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COOL, GALE (CAMAS PIE COMPANY)DECISION OF THE HEARING EXAMINER CITY OF BAINBRIDGE ISLAND In the Matter of the Appeal of CAMAS PIE COMPANY, LLC by GALE COOL for a Reasonable Use Exception RUE 12892 Introduction The Appellant appealed the Director's conditional approval of a Reasonable Use Exception for construction of a single-family house within a wetland buffer. The Hearing Examiner held a public hearing on this matter beginning on February 17, 2(~05 and continuing on March 3, 2005. Parties represented at the hearing were the Director, Planning and Community Development Depa~hiient (I~CD or Department), by City Attorney Rod P. Kaseguma, and the applicant/appellant, Camas Pie Company (owner Gale Cool), by George C. Nickum, attorney at law. On March 15, 2005, the Appellant submitted a motion requesting that the hearing be reopened for the submittal of additional factual testimony to clarify testimony given on March 3'a and to submit a citation. The City's response, received on March 17, 2005, opposed the request. In an Order issued on March 21, 2005, the Hearing Examiner denied the Appellant's motion, but committed to: 1) listen to the tape recording of the proceedings to ensure that the subject testimony was considered as given; and, 2) consider all applicable sections of the Bainbridge Island Municipal. On April 8, 2005 the record was reopened for the admission of Exhibit 54, a memo correcting and clarifying the Director's Condition #7 which was one of the conditions that had been appealed. 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. Site 1. Findings The subject property is located on the north side of Point White Drive N-E, southwest of the Schel-chelb Estuary, in the southwest portion of the island (Assessor's No. 04240210432009). The legal description is: RUE 12892 Page 1 of 14 Lot A of Kitsap County Short Subdivision No. 3416 as recorded under Auditor's File No. 8403230116 situate in Government Lot 4, Section 4, Township 24 North, Range 2 East, W. M., City of Bainbridge Island, Kitsap County, Washington. [Exhibit 22, StaffReport, page 1; Exhibit 28, Approved Site Plan] 2. The property, totaling approximately 27,000 sq. ft., is zoned R-2, for residential use, two units per acre. The Comprehensive Plan designation is OSR-2, Open Space Residemial, two units per acre. [Exhibit 22, Staff Report, pages 1 and 4; Testimony of Cool] 3. Roughly rectangular in shape, the undeveloped parcel is approximately 90 ff. wide, 313 ft. in length on the western property line and 225 ft. on the eastern property line. Adjacent to the west is the Mahony residence and to the east is the right of way for Baker Road and, across that unimproved road, is the Schel-chelb Estuary. A Category II wetland occupies the southern portion of the site and an upland area extends approximately 130 ft. from the northern property boundary. The wetland on the subject property is connected by a culvert to the Schel-chelb Estuary. When it is not blocked by gravel deposits, a culvert under Point White Road allows for passage of stormwater/drainage from the north/northeast to the Sound (see photos in Exhibit 34 of culvert, blocked and unblocked). [Exhibit 22, Staff Report, page 4; Aerial photo, Exhibit 30; Exhibit 3; Exhibit 5; Exhibit t 1; Exhibit 28] Wetland Delineation 4. The application included a wetland delineation performed by Wiltermood Associates on June 30, 2004 [Exhibit 5]. In malting that delineation, a professional wetland scienti~ identified and flagged the wetland boundary. This delineation indicates an upland area that extends south from the northern property. The Wiltermood delineation, which notes a close similarity to a delineation done two months prior [see Finding//6], is based upon "the transition from upland dominated plant species on the tongue to the wetland dominant plants that surround the tongue" and verified with test holes dug on either side of the flagged wetland boundary. Positive indicators for all three wetland parameters were found in association with the test hole south of the boundary, and "no positive indicators for any of the three wetland parameters" were found with the test hole on the upland side of the delineation. [Exhibit 5; Exhibit 11; Exhibit 29] 5. As denoted on the survey of the delineation ["Wetland Location", Goldsworthy survey, Exhibit 3], there is a "tongue" of upland, about 50 ff. wide (extending west from the eastern property line), that extends south approximately 130 ff. from the northern property line. These upland dimensions are similar to those that the Wetland Advisory Committee (WAC) reported regarding the delineation performed in May 2004. [Exhibit 11, page l]. RUE 12892 Page 2 of 14 6. A delineation performed by EPA wetlands biologist Ralph T. Rogers in May 2004 [Exhibit 29] concluded that much of what the City had "originally delineated" as wetland, remains wetland. However, the portion of the subject site that had been "cleared/bulldozed in approximately 1959 apparently under authority of a county permit..." was a "notable exception" to that general conclusion. Similarly, the northern two-thirds of the Mahony property to the west was determined "also not a wetland." The boundary that Rogers drew on an aerial photo includes that area subject to the "mechanized clearing", and Rogers recommended that the exact location of the wetland/upland boundary be flagged prior to any development. The nature and location and extent of the upland area shown are similar to that noted on the survey of the Wiltermood delineation [see Finding #5; Exhibit 28]. Rogers observed some hydric properties in the southernmost portion of the upland. [Rogers, page 1~ Testimony of Preston]. 7. The PCD planner, Maria Preston, prepared the Staff'Report for this decision. Ms. Preston has some expertise in wetland delineation (i.e., a degree in environmental science, training in wetland delineation, and did delineations as a consultant in the private sector before joining the Department). Staff believed that the Wiltermood delineation might be incorrect as to the northern reach of the wetland, but did not "feel qualified to review this particular delineation" and sought assistance from the Department of Ecology (DOE). Richard Robohm fi-om DOE toured the subject site with City staff. During the tour some indications of possible hydric conditions in the southern part of the upland were observed. Contrary to the direction of BIMC 16.20.090(B), no new "final delineation" was performed. DOE did not provide any written follow up and no measurements locating the "moved" wetland boundary were documented. [Exhibit 18; Testimony of Preston] 8. Credible testimony and other evidence (including aerial photographs, site plans, etc.) support the applicant/appellant's assertions that the size/shape/character of wetland on the subject property may have been affected by: 1) the Schel-chelb Estuary restoration/enhancement project; 2) restricted drainage to Puget Sound across Pt. White Drive. Mr. Cool was a voluntary participant in the Schel-chelb enhancement, which included a culvert connecting to the subject property so that it receives water from the estuary. Water that would naturally drain to the Sound gets impounded on the subject property when the culvert under Pt. White Road gets clogged. [Testimony of Cool; Exhibit 10, Exhibit 12; Exhibit 17; Exhibit 29; Exhibits 30 through 34; Exhibits 36 through Exhibit 39] 9. The hydric conditions observed in the southernmost part of upland "tongue" may be a result of changed conditions [see above] increasing the reach of the wetland or may be a reversion to previous conditions, or some combination of the two. RUE 12892 Page3 of 14 10, The Wiltermood delineation was performed in a manner consistent with BIMC 16.20.090. The "adjustment" that the Director presumed for the location of the wetland boundary was not supported by a 'SOnal delineation" is provided for by BIMC 16.20.090(B) for situations like this. Without such a "final delineation", the Wiltermood delineation is the appropriate basis for determining the location of the wetland. RUE Application/Proposal 11. The Department determined that there is no part of the subject property that is not within the wetland or its buffer area. The wetland on the property is considered to be a Category I! Wetland, and BI/vIC I6.20.090(H) [see Finding//34] requires a 100-ft. buffer around a Category II Wetland. The application [Exhibit 7] identifies approximately 19,000 sq. ft. of the site as wetland and approximately 7,000 sq. ft. as wetland buffer. The wetland and buffer encompass the entire property; there is no 'buildable' area (i.e., no part of the property is outside of the critical areas). [Exhibit 22, Staff Report, page 4] 12. The appellant applied for a Reasonable Use Exception (RUE) because no development is allowed in a wetland buffer without such an exception. Notice of that application was given on December 8, 2004. [Exhibit 22, Smt'f Report, page 3; Exhibit 19] t 3. The proposal consists of construction of"house & garage/studio" with the house having dimensions of 35 ft. X 45 ft. and the garage/studio 24 R. X 24 ft., for a total building footprint "not to exceed" 2,000 sq. l~. Both structures would be located within the upland as depicted in the site plan attached to the Staff'Report [see Finding//5]. The detached garage/studio is shown partly within the joint driveway/access easement along the northerly 25 ft. of the subject property. [Exhibit 3; Exhibit 4; Exhibit 7, Application; Exhibit 22, Staff Report, pages 3-7 and attachments; Testimony of Cool] 14. Building setbacks proposed are 25 fl:. (back from the northern edge of the wetland), t 5 ft. from the northern property line, 10 ft. from the west, and 5 t~. from the east. These setbacks are consistent the rear and side setbacks required by the Code. Native vegetation, rather than "landscaping" is proposed. [Exhibit 3; Exhibit 7, Application; Testimony of Cool] 15. The proposed house would be north of the location where a house was proposed in 1989 by Richard Dunbar, Mr. Cool's predecessor in interest. (lVlr. Cool testified to his belief that the location he is proposing is the same as Mr. Dunbar's. However, the site plans [Mr. Cool's in Exhibit 3, with the "garage/studio" labeled, and the 1989 Dunbar plan in Exhibit 40] do not support that belief. The 1989 "Final Approved Plan' for the Dunbar residence [Exhibit 40], a house and studio flanking a center deck with total dimensions of approximately 59 ft. X 42 ft. and a footprint of close to 2475 sq. ft., is shown as located entirely in the southern half of the property. [Testimony of Cool; Exhibits 37 through 41] RUE 12892 Page 4 of 14 16. The maximum height allowed in this zone is 30 ff. (35 Pt. as a Conditional Use). The application indicates a "2, or perhaps, 3" story house. As the first floor of the house would be required to be built at least one foot above the base flood elevation [BIMC 15.I6.050(F)(1)], a three story structure may not be possible. [Testimony of Skinner; Exhibi~ 7, Application, page 9; Exhibit 4, SEPA Checklist, page 4] Director's Decision 17. The RUE application review procedures [BIMC 16.20.090(IX2Xc)] include review by the Wetland Advisory Committee (WAC or Committee). The WAC met with the applicant at a pre-application conference in June 2004. At that time, discussion appears to have focused on construction of a building with a footprint 30 ff X 30 fi, That meeting was followed by a site visit by the WAC. [Exhibit 11] 18. The Committee's report [Exhibit 11, page I] refers to the delineation performed by Rogers [see Finding ~6] to describe the upland area as "a teardrop-shaped intrusion extending southward into the surrounding wetland approximately 130 feet from the northern property boundary with a maximum width of approximately 45 feet." The WAC subsequently reviewed the application (submitted in August) which included the Wiltermood Associates wetland delineation [see Finding #4]. The WAC's report notes that this later delineation indicates the upland to be "a 50-foot wide tongue, rather than a teardrop..." [Exhibit 11] 19, The WAC also notes that the application proposes "a 35 X 45 ff two or three story single family residence and a 24 X 24 ff garage/studio". The WAC met again wkh the applicant in September and discussed the application. [Exhibit 11] 20. The Wetland Advisory Committee concluded that the proposal would be more than the minimum necessary to provide reasonable use of the property. This conclusion appears to be based principally on the belief that the applicant had plans for a viable 900 sq. ff. house and that it had been discussed at the preheating conference as if it was an acceptable reasonable use. [Exhibit 11] 21. The Director determined that a tingle family residence is a use consistent with the Comprehensive Plan and zoning designations. However, as the property is "entirely, encumbered" by wetland and buffer, without a reasonable use exception, the property owner would be deprived of any reasonable use. The upland is entirely within the required buffer, so an RUE would be required for any residence, regardless of size. Thg conditions of the Director's approval would limit the residence to the size and siting th~ the Director believes is the minimum-necessary to allow a reasonable use. [Exhibit 22, StaffReport, pages 3-5; Exhibit 23; Testimony of Preston] RUE 12892 Page 5 of 14 22. On December 23, 2004 the Director issued a Notice of Administrative Decision and Mitigated Determination of Non-Significance (MDNS). The administrative decision, approving the Reasonable Use Exception, included fit~een conditions. [Exhibit 22, Staff Report; Exhibit 23] 23. The Director's conditions limit the size and location of the house so that the maximum size of the footprint would be 900 sq. fi., detached garage/studio would be disallowed) [Condition 9], and the southern wall of the house could be "no further south than 50 feet from the north property line" [Condition 10]. Condition 11 would create within the upland "tongue", a limited "disturbance area" (shown in hatch marks on the Approved Site Plan, Exhibit 28) approximately 50-55 ft. wide in the east-west dimension, and extending 65 f~. from the northern property line. Combined with the 25 t~. access easement that exists along the northern property line and a 15 t~. wide no-build area required north of the wetland boundary, the north-south dimension ora house would be a maximum 25 t~. Combined with the east and west setbacks that would limit the east-west dimension to 35-36 f~., a building footprint of 900 sq. i~. would be the a maximum allowed, 24. The limitations imposed by the Director's conditions were founded in the belief that the Wiltermood delineation was incorrect and that some (unspecified) portion of the southern upland area is more properly considered wetland. The decision to limit the "disturbance area" and building footprint using on a wetland boundary located at some unspecified distance north of that denoted in the Wiltermood delineation survey, is not supported by this record. Appeal and Hearing 25. On January, 5, 2005, the appellant timely filed a Notice of Appeal appealing Conditions 6 through 15. [Exhibit 26,] The hearing on the appeal was properly noticed with posting, mailing, and publication completed by January 29, 2005 [Exhibit 27]. 26. Condition 7 was appealed because it required that the building permit application to "be in substantial conformance with the plans date stamped May 14, 2004 (see attached)." [Exhibit 22, Staff Report, Page 2] As noted in the appeal [Exhibit 26], no plans with that date are attached to the Staff' Report. On April g, 2005, with the appellant's representative present, the record was reopened for the limited purpose of the Director's representative correcting and clarifying that Condition #7 refers to the "Approved Site Plan" [see Exhibit 54]. 27. Condition 6, requiring "low impact foundation technology" and Condition 8, requiting an Eagle Management Plan, were also appealed. Appellant objects to these conditions on the same grounds: their nature and extent is unclear. At heating, "low impact foundation technology" was briefly described. RUE 12892 Page 6 of 14 28. The major issue disputed on appeal was the Director's conditions that would limit the size of the residence (footprint) and location of the house within the upland (i.e., Conditions 9, 10, and 11). Conditions 12-15 were appealed to the extent that they would require implementing Conditions 9, 10, and 11. 29. At hearing the appellant denied that he ever proposed to limit the house footprint to 900 sq. t'c. Mr. Cool further testified that his proposal, with the building site entirely in the upland portion of the property, would limits impacts (fewer trees needing to be removed), would allow a more useable design and better solar access, and would provide functions/amenities (e.g., storage and parking) that are necessary for and typical of "reasonable" single-family residences. [Testimony of Cool; Testimony of Skinner] 30. The Mahony residence to the west has a garage [see photo 4, Exhibit 31] that is accessed via the joint easement across the subject property. The Mahony house [see Exhibit 46] appears to have two-stories and was estimated to have a footprint over 1600 sq. R. [36 X 45, Testimony of Cool], but it appears that it may be somewhat larger when compared to the 1989 Dunbar house footprint as those houses are outlined on site plans. [Exhibk 3; Exhibit 40] 31. The parties both presented evidence supportive of their respective positions regarding the "reasonableness" of restricting the size and location of the proposed residence (t'.e., the extent of the Reasonable Use Exception). The appellant's evidence [Testimony of Skinner] suggests that a house without a garage is atypical on Bainbhdge Island, and very much a rarity (e.g., of 69 recent listings for houses for sale, only three lacked garages). The Director presented house sales information showing 2-3 bedroom, 1-2 bath houses with no garages are not as rare as appellant indicated. However, a close took at the data shows that garages are standard with houses built in the last fifty years; with the no garage situation being rare in recent construction. (Of the 102 residences listed, 24 had no garage and 12 of these had been constructed before 1950, only 2 had been constructed within in the past ten years.) As for size, the eleven properties on the list found to have been built in the past ten years, averaged on the order of 1500 sq. R. (not including garage). [Exhibits 47 and 49] Pertinent Code Sections 32. The decision procedures of BIMC 2.16.095 apply to administrative decisions on land use applications and "the decision of the detnartment director may be appealed to the hearing examiner in accordance with the procedures of B1MC 2.16.130." 33. BIMC 2.16.130 provides the procedures for an appeal to the Heating Examiner who, following an open record heating, is authorized to make a decision to affirm the decision, reverse the decision, affirm with modifications, or remand the matter to the Director for further consideration. RUE 12892 Page 7 of 14 34. The Wetlands and Streams section of the Critical Areas Ordinance, at BIMC 16.20.09(KH), including Figure A, requires a 100-fi. buffer, and a 15-R~ building setback beyond the buffer for Category II wetlands. (A 50-fi. buffer is required for Category III and a 25-fi. buffer for Category IV). Figure A and subsection (1) further provides that: "For wetlands that have been enhanced vol~ntc~ity and not to meet mitigation requirements, the required buffer shall be determined by the wetland category prior to enhancement." 35. BIMC 16.20.09003) provides that: "The exact location of the wetland boundary shall be determined by the applicant through the performance of a field investigation... Where the applicant has provided a delineation...the director shall verify the accuracy of, and may render adjustments to, the boundary delineation. In the event the adjusted boundary delineation is contested by the applicant, the director shall, at the applicant's expense, obtain a wetland biologist to render a final deh'neation. ' 36. BIMC 1620.090(I)(1) states the purpose of the Reasonable Use Exception ...Reasonable use exceptions are the mechanism by which the city may grant relief from the provisions of this chapter where compliance with certain provisions of this chapter leave no reasonable use of the property. A rectsonable use exception is authorized only for proposed alterations to required buffers, regntlated wetlands or streams... 37. BIMC 16.20.090(1)(2) provides that because this is a proposal for developmem on a parcel that cannot be subdivided further, the applicable procedure is that of an administrative Reasonable Use Exception (RUE). An administrative reasonable use exception follows the r~view procedures set forth in BIMC 2.16.095: a decision by the Director and oppportunity for appeal to the Hearing Examiner. 38. The Reasonable Use Exception decision procedure, at BIMC 16.20.0900X2)(c) requires consideration of the Wetland Advisory Committee's review as follows: The written report of the wetlands advisory committee or consultant shall be considered by the decisionmaker. If the decisionmaker does not follow the recommendations of the wetlands advisory committee or consultant, the reasons shall be set forth in the decision. 39. The Reasonable Use Exception decision criteria of BIMC 16.20.090(1)(4) provide that: RUE 12892 Pag~ 8 of 14 A reasonable use exception may be approved or approved with modifications if without the reasonable use exception the applicant wouM be deprived of any reasonable use of the property and: a. The proposed act~v~#es will result in the minimum intrusion, alteration or impairment of the wetlands, stream or required buffer including impacts to their functional characterfstics, while permi~ng some reasonable use of the properly. In all cases, disturbance of a regulated wetland or stream shall only occur if no reasonable use can be achieved by disturbance of the buffer only; c. The proposed activities include mitigation as approprmte to avoid measurable degradation to groundwater or surface water quati~. ; d. The proposed actiwt~es comply with all relevant state, local and federal laws, including those related to sediment control, polh~t~on... e. /llterations to wettand...and buffers will be mitigated to the extent feasible considering the extent of the disturbance, the size of the site and the necessity for the proposed acthn'ties; f There will be no damage to nearby public or private property and no threat to the health or safety of people on or off the property; g The inability to derive reasonable use of the property is not the result of actions by the applicant in segregating or dividing the property and creating the undevelopable condition after the effective date of this chapter; h. The reasonable use exception will not allow a use or activity that is inconsistent with the uses and activity'es and limitat~'ons of other properties in the vicimty and zone in which the property is located; *** f The reasonable use exceptmn is the minimum necessary to provide reasonable use of the property; k~ The reasonable use exception is consistent with all other provisions of this code and is in accord with the comprehensPoe plan. Conclusions 1. The Hearing Examiner has jurisdiction to hear and decide this matter and is to give the decision of the Director substantial weight. [BIMC 2.16.130] 2. Appropriate notices of the application and the public hearing were given and the hearing was properly convened and all comments, testimony, and other evidence considered. 3. "Low impact foundation technology" was mentioned briefly at hearing, but appellant did not pursue his appeal of Condition 6 that requires it. There is no basis to overturn Condition 6 and it appears that it is also consistent with the types of construction contemplated in the past (i.e., building on piers or "stilts"). Further, in an area subject to potentially flooding, such construction methods would appear to be logical. RIIE 12892 Page 9 of 14 ~ T 4. An Eagle Management Plan is required where an eagle nest is within a prescribed distance of a proposal. The condition here should to be modified only to verify that this property is within that proximity. 5. As the property owner would be deprived of all reasonable use of this property if no house were allowed, the Director correctly concluded that a Reasonable Use Exception should be approved. Without an exception, no house - of any size - could be built. Further, this record supports the Director's conclusion that the residence proposed and the exception requested do not meet the RUE criterion that an exception be "the minimum necessary to provide reasonable use of the property" (emphasis added). However, this record does not support the Director's decision as to building size and disturbance area limitations and the disapproval of a garage. 6. Based upon the record here, the Wiltermood wetland delineation should be used as the basis for determining where setbacks should be required and where construct can and cannot be permitted. The Director's restrictions establishing "disturbance area limits" [Director's Conditions 7 and 11] and limitations on footprint size and maximum distance from the northern property line [Director's Conditions 9, 10 and 11], are not based on the Wiltermood delineation. Instead, there was a determination (albeit by knowledgeable persons), that the wetland boundary should be located further north. The boundary of the wetland was presumed "moved" some unspecified distance north without a new delineation (no additional test holes, no new or relocated flags, and no written findings based on such new field work). While the opinion o£ staff`and the expertise of the WAC are respected highly, in the absence of a "final delineation" such as called for by BIMC 16.20.0900]), it is an error to not use the Wiltermood delineation. On this record, the conditions imposed by the Director to limit and restrict the location and extent of development, based on the presumed and unmeasured relocation of the wetland boundary, is both arbitrary and an error. 7. The recommendations of the WAC are not being followed for two reasons: 1) the recommendations are based upon the informal determination that the wetland boundary should be moved to the north some unspecified distance; and, 2) the Committee's mistaken belief that the applicant, previously having viable plans for a smaller (truly "reasonable" house), was unacceptably overreaching with the residence proposed in the application. 8. The appellant believes that the size and location ofhis proposed house is reasonable (i.e., representing the minimum house that would be a "reasonable use"). This record evidences that, given the range of "reasonable" houses (size and amenities), the applicant's proposal is more than "the minimum necessary to provide reasonable use of the property". However, the inclusion of a garage is not more than what is reasonable. RUE 12892 Page 10 of 14 9. Based upon the provisions of BIMC 16.20.090(1) and the re~ord here as to the location of the wetland and what would be a "reasonable" residence, Conditions 7 through 12 and Condition 14 should be modified as noted below. Conditions 1 through 6, and Conditions 13 and 15 remain unchanged. Prior to any construction, the applicant shall submit a building permit application for the proposed re, idence. The building p~-mit application shall be ..... ~ e:+~ m ,,,-~x re~ ~ ~ ' include a sit~ an that clearly delin_~_tm: a. Thc wetland bo~mdarg (t.e., '~Wctland...Location" d~picted on the survey map prepared by Goldsworthy, Inc., dated 7128104); b. A 15-ft. wide building setback from thq.q, orthern property_ line; c, A 5-ft. wide building setback...fr0m the eastern prol~,~W line; d. A 10-t~. wid~ building s~t~a~k from the western limit ofth~ 50 ft. wide dismrbmncc area noted in Condition 5; and, ..C..A 15-ft. wide building setback from the southern disturbance area boundary noted in Condition 5 (i.e., 80.R. from the northern property linc). If the Direct.of, ~ examinati_'on of thc mapped location of ea~-Je nests, verifies that there is a nest w'_-_hin the presen .l:,x_d .di .sla. t. mce for requiring an Eagle Manag_emcnt PI .an., Aaa Eagle Management Plan "&"2! must be submitted prior to issuance of a building permit. Distul°oan~ ~hall b~ limited to that generally rectangular area within thc upland area (i.~,, the "ton_~e" outlined the on thc survey ma~ oreoared, b.y Goldsworthy, Inc.., da_md 7/28/04) having a 50-ft. east-to-,vest dimension extending west from the eastern prop0r~... Ii.nc and 95-fL north-to-south dimension extending south from the northern property linc. No buildin._.o~ s. hall bo allowed wilhin any setback or buffer noted in these conditions. The ~-..ase total building footprint of all buildina~ (including detached _mtrage) shall not exceed 1625 900 square feet. An a?~./e=a! 10. No building shall be located furth~ than -n. ..... shall be !e**.~:~-.~ ne, ~,:.'*~'~r :~'-'-*.~ ~-n 5~ 8_0_0 feet sooth of thc northern property linc (i.e., the southern wall of the southernmost building ma~ extend no further south than 80 ~. from the northern property_ line). 11. A 15-R. wide building r~tbac~ arm shall bo establi.qhcd and oNserved in that portion of the upland ~hat lies be~xv~ 80 tL and 95 fL from the northern propeaW_ line. If thi~ area is disturbed during construotion,, it..s..hall be restored with native plants aoproori.at_e for an upland area. A 25-ft. wide wetland buffer shall be. observed in that portion of thc upland that lies between 95 ft. and 120 R. from thc northern prop_cRy line; no construction or disturbance shall be allowed in this area. ~ 12. The limi~ of clearing and grading shall I~ fencexl with silt fon~q, ng in thc field and inspected by the Department of Planning and Community Development prior to RUE 12892 Page I1 ell4 construction. No clearing. _era/ting. filling, or disturbance of an? kind shall be permitted within the wetland as that area is delineated on the Wetland Location 14. survegmap prepared by Goldsworthy, Inc., 7/28/04. *** A mitigation plan shall be submitted and approved by staff prior ~o issuance of the building permit, The plan shall include restoration of an area equal to the area disturbed on the site ~ and may inchdo off, site restoration that has previously bccn accomplished by this avvlicant (e.£.. in association with Schel-chelb Estuary). Mitigation can be accomplished either by installation of plantings prior to final inspection of the building permit or by bonding the work for two years. 10. Given that the goal of the Critical Areas Ordinance is the protection of wetlands, avoiding and minimizing adverse impacts should always be foremost when contemplating exceptions to the protective prohibitions. A residence can be constructed on the subject property without disturbance to the wetland, with a limited disturbance in the upland area, with low-impact construction methods, with effective buffers, standard building setbacks, and with restoration mitigation required. 11. Conditional approval ora Reasonable Use Exception, with the Director's conditions modified, should be affirmed. Decision The decision of the Director approving a Reasonable Use Exception to allow the applicant, Camas Pie Company/Gale Cool, to construct a single-family house within a wetland buffer, is hereby ~D wrnt Moon~n COI~iT~O~S (i.e., Conditions 1 thr°ugh 15 that f°ll°w °n pages 13 and 1 ~7 f~X~.~[~,.j~x~.~/./.L,..9 Entered this [ ['r'~y of April 2005. _.~lemdith A~ Getches City of Bainbridge Island Hearing Examiner pro CONCERNING FURTHER REVIEW NOTE: tt is the responsibility of a person seeidng review of a Hearing Examiner decision to consult applicable Code sections and other appropriate sources, including State law, to determine his/hex fights and re~ponsibilitics relative to app,. Request for judicial review of this decision by a person with standing can be made by filing a land use pet/tion in superior court within 21 days in accordance with the Land Use Petition Act, Revised Code of Washington (RCW), Chapter 36.70C. RUE 12892 Page 12 o£ 14 RUE 12892 Conditions of Approval 1. Application of fertilizers, pesticides, herbicides, insecticides or fungicides shall use Integrated Pest Management OPM). Stratc~gies are defined in the Puget Sound Pest Management Guidelines, A Guide for Protection of Our Water Quality [Menzies, G. and B. Peterson, Puget Sound Pest Management_ Guideline. A Guide for Prrm:cfing Our Water O~_~allty_, Bellingham, Washington: WSU Cooperative Extension, 19931. 2. In order to protect the ground water and the wetland flora and fauna, the roofing material is to be of a non-leaching material that is not harmful to wetlands, examples of non-leaching mateaSala ate, but not limited to, racial and tile roofs. Asphalt composition and cedar roofing is not acceptable. 3. A split-rail type fence shall be installed across thc propcaty approximately 20 feet from the ~ar property line. The fence shall provide a clear distinction between native vegetation buffer area and any futura yard landscaped area. The mils shall be high enough to allow small mammals and wildlife to pass through. The fence shall be in place prior to final inspection of the building permit. 4. Two signs indicating the presence ora protected wetland buff~ shall be placed on the fence required by Condition 3. The driveway shall be constructed of pervious material. To minimize clearing and grading on the site, low impact foundation technology shall be used for the house foundation. Prior to any construction, the applicant shall submix a building permit application for the proposed residence. The building permit application shall include a site plan that clearly delineates: a. The wetland boundary (i.e., "Wetland Location" depicted on the survey map prq~ared by Goldsworthy, Inc~, dated 7/28/04); b. A 15-ft. w/de building setback f~om the northern property line; c. A 5-~ wide building setback from thc custom property line; d. A 10-t~. wide building setback from the western limit of the 50 ft. wide disturbance area noted in Condition 5; and,. e. A 15-f~. wide building setback from the southern disturbance area boundary noted in Condition 5 (i.e., g0 fi- from tho northern property line). If the Director, after examination of the mapped location of eagle nests, verifies that there is a nest within the prescribed distance for requiring an Eagle Management Plan, an Fagle Management Plan must be submilZed prior to issuance of a budding permit. RUE 12892 Page 13 of 14