NELSEN / HENNECKEDECISION OF TIlE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Application of
ROBERT NELSEN and
ELLYN HENNECKE
for a Shoreline Conditional Use Permit
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Introduction
The Applicams seek a Shoreline Conditional Use Permit for construction of a wooden
stairway to the beach within the shoreline semi-rural environment. The Heating
Examiner held public heating on this matter on February 24, 2005. Parties represented at
the hearing were the Director, Planning and Community Development Department, by
Marja Preston, Planner, and the Applicants, Robert Nelsen and Ellyn Hennecke, by John
Hempleman, attorney at law. The record was closed on February 24~ following a site
visit by the Hearing Examiner.
After due consideration of all the evidence in the record, the following shall constitute thc
findings of fact, conclusions of law, and decision of the Hearing Examiner on this
application.
Findings
Site
1. The project site, addressed as 15515 Harvey Road [tax parcel 332602-2-012-
2007], is located in northwest Bainbridge Island overlooking Agate Passage, south of the
Agate Pass Bridge. Existing structures include a large residence and an outbuilding in
the eastern portion of the property. [StalTReport, Exhibit 34, page 4; Site Plans, Exhibits
4-9]
2. The western portion of the site slopes steeply down to the beach, with a change of
elevation of approximately 130 ft. from the crest of the bluff. The topography of this
slope includes a steep upper face of about 60 ft., a relatively level mid-slope bench
[extending about 45 ft. to the we~t, then descending approximately 35 ft.], and a steep
lower slope face [with slope angles from near-vertical to less steep slopes of 30-40
degrees nearest the shoreline]. [Exhibit 13; Exhibit 14; Site Plans, Exhibits 4-9]
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3.. The zoning is R-2, residential with two units per acre; the Comprehensive Plan
designation is OSR-2, Open Space Residential, two units per acre. The City's Shoreline
Master Program designates the upland as Semi-Rural. [Staff Report, Exhibit 34, pages 1
and 4]
Application
4. The applicants propose to construct wooden stairway, approximately 3 ft. 9 in. in
width, extending from the crest of the slope to 5 ft above the ordinary high water mark
(OHWM). The run of the stairway would be about 167 ~., closely following the slope so
that no stair would be more than 8 ~A inches above grade. There would be ten landiags
and several ramps between stair sections. Railings wouid be as required by applicable
building codes. Landings would have an average size of 7 ~. X 5 ft. and would be
located no more than 3 ft. above grade. [StaffReport, Exhibit34; Site Plans, Exhibits 4-
9; SEPA Checklist, Exhibit 11; Testimony of Kulzer and Myers]
5. The stairway has been sited so as to avoid trees with a diameter of 6 in. or larger.
Other trees and shrubs would be selectively limbed or pruned to allow for construction.
Foundation holes would be hand dug or hand-augered and removal of vegetation would
be limited to clearing a maximum of 4 ~. around footings. Best Management Pra~ttiees
(BMPs) would be used during construction to minimize erosion. Replanting in native
plants is proposed and would be required. No construction would occur in or above the
water. [Staff Report, Exhibit 34; Site Plans, Exhibits 4-9; SEPA Checklist, Exhibit 11;
Testimony of Kulzer and Myers]
6. As a "normal appurtenance" to residential use, the stairway does not require a
Shoreline Substantial Development Permit. However, because it has a footprint greater
than 120 sq. ~., BIMC 16.12.260(B)(16) requires that the stairway be permitted only as a
Shoreline Conditional Use Permit (SCUP).
7. On September 3, 2004, the Planning and Community Development Department
CDepm'tment") received the application for a SCUP for construction the stairway. [Staff
Report, Exhibit 34, page 5]
8. Notice of Application was given on December 16, 2004. One comment, in favor
of the proposal, was received from a neighboring property owner. The Director issued a
SEPA threshold determination [Mitigated Determination of Non-Significance, MDNS]
on January 29, 2005 and at that time gave notice of right to appeal that decision. The
MDNS was not appealed, [Staff Report, Exhibit 34, page 5; Exhibits 25, 26, 32]
9. Noticed of the public hearing on the SCUP application was properly given with
posting, mailing and publication completed by January 25, 2005 [Exhibit 33].
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Land Use Code
10. The Shoreline Master Program, BIMC Chap, I6.12, regulates development in the
shoreline.
11. BIMC 16.12.380(C) "applies to all applications for shoreline...conditional use
permits" and provides, in pertinent part, as follows:
I. Uses classified as' conditional uses may be authorize& provided,
that the applicant can demonstrate all of the following:
a. The proposed use would be consistent with the policies of
RCW 90.58.020 or its successor and the policies of the master program.
b. The proposed use would not interfere wilh the normal
public use of the public shorelines.
c. The proposed use of the site and design of the project
would be compatible with other permitted uses within the area.
cl. The proposed use would cause no unreasonably adverse
effects to the shoreline environment designation in which it is loc'ate&
e. The public interest suffers no substantial detrimental effect.
f The proposed use is consistent with the provisions of the
zoning ordinance.., and the comprehensive plan...
12. BIMC 16.12.350(B)(1) provides that the Hearing Examiner has the authority to:
a. Approve, approve with conditions, or deny shoreline
variance and shoreline conditional use permit applications after a publtc
hearing and after considering the findings and recommendations of the
~rector, which shall be given substantial weight ....
Director's Recommendation
13. The Director evaluated the stairway's compliance with the following applicable
regulations: BIMC 16.12.040, General Regulations; BIMC 16.12.050, Archaeological
and Historic Resources; BIMC 16.12.060, Clearing and Grading; BIMC 16.12.070,
Environmental Impacts; BI/VIC 16.12.080, Environmentally Sensitive Areas; BIMC
16.12.090, Native Vegetation Zone; BIMC 16.12.110, Public Access; and BIMC
16. I2.260, Residential Development. The Director concluded that the stairway complies
with each of the applicable shoreline regulations. That analysis [Staff Report, Exhibit 34,
pages 6-9] is hereby adopted by reference.
14. The Director also evaluated the proposal for compliance with Comprehensive
Plan policies for Geologically Hazardous Areas [GH 1.1, 1.3, 1.6, and 1.7]. The stairway
has been designed for the steep slope conditions based upon the analysis conducted by a
geotechnical engineer [see Exhibit 13]. The following measures contribute to the
conclusion that the proposed stairway would comply with the applicable Comprehensive
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Plan policies: limiting construction to the dry period of the year, limiting removal of
vegetation, using Best Management Practices to control erosion, and replanting the area
disturbed by construction. The Director also recommends that approval be conditioned
with requirements for an annual inspection by a registered engineer and inspection after
earthquake and other occurrences that might compromise the stability/safety of the
structure. [Stall'Report, page 5, Exhibit 34]
15. BIMC 16.20.080(C) provides requirements for development in geologically
hazardous areas. The stairway would meet the requirements of BIMC 16.20.080(C)
regarding erosion control, minimizing disturbance, location, design, and landscaping.
[Staff'Report, Exhibit 34; Testimony of Myers and Preston]
Director's Recommendation
16. The Director determined that the stairway complies with the applicable provisions
of the Shoreline Master Program [i.e., BIMC 16.12.040, 16.12.050, 16.12.060, 16.12.070,
16.12.080, 16.12.090, 16.12.110, 16.12.260, and 16.12.380], geological hazardous areas
requirements [BIMC 16.20.080], and the R-2 zoning [BIMC 18.30.020(C)]. The
Director recommends approval of the SCUP with the following conditions. [Staff
Report, Exhibit 34, pages 24]
SEPA CONDITIONS:
1. The property owner shall follow the recommendations of the
geotechnical report by Myers Biodynamics Inc., dated April 12, 2004,
regarding use and inspection of the beach stairway in order to mitigate
potemial life-safety risks.
2. Stairs should not be used when there is an increased risk from
landsliding including, but not limited to: I) periods of intense or prolonged
precipitation; 2) following an earthquake; 3) following a landslide or other
suspected soil movemem; 4) if the stairs appear structurally deformed;
and/or 5) if slope face or slope crest conditions (including vegetation)
appear changed.
3. Slope and stair imegrity shall be verified prior to resuming use
after any of the events cited above. In addition, the property owner shall
obtain an annual inspection each spring following the wet weather season
for the life of the structure. All inspections shall be performed by a
Washington State registered structural engineer or geotechnical engineer
and shall enmre that the constructed beach stair is stable at the time of the
inspection. If repairs are required, the owner shall take all reasonable
measures to secure the stairway from use until proper permits are obtained
and the repairs are completed.
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4. The above conditions shall be recorded as a Notice to Title on the
property and applies to ali future owners or heirs.
RECOMMENDED NON-SEPA CONDITIONS:
5. To prevent degradation of shoreline bluff stability, water quality,
and habitat area, a vegetation management plan shall be submitted,
concurrent with a building permit application, which includes at a
minimum the following items:
i. Removal of existing vegetation shall be limited to that
necessary for placement of support pilings and storm water control
measures. The plan shall specify that in no case will vegetation
larger than twelve inches diameter at breast height be removed in
conjunction with the staircase placement or maintenance,
ii. Silt fencing and orange construction fencing shall be
installed to protect the native vegetation outside the disturbance
area prior to commencing construction and shall remain in place
throughout the construction period.
iii. All removed vegetation outside the stair footprint shall be
immediately replaced with native species appropriate to Puget
Sound shoreline bluffs. Replacement species, quantity and
locations shall be specified within the vegetation management
plan.
iv. Herbicides and pesticides shall not be allowed to directly
enter water bodies or wetlands unless approved for such use by the
appropriate agencies (Washington State Department of Agriculture
or Washington State Department of Ecology, U.S. Department of
Agriculture, Environmental Protection Agency).
v. A maintenance schedule shall be ineluded in the plan, to
ensure on-going health of' vegetation across the bluff face. Minor
trimming of vegetation may occur to prevent the staircase steps
fi'om being overgrown with vegetation.
6. Prior to site disturbance, a set of' Best Management Practices
(BMP's) for erosion and sediment control shall be submitted to and
approved by the City of Bainbridge Island City Engineer, to avoid
degradation of water quality and shoreline bluff stability during temporary
construction activities and on-going maintenance of the site. The BMP's
shall be designed by a professional engineer with expertise in such
measures.
7. No clearing, grading or construction shall occur outside of the dry
season, April 1 to October 1. Disturbed soils shall be mulched or seeded
immediately. No disturbed soils shall remain exposed for more than three
days.
8. The staircase design shall not utilize support pilings composed of
new or used greosote treated wood materials, to prevent degradation of
water quality and habitat.
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9. No over-water application or,palm, preservative treatment or other
chemical compounds shall be permitted, to avoid degradation of water
quality. Extreme care shall be taken to prevent petroleum produ~s,
chemicals, or other toxic or deleterious materials from entering the water
and degrading water quality. If a spill does occur, or if' an oil sheen or
distressed or dying fish are observed in the project vicinity, work shall
cease immediately and Washington Department of Ecology shall be
notified of such conditions. Contact: Northwest Regional Spill Response
Section at (206) 649-7000.
10. Equipment for the transportation, storage, handling, or application
of such materials shall be maintained in a safe and leak-proof condition. If
there is evidence of leakage, the further use of such equipment shall be
suspended until the deficiency has been satisfactorily oorrected.
11. To avoid the need for further shoreline structural features, future
protection of the staircase by shoreline armoring will not in and of itself be
reason for approval of such armoring (for example, a rock bulkh~d at the
toe of the slope to prevem the staircase bom falling down).
12. In order to prevent loss of significant archaeological resources, the
following measures shall be taken in the event phenomena of possible
archaeological interest is uncovered during placement of the staircase: all
work will stop immediately and notification shall be promptly given to the
City and State Office of Archaeology and Historic Preservation. In such a
case, the applicant shall be required to provide for a site inspection and
evaluation by a professional archaeologist to ensure that ali possible
valuable archaeological data is properly salvaged. The applicant shall
receive permission fi.om the State Office of Archaeology and Historic
Preservation prior to further disturbance of the site (RCW 27.53.070 or its
13. The staircase and all attendant features shall be colored or
palmed with neutral fiat, browns or tans or dark green, so as to blend into
the native bluff soils and vegetation and be non-reflective. The intent is to
obscure the features from surrounding view.
14. Prior to site disturbance, an approved building permit shall be
secured for the staircase. Design of the feature shall be engineered and
stamped by a professional engineer licensed in the State of Washington
with expertise in such features.
15. A geotechnical engineer shall fill out the City's standard
geotechnical forms during the building permit process to fulfill the intent
of BIMC 16.20.080. The geotechnical engineer is not required to claim
that the feature will be stable.
16. Prior to issuance of a building permit, an indemnification
agreement for all activities and structures on the shoreline bluff shall be
duly executed in a form approved by the City Attorney, pursuant to BIMC
16.20.090(CX2)(g).
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I7. A copy of' all public agency approvals and approved drawings
shall be given to ail contractors performing work at the site.
Hearing
17. As required by BIMC 16.12.380(C)(1), the application [Exhibk 16; Drawings,
Exhibits 4-9; SEPA Checklist, Exhibit 11], the applicant's presentation at hearing
[Testimony of Kulzer and Myers], and the information and analysis provided by the
Director [Exhibit 34; Testimony of Preston] demonstrates as follows:
a. The stairway is consistent with the policies of the Shoreline Management
Act and with the City's Shoreline Master Program.
Because the structure terminates above the line of ordinary high water
(OHWM), the stairway would not interfere with the normal use of the
public shoreline.
As the stairway is accessory to single-family residential use and would not
be visible from neighboring property, it would be compatible with the
residential use and zoning of the area. The stairway would be painted a
neutral color to blend in with the surroundings and native shrubs are to be
planted on both sides of the length to aid in making it visually unobtrusive.
d_ As conditioned, the stairway would cause no unreasonably adverse effects
to the shoreline environment. Looted above ordinary high water mark,
the stru~ure would not have a direct impact on the nearshore habitat.
(Replanting and neutral paint color would also help ensure minimal visual
impact.)
e. By mitigating environmental impacts, not interfering with public beach
access, replanting with native plants, and painting with a neutral color, the
stairway would have no substantial detrimental effect to the public
interest.
f. The stairway, accessory to the residential use of the zone, is consistent with
the provisions of the zoning ordinance and the type and density of use
anticipated by the Comprehensive Plan.
17. The applicants object to the imposition &that portion of recommended condition
#3 that would require an annual inspection by a registered structural or geotechnical
engineer [see #3 in Finding #15]. The geoteehnical engineer who provided the
geotechnical report [Exhibit 13] recommended that "slope and stair integrity should be
verified prior to resuming use" after landslide, prolonged precipitation, earthquake and
other possible damaging events [page 4, Exhibit 13]. Annual inspections were not among
the recommendations given by the geotechnical engineer. [Testimony of Myers; Exhibit
35] The requirement for annual inspections is not mitigation for environmental impacts
nor is it necessary for compliance with the policies &the Shoreline Master Program.
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Conclusions
1. The Heating Examiner has jurisdiction to hear and decide this matter and is
required to give the Director's recommendation substantial weight.
2. Appropriate notices of the application and the public hearing were given and all
relevant evidence was considered.
3. The recommended condition for mandatory annual inspections by a registered
engineer should be eliminated. While the site has a high risk for furore landsliding, it is
similar to other coastal areas on Bainbridge Island that have been safely used without
mandatory inspections. The property owner should monitor the situation and seek
professional assistance as appropriate. The approval here is conditioned to encourage
that monitoring and to require a registered engineer's inspection when slope or stairway
changes are observed following "events" that could compromise the stability/safety of the
structure or the slope.
4. As conditioned, the proposed stairway would be consistent with the applicable
provisions of the Shoreline Master Program for granting a Shoreline Conditional Use
Permit. The application should be approved with conditions as noted below.
Decision
The application of Robert Nelsen and Ellyn Hennecke for a Shoreline Conditional Use
Permit for construction of a wooden stairway to the beach within the shoreline semi-rural
environment is hereby apPaOVEn WiT~ co~r~moNs I- 17 that follow on pages 9-11.
eredith .A. Ge...~he~
City of Bainbridge Island
Hearing Examiner pro tern
Concerning Further Review
The decision of the Hearing Examiner is the final decision the City in this matter. Appoal
is to the Washington State Shorelines Hearings Board as provided by RCW 90.58.180 (or
its successor) and Chapter 461-08 WAC (or its successor). To be timely, petition for
review must be filed within thc 21-day appeal period [see BIMC 16.12.370].
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Conditions of Approval
In order to minimize potential life-safety risks, the property owner shall follow the
recommendations of the Myers Biodynamics' April 12, 2004 geoteehnicad report
[Exhibit 13]. The property owner should monitor the stairway and slope for
changes on a periodic, on-going basis. If deformation/damage to the stairway or to
thc slope is observed, the property owner should promptly contact a geotcchnieal
engineer to assess to the situation.
The stairway should not be used when there is an increased risk from landsliding
including, but not limited to: 1) periods of intense or prolonged precipitation; 2)
following an earthquake; 3) following a landslide or other suspected soil
movement; 4) if any part of the stairway appear structurally deformed; and/or 5) if
slope face or slope crest conditions (including vegetation) appear changed.
After any of thc events cited in Condition #2 occurs, thc property owner shall
perform a visual observation and if deformation/damage to the stairway and/or
changes in the slope face or in the slope crest are observed [see Exhibits 13 and
35], the property owner shall, prior to resuming use of the stairway, have a
gcoteclmical engineer to conduct an inspection to verify slope and stairway
integrity. Inspections shall be performed by a Washington State registered
structural engineer or geoteclmical engineer who shall determine if the stairway is
stable at the time of the inspection. If repairs are required, the owner shall take all
reasonable measures to secure the stairway from use until proper permits are
obtained and the repairs are completed.
Conditions 1 through 3 shall be recorded as a Notice to Title on the property and
shall apply to all future owners or heirs.
To prevent degradation of shoreline bluff stability, water quality, and habitat area,
an approved vegetation man.gement plan shall be followed. Concurrent with a
building permit application, a vegetation management p!an, including but not
limited to the following items, shall be submitted for approval. No construction
activities shall occur until the vegetation management plan has been approved.
i. Removal of existing vegetation shall be limited to that necessary for
placement of support pilings and storm water control measures. The plan shall
specify that in no case will vegetation larger than twelve inches diameter at breast
height be removed in conjunction with the stairway placement or maintenance.
ii. Silt fencing and orange constmction fencing shall be installed to protect the
native vegetation omside the disturbance area prior to commencing co~on
and shall remain in place throughout the construction period.
iii. All vegetation removed from outside the stairway footprint shall be
immediately replaced with native species appropriat~ to Puget Sound shoreline
bluffs. Replacement species, quantity and locations shall be specified in the
vegetation management plan.
iv. Herbicides and pesticides shall not be allowed to directly enter water
bodies or wetlands unless approved for such use by the appropriate agencies
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14. Prior to site disturbance, an approved building permit shall be secured for the
stairway. Design of the stairway shall be enginoer~ and stamped by a professional
engineer licensed in the State of Washington with expertise in such features.
15. A geotechnical engineer shall fill out the City's standard geotechnical forms during
the building permit process to fulfill the intent of BIMC 16.20.080. The
geot¢chnical engineer is not required to claim that the feature will be stable.
16. Prior to issuance of a building ponnit, an ind~'mnificafion agreement for all
activities and strum on the shoreline bluff shall be duly executed in a form
approved by thc City Attorney, pursuant to BIMC 16,20.090(C)(2)(g).
17. A copy of all public agency approvals and approved drawings ~all be given to all
contractors pc-rforming work at the site.
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