CHRISTENSEN SPT 13104
INSLEE. BEST, DOEZIE & RYDER, P.S.
ATTORNEYS AT LAW
Jerome D. Carpenter
Anthony T. Caso
Don E. Dascenzo
Michael Doezie
Eric C. Frimodt
Henry R. Hanssen, Jr.
Anneliese E. Johnson
Rod P Kaseguma
Kenneth M. Kilbreath
Rosemary A. Larson
David J. Lawyer
William J. Lindberg, Jr
William A Linton
Symetra Financial Center, SUITe 1900
777 -108th Avenue N.E.
PO. Box C-90016
Bellevue, Washington 98009-9016
(425) 455-1234
Fax: (425) 635-7720
www.insleebest.com
riarson@insleebest.com
Dan S. Lossing'
John W. Miller
John W Milne
Brian R. Paige.
Kent D. Rasmussen
Dawn F. Reitan
John F. Rodda"
Michael P. Ruark
Milan Gail Ryder
Adam G. Snyder
John F. Sullivan'
Andrew L. Symons
Katherine F. Weber
Brett N. Wiese
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Call Direct Dial:
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December 23, 2005
tte:/~
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Ms. Meredith Getches, Hearing Examiner
c/o Ms. Diane Sawyer, Clerk
City of Bainbridge Island
280 Madison Ave. N.
Bainbridge Island, W A 98110
Re: Appeals of City's Decision on the Christensen Short Plat, File No. SPT
13104 - Order Reopening Record
Dear Hearing Examiner Getches:
The City received the Order Reopening Record entered December 19, 2005, with
Exhibits 134, 135, and 136 attached. The Order states that the record in this matter is
being held open until December 27, 2005 to receive comment on or objection to these
exhibits.
The City has no objection to the admission of these documents as exhibits, and
believes that they should be included in the record for this matter. The documents are
listed as attachments to the City's Staff Report and were considered by the City in issuing
the decision on the Christensen short plat application. The documents are relevant to the
issues at hand. It appears to have been administrative oversight that they were not
attached to the Staff Report or otherwise placed in the City file transferred to the
Examiner in this matter.
331973.01109470010256
December 23,2005
Page 2
Thank you for your consideration of these comments.
Very truly yours,
I I~~EE. ' BEST, DOEZIE & RYDER, P.S.
lJ6IJ-J/Wt:-J / l(}/~
Rosemary A. 4brson
cc: Diane Sawyer
Dennis Reynolds
Rebecca Robbins
Larry Frazier
Bob Katai
331967.01109470010229
DECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeals of the
CHRISTENSEN SHORT PLAT
SPT13104
by the Applicant and by the Kallgren Road
Preservation Society; Objecting to Conditions
of the Director's Approval of the Short Plat
Introduction
The Director granted conditional approval for the Applicant to divide an 18 acre parcel
into four lots. The Applicant appealed conditions of that decision, as did a group of
neighbors (referring to themselves as the "Kallgren Road Preservation Society"). The
Hearing Examiner conducted the hearing on this matter beginning on November 3, 2005
and concluding on November 15, 2005. Parties were represented at the hearing as
follows: Director, Planning and Community Development Department (pCD or
Department), by Rosemary Larson, Attorney for the City of Bainbridge Island;
Applicant/Appellant Deni Christensen, by Dennis Reynolds, attorney at law; and,
Appellant Kallgren Road Preservation Society by Rebecca Robins, Susan Phillips
McGee, Jamie Acker, and Jim Wiggins pro se. The record was reopened on December
19, 2005 to allow parties an opportunity to object and/or comment on several documents
[Exhibits 139, 140, and 141] that had been referred to, but had not been entered into the
record. After comment by the parties, Exhibits 139 and 140 were admitted into the
record; Exhibit 141 was denied. The record was closed on December 28, 2005.
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
Site and Vicinity
1. The subject site (tax lot #112706-2-010-2006) is 18.23 acres (794,099 sq. ft.) in
size and is located southeast of the intersection of Madison Avenue and Day Road in the
Rolling Bay neighborhood, several miles north of Winslow. The property is rectangular
in shape, with Day Road forming the northern boundary, Madison Avenue the western
boundary, and the unopened right-of-way of Kallgren Road on the east. Residential
SPT13104
Page 1 of31
property borders the southern property line. [Exhibit 74; Staff Report, Exhibit 114, pages
1-2; Exhibit 121A; Testimony of Katai]
2. The legal description of the property [Exhibit 5, "A"] follows. The "exceptions"
represent right-of-way dedications (made in 1955) to Kitsap County.
THE NORTH HALF OF THE NORTHWEST QUARTER OF THE
NORTHWEST QUARTER OF SECTIONll, TOWNSHIP 25 NORTH, RANGE
2 EAST, W.M.,
EXCEPT THE WEST 30 FEET THEREOF FOR MADISON ROAD;
EXCEPT THE NORTH 30 FEET THEREOF FOR DAY ROAD;
AND EXCEPT THE EAST 30 FEET THEREOF FOR KALLGREN ROAD;
SITUATE IN THE CITY OF BAINBRIDGE ISLAND, COUNTY OF KITSAP,
STATE OF WASHINGTON.
3. The western quarter of the site is developed with a residence, a mobile home, and
several outbuildings. There are two driveways providing access to Madison Avenue; one
to the residence and one to the mobile home. (The status of the mobile home is unclear
and its future on proposed Lot D was not addressed.) An old orchard and mowed areas
dominated by grasses, surround the buildings. The site, most of it undeveloped and
forested, has elevations ranging from 305 ft. near the center of the parcel, to 320 ft. in the
northwest and to 315 ft. in the northeast. [Exhibit 2B, page 2 and Exhibit 74; see also
Finding 86] The upland vegetation is dominated by large stands of tall Douglas fir, red
alder, and western red cedar, with traces of western hemlock and big leaf maples. The
understory is dominated by a thick growth of salal and salmonberry, with patches of
Indian plum, Oregon grape, ocean spray, and evergreen huckleberry. The forest floor has
a herbaceous layer comprised of sword fern, bracken fern, and trailing blackberry.
[Exhibit 4, pages 1-4]
4. A 2.55-acre Category II wetland in the center of the site comprises approximately
14% of the total property [Staff Report, Exhibit 114, pages 1 & 3] and has been identified
as a critical and delineated in a Wetland Analysis Report [Exhibit 4]. This Report notes
that the wetland "appears to be confined to the basin and is the main water storage area
for this basin" and is "a depressional emergent scrub shrub community that is semi-
permanently flooded... comprised of a mosaic of pacific willow, Sitka willow and Spiraea
rooted in deep standing water with slough sedge dominating the more shallow areas
around the margins." [Exhibit 4; page 8]
5. The zoning is R-O.4 (residential, one unit per 2.5 acres) and the Comprehensive
Plan designation is OSR-O.4 (Open Space Residential). [Staff Report, Exhibit 114, page
1 and 4; Testimony ofKatai]
6. The R-O.4 zone is the residential zone with the City's largest minimum lot size:
2.5 acres (100,000 sq. ft.) per unit.
SPT13104
Page 2 of 31
7. BIMC 18.36.010 gives the purpose of this zone as follows.
The purpose of the R-O.4 zone is to provide low density housing in a rural
environment consistent with other land uses, such as agriculture and forestry,
and the preservation of natural systems and open space. The low density of
housing does not require the full range of urban services and facilities.
8. Development in the vicinity consists of single-family residences developed on
large lots. Several single-family homes have access to Kallgren Road from a 15-ft. wide,
unpaved easement road that parallels the southern boundary of the subject property for
about 500 ft. west from Kallgren Road. Directly to the east (across from Proposed Lots B
and C) are two relatively new homes, part of "Keating's Old 4-Lot Short Plat" [see
Finding 11]. These two homes take access via a 12-ft. wide gravel driveway built in the
eastern portion of the 60-ft. wide Kallgren Road right-of-way. Wilkes Elementary
School is to the west, across Madison Avenue at the southwest corner of the Madison
Avenue/Day Road intersection. R-O.4 zoning predominates to the north and south in the
immediate vicinity; there is R-l zoning (1 acre minimum lot size) further to the east and
west. [Exhibit 74; Staff Report, Exhibit 114, page 4; Exhibit 134]
9. The Comprehensive Plan designations are the same as the zoning designations. In
aerial photographs [Exhibits 135 and 136], the subject site appears as one of a few
remaining large, forested tracts in the vicinity north of Roberts Road and east of Madison
Avenue [also see parcel map included in title report, Exhibit 5]. Areas cleared for
residential development and agricultural uses are also noticeable.
10. Kallgren Road is paved from Winthers Road north to the southern boundary of
the subject property, where the road dead ends (a dirt trail continues, providing pedestrian
access to Day Road). The distance from Winthers Road to the subject property is
approximately 2,000 ft. More than twenty lots take access from Kallgren Road (no
verified count of lots served was submitted at hearing; witnesses gave estimates ranging
from 24 to 30). [Testimony of Wiggins; Testimony of Mustain] The right-of-way is 60
ft. wide where it abuts the subject property, but further south it appears to be narrower in
a couple places and offset in a couple places. The pavement is generally quite narrow
(estimates of width ranged from 10-13 ft. at the narrowest, to 18 ft. at the widest). Except
for that part of the road immediately to the south which was widened and paved a few
months ago by the Keating short plat, the roadway surface is rough in many places with
patches, potholes and irregular edges. [Exhibit 5; Exhibit 50; Exhibit 78; Exhibit 136;
Testimony of Wiggins]
11. The current condition of Kallgren Road is not reflected in the plan submittals.
There is now a 12 ft. wide gravel driveway (constructed for access to 12612 and 12624
Kallgren Road), directly across from proposed Lots Band C. This driveway is part of
what is labeled "Keating's Old 4-Lot Short Plat" in the aerial photo [Exhibit 135]. The
clearing that was done in conjunction with construction the new residences at 12612 and
12624 Kallgren Road can be seen in Exhibit 135, but the access driveway cannot. The
SPT13104
Page 3 of 31
roadside clearing this past summer that removed mature trees and hedges along Kallgren
Road in front of "Keating's New 3-Lot SPT" [see Exhibit 135] occurred too recently to
be depicted in the photo. Reportedly, Keating was required to widen (18 ft.) and pave
Kallgren Road to the southern end of the subject short plat. [Exhibit 102; Exhibit 103;
Exhibit 127; [Testimony of Robins; Testimony of Wiggins; Testimony of Acker]
12. An access road on the north/south boundary between Keating's "new" and "old"
short plats has been constructed on a 20-ft. wide easement extending east from Kallgren
Road to the interior lots of those short plats. [See easement location on parcel map in
Exhibit 5.] The area cleared for road construction was still forested when the aerial photo
[Exhibit 135] was taken.
13. From where Kallgren Road deadends at the southeastern corner of the subject
property, a dirt trail winds through the wooded right-of-way to Day Road. This trail is
much used and much beloved by residents who live along Kallgren Road and neighbors
further away. It provides a unique "walk in the woods", connecting the end of the paved
portion of Kallgren Road, with Day Road. [See public comment letters; Testimony of
Wiggins; Testimony of Robins]
Proposal
14. The Applicant testified that the subject property has been owned by her family for
several generations (since 1910). She proposes to create three new large lots (Lots A, B,
and C) as a way of preserving the property in keeping with that history. She understands
that houses would be developed on the new lots, but believes the subject short plat is
preferable to selling to a developer who would create lots inconsistent with the
neighborhood. [Testimony of Christensen]
15. The application seeks the subdivision of the subject property into four lots: Lots
A, Band C, each 2.3 acres in size on the eastern portion of the site adjoining Kallgren
Road and Lot D, 11.32 acres in size, which includes the existing residence and comprises
the western 60% of the site. [Exhibit 74] Development is not proposed by this applicant;
Lots A, B, and C would be sold for individual residential development, and Lot D would
be held for the requisite five years before making application to subdivide it into three
lots. [Exhibit 6, page 1-2; Exhibit 115; Exhibit 41, Staff Report, pages 1, 8-9; Testimony
ofKatai; Testimony of Christensen]
16. The proposed lots are allowed to be less than the 2.5 acre minimum because the
flexible lot standards of BIMC 1712.090 apply (including minimum lot size) rather than
the R-O.4 zone standards.
17. The Environmental Checklist [Exhibit 6, A6] prepared by the Applicant, describes
the proposal as follows:
The 18.33 acre parcel will be divided into four lots, three of which will be
sized at approximately 100,000 square feet and sold for residential
SPT13104
Page 4 of 31
building sites. The fourth lot will be held for the required five years and
then short platted again. The goal of the applicant's proposal is to enable
development of each lot as above described while providing for protection
of the wetland on site in conformity with municipal environmental
regulations.
18. A Wetland Analysis Report [Exhibit 4; see Finding 4], was included in the
application submittal. Consistent with BIMC 16.20.090.H, the wetland near the center of
the site would be protected with a 100 ft. wide wetland buffer and a 15 ft. wide building
setback beyond the wetland buffer [see Page 2 of 3, Exhibit 2B]. As depicted in Exhibit
2B, Lots A, B, and C would not contain any wetland, but the western part of each lot
would include some wetland buffer and the 15 ft. wide building setback.
19. The wetland, wetland buffer, and building setback are correctly shown on Exhibit
2B. However, as critical areas do not "count" in calculating the required "open space"
[see Finding 49], they are improperly labeled on Exhibit 2B. (This confusion may have
arisen because the on-going preservation and maintenance of wetlands is to be addressed
in an "Open Space Management Plan" [see BIMC 16.20.090.D] even though critical
areas are not included toward the fulfillment of the minimum standards for required open
space. )
20. The application includes an "Open Space Management Plan" [Exhibit 2C] for the
wetland as well as for the landscape buffers designated along the several rights-of-way
(as noted on the face of the plat: Sheet 2 of3, Exhibit 2B).
21. The two existing driveways would remain to provide Lot D access from Madison
A venue. Access for Lots A, B, and C has been subject to considerable discussion and
debate. The plans filed with the application on May 9th [Exhibit 2A], show Lots A, Band
C each with a driveway to the Kallgren Road right-of-way (labeled "unimproved"),
connected to Day Road on the north and extending to a "T" -shaped turnaround just south
of the northern property line of Lot C. The plans were revised in a June 6th submittal
[Exhibit 26] showing Lots Band C with driveways connecting to the Kallgren Road
right-of-way (still labeled "unimproved"), and Kallgren Road extending to the north and
terminating in a "T" -shaped turnaround just north of the southern property line of Lot B.
Lot A is shown with a driveway to Day Road. [Testimony of Mac Learns berry]
22. Water would be supplied by Kitsap County Utility District [Application, Exhibit
10]. The application was revised in a July 5, 2005 submittal [Exhibit 74] to document
that the existing well on proposed Lot D would remain and continue to serve that lot.
23. Individual on-site waste disposal (sewage) systems are proposed for Lots A, B,
and C; there is an existing system serving the residence on Lot D. Individual lot
stormwater infiltration systems are also proposed. Specific designs for these systems
would be required at the time of building application submittal. [Application, Exhibit 10,
page 7; Exhibit 2A]
SPT13104
Page 5 of 31
24. Maximum lot coverage allowed is 10% (i.e., 10,000 sq. ft. for Lots A, B, and C;
and 49,300 sq. ft. for Lot D). The site plan submitted with the application [Exhibit 2B,
Page 2 of 3] shows a 25 ft. setback from Kallgren Road. The application [Exhibit 10,
pages 9-11] shows setbacks and lot dimensions as follows:
Proposed
50 ft.
25 ft.
50 ft.
25 ft.
15 ft.
209 ft.
100,209 sq. ft.
25 ft.
Building to building separation
Building to subdivision boundary
Building to right-of-way: Day and Madison
Building to right-of-way: Kallgren
Building to trail or open space
Minimum lot width
Minimum lot size (with on-site septic)
Landscape perimeter buffer width
Director's Decision
Minimum
Required
10 ft.
25 ft.
50 ft.
15 ft.
10 ft.
50 ft.
12,500 sq. ft.
25 ft.
25. BIMC 2.16.025.A provides that consideration of applications for the short
subdivision of property (i. e., division into four or fewer lots) are administrative land use
decisions to be made by the Director and processed in accord with BIMC 2.16.095.
26. The subject application was received on May 9, 2005 [Application, Exhibit 10].
Page 1 of the site plan was revised twice [see Exhibit 26 and Exhibit 74]. Exhibit 74
shows the final configuration of lots, wetland areas and perimeter setbacks.
27. On May 25, 2005, the Director gave notice of the application and the SEPA
comment period [Exhibit 24].
Public Comment
28. Many comments were received during the comment period [see Exhibits 17-19,
20-22, 27, 30-100, 103-113]. The PCD Staff Report includes a list of the public
comments received and summarizes the subject matters of the comments [Exhibit 114,
Attachment E, pages 1-4]. The comments submitted by the public are nearly
unanimously opposed to the Director's conditions that would require that Kallgren Road
be connected through to Day Road.
29. Neighbors report that traffic on the "deadend" section of Kallgren Road is so light
that it allows for significant and regular pedestrian and bicycle use and other recreational
activities. The narrow deadend road is the quintessential "country lane"; a pleasant and
safe place for children's play, pets, bike riding, dog-walking, jogging and the place where
locals "meet and greet". Some neighbors would like Kallgren Road to be made more
pedestrian-friendly and advocate that "traffic calming" features (speed bumps, etc.) be
added and the speed limit lowered to accomplish that. [See e.g., Exhibits 50, 55, 63-67,
78, 83, 95; Testimony of Wiggins; Testimony of Robins]
SPT13104
Page 6 of 31
30. The trail through the Kallgren Road right-of-way beyond the deadend provides
"non-motorized" access to Day Road.
Agency Review
31. As a part of its standard application review procedure, PCD asked a variety of
City and other agencies to review and comment on this short plat proposal [Exhibit 9].
32. Clearing (e.g., removing trees and other vegetation to make way for driveways,
and home sites) would occur in the future as a part of residential construction. While the
Applicant will not be "harvesting" timber [Application, Exhibit 104], the Forest Practices
Coordinator for the State Department of Natural Resources has noted that any removal of
5,000 board feet or more of timber requires a Forest Practices Application [Exhibit 19].
33. The Kitsap County Utility District No. 1 can provide water service for all the
proposed lots and will honor the commitment to do so when binding Water Availability
Letters have been purchased and issued [Exhibit 8]. Although the water district can
provide water to all proposed lots, the Applicant intends to continue to use the existing
water well on proposed Lot D to serve that lot [Exhibit 10 1; Exhibit 74, Note (1); see also
Finding 22].
34. On-site waste disposal is proposed, with continued use of the existing on site
system on Lot D. The Kitsap County Health District did a preliminary review of the
subject application in June 2005 [Exhibit 99]. At that time, the Health District found no
problem with the undeveloped lots. There was concern about the existing well and on-
site septic system; possibly misinterpreting these for new facilities being proposed. The
Applicant subsequently advised [Exhibit 101] that the well was being retained and
revised the site plan [Exhibit 74] to make that clear. As final plat approval is dependent
upon receiving Health District approval, the conditions of preliminary short plat approval
should include obtaining the binding Water Availability Letters and approval of on-site
sewage systems approved for Lots A, B, and C.
35. The Fire Marshall reviewed the application and made recommendations to the
Director [Exhibits 98 and 113; Testimony of Davis] requiring a new fire hydrant at the
end of Proposed Lot C and requiring that Kallgren Road be constructed to connect with
Day Road. See discussion of Condition 5 below.
36. The City Engineer reviewed the application and recommended to the Director that
several conditions be included with approval of the short plat [Exhibit 140; Testimony of
Mustain). The conditions included: dedication of "two 50 foot radii for right-of-way";
constructing the extension of Kallgren Road in accordance with City standards (and
allowing for possible change in those standards); disallowing any driveway access to Day
Road; requiring that final site plans meet City standards; submitting on-site storm water
plans/designs at time of building permit application; and, requiring the Applicant to hold
a public meeting regarding required road improvements. See discussion of Condition 6
below.
SPT13104
Page 7 of 31
Conditional Approval
37. BIMC 17.12.106 provides that the Director "may approve, approve with
modification or disapprove an application for preliminary short subdivision based on the
criteria in B1MC 17.12.107."
38. On August 3, 2005, the Director gave notice of administrative decision for
conditional approval of the short plat and a SEP A Determination of Nonsignificance
(DNS) [Exhibit 115].
39. The Staff Report indicates the "largest environment impact" associated with the
short plat would be requiring the extension of Kallgren Road [Condition 2b]. However,
no information or impact analysis is provided as to the number and size of significant
trees to be removed and other natural resources potentially destroyed or damaged in order
to satisfy this condition of approval expressly intended to "prevent unnecessary circuitous
travel..." It is noted [Staff Report, Exhibit 114, pages 7 and 1 0] that "The character of
the existing Kallgren right-of-way likely will be altered irrevocably..." No mitigation
measures are required for environmental impacts associated with road construction and
use.
40. The Director's seven conditions of approval were included with the notice of
decision [Exhibit 42, Staff Report, pages 1-3]. Some of the conditions have several
subsections which complicates their description and analyses.
Appeals
41. The administrative decision procedures of BIMC 2.16.095.H provide that: "The
decision of the Department director may be appealed to the hearing examiner in accord
with the procedures of BIMC 2.16.130."
42. BIMC 2.16.130.F.l authorizes the Hearing Examiner, after holding an open
record public hearing on the appeal of the Director's decision, to: "affirm the decision;
reverse the decision; affirm the decision with modifications; or remand to the decision to
the department director for further consideration..". BIMC 2. 16. 130.F.2 directs that the
Hearing Examiner is to render a decision on the appeal "giving substantial weight to the
decision of the department director. " The Hearing Examiner "may include
conditions...to ensure conformance with this code, the city's comprehensive plan and
other applicable laws or regulations."
43. On August 17,2005, appeals of the Director's decision were timely filed by the
Applicant, Deni Christensen [Exhibit 117], and a group of concerned neighbors, the
"Kallgren Road Preservation Society" [Exhibit 116]. Neither appeal challenged the
approval of the short plat; both challenged one more of the conditions that the Director
attached to that approval. The Kallgren Road Preservation Society challenged those
portions of Conditions 5 and 6 that would require extending Kallgren Road through to
SPT13104
Page 8 of 31
Day Road. The Applicant appealed the same portions of Conditions 5 and 6, but also
appealed: Condition 2 (open space management plan); Condition 4 (trail through
perimeter buffer); Condition Sa (fire hydrant); Condition 6a (dedication for right-of-way
radii); Condition 6c (disallowing driveway access to Day Road); Condition 6f (requiring
a public meeting); and, Condition 7 (noting setback requirements on the final plat).
44. Notice of the appeal hearing was properly made with posting, mailing, and
publication completed by October 4, 2005 [Exhibit 121]. The hearing was held
beginning on November 3,2005 and continuing on November 15,2005.
Condition 2: Open Space Man~gement Plan
45. There are Code requirements for preparation of an Open Space Management Plan
(OSMP) for both the flexible lot required open space and for the wetland [see Findings
49 and 57]. Condition 2 notes specifics to be included in the final version:
2. The open space management plan shall include the following information:
a. Significant trees are to be identified consistent with the standards of the
Landscaping Ordinance (BIMC 18.85) and 30 percent of the tree canopy
should be preserved. The Open Space Management Plan shall identify
adequate preservation/replacement methods.
b. Uses within the open space containing the wetland and/or the wetland
buffer shall be compatible with uses listed in BIMC 16.20.090F&G; uses
within the open space designated perimeter buffer may be compatible with
BIMC 17. 12.092G.
c. Removal of invasive species shall be addressed.
d. Herbicides and pesticides shall not be used on the site.
e. Prior to removal of any evergreens, the Department of Fish & Wildlife
must be contacted to determine whether a habitat management plan is needed.
46. Appellant Christensen objects to the Open Space Management Plan, questioning
why it is necessary and specifically arguing that Condition 2c (to include provisions in
the Plan to address removal of invasive species) should be eliminated. The appeal
[Exhibit 117, paragraph 4.13] asserts that the City's authority to regulate development
and use of critical areas does not extend to requiring an obligation "to restore areas which
have suffered intrusion of invasive species... predating adoption of the GMA..." The
nature, extent, and even the presence of invasive species on this site are not documented
in this record. It was not established that there are such species present now and/or, if
present, when they arrived.
47. The Applicant's argument against Condition 2 [see Hearing Brief, Exhibit 122,
pages 15-16] generally focuses on the cumulative amount of property "off limits to
development", rather than assigning error to the Director's condition to impose the Code-
required Open Space Management Plan.
SPT13104
Page 9 of 31
Open Space
48. BIMC 17.12.090.D directs that open space, consistent with existing "valued open
space features" noted in the Code, be provided up to a maximum of 25% of the property.
BIMC 17.04.082E provides that landscape roadside and perimeter buffers "may be
included in the required open 5pace calculations..." The wetland and wetland buffers are
established through critical area review and as such, they are critical areas not open
space. Critical areas do not "count" toward meeting the minimum open space
requirements and are not included in the 25% maximum for open space [see note
following BIMC 17.04.080.A.4.g below).
49. The standards for landscape buffers are in BIMC 17.04.080.A.4:
a. Purpose. The purpose and intent of landscape bufftrs are to enhance and
retain the character of the Island by maintaining native vegetation along roadways
and preserving on- and off-site views; providing visual relief along public roads
and between subdivisions and other existing development; reducing the impact of
undesirable sights, sounds or odors.
b. Roadside Buffers. For... R-O. 4... where established vegetation of a forested
nature is located adjacent to public roads that are designated as collector or
arterial roads... a 50-foot-wide vegetative buffer shall be maintained... The
provisions for buffer averaging provided in subsection A. 4.f of this section shall
apply. The roadside buffer may contain multipurpose trails or bikeways ~f those
trails could be accommodated without compromising significant vegetation or
hazardous slopes.
* * *
e. Allowed Landscape Bufftr Activities:
i. Potable water wells and well houses;
ii. On-site storm water infiltration systems where the vegetated features of
the buffer are not adversely impacted;
iii. Ingress and egress, where the access runs approximately perpendicular
to the landscape perimeter;
iv. Underground utilities. where they run approximately perpendicular to
the landscape perimeter; provided, that disturbance is minimized and the buffer is
revegetated after construction;
v. Nonmotorized trails and trail maintenance necessary to provide for
safety and visibility; and
vi. Planting of vegetation.
f Landscape Buffer Requirements.
i. In order to buffer the visual impact of the proposed subdivision and
protect offsite views, filtered screen landscaping, pursuant to BIMC 18.85.070. B. 3
and 18.85. 070. C, shall be required...
ii. All native shrubs and significant trees shall be retained within all
landscape buffers, except that limited removal may be allowed for permitted
activities located within the buffer area.
iii. Required landscape buffer width may be reduced through buffer
averaging in accordance with the criteria in BIMC 18.85.070, Perimeter landscape
requirements...
SPT13104
Page 10 of 31
g. Landscape buffers may be included in the required open space
calculations.. *.
*Excepting those buffers established pursuant to critical area review... .
50. With the required 50 ft. wide buffer provided along both Madison Avenue and
Day Road [BIMC 17.12.090.A.4.b], and 25 ft. wide setback along Kallgren Road,
approximately 141,850 sq. ft. of the site (18%) would be "open space". (This calculation
is based on the dimensions shown on Exhibit 74.) The open space calculations offered by
the Applicant incorrectly include the wetland and wetland buffers, which substantially
inflates the percentage of open space relative to the total site.
51. BIMC 17.04.082.B.5 directs that areas designated open space should "enhance or
retain the Island character through the minimizations of disturbance of roadside
vegetation." The designated open space perimeter buffers [see designated setbacks, on
Page 2 of3, Exhibit 2B] would be fully consistent with BIMC 17.04.082.B.5.
52. BIMC 18.85. 010 defines "Significant tree" to mean "A. Evergreen tree 10
inches or greater in diameter... B. Deciduous tree 12 inches or greater in diameter... or
C. All trees within a required critical area buffer... "
53. The flexible lot open space standards, at BIMC 17.04.082.H, require that:
Open space areas shall be permanently maintained. An applicant shall
submit a draft open space management plan (OSMP) for review as part of
the preliminary plat application. Final approval of the OSMP will occur
at the time of final plat approval.
54. The BIMC 17.12.092.H standards for the contents of an OSMP for short
subdivisions include: 1) a list of approved uses; 2) a plan for maintenance indicating the
frequency and scope of maintenance activities (with provisions for: replacement of
significant trees, identification of who is responsible for maintenance, protection during
construction, and removal of invasive species).
55. The BIMC 17.12.092.H requirement that an OSMP address removal of invasive
species is not limited to sites where such species are already present. It requires having a
plan for removal of invasive species - if and when they occur - as a part of ongoing
maintenance and preservation. This is not a requirement for "restoration" to some
previous condition.
Wetland
56. A Category II wetland has been identified, its boundaries delineated by field
investigation, a 100 ft. wide buffer around the wetland has been designated, and a
building setback of 15 ft. beyond the buffer established. The Wetland Analysis Report
[Exhibit 4, page 8] recognizes that potential impacts should be mitigated by the large size
of the lots and presumes required buffers. The wetland and wetland buffers have been
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marked on the face of the plat [see site plan, Exhibit 74]. In these designated areas, no
buildings can be constructed or significant trees removed and the uses allowed must be
restricted to those appropriate to the protection and preservation of the critical area.
57. BIMC 16.20.090.D (emphasis added) requires that restrictions on the use of the
"h. wetlands, or wetlands buffer shall be included in the open space management plan
and noted on the plat." Therefore, although the wetland and wetland buffer are not
"open space" for the purpose of meeting flexible lot subdivision open space standards
[see Finding 48], here the Open Space Management Plan is to address the wetland and
wetland buffer, in addition to the open space designated as perimeter buffer pursuant to
BIMC 17.04.082.
Open Space Management Plan
58. In compliance with BIMC 17.04.092.H, the Applicant included a draft OSMP
with the application [see Sheet 3 of3, Exhibit 2C]. The Director's Staff Report criticizes
the draft OSMP and Condition 2 notes specifics to be included for final plat approval [see
text of conditions in Appendix A]: identification of significant trees and preservation of
30% of the tree canopy; specifying methods for preservation and replacement of
significant trees; restricting uses consistent with the Critical Areas ordinance (for wetland
and wetland buffer) and the flexible lot open space standards (for the perimeter buffer);
provisions for addressing removal of invasive species; prohibiting herbicides and
pesticides; and, determining if the Department of Fish & Wildlife requires a habitat
management plan.
59. The "Open Space Management Plan" submitted with the application [Exhibit 2C]
does not include all the elements required by BIMC 17.04.082.H. Condition 2 should
require the draft be revised so that the final version is consistent with the Code and it can
be approved with the final plat. As all of significant trees in the critical area and in the
designated open space must be retained and preserved, identifying and marking which
would be retained is unnecessary. Also, the factual and legal basis for the possibility that
the Department ofFish & Wildlife (DFW) may require a habitat management plan should
have been established during the Director's review. (Any such requirement would
operate independently from the subject application and need not be included as a
condition. )
Condition 4: Trail in Perimeter Buffer
60. Condition 4 requires that a pedestrian trail be constructed through the perimeter
buffer for the safe passage of school children "within the new lots" who will go to Wilkes
Elementary School.
4. For the school children within the new lots that will go to neighboring Wilkes, a
trail through the perimeter buffer must be established.
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61. The "new lots" in this context would be Lots A, B, and C. Lot D is adjacent to
Madison Avenue and a trail through the perimeter buffer along Day Road would not be
used by children going from Lot D to Wilkes school.
62. Appellant Christensen objects to the expense of building the trail and to burdening
future property owners with on-going maintenance and liability for a public trail through
the privately-owned open space. [Testimony of Christensen]
63. The Applicant's engineer estimates that construction of a trail (6 ft. wide, graded
and surfaced with gravel or wood chips) would be $10-$12/ linear feet for approximately
1280 ft. [Testimony of Mac Learns berry]
64. Comments received from neighbors indicate that there are school children in the
neighborhood who walk north on Kallgren, use the existing trail to reach Day Road, then
walk along Day Road to reach Wilkes school at Day and Madison. However, with no
sidewalk and high vehicle speeds, Day Road is also not considered a safe route. [See
e.g., Exhibits 36, 66, 68; 83]
65. The trail required by Condition 4, linking Kallgren Road with Wilkes school,
would fulfill the mandate of RCW 58.17. 110 for subdivisions to have sidewalks or other
" .. features that assure safe walking conditions for students..." However, as there are
only three future residences (Lots A, B, and C) to be served in this subdivision (and the
potential for a similarly very small number of students walking to school), requiring the
Applicant to build, and future owners maintain, a public trail through Lots A and D,
would be an undue and continuing burden; disproportionate to impact of this subdivision.
66. Day Road is two lanes paved in a 60 ft. right-of-way. It was not explained why
the path is required to be on the subject property, rather than within the public right-of-
way. As the path would be public (i.e., for safe passage of all neighborhood children
walking to school), the public right-of-way seems a more logical choice. Some members
of the public did observe that, as an alternative to extending Kallgren Road, a path along
Day Road connecting with the existing Kallgren Road trail would provide a welcome and
safe route to Wilkes school [see e.g., Exhibits 56 and 83].
67. A path within the public right-of-way could meet the edict ofRCW 58.17.110,
would be consistent with the Comprehensive Plan and the Non-Motorized Transportation
Plan, and would not be an on-going burden for the property owners. Without more
information in the record, it cannot be considered a viable alternative for a condition here.
However, if the neighborhood were to seek to make such improvements in the future, the
lots in this short plat would be affected and the Applicant should promote that effort in
the form of a no-protest agreement.
Condition 5: Fire Marshall Recommendations
68. Condition 5 adopts the following recommendations of the Fire Marshall for a new
fire hydrant installed near Lot C and that Kallgren Road be connected to Day Road.
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5. Except as provided in Condition 6 below, all recommended conditions of
the Fire Marshal shall be conditions of approval (see Attachment C.4 received
August 3, 2005):
a. The plan indicates compliance with fire flow regulations using
building separation. This is approved, providing there is insufficient fire
flow available on Day Road. If there is a water line in Day Road that is six
inches in diameter or larger, then an 8-inch water line shall be extended to
the end of Lot "C" with a new fire hydrant.
b. The access road/public right-of-way shall be constructed for
connection to Day Road in accordance with the road standards appropriate
for this area. Pursuant to Section DI07.1 exception No.2 of the international
Fire Code "The number dwelling units on a single fire apparatus access road
shall not be increased unless fire apparatus access roads will connect with
future development as determined by the fire code official." Therefore
because of life safety concerns, the requirement for connecting Kallgren
Road to Day Road is a condition of Fire Department approval of this short
plat.
Condition Sa: Fire Hydrant
69. The short plat would comply with the fire flow regulations by providing a 50-ft.
separation between buildings (Application, Exhibit 10, page 8; Exhibit 113). In addition,
on the recommendation of the Fire Marshall, Condition 6a would require the installation
ofa fire hydrant at the end of Lot C. [Exhibit 113; Staff Report, Exhibit 114, page 2] A
fire hydrant has recently been installed very near the southeast corner of Lot C (i.e., 420
ft. from the southeast corner of proposed Lot A) on the east side of the Kallgren Road
right-of-way (i.e., part of improvements required of the Keating short plat). [Testimony
of Mac Learns berry; Testimony of Davis; Testimony of Walkowski]
70. The Fire Marshall indicated that as a general rule, a hydrant will be required if
one is not within 600 ft. of a new development. The Fire Marshall also indicated that
building separation and providing sprinklers within buildings are ways of meeting fire
flow requirements. [Testimony of Mac Learns berry; Testimony of Davis]
71. Based upon this record, Condition 2a, requiring a hydrant "at the end of Lot C",
has been satisfied. If additional measures are needed in future to ensure an appropriate
level of fire protection for residences constructed on these lots, sprinklers could be
included in those structures.
Condition 5b: Kallgren Road Extension
72. The access road condition, Condition 2b, would require that Kallgren Road be
made a through street: extended north and connected to Day Road. Applicant/Appellant
Christensen objects to this condition because it would be inconsistent with neighborhood
character and a financial burden disproportionate to the impacts of the short plat.
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Neighborhood appellants argue that the required street would be the source of
unwarranted and detrimental change to their neighborhood.
73. The Fire Marshall recommends that Kallgren Road be extended because it would
allow faster emergency response and provide an alternative access route [Testimony of
Davis]. Lots Band C could be reached from Phelps Station via Day Road approximately
two minutes faster than coming north on Kallgren Road as is done now. The testimony
of the several credible witnesses who estimated travel time, establish that response time
to Lots Band C from the Phelps station (located west on Day Road) with the Kallgren
Road extension/connection to Day Road, would be on the order of 21;2 minutes and
without that extension/connection, approximately 41;2 minutes. (Emergency response
dispatched from the Madison station would still approach from the south on Kallgren
Road and the route and response time would not change from current conditions.)
[Testimony of Davis; Testimony of Walkowski; Testimony of MacLearnsberry;
Testimony of Wiggins]
74. It is the Fire Department's policy to maintain a self-imposed average response
time of six minutes. If Kallgren Road is not extended/connected to Day Road, the
response time from Phelps station (41/2 minutes) would be well within the 6 minute
standard. The Fire Department takes the position that, when it comes to response time,
faster is always better and so is connectivity. The recommendation for putting Kallgren
Road through to Day Road is primarily based upon it providing for the faster response
time noted in Finding 73. [Testimony of Davis; Testimony of Walkowski]
75. BIMC 17.12.020 (emphasis added) directs that short subdivisions be in accord
with the Comprehensive Plan, and specifically that they "further" the residential open
space goal and policies:
...promote the public health, safety and general welfare of the citizens of the city
in accordance with state law and the city's comprehensive plan. To carry out
this purpose and further the comprehensive plan policies addressing residential
subdivision of land (specificallv the land use element of the comprehensive plan-
residential open space goal and policies), this chapter establishes a flexible lot
design process that requires the preservation of open space... This process
facilitates the fair and predictable division of land, maintains the current
character of the city, encourages efficient and cost-effective proviSions for
infrastructure, limits the development impact area, minimizes impervious surface
area and provides for greater flexibility in the division and establishment of
residential lots ... to prevent the overcrowding of land; to lessen congestion in the
streets and highways; to provide for adequate light and air; tofacilitate adequate
provision for water, sewage, storm water drainage, parks and recreation areas,
sites for schools and school grounds and other public requirements; to provide
for proper ingress and egress; to provide a variety of housing opportunities; and
to maintain the quality of life...
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76. The following Residential Open Space goal and policies of the Land Use Element
support allowing access as proposed, rather than requiring that Kallgren Road be
extended:
GOAL 1
Preserve the open space... through a development pattern which will enhance the
character of the area - forested areas... narrow roads bordered by dense vegetation - and
the valuable functions the open space area...
OS 1.4: Existing vegetated buffers should be retained to preserve the Island's character
and the forested view from the road.
OS 1.5: New development should strive to be responsive to the natural landscape. .. sited
so as to have the least visual and environmental impact on the Island landscape. Features
which enhance the Island's character...should be retained and encouraged.
77. The framework for the Land Use Element also directs that accommodating
growth should be done "... in a manner which retains the Island's character and the
quality of life which its residents so highly value." The discussion note for this policy
recognizes that the Island's "rural appearance with forested areas, meadows, farms, and
winding, narrow, and heavily vegetated roadways" represents "the Island character that is
so highly valued by its residents..." and that development on the Island "is not
characterized by urban development with a full range of urban facilities and services..."
The expected "rural" nature of the R-O.4 zone embodies these policies and advises that
"full range of urban services andfacilities are not required" [see Finding 7].
78. The first of the Comprehensive Plan's five overriding principles is that "the
special character of the Island" be preserved. Another of the principles reqUIres
balancing property owners' cost and benefits when making land use decisions.
1) Preserve the special character of the Island which includes forested areas, meadows,
farms, marine views, and winding roads bordered by dense vegetation.
2) Protect the water resources of the Island.
3) Foster the diversity of the residents of the Island.
4) Balance the costs and benefits to property owners in making land use decisions.
5) Base development on the principle that the Island's environmental resources are finite
and must be maintained at a sustainable level.
79. The Introduction section of the Comprehensive Plan's Transportation Element
makes clear that retaining Island character is included in transportation priorities that are
to guide decision-making:
The most significant transportation priority for Bainbridge Island residents is the desire
for a convenient and safe transportation system which strongly emphasizes alternatives to
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the automobile (transit, bicycle, and pedestrian) and yet retains the character of the Island
- narrow, winding roads traversing forested, agricultural, and shoreside areas.
80. The Transportation Element consistently articulates the need to consider and
balance the issues of maintaining Island character and environmental resources as the
roadway system is developed and expanded. The list of "community transportation
issues" in the Transportation Element recognizes both, including:
Environmental impacts - ... environmental qualities... should be maintained... these
resources may be adversely impacted or lost to future roadway expansion and widening.
Neighborhood traffic impacts - ... impacts of high traffic volumes and travel speeds need
to be controlled to maintain the quality of the neighborhood.
Roadway connectivity - Bainbridge Island's roadway system has few roadways that
contribute to the development of a "network." Many parts of the Island have only a
single way to access the area... Mobility, emergency access, emission reduction, and
circulation can all be improved with better roadway connections.
81. The "Transportation Vision" includes both improved mobility and respect for
neighborhood and environment:
Provide a... transportation system that is consistent with and supports the other Elements
of the Comprehensive Plan. The transportation system should respect community
character, environment, and neighborhoods; improve mobility and safety. . . and
promote.. . non-motorized traveL..
82. The Goals and policies of the Transportation Element repeatedly address system
efficiency and maintaining neighborhood character together. Both values are to be taken
into account; character and neighborhood are more frequently mentioned.
GOAL 1: COMMUNITY CHARACTER Develop transportation improvements that
respect the Island's natural and historic character and are consistent with both the short-
and long-term vision of the Comprehensive Plan.
TR 1.2 Road development guidelines Encourage the appearance of winding, narrow
roadways serving less densely developed areas through the provision for and retention of
appropriate roadside vegetation and trees, and following of the natural topography
whenever possible.
GOAL 2: ENVIRONMENT... maintain a transportation system that respects the natural
environment, including the quality of the Island's air, water, and natural habitat.
TR 2.1 Environment sensitivity Minimize impacts of road construction on
environmentally sensitive areas; minimize damaging runoff and pollution from road use...
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GOAL 3: NEIGHBORHOODS Consider the special needs of neighborhood safety,
pedestrian and bicycle facilities... and traffic flow in the development of transportation
improvements that affect neighborhoods.
TR 3.1 Neighborhood cut-through traffic Protect residential neighborhoods from the
impacts of cut-through... traffic by providing appropriate connecting routes and impact-
minimizing design features... and applying appropriate traffic-calming measures to
control vehicle volumes while maintaining emergency vehicle response times.
TR 3.3 Neighborhood circulation Develop a circulation and access management plan
for neighborhoods... so that as properties develop, connectivity and circulation are
maintained, cut-through vehicle traffic is discouraged, and appropriate speeds are
encouraged, while maintaining access and response times for emergency vehicles.
TR 4.1 Road development guidelines Construct, modify, and maintain roads to: 1) meet
safety needs, 2) provide for transit, pedestrian travel, and bicycling, 3) correct LOS
deficiencies, 4) improve connectivity and emergency response times, and 5) meet
Comprehensive Plan goals, including Goal 1 and supporting policies that address
community character.
TR 4.2 Street design guidelines Set street design guidelines that use universal design
principles; establish street widths; reflect the desired vehicle speeds; accommodate
bicycle, pedestrian, and transit uses; and provide for emergency vehicle access while also
considering community character.
TR 9.1 Non-Motorized mobility and connectivity Provide a non-motorized
transportation system... which effectively serves... pedestrian, bicycle, and equestrian
users and encourages non-motorized travel and provides a continuous network of
attractive sidewalks, footpaths, multi-purpose trails, and bikeways...
83. Making Kallgren a through road is not "required". As proposed, the short plat
makes appropriate provision for access, consistent with the Code and with the
Comprehensive Plan. Indeed, leaving Kallgren Road a deadend and adding and
improving "traffic calming" features (speed bumps, enhancing/restoring roadside
vegetation, etc.), could aligned nicely with the policies favoring neighborhood character,
natural resource protection, and a non-motorized transportation network. If such
improvements are sought in the future, the lots in this short plat would be benefited. The
Applicant should be required to promote that effort in the form of a no-protest agreement.
Condition 6: City Engineer's Recommendations
84. Condition 6 adopts the recommendations of the City Engineer and includes
several subparts. Those parts of Condition 6 that have been appealed (see highlighted
emphasis added to the text) are: 6a: right-of-way dedications for radii; 6b: construction of
the Kallgren Road extension to City "Residential Optional Suburban" standards (or post
surety and defer construction up to two years, then construct to new standards); 6c: take
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no access on Day Road; 6f: applicant required to hold public meeting to address
neighborhood concerns about the required Kallgren Road extension.
6. All recommended conditions of the city engineer shall be conditions of
approval (see Attachment C.3. dated August 1,2005):
a. Dedicate two 50 foot radii for right-of-way; one at the SE comer of
Madison A venue and Day Road, and the other at the SW comer of Day
Road and Kallgren Road. Please show these on the plat map. .
b. Construct Kallgren Road to the City of Bainbridge Island's Design and
Construction Standards and Specifications DWG. 7-065 (Residential
Optional Suburban) from Day Road to the south property line of the
proposed short plat, connecting to the existing Kallgren road end.
Design the road to minimize the impact of construction on trees and
other vegetation and to preserve the existing path. Realign or replace the
existing path as necessary to maintain non-motorized accessibility
separate from the new road. Please show this on the final site plan.
i. The applicant may defer commencement of actual construction of
these road improvements for up to two years if it provides a surety
(such as assignment of account or construction bond) to the City in a
form approved by the Planning Director in the estimated cost of the
improvements as determined by the Public Works Director. If
during that two-year period the City adopts revised road standards,
the required road improvements will be reviewed in light of the
new standards. The surety must assure the availability of sufficient
funds for three years in the event that the City has to contract for
construction of the improvements.
II. During the two-year period when construction of the road
improvements is held in abeyance, driveways may be built in the
potential road footprint. The driveways must originate from the
existing Kallgren road end. Insofar as possible, the driveways
should be designed to serve as part of the future road, but regardless,
the applicant shall be responsible for all construction costs if the final
decision is to build the road.
c. Do not take any access from Day Road other than the extension of
Kallgren Road through to Day Road.
d. Ensure final site plans meet the City Design and Construction Standards
and Specifications. Show proposed utilities, including water mains,
service connections and meters (note: service lines may not run parallel
within the right-of-way).
e. Prepare on-site storm water management plans and designs for each
newly created building lot at the time of building permit application.
Storm drainage design must meet the storm water requirements current at
the time of building permit application. Please show this requirement on
the plat map.
f. Prior to design and construction of the required improvements, hold a
public meeting in a manner and with notice as specified by the Public
Works Director to demonstrate compliance with the City's requirements
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and receive comments from all persons who commented on the
application addresses the neighborhood's concerns.
Condition 6a: Right-of-Way Dedication
85. The Condition 6a requirement for the right-of-way dedications would provide
space for future improvements at the subject intersections. Each dedication would be 540
sq. ft. No evidence was provided that supports the notion that such improvements would
ever be anticipated at these locations. It was not even suggested that existing or likely
future traffic volumes and/or turning movements make it reasonable to anticipate that
there is a present or future need for additional right-of-way for turning radii. On its face
it appears reasonable that future conditions could have need of a turn lane at the southeast
corner of the intersection of the two arterials (Day and Madison) to support the dedication
requirement from Lot D, but no facts or professional judgment were offered. As there is
no intersection at Day and Kallgren, there is no basis for requiring that dedication.
Condition 6b: Kallgren Road Extension
86. This condition requires that the Applicant construct Kallgren Road to the
"Residential Optional Suburban" standards (approximately 630 ft. long, 12 ft. wide paved
roadway with 3 ft. gravel shoulders and ditches for drainage). Condition 6b directs that
the road be designed so as to "minimize the impact of construction on trees and other
vegetation and to preserve the existing path." It also anticipates that some or all of the
existing path might need to be relocated or replaced to maintain it as separate from the
new roadway. [Exhibit 114, Staff Report]
87. The Applicant's engineer estimated the cost of clearing and construction at
appropriately $71,700. . There was no information presented as to whether cutting or
filling would be required. The City Engineer does not consider the terrain "difficult", but
contour lines on the site map [Page 2 of 3, Exhibit 2B] indicate that the elevations go
from 305 ft. to 295 ft. within the northernmost 50 ft. of the right-of-way where it
intersects with Day Road. [Testimony of Mustain; Testimony MacLearnsberry; Exhibit
74]
88. The City Engineer's recommendation for Condition 6b, requmng access from
Kallgren Road is, in part, based upon section 6-03 of the Design and Construction
Standards and Specifications: "Where a property has frontage on more than one roadway,
access will generally be limited to the lowest volume roadway where the impacts of a
new access will be minimized." [Testimony of Mustain] No roadway volumes were
placed into this record, but as Day Road is an arterial, it is not unreasonable to presume it
to have the higher traffic volume. The 6-03 "standard" has been applied here without any
consideration of actual traffic volumes, roadway conditions, or what the nature and extent
of "impacts" to Day Road and Kallgren Road would be. (To apply this general rule here
also requires treating an unopened right-of-way as if it is a "roadway" presently handling
some "volume" of traffic. It is not apparent why this interpretation should be accepted.)
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89. Further, as neither the relative traffic impacts (Kallgren vs. Day) nor the
environmental impacts of construction of the Kallgren extension (loss of habitat with
removal significant trees and other mature vegetation, grading/cutting/filling, etc.), have
been defined, it has not been established that the access requirement of Conditions 5b and
6b would "minimize impacts". The long term impacts of extending Kallgren include
"irrevocably" altering the "character of the existing right-of-way" [Exhibit 114, Staff
Report. page 10]. Another long-term impact would be that Kallgren would cease to be a
tranquil deadend country-road (with only traffic that has origin or destination here), and
would become just another part of the street system - an alternate ("cut through") route
for travel through the neighborhood. [Testimony of Wiggins; Testimony of Robins;
Testimony of McGee; public comments, see e.g., Exhibits 50, 75, 77, 86, 92, 95, 100].
90. The record includes no credible empirical data or analysis that identifies existing
or likely future traffic volumes associated with requiring the extension of Kallgren or
with allowing access by driveways as proposed. The neighbors conducted an informal
"survey" with results suggesting that the overwhelming proportion of existing trips have
destinations to the south (e.g., the Ferry Terminal, Winslow, etc.) so that connecting to
Day Road would not result in fewer miles traveled. [Exhibit 126; Testimony of Wiggins]
The logic underlying the destination choices is sound, but the methodology of the
"survey" and its estimated and generalized results are not. The City Engineer's informal
scenario regarding the extra miles traveled (and associated fuel use and air pollution) if
Kallgren is not connected with Day, is also flawed (i.e., based upon untested travel
assumptions). Neither approach provides evidence that should be relied upon in making
this decision.
91. In the discussion of TR 4.5, the Comprehensive Plan policy addressing
concurrency (conditioning development on available capacity), the Transportation
Element notes (emphasis added) that:
The Public Works Department is responsible for the review of traffic studies that analyze
the anticipated impacts for proposed land use actions. If the development will adversely
affect the established LOS, the City En~ineer will apply the required conditions
necessary for infrastructure improvements that mitigate the anticipated impacts of the
development. These conditions.. . become part of the requirements for project approval.
92. No traffic studies were prepared to provide information about existing conditions
and no analyses were done on the potential impacts. The City Engineer did not note any
existing traffic safety or volume/capacity (congestion or LOS) problems. With the
potential for future development of only three new residences, it would not seem likely to
have any noticeable impact on traffic. [Testimony of Mustain]
93. The City Engineer's recommendation of Condition 6b for the extension of
Kallgren Road relies on the policies and standards favoring connectivity. Preference for
connectivity is based upon the observation that, as a general rule, connectivity improves
mobility, safety, reduces miles traveled and emergency response times. With this
viewpoint, connecting streets is a good thing; always to be preferred to not having them
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connected. (This must be a frustrating point of view to hold on Bainbridge Island, where
deadend streets are so common and cherished by many residents as the epitome of "island
character".) [Testimony of Mustain; Testimony of Wiggins; Testimony of McGee]
94. An excerpt from the Island Wide Transportation Study [Exhibit 125] lists 17
"connectivity improvements". Kallgren Road is not one of these (the closest connectivity
problem identified is well to the east, where Phelps and Day Roads intersect with SR
305).
95. There are some deadend roads on the Island (an unidentified number) even longer
than Kallgren Road. Regarding "street ends", Section 8-01 of the Design and
Construction Standards and Specifications, indicates that street ends over 1000 ft. long
"are discouraged", but "will be considered" in certain circumstances (i.e., where the lots
are large or the terrain is difficult). There is a proviso that exceptions are intended only
for street ends serving 25 or fewer lots or having 250 or fewer average daily vehicle trips
(ADT). No ADT data for Kallgren Road was put into the record.
96. The Kallgren Road "deadend" (i.e., north of Winther) is approximately 2,000 ft.
long and serves approximately 24 lots. [Testimony of Mustain] The City Engineer
incorrectly reads 8-01 to require large lots and difficult terrain and, while it the number of
lots served would certainly exceed 25 with the subject short plat, there is no information
as to the traffic volume. Based upon this record, the City Engineer's conclusion that the
exception criteria of 8-01 are not met may be mistaken. If traffic volume does not exceed
250 ADT, Kallgren would meet the criteria.
97. Condition 6b has provisions [i. and ii.] that would allow the Applicant, with the
posting of a surety, to defer construction of Kallgren Road to Day Road for up to two
years. The intent is to allow time for possible changes in "road connectivity standards".
In October, City Council passed Resolution No. 2005-36 resolving to review connectivity
standards. [Testimony of Mustain; Testimony of Robins; Exhibit 126]
98. The City Engineer testified that City Council has revised the residential suburban
standards so that he can, and would, authorize gravel (rather than pavement) be used
here. The image is of a 12 ft. wide gravel roadway, winding through the trees within the
60 ft. right-of-way, with the trail realigned as necessary to keep it separate. It was not
determined if this would mean that fewer significant trees would be removed.
[Testimony of Mustain] It was also not established what effect the lower speeds
allowable on this kind of road might do to the anticipated improvement in emergency
response time to Lots Band C.
99. The Applicant's engineer estimated that a gravel road would cost approximately
$60,000. The City Engineer indicated he would expect the cost to be more like $28,000
(based on $100/linear ft.) cost, but found the $60,000 estimate acceptable. [Testimony of
Mustain; Testimony of Mac Learns berry]
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Condition 6c: Disallow Lot A Access from Day Road
100. Condition 6c would disallow access from Day Road except for the Kallgren Road
extension required in Condition 5b. In effect this would deny the driveway access
proposed for Lot A [see Page 1 of3, Exhibit 74]. This condition is based upon section 6-
03 of the Design and Construction Standards and Specifications; no other rationale was
cited for the City Engineer's recommendation. As with the requirement that Kallgren
Road be connected to Day Road [see discussions above], reliance on a general "rule" is
not sufficient basis for the imposition of Condition 6c.
101. The Applicant's engineer observed that the driveway location proposed for Lot A
would have adequate sight distance and, due to the topography, he believes that it would
be safer than the Kallgren/Day intersection required by Condition 5b. The proposed
driveway location [see Page 2 of 3, Exhibit 2B and Page 1 of 3, Exhibit 74] is at about
the middle of Lot A's northern property line. As shown on Page 2 of3, Exhibit 2B, this
is the approximate location in the Day Road right-of-way and in the designated open
space buffer where several small areas of steep slopes are mapped.
Condition 6[: Require a Public Meeting
102. This condition requires that the Applicant, in planning for the construction of the
road, hold a public meeting regarding the design of the improvements. Requiring the
Applicant to hold such a meeting is neither reasonable nor constructive as road design
and construction are subject to prescribed standards and controlled by a City agency. The
Applicant would not be in a position to change the design in response to neighborhood
input. This is an untenable requirement.
Condition 7: Show Required Setback on Plat
103. Condition 7 reads as follows:
7. The following setback and lot coverage information shall be noted on the
face of the final plat
ReQuirement tVDe Reouired distance
Building-to-building (fire requirement) 50 feet separation
Building to Right-of-Way (Day & Madison) Minimum 50 feet,
perimeter buffer
Building to Right-of-Way (Kallgren) Minimum 15 feet
Building to Trail, Open space or access easement Minimum 10 feet
Lot coverage maximum on Lots A, B, &C 11,000 SF
Lot coverage maximum on Lot D 46,410 SF
SPT13104
Page 23 of 31
104. Appellant Christensen objects to the setback requirements, not that such
information be noted on the final plat. See the discussion regarding Condition 2 for
wetland and perimeter setback requirements.
105. The application [Page 2 of 3, Exhibit 2B] shows a 25 ft. wide setback from the
Kallgren Road right-of-way. This is consistent with the 25 ft. front yard setback required
in the R-O.4 zone [BIMC 18.36.060.A] and with the IS ft. minimum building to right-of-
way setback for flexible lots [BIMC 17.12.090.A.3.c]. The chart should be amended to
reflect the 25 ft. setback. The application [Page I of 3, Exhibit 74] correctly depicts the
required 15 ft. wide building setback from the wetland buffer. The chart in Condition 7
indicates a required 10ft. setback from elements that not proposed or required. The chart
should be changed to accurately reflect the required 15 ft. building setback from the
wetland buffer as depicted in the application.
Bainbridge Municipal Code: Subdivisions
106. BIMC 17.04.050.A provides that: "All residential subdivisions shall be designed
consistent with the flexible lot design process...." and the flexible lot development
standards ofBIMC 17.04.080 apply to those subdivisions. As conditioned, the proposed
short plat meets all the development standards (density, minimum lot size, minimum lot
setbacks and dimensions, maximum coverage).
107. As defined in BIMC 17.12.040, "short subdivision" is the division of land "into
four or fewer lots...for the purpose of sale, lease or transfer of ownership... "
108. BIMC 17.12.107.B provides the criteria that must be met for an application for a
short plat to be approved. This preliminary short subdivision meets these criteria.
1. The applicable subdivision development standards of BIMC 17.12. 090,
17.12.092, 17.12. 095 are satisfied;
2. The preliminary short subdivision makes appropriate provisions for
the public health, safety and general welfare, and public use and interest,
including those items listed in RCW 58.17.11 0;
3. The preliminary residential short subdivision has been prepared
consistent with the requirements of the flexible lot design process and applicable
flexible lot design standards;
4. Any portion of a short subdivision which contains a critical area, as
defined in Chapter 16. 20 BIMC, conforms to all requirements of that chapter;
5. The city engineer determines that the preliminary subdivision a.
... conforms to regulations concerning drainag... b. will not cause an undue
burden on the drainage basin... c. streets and pedestrian ways as proposed align
with and are otherwise coordinated with streets serving adjacent properties [and]
d. ... are adequate to accommodate anticipated traffic... e. conforms to the
requirements of this chapter and the standards in the "City of Bainbridge Island
Engineering Design and Development Standards Manual, " except as otherwise
authorized by in BIMC 17.12.090.0. 3;
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Page 24 of 31
6. The proposal complies with all applicable provisions of this code,
Chapters 36.70A and 58.17 RCW, and all other applicable provisions of state
and federal laws and regulations;
7. The proposal is in accord with the city's comprehensive plan.
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 Director.
2. To overcome the substantial weight accorded the Director, it must be shown that
the Director's decision was clearly erroneous. Under this standard of review, the Director
can be reversed if the Hearing Examiner is left with the definite and tlrm conviction that
a mistake has been made.
3. The Director did not err in finding that this preliminary short subdivisions meets
the criteria for short plat approval [BIMC 17.12.107.B, see Finding 108]. The appeals
raise objection to the conditions the Director imposed with that approval and the question
on appeal is whether imposition of those conditions should be affirmed or if there has
been error and one or more of the conditions should be modified or eliminated.
4. Director's Condition 1 was not appealed, but agency comments [Exhibit 8 and
Exhibit 99] indicate that it should be revised to clarify what is required for the final plat
submittal to evidence that sewage disposal and water supply can be provided to Lots A,
B, and C.
Condition 2: Wetland and Buffer - Open Space Management Plan
5. The wetland is not part of the required open space. The open space, comprised of
the perimeter buffers, would not exceed the 25% maximum prescribed by BIMC
17.12.092.D.1. The plat map should be revised with proper labels and legend to clarify
this.
6. Appellant Christensen's argument that the open space buffers and the critical
areas protections are improper requirements, is not persuasive. No evidence was
presented to show the Director erred in requiring them.
7. The Code requires an Open Space Management Plan (OSMP) that addresses both
the critical area and the designated open space perimeter buffers. Appellant Christensen
provided no evidence to show the Director to have been mistaken in requiring an Open
Space Management Plan that includes provisions for both. To the extent that the draft
OSMP was detlcient in specificity, it should be revised for submittal with the final plat
application.
SPT13104
Page 25 of 31
8. At the hearing the Applicant expressed a sincere and credible desire to "preserve"
the property and the neighborhood in keeping with her family's long history of
ownership. Ironically, the Applicant appealed the required perimeter buffers, critical area
protections, and Open Space Management Plan that would serve that objective.
Condition 4: Trail Requirement
9. This condition is an unduly burdensome and disproportionate requirement in these
circumstances and should be eliminated. As a less onerous option of requiring a path
constructed in the Day Road right-of-way was not analyzed, there no record upon which
to determine whether it would be an appropriate and sustainable condition. However, as
it would be consistent with the requirement that subdivisions make provision for the safe
passage of children who walk to school [see Finding 65], if in the future an LID or
similar mechanism is established to construct such a path, the lots in this short plat should
contribute their fair share to that effort. The Applicant should provide a no protest
agreement to that end.
Condition 5a: Fire Hydrant
10. It was an error to condition approval of this short plat on the installation of a fire
hydrant in a location where one is presently installed. This condition is unnecessary as it
has been satisfied by the action of others.
Condition 5b: Kallgren Road Extension
11. The Fire Marshall and the Fire Chief recommended the road extension as they
support all measures available to decrease emergency response time. It is not their job to
weigh other public interests or individual circumstances: quicker is always better.
Getting help to where it is needed the quickest way possible is their job. It is appropriate
and correct that they are single-minded in this regard.
12. The Director, however, must weigh conflicting Comprehensive Plan policies, as
well as competing values in the public interest. The Director erred here in not
considering the goals and policies of the Land Use Element, especially the residential
open space goal and policies as BIMC 17.12.020 directs. The residential open space goal
and policies (e.g., to enhance the character of the area - narrow roads bordered by dense
vegetation, retain vegetated buffers to preserve Island character, site to have the least
visual and environmental impact, retain and encourage features that enhance the Island's
character) weigh in heavily on the side of not requiring a through street. Similarly,
although many are cited in the Staff Report, the policies of the Transportation Element
that favor maintaining neighborhoods and "character" are not given weight equal to those
emphasizing efficiency of the system. That one of five "overriding principals" of the
Comprehensive Plan is to "preserve the special character of the Island" should make
plain that disregarding or undervaluing these policies would be a mistake.
SPTlJI04
Page 26 of 31
13. It was an error to have imposed the requirement that Kallgren Road be extended
to connect to Day Road without having made an individualized determination that it was
necessary and appropriate in these circumstances. The environmental impacts of road
construction, as well as the traffic and other continuing impacts detrimental to the
neighborhood, were not taken into account. Neither policies nor facts dictate that
"connectivity" automatically trumps "character". It was a mistake to not consider the
individual circumstances to inform this decision. Here, the emergency response time to
the new lots would be adequate, easily within the Fire Department's standard. The
response time to the neighborhood is, and would remain, adequate; other residents would
not be negatively affected nor would a bad situation be made worse. Similarly, there are
no traffic safety or service level problems created or aggravated that would require
mitigation with the road extension. Access as proposed is consistent with the
Comprehensive Plan and maintains adequate emergency response time. Condition 5b
should be eliminated.
14. Eliminating the requirement to make Kallgren Road a through street should help
maintain existing neighborhood character and would relieve the owner of what would
have been an undue and disproportionate burden. However, in the future if an LID or
similar mechanism is established to enhance Kallgren Road with "non-motorized"
features, the lots created by this short plat would surely benefit and should contribute
their fair share to that effort. The Applicant should provide a no protest agreement to that
end.
15. The proposed driveway access to Lots Band C should be allowed provided that
grading and the removal of significant trees in the unopened Kallgren Road right-of-way
and in the designated open space adjacent to it, shall be minimized.
Condition 6: Engineering and Design Standards
16. Condition 6a: No basis in fact was provided to support requiring these dedications
of right-of-way. This condition should be eliminated.
17. Condition 6b: The tenuous nature of this condition (allowing deferral up to two
years while standards mayor may not get changed) would constitute a delay, not a
solution. Allowing gravel instead of asphalt would not necessarily save significant trees
as, with either surface, clearing and grading 30 ft. wide would be standard. Also, making
Kallgren a through-street would change how it functions here, regardless of the surface
material. As it is, Kallgren Road provides the neighborhood access to the rest of the
Island and it is a source of "community" for this neighborhood. As a through street, it
would still provide access for the neighborhood, but the community function would fade
away or be lost in the service of providing circulation as part of a network of roads.
(There is little consolation in the conjecture that the volume of through traffic would be
small due to low speed limits or inconvenience. If this surmise proves wrong, the
neighbors' worse fears get realized; if it is accurate, then Kallgren is relatively
inconsequential to "connectivity".) Requiring that Kallgren Road be constructed in
SPT13104
Page 27 of 31
accordance with City design standards and specifications is unnecessary in light of the
conclusions regarding Director's Condition 5b.
18. Condition 6c: As Condition 5b is eliminated, this condition must also fail.
Driveway access from Day Road to Lot A should be permitted. As it is located within
the designated open space, the size of the driveway should be restricted to the minimum
necessary for safe access to Day Road consistent with minimizing grading and the
removal of significant trees.
19. Conditions 6d and 6e: Evidence was not offered challenging these conditions;
they should be affirmed.
20. Conditions 6f: As Condition 5b is eliminated, the requirement for the Applicant to
hold a public meeting [Condition 6f] is unnecessary and should be eliminated.
Condition 7: Chart of Minimum Setbacks
21. Minimum setback distances, minimum buffer widths, and maximum lot coverage
should be noted on the final plat.
Decision
The decision of the Director approving the Short Plat application of Deni Christensen
[SPT 13104] is hereby AFFIRMED AS MODIFIED with Conditions 1 through 10 that follow
on pages 29 through 31.
Entered this 6th day of December 2005.
-signed in original-
Meredith A. Getches
Hearing Examiner pro tern
City of Bainbridge Island
CONCERNING FURmER 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 detennine 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.
SPT13104
Page 28 of 31
SPT13104
CONDITIONS OF APPROVAL
1. Kitsap County Health District approval for on-site sewage disposal and binding Water
A vailability Letters from Kitsap Public Utility District shall be included in final plat application
for Lots A, B, and C.
2. Prior to final plat approval, the Open Space Management Plan included on the face of the
plat in the preliminary plat application [i. e.. Page 3 of 3, Exhibit 2C) shall be revised as follows:
a. The last sentence in the third paragraph of Page 3 of3, Exhibit 2C, shall be revised to
read: "This Open Space Management Plan limits uses and activity in those areas depicted
as wetland, wetland buffer, wetland buffer setback, landscape and/or roadside perimeter
buffer on Page 2 of3 in the final plat map."
b. On Page 2 of 3 in the final plat map [Exhibit 2B]: (I) Change Legend label "Open
Space" to "Open Space Management Plan Areas"; (2) add to the Legend the dashed line
symbol used to show perimeter buffer setbacks with the label "Buffer Limits" (leave
dimensions as shown); (3) revise both Legend and map to show the wetland and wetland
buffer with separate symbols (removing the diagonal lines from the wetland area, label
the diagonal lines symbol as "Wetland Buffer" and adding the wetland symbol and label
to the Legend would accomplish this); (4) add label "15 ft. Building Setback" to identify
that area on the map; (5) eliminate text in the Legend regarding "open space" acreage and
percentage.
c. Preface the list of activities permitted [Page 3 of 3, Exhibit 2C] by noting that "No
activities, uses, structures or vegetation removal are allowed in any area covered by this
Open Space Management Plan except as permitted by this Open Space Management
Plan. "
d. Add provisions to specify placement of temporary fences, flags or similar markers to
mark the boundaries of the areas cover by this Open Space Management Plan during any
construction that comes within 15 ft. of those areas.
e. Make the following changes to the list of permitted activities (Page 3 of 3, Exhibit
2C), revising Items 1 through 4 and adding Items 5 and 6. The last three paragraphs
shown on the draft OSMP to remain unchanged.
Permitted Activities
1. Narrow pervious pedestrian trails (not to exceed 5 ft. wide) may be
constructed and maintained within the areas covered by this Open Space
Management Plan, except they shall NOT be permitted in the designated
wetland area.
2. Passive recreation, including but not limited to birding, walking, and
photography, shall be permitted.
3. Individual lot owners shall be responsible for maintaining the designated in
their own lots. No significant trees may be cut or removed, except that
diseased trees may be removed if and as determined necessary by a qualified
SPT13104
Page 29 of 31
arborist. The areas shall be maintained as natural areas, with the expectation
that natural forest growth will replenish the forest. To the extent that
significant trees are lost through natural processes, or diseased trees are
removed, individual property owners shall replace them within six months of
the date of loss or removal.
4. Low impact fencing and/or signs shall be placed in the wetland buffer area as
necessary to protect the wetland (consistent with BIMC l6.20.090.G.5) and
low impact fencing is permitted (but not required) to mark the perimeter
landscape buffer boundary (consistent with BIMC l7.l2.092.H.2.g).
5. Site investigative work necessary for land use applications shall be permitted
(consistent with BIMC l6.20.090.F.4) and, in all cases, impacts shall be
minimized and disturbed areas immediately restored.
6. Control and removal of invasive/exotic species by individual property
owners is encouraged and may be accomplished with manual methods, hand-
held power equipment, or other means as approved by the Director
(consistent with BIMC l6.20.090.F.6). Herbicides and pesticides shall not
be used in the areas covered by this Open Space Management Plan.
3. One-half of the school impact fees are due at the time of final plat approval; one-half are
due at the time of building permit issuance for homes on the individual lots. The half-fees are
based on the amount required at the time of payment. (BIMC 15.28.)
4. Record an agreement, binding on current and future owners of Lots A, B, C and D, to not
protest formation of a LID for the purpose of improving the south side of Day Road right-of-way
with a path to provide safe pedestrian access to Wilkes Elementary School.
5. Driveway access from Kallgren Road for Lots Band C shall be the minimum length
necessary to reach the respective building sites and the minimum width necessary to allow for
construction equipment and for fire department. The design and location of the driveways shall
be designed so as to minimize the removal and/or damage to significant trees and the need for
grading or filling. The existing driveway in the Kallgren Road right-of-way shall be incorporated
into the driveway design so that additional clearing north in the right-of-way should be
unnecessary .
6. Driveway access from Day Road for Lot A shall be the minimum length necessary to
reach the respective building sites and the minimum width necessary to allow for construction
equipment and for fire department access. The design and location of the driveways shall be
designed and located so as to minimize the removal and/or damage to significant trees and the
need for grading or filling.
7. Record an agreement, binding on current and future owners of Lots A, B, and C, to not
protest formation of a LID for construction of improvements for non-motorized travel in the
Kallgren Road right-of-way between Winthers Road and Day Road.
8. Ensure that final site plans meet the City Design and Construction Standards and
Specifications; show proposed utilities, including water mains, service connections and meters.
9. Note on the face of the plat that: Storm water drainage plans, meeting requirements
current at the time of building permit application, shall be required as part of the building permit
application for each newly created lot.
SPT13104
Page 30 of 31
10. Include the following chart of setback and lot coverage information on the final plat and
continue to show locations of properly dimensioned setbacks on Page 2 of 3 of the final plat.
Setback/Coverage: Required distance:
Building-to-building separation Minimum 50 feet
Building to Right-of-Way (Day & Madison) Minimum 50 feet,
Building to Right-of-Way (Kallgren) Minimum 25 feet
Building to Subdivision Boundary Minimum 25 feet
Building to wetland buffer Minimum 15 feet
Coverage Lots A, B, & C Maximum 11,000
Coverage Lot D Maximum 46,410
SPT13104
Page 31 of 31