Joshua Machen, Associate Planner, and the Applicant, Cascade Evergreen, a Washington Partnership, by Cornelius Ross. 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 1. The 1.74 acre, waterfront site (tax lot #152402-1-006-2001) is located west of the intersection ofN.E. South Beach Drive and Fort Ward Hill Road, south of the fish farm pier at the southernmost part of the Island. The subject site is approximately 446 ft. north-to-south, and has an east-west dimension (from the road to the shoreline) ranging from 95 ft. to 129 ft. (Under application SPT12828 the property has been subdivided into three single-family lots. See Findings 11 and 15.) (Exhibit 16; Exhibit 18; Staff Report, Exhibit 27, pages 1,4-5] 2. The site has a gentle slope to the west and a low bank of 10ft. or less. Currently undeveloped and vacant, the site is overgrown with weeds and shrubs; invasive plants, predominantly blackberry, make much of the site impassable. Remnants of a concrete wall and smoke stack on Lot B evidence a former use associated with Ft. Ward. A level, SCUPl2828 Page 1 of 10 graveled area in the northern part of the Lot A is currently used for parking by the fish farm operation. Upslope, off site stormwater crosses the subject property in two places: a northern culvert crosses the property in an old steel pipe and the southern culvert ends at the edge of the road right-of-way and stormwater sheet flows over Lot C. (Exhibit 16, page 1; Exhibit 21; Exhibit 27, Staff Report, pages 4-5; Testimony of Machen; Testimony of Ross] 3. The zoning is R-2, residential, two units per acre, the Comprehensive Plan designation is OSR-2, Open Space Residential, two units per acre, and the shoreline environment is Semi-Rural. [Staff Report, page 2, Exhibit 27] 4. Other properties in the vicinity are generally residential and have the same zoning (R-2), Comprehensive Plan designation (OSP-2), and shoreline environment (Semi- Rural) as the subject property. The fish farm adjacent to the north is a commercial aquaculture operation. [Staff Report, page 2, Exhibit 27] Proposal 5. A revised shoreline permit application addressing the SCUP criteria was submitted on March 16, 2005 (Exhibit 18]. Two drainage courses are proposed to accommodate and control off-site stormwater that flows from Ft. Ward east of Fort Ward Hill Road. The conditions and capacities of the current drainage facilities are inadequate [see Finding 2]. The proposed drainage courses are intended to provide proper management of stormwater for neighboring properties and to eliminate the sheet flow situation so that subject property can be developed. (Exhibit 30; Testimony of Machen; Testimony of Ross] 6. The plans considered at hearing [Exhibit 30] show the two "open" drainage courses: one crossing Lot A, about 40 ft. south of that lot's northern boundary, and the other crossing Lot C, approximately 40 ft. south of that lot's shared boundary with Lot B. The runoff from the east would be conveyed from existing catch basins to new storm drains at the west side of the right-of-way, where 12-18 in. diameter pipes would convey the stormwater approximately 20 ft. to the proposed drainage courses. 7. The drainage courses are being proposed in lieu of enclosed culverts/pipes with "T -spreader" discharge points [see Exhibit 24]. The proposed "open system" would be built to resemble natural drainage courses, with randomly placed rocks sized to "check" the flow and appropriate native vegetation planted on the banks. The gently meandering drainage courses, about 60 ft. in length, would have an average depth of 2 ft. and level rocks to provide a "spreader" function at the discharge points. [Exhibit 30; Testimony of Machen] The proposed open systems would be more aesthetically pleasing and, planted with native vegetation, would be better suited for the location within the native vegetation zone of Lots A and C, than would the typical culvert/pipe and "T-spreader" system. (The drainage courses would be within the Native Vegetation Zone and should receive the same protections and building setbacks from the top of the banks.) SCUPl2828 Page 2 of 10 8. The applicant and the City have agreed that when constructing the proposed drainage system, the applicant will replace the existing, inadequate culverts under South Beach Road and that the City shall reimburse the applicant for the cost of that work. [Exhibit 29; Testimony of Machen; Testimony of Ross] This is appropriate as the facilities are a City responsibility for the conveyance of stormwater which originates off site. 9. Proper easements for the City's ongoing maintenance of the drainage courses across Lots A and C would be required. The Site Plan for the Short Plat application [Sheet 1, Exhibit 21] indicates two, 20-ft. wide easements, one for each drainage course. Both easements need to be redrawn to be consistent with the locations and routes proposed (e.g., the gently "meandering" drainage courses may not fit within the easements depicted in Exhibit 21 and the easement shown on Lot C is at the southernmost part of the lot and the drainage course is proposed in the northern part of the lot). 10. Future residences on Lot A and C would have to include roof and driveway drains connected to the nearest stormwater system and Lot B would have to have a separate roof and driveway drain system with rip rap at the outlet to prevent erosion. (Exhibit 30] Director's Review and Recommendation 11. On November 22, 2004, Cascade Evergreen made application for a 3-lot Short Plat (STPI2828) and a Shoreline Substantial Development Permit (SSDPI2828). The Director subsequently determined that a Shoreline Conditional Use Permit is required and a revised application was submitted March 16, 2005. (Exhibit 3; Exhibit 8; Exhibit 18] Notice of the application and the SEP A comment period was given on December 15, 2005 (Exhibits 12-14]. 12. The Department requested review of the application by various City departments and other agencies. The City's Fire Marshall commented on the application noting that a new fire hydrant would be required about equal distance between the two existing hydrants (Exhibit 10]. 13. The Washington State Department ofFish and Wildlife (WDFW) commented that new or modified stormwater outfalls of the size proposed may require a Hydraulic Project Approval (HP A) and requested that once construction drawings were prepared that a Joint Aquatic Resources Permit Application be submitted with detailed construction plans. (Exhibit 15] The Director's Recommended Condition 14 would require that an HP A be obtained from the WDFW prior to construction activities on the outfalls. 14. The Washington State Department of Archaeology and Historic Preservation (OAHP) noted that the subject site is within the Fort Ward National Historic District and that, as a waterfront parcel, it is "solidly" within the area considered to have a "moderate" probability to contain resources of historical and/or archaeological artifacts. The OAHP requested a professional archeological survey and consultation with the Suquamish tribe. SCUPl2828 Page 3 of 10 (Exhibit 11] The Director's Recommended Condition 9 would require a survey and, if any artifacts are uncovered during excavation or construction, an immediate stop work and notification to OAHP. 15. Notice of the Director's conditional approval the 3-10t Short Plat was given on May 16, 2005. At that same time, notice of the Director's and SEPA threshold determination (i.e., a Mitigated Determination of Significance - MDNS) was also given. (Exhibit 25] Neither administrative decision has been appealed. The matter before the Hearing Examiner is only the shoreline conditional use for the proposed drainage facilities within the shoreline; the Director's administrative decisions (short plat approval and MDNS) became final when not appealed. 16. The Director concluded that, as conditioned, the proposal would be consistent with the applicable provisions of the Shoreline Master Program (BIMC 16.12.050, 16.12.060, 16.12.090). (Exhibit 27, Staff Report, pages 6-8; Testimony of Machen] 17. The Director recommends that the SCUP application be approved with numerous conditions. [Recommended Conditions 1-16, Exhibit 27, pages 2-3; Testimony of Machen] Public Hearing 18. The public hearing on the application was properly noticed with posting, mailing, and publication completed on May 21,2005 (Exhibit 26]. 19. One neighbor spoke at the public hearing [Testimony of Galvani; Exhibit 31], providing information about site conditions and opposing the proposal. Citing the use of the subject property by an "amazing array" of birds and other wildlife (including a family of river otter), this person spoke against changing the drainage situation and against removing the existing vegetation. Eagles using perch trees in the vicinity was also mentioned. 20. PCD staff clarified that an Eagle Management Plan is not required because there are no identified nest trees within the prescribed radius. Also staff eXplained that after development, the designated native vegetation zone would be required to be planted in accord with native shoreline vegetation. [Recommended Conditions 3-5, Exhibit 27, page 2; Testimony of Machen] Bainbridge Municipal Code 21. The Shoreline Master Program (SMP), BIMC Chap. 16.12, regulates development in the shoreline. The Director has determined [Staff Report, Exhibit 27, page 6] that the subject application should be reviewed as a shoreline conditional use pursuant to BIMC 16. 12.380.C.2. SCUPI2828 Page 4 of 10 22. BIMC 16.12.380'C.l, provides that a conditional use may be authorized if: a. The proposed use will be consistent with the policies of RCW 90.58.020 or its successor and the policies of the master program. b. The proposed use will not interfere with the normal public use of the public shorelines. c. The proposed use of the site and design of the project will be compatible with other permitted uses within the area. d The proposed use will cause no unreasonably adverse effects to the shoreline environment designation in which it is located e. The public interest suffers no substantial detrimental effect. f The proposed use is consistent with the provisions of the zoning ordinance... and the comprehensive plan... 23. Regarding uses which are not listed in the master program as permitted, conditional, or prohibited, BIMC 16. 12.380.C.2 provides that, in addition to meeting the criteria ofBIMC 16.12.380.C.l, they also demonstrate that: ...extraordinary circumstances preclude reasonable economic use of the property in a manner consistent with the policies of RCW 90.58.020, or its successor, [and] that the proposed use would not produce significant adverse effects on the shoreline environment. 24. BIMC 16.12.090.C requires that a native vegetation zone be maintained immediately landward of the ordinary high water mark (OHWM). The standards for the native vegetation zone [Table 4.2, BIMC 16.12.150] provide that 50 ft. from the OHWM be maintained in native vegetation. New plantings in this zone must be native plant species, or other approved species. 25. The SMP includes protections for archaeological or historic resources and, at BIMC 16.12.050.B requires that: ''All shoreline permits shall contain provisions which require developers to immediately stop work and notify the city if any phenomena of possible archaeological interest are uncovered during excavation". BIMC 16.12.050.B also requires that: "Permits issued in areas known to contain archaeological artifacts and data shall include a requirement that the developer provide for a site inspection and evaluation by an archaeologist..." The Director's Recommended Condition 9 and 8 implement these requirements. 26. BIMC 16.12.350.l.a vests the Hearing Examiner with the authority to: Approve, 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... SCUPI2828 Page 5 of 10 27. As required by BIMC 16.12.380.C.l, the application, the applicant's presentation at hearing, and the information and analysis provided by the Director, demonstrates as follows: Consistent with the SMP: By redirecting off-site stormwater, the proposal would better manage stormwater drainage across the site and would facilitate development of the site in permitted residential use. As summarized below, the proposal, as conditioned, would be consistent with the policies of the Shoreline Management Act and with the City's Shoreline Master Program. Not Interfere with Normal Public Use: The open system drainage courses would be upland of the ordinary high water mark so as not to physically obstruct normal public use of the shoreline. Compatible with Permitted Uses: The primary use permitted in the area is residential and the proposal would facilitate single-family residential development consistent with that use. (Some residents complain about the nearby fish farm, particularly regarding noise, but residential use is not necessarily incompatible with that operation.) No Unreasonably Adverse Effects: The open system drainage courses are not likely to have adverse effects. Conditions requiring a natural design and planting with native vegetation should ensure against unreasonably adverse aesthetic impact. No Substantial Detriment to Public Interest: Coveyance of stormwater in a safe and practical manner is in the public interest. Requiring appropriate easements for maintenance should ensure continued, satisfactory functioning of these facilities. Consistency with Zoning and Comprehensive Plan: The safe and practical handling of stormwater and the development of residences at this location is consitent with the residential use permitted in the zone and with the residential use anticipated by the Comprehensive Plan. 28. The conditions ofBIMC 16. 12.380.C.2 are also met. The facilities for conveying off site stormwater across the subject property are not adequate and at least one of the three lots could not be developed without addressing drainage. Development of the three lots is a reasonable economic use that would be precluded without a more efficient means to convey stormwater across the property. The proposal would have no significant adverse effects on the shoreline environment as the open system would provide an environmentally sound and aesthetically pleasing means of conveying drainage across the site. The removal of invasive, non-native plants and establishing native shoreline vegetation along and within the drainage courses would have a positive effect on the local environment. SCUP12828 Page 6 of 10 Conclusions 1. The Hearing Examiner has jurisdiction to hear and decide this matter and is required to give substantial weight to the Director's recommendation for approval with conditions. 2. Appropriate notice of the application was made and comments were considered. 3. Proper easements are required and City responsibility for on-going maintenance must be clear. The 20-ft. wide easements depicted on the short plat Site Plan [Exhibit 21] must be changed and relocated so as to be consistent with the locations and routes of the open system drainage courses. The title documents need to be amended as appropriate to reflect the revised easements that accommodate the drainage courses. 4. The requested SCUP is justified for the proposed drainage courses. As conditioned, the proposal is consistent with the applicable provisions of the Shoreline Master Program for granting a Shoreline Conditional Use Permit and the application should be approved with conditions. The conditions recommended by the Director should be included, with modifications to respond to information that became available in this record. 5. The subject property, cleared and graded and with houses constructed, would bear little resemblance to the way it looks and functions today. It would no longer accommodate the number and types of wildlife species testified about at hearing. Residential use is, however, a use consistent with the zoning, Comprehensive Plan and Shoreline designations. Also, by establishing and maintaining the native vegetation zone between the residences and the shoreline, with the two "natural" drainage courses, a more authentic (albeit limited) shoreline habitat would be available for birds and other wildlife. Decision The application of Cascade Evergreen for a Shoreline Conditional Use Permit IS APPROVED WITH CONDITIONS that comprise Appendix A on pages 9 and 10. Entered this _ day of July 2005. L eredith A. Getches City of Bainbridge Island Hearing Examiner pro tern SCUPl2828 Page 7 of 10 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 hislher rights and responsibilities relative to appeal. The decision of the Hearing Examiner is the final decision the City in this matter. Appeal of this decision is to the Washington State Shorelines Hearings Board 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 16.12.370]. SCUP12828 Page 8 of 10 APPENDIX A SCUP12828 CONDITIONS OF APPROVAL 1. The following note shall be on the final plat: "Prior to any clearing or grading on individual lots, a clearing, grading, or building permit shall be obtained from the City." 2. To avoid degradation of surface water quality a proper temporary erosion and sedimentation control plan (TESCP) shall be required. Prior to issuance of a building permit for any construction within this short plat, a TESCP must receive the approval of the City Engineer. Prior to undertaking any construction occurring between October 1 and April 31, a TESCP specifically addressing wet weather conditions must receive the approval of the City Engineer. 3. The Native Vegetation Zone may be averaged up to 25-percent, provided that, the overall area must average a minimum of 50 feet from the ordinary high water mark and no area shall be less than 37'i'1 feet. The Native Vegetation Zone must be in substantial compliance with the Landscape Plan date stamped March 16, 2005 (Exhibit 20), except that the open system drainage courses [see Condition 13] that cross through Lot A and Lot C must both be shown as included within the Native Vegetation Zone. 4. The Native Vegetation Zone shall be planted with native shoreline vegetation such as, Salal, Salmon berry, Evergreen Huckleberry, Oregongrape, Nootka Rose, Pacific Wax Myrtle, etc., in the next planting season following the construction of each residence. (plantings shall be no more than 5 feet on center if one gallon size is used or 3 feet on center if smaller plants are used.) Non-native and invasive vegetation may be removed from the Native Vegetation Zone in accordance with the Landscaping Plan submitted with the application (Exhibit 20). A maintenance assurance device shall be provided for plant restoration and shall be held by the City for three years. 5. All cleared areas that do not have structures on them shall be replanted in the next planting season following the clearing. 6. Consistent with the City of Bainbridge Island Shoreline Master Program and the comments from the Washington Department of Fish and Wildlife, no bulkheads or structural shoreline armoring shall be allowed on the lots within this plat. Non- structural beach nourishment, maintenance of drift logs and shoreline stabilization using plants is permitted. Beach nourishment will require a shoreline permit or exemption. 7. In order to mitigate any noise impacts, all construction activities must comply with BIMC 16.16.025, Limitation of Construction Activities. 8. Prior to any earth disturbing activities and final plat submittal, the applicant shall obtain a professional archeological survey. The survey shall be distributed to the City, SCUPl2828 Page 9 of 10 the State Office of Archaeology and Historic Preservation and the Suquamish Tribe. 9. Contractor is required to stop work and immediately notify the Department of Planning and Community Development and the Washington State Office of Archaeology and Historic Preservation if any historical or archaeological artifacts are uncovered during excavation or construction. 10. School impact fees shall be paid in accordance with the following provisions. For each of the created lots, prior to final plat approval the applicant shall pay one half of the school impact fee in effect at the time of final plat approval. Subsequent to plat recordation and prior to building permit issuance, an applicant constructing a residence on any of the created lots shall pay one half of the school impact fee in effect at the time of building permit issuance. 11. Prior to the issuance of a grading permit or plat utility permit, final construction drawings and details shall be provided to the City's Public Works Department for review and approval. The Native Vegetation Zone, in substantial compliance with that depicted in the Landscape Plan date stamped March 16, 2005 (Exhibit 20) as modified by Condition 3, must be depicted in the construction drawings. 12. The capacity of the stormwater conveyance system shall be sized to adequately handle the water from a 100 year flood, based on the basin the conveyance is serving. 13. The plans submitted for the building permit for the open system drainage courses (including rock "checks", rock spreaders, native vegetation, etc.) must: be in substantial compliance with the "Comprehensive Utility Plan" date stamped June 9,2005 (Exhibit 30); be consistent with Condition 12; receive approval from the City Engineer; and, obtain a Hydraulic Project Approval, should one be required. No structures shall be allowed within ten feet of the top of the banks of the drainage courses and this area is to be planted and maintained in native vegetation consistent with the requirements of the Native Vegetation Zone. 14. A Hydraulic Project Approval (HPA) must be obtained from the Washington Department of Fish and Wildlife (WDFW) unless determined not to be necessary by WDFW. All conditions of an HP A shall become conditions of approval. 15. Construction on the stormwater drainage systems/conveyances shall be done in the dry season only. These drainage systems must be constructed, including removal of non-native invasive plants and replanting with native vegetation, in substantial compliance with the "Comprehensive Utility Plan" date stamped June 9, 2005 (Exhibit 30). No work on the stormwater drainage systems/conveyances shall occur between October 1 st to April 1 st of any year. 16. Prior to grading or utility permit issuance, appropriate access and maintenance easements for the open system drainage courses (as size and locations are approved by the City) shall be granted to the City and recorded. SCUPl2828 Page 10 of 10