LAVON, RAVINE PROJECT ADM12486
DIRECTOR OF PLANNING
AND COMMUNITY
DEVELOPMENT
FINDINGS AND DECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of
LA YON ENTERPRISES, INC.
ADM12486
from the Code Interpretation by
the Director, Planning and Community
. Development Department
Introduction
Lavon Enterprises, Inc. requested that the Director make a Code Interpretation regarding
property it owns and seeks to develop as the "Ravine Project". The Director concluded
that the interpretation sought was contrary to the Code and Lavon Enterprises, Inc. has
appealed that administrative decision.
The Hearing Examiner held the appeal hearing on November 23, 2005. Parties
represented at the hearing were the Director, Planning and Community Development
Department (pCD or Department), by Dawn F. Reitan, attorney for the City of
Bainbridge Island, and the Applicant/Appellant, Lavon Enterprises, Inc. (Lavon), by
Dennis D. Reynolds, attorney at law. The record remained open through December 9,
2005 for receipt of post-hearing submittals by the parties.
After due consideration of all the evidence in the record, the following constitutes the
findings, conclusions, and decision of the Hearing Examiner on this appeal.
Findings of Fact
Background
1. Lavon owns five contiguous parcels on six acres located just north of Winslow
Way East, west of State Route 305, near the Ferry Terminal. The site includes a steep
sloped ravine containing State Stream No. 15-0324.
2. Part of the site is developed with a surface parking lot that is used as a
commercial (principal use) parking lot. The parking lot has a landscape perimeter that is
less than the 35 ft. minimum currently required by BIMC 18.85.070.D.5 [see Finding 16].
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(2) The current 35 ft. mtmmum standard for the landscape
perimeter does not apply because the existing structure (the parking lot) is
non-conforming as to that standard and Building No.2, constructed in its
place, would not increase the nonconformity. The new building would be
a continuation "of the use of an existing legal, nonconforming structure."
[Exhibit 3, page 6]
9. The Director responded to the requested interpretation in a letter to Lavon dated
August 15, 2005 [Exhibit 5]. The Director disagreed with both approaches proffered by
Lavon [see Finding 8 and Exhibits 3 and 6]. The Director noted that". . . The buffer along
the highway is an important aesthetic feature on the island..." and that the City has "no
control over existing trees and vegetation" within the highway right-of-way. To interpret
"State highway" to mean only the paved portion of the right-of-way would be contrary to
the intent of the perimeter landscape requirements because the City cannot control what
happens in the right-of-way. The Director cited a recent example where screening from
the SR 305 right-of-way was lost when the Department of Transportation cleared large
trees and other mature vegetation from that right-of-way. The Director also noted that
construction of a building within the parking lot would increase the existing
nonconformity because it would result in more visual impact. [Testimony of Machen]
10. On August 26,2005, Lavon timely filed an appeal of the Director's Interpretation
(Exhibit 6]. Required notice of the appeal hearing was properly made (Exhibit 8] and
hearing was held on November 23, 2005.
11. At hearing, the Director summarized the bases for the Interpretation [Testimony
of Machen]. The Director noted that the City cannot control the SR 305 right-of-way,
and cited the recent removal of mature vegetation [see "before" in Exhibit lOA and
"after" Exhibit lOB] as illustrative of how the Code objective of providing effective
screening could be thwarted if the required landscape perimeter was to include the
highway right-of-way. The Director also observed that a 3-story building would have
considerably more visibility from SR 305 than the existing surface parking lot. Thus,
Building No.2 would increase the nonconformity by increasing visual impact, further
thwarting the screening objectives of the landscape perimeter requirements [see Findings
13, 14, 15].
12. In determining the location and extent of required buffers and other setbacks, the
City routinely measures from adjacent public rights-of-way. [Testimony of Machen] An
example of this is BIMC 12.30.040, which provides that ". ..Requiredyard setbacks shall
be measuredfrom the proposed right-of-way shown on the map."
Bainbridge Island Municipal Code (BIMC)
13. The purposes of the Landscape Requirements are found at BIMC 18.85.020:
The purpose of this chapter is to preserve the landscape character of the
community, link the Island's natural amenities with landscape greenbelts along
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C. Standards. The following standards apply to the fUll screen, partial screen
and filtered screen perimeter landscape requirements contained in this section.
1. Existing vegetation may be used in lieu of new plant material if not
already being used to meet another requirement, except as otherwise provided in
BIMe 18.85.060 (site interior retention of 30 percent of significant tree canopy).
2. A fUll screen will be required to screen utilities located above ground
from adjacent uses.
3. Perimeter landscaping shall be clustered in areas to screen structures,
utility structures, loading areas, parking lots, trash enclosures, storage areas and
mechanical equipment.
4. The department may approve the averaging of perimeter landscape
widths to provide adequate screening if it meets the criteria contained in this
section.
5. Earth berms in combination with shrubs and trees may be used to
achieve the initial planting height requirement.
6. Minimum landscape perimeter dimensions are allowed when
perimeter averaging is applied The landscape perimeter can be averaged only if
the total required perimeter dimension square footage is achieved. The director
may allow landscape perimeter averaging if the following criteria is met:
a. Plant material may be clustered to more effectively screen
parking areas and structures; and
b. Does not diminish the quality of the perimeter landscape;
c. When significant trees are being retained
...
16. BIMC 18.85.070.D.5 provides that the perimeter landscape requirements for uses
abutting SR 305 in the Winslow Mixed Use Town Center - Gateway Overlay District
are:
Abutting zoning Perimeter Perimeter Minimum Perimeter
or land use Landscape Type Dimensions (Width) Dimensions (Width)
State highway. Full Screen 50' 35'
Single-family residential Full Saeen 20' 15'
'" BegiIIDing 100 feet north of Winslow Way...
17. BIMC 18.06.920 defines "Use" to mean "the purpose land, buildings, or structures now
serve or for which such is occupied, arranged, designed, or intended "
18. BIMC 18.06.760 defines "Nonconforming structure" to mean "a strocture that
was lawfully constructed prior to adoption of the ordinance codified in this title... that
does not conform to present relJUlations of the code. "
19. Regarding nonconformity, the Code provides, in pertinent part, as follows:
18.87.030 Nonconforming structures.
A nonconforming structure may remain and be used; provided, that:
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Measuring Landscape Perimeter Width
3. Whether, in these circumstances, the proposed development could effectively be
screened from SR 305 even though a portion of Building No.2 would be less that 35 ft.
from the SR 305 right-of-way, is not addressed here. The interpretation question
presented is whether the subject property can, for the purposes of measuring the
minimum dimension of the landscape perimeter, include the public right-of-way in its
landscape perimeter.
4. Lavon argues that the meaning of "highway" in BIMC 18.85.070.0.5 is
ambiguous and that some dictionary and common definitions indicate that "highway"
refers to the improved roadway, not the entire right-of-way. Further, Lavon argues that
the use of the term "rights-of-way/roads" in the provisions for perimeter landscape
buffers for local roads indicates City Council intent that only the paved portion of SR 305
is to be considered when measuring the landscape perimeter for screening properties
abutting SR 305.
5. Lavon's argument is not persuasive for two reasons. First, Lavon incorrectly
focuses on "highway". The term being questioned isn't "highway"~ it is "State highway".
The meaning of "State highway" is not ambiguous. "State highway" in BIMC
18.85.070.0.5 means SR 305 (i.e., the only State highway in the district). That the
Director considers SR 305 in its entirety is not a clear error.. Second, if the term "State
highway" was to be found ambiguous, it should be given the meaning that would give
effect to the legislative intent for BIMC 18.85.070.0.5. The Director's interpretation is
consistent with the express intent of the perimeter landscape regulation. The "Intent"
section of BIMC 18.85.070.A gives the intent of the perimeter landscape regulations
(emphasis added): <<...to screen parking areas and stroctures located adjacent to public
rights-of-way..." The perimeter landscape is a requirement for property "adiacent to
public rights-of-way"', not a requirement for the public right-of-way itself
6. In introducing the charts for the "Perimeter Landscape Requirements by District",
BIMC 18.85.070.0 states (emphasis added) that the charts "indicate the type of
landscaping required when the subiect property directly abuts various zoning districts
and land uses'. The requirement here [see Finding 16] is for the "subject propertY' to
provide a vegetative screen with a minimum dimension of35 feet where it abuts SR 305.
The perimeter landscape is a requirement to be met by "the subject property", not the SR
305 right-of-way. As the entire perimeter landscape required here could fit within the SR
305 right-of-way, Lavon's interpretation would mean that none of the landscape
perimeter would need to be provided by the subject property! Nothing in the Code
suggests that such an absurd result was intended.
7. The Director's interpretation is not in error: the width of the subject property's
required landscape perimeter is to be measured from the edge of adjacent right-of-way.
To require that the landscape perimeter be located on the subject property is reasonable,
logical, and consistent with the express intent of the Code. The City Council has
mandated that the widest minimum dimension and the densest screen type be required of
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measured from the edge of the right-of-way and construction of a building within the area
ofthe existing nonconforming parking lot would not continue that nonconformity.
Entered this.l..k.u:L day of December 2005.
L
eredith A. Getches
City of Bainbridge Island
Hearing Examiner pro tem
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 hislher rights and responsibilities relative to appeal.
For land use decisions, request for judicial review of this decision by a person with standing can
be made by ftling 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.
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