MCCALLUM, DAVID
CITY CLERK
DECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of
DAVID MCCALLUM
SPT13187
Regarding the Director's Conditional
Approval of the "Samson Triangle
Short Plat" Application of Madison
Glenn LLC for the Subdivision of
One Parcel into Two Residential Lots
Introduction
The Director granted conditional approval for the Applicant to divide one parcel into two
lots for single-family residential development. The Appellant appeals that decision. The
Hearing Examiner held the appeal hearing on this matter on September 29, 2005. Parties
represented at the hearing were: the Director, Planning and Community Development
Department, by Kathy James, Senior Planner; the Applicant, Madison Glenn LLC, by
Ralph Knight; and, the Appellant, David McCallum, by his attorney, J. B. Ransom.
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
1. The subject site (tax lot #032402-4-013-2000) is located west of the intersection
ofN.E. Blakely Avenue and N.E. Oddfellows Road near Pleasant Beach in the south end
of the Island. The property is a triangular shaped parcel approximately 5.1 acres in size,
with Blakely Avenue forming the northern boundary and Oddfellows Road the southern.
[Exhibit 1; Exhibit 8; Exhibit 14; Staff Report, Exhibit 41J
2. The site is undeveloped and forested, generally sloping down to the south with
grades of 10 to 20 degrees (18 to 36 percent). Steeper slopes are [present on the northern
side of the site along the Blakely Avenue embankment. The entire property consists of
slopes steeper than 15%. The predominant vegetation consists of conifers, including
Douglas Fir and Western Red Cedar; deciduous trees include big leaf maple, red alder,
SPT13187
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and madrona trees. The understory is sparse to moderately dense and at some locations is
dominated by English Ivy. [Exhibit 1; Exhibit 8]
3. Two drainage culverts daylight on this property along Blakely Avenue.
Stormwater flows on the north side of the property have incised a drainage channel down
the road embankment, onto the upper portion of the site. Near mid-slope, the channel
becomes indistinct and transitions into sheet flow. Stonnwater then flows under
Odd fellows Road, into a wetland system south of that road. [Exhibit 3C; Exhibit 8; Staff
Report, Exhibit 41, page 6; Exhibit 49]
4. The zoning is R-OA residential, one unit per 2.5 acres and the Comprehensive
Plan designation is OSR-OA, Open Space Residential. [Exhibit 14; Staff Report, Exhibit
41, page 2]
5. Development in the vicinity consists of single-family residences. R-OA zoning
predominates to the north, south and east; R-1 zoning is to the west. [Staff Report,
Exhibit 41 , pages 6-7]
Proposal and Director's Decision
6. The Applicant seeks to subdivide the subject property into two lots and intends to
build one residence on each lot. About half of the existing trees would be removed to
make way for the construction of the residences. [Exhibit 14; Exhibit 26; Exhibit 41,
Staff Report, pages 1, 8-9; Testimony of James; Testimony of Knight]
7. Future residences on the proposed lots would have to include roof and driveway
drains to collect stornl water from the impervious surfaces. This water would be subject
to detention and controlled release so that the quantity coming off the site is no more than
under existing conditions. At time of constnlction, site clearing and tree removal would
also be limited. [Testimony of Kindred; Testimony of James; Testimony of Knight]
8. On May 23, 2005, the Director gave notice of the SEP A threshold deternlination:
a Determination of Nonsignificance (DNS) [Exhibit 35]. This decision was not appealed
[Testimony of Jmnes].
9. Notice of the Director's decision to approve the requested short plat was given on
July 27,2005 [Exhibit 42]. Numerous conditions of approval were included [see Exhibit
42, Staff Report, pages 2-3].
Appeal
10. On August 12, 2005, David and Carol McCallum timely filed an appeal of the
Director's approval of the short plat. The objection to the approval is that the Director
should have required a downstream analysis to ensure that stormwater drainage from the
subject property would not increase to detriment of the McCallum property. The
Appellant is concerned that repeated flooding will cause "black mold" - a more difficult
SPT13187
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problem to correct than the replacement of funliture and fixtures that was necessitated by
past flooding. [Exhibit 45]
11. Notice of the appeal hearing was properly made with posting, mailing, and
publication completed by September 14, 2005 [Exhibit 47].
12. The subject property and the McCallum property are both within the West
Blakely Drainage Basin. At hearing, both the Appellant and the Director provided
infonnation about the drainage basin and flooding that has occurred at the McCallum
property. The McCallunl property [3601 Pleasant Beach Drive] is on the shoreline at the
point where the drainage from the basin enters Puget Sound. There is an 18" culvert
under Pleasant Beach Road to convey water from the north, onto the McCallum property
and then into Puget Sound. In recent years, storm water flows during large storm events
have exceeded the capacity of the culvert and overflowed the road, causing flooding
across the McCallum's yard and into the basement. [Testimony of Kindred; Testimony
of McCallum; Exhibit 48; Exhibit 49; Exhibit 53]
13. A drainage analysis done by Westsound Engineering in 2001 [Exhibit 48]
concluded that, based upon development conditions through 2001, the culvert under
Pleasant Beach Road "has sufficient capacity to convey the 100-year stornl event" if
water quantity was "completely mitigated" during new development. Erosion, debris
accumulation, and flow velocities were blamed for the flooding that had been occurring.
To eliminate flooding to the McCallum basement, Westsound recommended that the
existing conveyance system "be replaced or modified to properly convey the 100-year
storm event around the house."
14. Apparently none of the suggestions to alleviate flooding to the McCallum's
basement proffered by Westsound Engineering in 2001 have been implemented.
15. Credible expert testimony [Testimony of Kindred] established that the West
Blakely Drainage Basin has different boundaries from those shown in the Westsound
storm drainage analysis [Exhibit 49]. The City's Engineering Department revised the
basin boundaries [Exhibit 53] to more accurately reflect drainage conditions (e.g., the
area northwest of Birkland Road in Exhibit 49 is not part of this basin due to culverts that
drain to another basin).
16. The Appellant is concerned that development of the subject property will result in
increased stormwater flows that will aggravate existing conditions and cause flooding on
his property. Appellant believes that removing trees to provide sites for residence and
yards will mean an increase then likelihood of flooding on his property based upon his
belief that upstream development in recent years has had this effect. Not all the recent
development mentioned by the Appellant is within the same drainage basin as the
Appellant's property. However, only in recent years (subsequent to development
occurring upstream in this drainage basin) has storm water overflowed the culvert and
into the McCallum basement. [Testimony of McCallum; Testimony of Kindred]
SPT13187
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17. Generally there is more runoff from cleared and/or developed land than from
forested land and runoff from residential yards (being greater than from forested land)
can increase downstream flows. [Testimony of McCallum; Testimony of Kindred;
Exhibit 48]
18. The Director is relying on the City Engineer's determination that any new
development would be required to implement all the geotechnical "shoulds" and that
would be sufficient to accomplish the needed mitigation so that developn1ent there would
not increase flows [Testimony of Kindred]. The measures expected to accomplish this
would include limiting removal of vegetation and on-site drainage control and detention.
19. The Director's decision requires that all recommendations of the geotechnical
engineer, including drainage, be followed closely, without variance [Exhibit 42,
Condition 3 .d. v] and that all storm water plans be approved by the geotechnical engineer
and meet Code requirements [Exhibit 42, Condition 3.d.vi]. Impacts of construction on
natural areas are also to be limited [Exhibit 42, Condition 3.d.vii]. These conditions, and
the lot coverage and setback limitations, are to be shown on the face of the final plat.
20. The future removal of trees and native vegetation and the expansion of residential
yards would not be subject to the same controls as is the development of impervious
surfaces during construction. City Engineer points to the geotechnical report as
preventing future property owners from clearing the existing forest vegetation and
creating large residential yards. The geotech' s recommendations include [Exhibit 8; page
5]: "limit clearing for residential building envelopes and maintain existing native
vegetation"; "revegetate cleared and/or denuded site soil areas"; "obtain the services of a
qualified arborist to determine health and condition.. . aggressively replant the tree
removal areas".
Bainbridge Municipal Code
21. The review process for short subdivisions, at BIMC 17.12.107.B, provides that
the Director may approve or approve with modification an application for a preliminary
short subdivision if the following criteria are met (emphasis added):
1. The applicable subdivision development standards of BIMC 17.12.090.
17.12.092, or 17.12.095 are satisfied;
2. The preliminaJY short subdivision makes appropriate provisions for
the public health, safety and general we?fare, and public use and interest,
including those items listed in RCW 58.17.110;
3. The preliminary residential short suhdivision has heen prepared
consistent with the requirements of the flexible lot design process and applicable
flexible lot design standards;
4. Any portion of a short suhdivision vvhich contains a critical area, as
defi'ned in Chapter 16.20 BIMC, c01~forms to all requirements of that chapter;
5. The city engineer determines that the preliminary subdivision meets
the following decision criteria:
SPT13187
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a. The short subdivision cOJ?forms to regulations concerning
drainage (Chapter 15.20 BIMC).
b. The short subdivision will not cause an undue burden on the
drainafJe basin or water Qualitv and will not unreasonablv interfere with the use
and en;ovment of vroJJerties downstream.
c. The streets and pedestrian ways as proposed align with and
are otherwise coordinated with streets serving a{{jacent properties.
d. The streets and pedestrian vvays as proposed are adequate to
accommodate anticipated traffic.
e. The short subdivision 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.D.3,'
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
andfederallaws and regulations:
7. The proposal is in accord with the city's cOJnprehensive plan.
* * *
22. The City's flood damage prevention ordinance [BIMC Chapter 15.16] applies to
"... all areas of special flood hazards within the jurisdiction of the city." Director did not
find the subject site to be located within an area denoted for flood hazard on the FEMA
maps [Testimony of James].
23. 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.
24. The administrative decision procedures of BIMC 2.16.095.H provides that: "The
decision of the Department director may be appealed to the hearing examiner in accord
with the procedures of BIMC 2.16.130." BIMC 2.16.130.F.1 authorizes the Hearing
Examiner to do one of the following: affirm the decision of the Director, reverse the
decision, affimL with modifications, or remand to the Director for further consideration.
BIMC 2.16.130.F.2 specifies that the Hearing Examiner shall give "substantial weight to
the decision of the department director. "
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 department
director.
2. To overcome the substantial weight accorded the Director, an appellant has to
show that the Director's decision is clearly erroneous. Under this standard of review, the
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Director can be reversed if the Hearing Examiner IS left with the definite and firm
conviction that a mistake has been made.
3. The Appellant referred to a recently adopted Flood Prevention Ordinance
(amending BIMC Chapter 15.16), as requiring a downstream analysis for this proposal.
The Appellant did cite not what provision(s) of the Ordinance he was relying upon for
this assertion. Section 15.16.050.G requires analysis when encroachments within
floodways are anticipated. No such encroachment is associated with the proposed short
plat. The Director, having determined the subject property is not located within a
floodplain, did not err in failing to require the analysis noted in BIMC 15.16.050.G.
4. Implementation of the applicable regulations and limitations of the Bainbridge
Municipal Code and the Director's conditions of approval can reasonably be expected to
completely mitigate drainage impacts relative to the creation of impervious surfaces.
That is, storm water falling unto roofs and driveways will be collected and controlled so
that the quantity of water coming off the site is not greater than under existing,
undeveloped conditions.
5. To have the results intended, the Director's "self-monitoring" conditions to limit
removal of mature trees and native vegetation and prevent creation of large residential
yards, should be strengthened. These conditions should be prominently shown on the
final plat and recorded so that subsequent purchasers are made aware of their limitations
and responsibilities.
6. The pertinent standard for a short subdivision is that it "not cause an undue burden
on the drainaQe basin ...and lvill not unreasonablv interfere with the use and en;ovment of
prooerties downstream. Based upon the evidence in this record, the development of this short
plat would not cause an undue burden on the basin or unreasonably interfere with downstream
properties. It was not a mistake for the Director to conclude that, if properly conditioned, the
subj ect short plat meets this standard.
Decision
The decision of the Director approving the Short Plat application of Madison Glenn LLC
[SPTI3187] is hereby AFFIRMED AS MODIFIED WITH THE ADDITION OF CONDITION 4.
Entered this 21st day of October 2005.
-signed in original-
Meredith A. Getches
Hearing Examiner pro tern
City of Bainbridge Island
SPT13187
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CONCERNING FURTHER REVIEW
NOTE: It is the responsibility of a person seeking review of a Hearing Examiner decision to
consult applicable Code sections and other appropriate sources, including State law, to
determine 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.
SPT13187
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SPT13187
CONDITIONS OF APPROVAL
1. The tlnal short plat shall substantially conform to the preliminary short plat sheets date-stamped
February 18,2005, except to conform to the conditions of preliminary short plat approval.
2. The following material shall be submitted with the final plat application:
a. Mailbox locations must be approved by the United States Postal Service. The approval must
be submitted with the final plat application.
b. Public and private improvements, facilities, and infrastructure on and off the site that are
required for the short plat shall be completed, shall have final inspection and approval prior
to final plat approval.
i. Approval of public facilities will be shown by a formal letter of acceptance from the
City Engineer. In lieu of completion, an assurance device acceptable to the City may
be used to secure and provide for the completion of the infrastructure.
11. Any such assurance device shall be in place prior to final plat approval, shall enumerate
in detail the items being assured and shall require that all such items be completed and
approved by the City within one year ofthe date of final plat approval.
111. The assurance device shall be in a form acceptable for recording by the Kitsap County
Auditor and shall be recorded prior to the final plat recording.
IV. WhiJe lots created by the recording of the final plat may be sold, no occupancy of any
structure will be allowed until the required improvements are formally accepted by the
City.
v. A prominent note on the face ofthe Final plat drawing shall state: "The lots created by
this plat are subject to conditions of an assurance device recorded at (cite Kitsap County
Auditors reference) for the completion of celiain necessary facilities. Building permits
may not be issued and/or occupancy may not be allowed until such necessary facilities
are completed and approved by the City of Bainbridge Island. All purchasers shall
satisfy themselves as to the status of completion of the necessary facilities."
c. A plat certificate shall be provided with final plat application.
3. Prior to final plat approval, the following will need to be provided, achieved, or shown on the
face of the plat drawing, as appropriate:
a. The final short plat shall clearly depict all lot and tract calculations in graphic and tabular
form.
b. School impact fees shall be paid in accordance with BIMC 15.28. One half ofthe school
impact fee in effect at the time of final plat approval shall be paid for each of the created lots.
The remainder shall be paid prior to building pern1it issuance on the individual lots; the
amount of the second half of the school impact fee shall be half the fee in effect at the time
of building pern1it issuance.
c. Prior to issuance of any clearing or grading permits, the project planner shall verifY in the
field the location of any required fencing. The Project Planner shall perform a final
inspection prior to permit issuance.
d. All recommended conditions of Public Works are conditions of approval (See
Attachment C.l.):
1. Prior to recording, the applicant shall dedicate right-of-way on the face of the plat,
resulting in a 40-foot radius at the intersection of the southern right-of-way line of
Blakely Avenue and the new northern right-of-way line of Odd fellows Road.
11. Prior to recording, the applicant shall modify Note 6 on sheet 2 of 3 of the plat to
include: "There is no document of record for Oddfellows Road. Oddfellows Road is
SPT13187
Page 8 of9
a portion of County Road Number 7, a telTitorial road established in 1885 by the
Kitsap County Commission. It is cUlTently designated a 'Collector,' having a
required right-of-way width of 50 feet, per City of Bainbridge Island standards."
111. Prior to recording, the applicant shall modify the roadside buffers on the face of the
plat, resulting in a 20-foot radius at the intersection of the 50-foot Blakely Avenue
buffer and 25-foot Oddfellows Road buffer.
IV. All road approaches must access Oddfellows road. Lot B's approach must be placed
in the western 350 feet of the lot.
v. All recommendations provided by the Geotechnical Engineer shall be closely
followed without variance, regardless of whether the recommendation is stated as
"should", "may", or other similar terminology. Including requirements for footing
design, foundation wall design, site preparation, facility location, fill materials,
drainage, design and construction monitoring and all other items in the report.
VI. Storm water plans shall be submitted separately by each lot owner prior to
construction to meet the requirements of Bainbridge Island Municipal Code section
15.20. All drainage plans must be approved by the geotechnical engineer.
vii. Prior to any construction or grading, all applicable erosion controls shall be
implemented to conform to Bainbridge Island Municipal Code section 15.20.
viii. The construction shall be designed and implemented so that impacts to sUlTounding
natural areas will be limited. The construction area shall be delineated with orange
construction netting, silt fencing and straw bales where appropriate.
e. The geotechnical report by Jane Myers, Myers Biodynamics Inc., dated February 8, 2005,
shall be recorded with the final plat.
f. The open space management plan shall offer preservation for snags and habitat trees.
g. The following setback and lot coverage information from the Municipal Code_shall be
shown or noted on the final short plat:
Requirement type Required distance
Building to building (fire requirement) - minimum setback 50 feet
Building to plat boundary - minimum setback 50 feet
Building setback to open space, trail, and access easements 10 feet
Building to right-of-way (Secondary arterial & Collector) 50 feet
Lot coverage for each lot 11,163 SF
Roadside buffers (Secondary arterial & Collector) 50 feet
4. The following shall be prominently shown on the face of the final plat, recorded, and
binding on present and future owners:
Clearing and tree removal shall be strictly limited by the Director to the minimum
necessary to pr'ovide a driveway and residential building envelope on each lot.
Prior to iss.uance of an occupancy permit, all cleared areas shall be revegetated with
native plants to the satisfaction of the Director.
Existing native vegetation shall be maintained in all areas outside the residential
building envelope and driveway (including in the 50 ft. wide roadside buffer along NE
Blakely A venue and along NE Oddfellows Road), provided that trees that are
determined by a qualified arborist to be dead, diseased and/or dangerous (i.e., subject to
windfall), may be removed with the approval of the Director. Non-native invasive
plants (e.g., English Ivy) may be removed at will and replaced with appropriate native
species.
SPT13187
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