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,
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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.)
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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.
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(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.
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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...
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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.
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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
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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 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].
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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,
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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.
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