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NIKKEI MEMORIAL COMMITTEE DECISION OF THE HEARING EXAMINER CITY OF BAINBRIDGE ISLAND In the Matter of the Application of NIKKEI MEMORIAL COMMITTEE and CITY OF BAINBRIDGE ISLANDI BAINBRIDGE ISLAND PARK DISTRICT RUE/CUP 12963 for a Reasonable Use Exception and Conditional Use Permit Introduction This is an application for a Reasonable Use Exception and a Conditional Use Permit for development of a memorial and interpretive center in Pritchert Park. The proponent is the Nikkei Memorial Committee; the City of Bainbridge Island and the Bainbridge Island Park District own the property. The Hearing Examiner held a public hearing on this matter March 17, 2005. Parties represented at the hearing were the Director, Planning and Community Development Department (PCD or Department), by Joshua Machen, Associate Planner, and the applicant, Nikkei Memorial Committee, by Clarence Moriwaki. 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 eight-acre site, within a 21.73 acre parcel, is located on the south shore of Eagle Harbor, at the west end of the newly-acquired, undeveloped Pritchert Park (Assessor's # 352502-1-001-2001). The site is on the north side ofN.E. Eagle Harbor Drive, with its the eastern boundary at Taylor Road. [Exhibit 41; Exhibit 55; Testimony of Machen; Testimony of Hudson] 2. The site, undeveloped except for a well- and pump-house located in the northwest corner, is currently used for informal recreation. A gravel road runs parallel to and about 15 ft. south of the shoreline bluffs and a walking trail provides access to the beach. [Exhibit 41 ; RUE 12963 Page 1 of19 T 3. The zoning and Comprehensive Plan designation is Water Dependent Industrial (WD-I) and the Shoreline Environment is Urban. Immediately to the west is a marina/boatyard and there is undeveloped park property to the east and south. (To the east is the Old Creosote Plant EPA-Superfund Site.) Residential use predominates beyond the boundaries of the park, south of Eagle Harbor Drive and west of the boatyard. [Exhibit 51, Staff Report, page 2; Testimony of Machen; Testimony of Hudson] 4. The site is heavily vegetated with large cedars, maples, and alders. One large red cedar, over 60 years old, located at end of Taylor Road near the foot of the former ferry dock, can be seen in photographs from the 1942 deportation and, as a "Living Witness" has been designated a landmark tree on the National Register of Historic Trees. [Exhibit 41; Exhibit 54; Testimony ofMoriwaki] 5. The shoreline bluffs that border the north side of the property are classified as geologically hazardous areas. Large logs were placed along the shoreline in 2004 as an interim measure to protect the toe of the bluff from wave-action erosion [see photos, Figure 4, Exhibit 38]. 6. A Category ill forested wetland is located in the southwestern half of the site, generally east of Taylor Road. The size of the wetland is approximately 20,659 sq. ft. and the associated buffer area is approximately 45,640 sq. ft. [Exhibit 57; Exhibit 38; Testimony of Machen] Proposal 7. In 1942, 226 Bainbridge Islanders of Japanese ancestry ("Nikkei") were forcibly removed from their homes, walked to the end of Taylor Road onto the Eagledale Ferry Dock and boarded the ferry Kehloken on their way to internment camps. The subject proposal is for the development of the "Bainbridge Island WWII Nikkei Internment and Exclusion Memorial", an educational memorial and visitor center at the site of the former Eagledale Ferry Dock. The memorial is called "Midoto Nai Y oni" or "Let It Not Happen Again". [Exhibit 51, Staff Report, page 2; Exhibit 3; Exhibit 37; Testimony of Moriwaki; Testimony of Hudson; Testimony of Machen] 8. The Eagledale Ferry Dock is gone, but at low tide wood pilings are visible. The proposal includes a 150-ft. long viewing pier built at this location. The 12-ft. wide pier, at the terminus of the path adjacent to the story wall (see Finding 10), is intended to evoke the image of the ferry dock. [Exhibit 3; Exhibit 37; Exhibit 38; Exhibit 57; Testimony ofMoriwaki] 9. In addition to the viewing pier, the Memorial would have a story wall and walking path, a boardwalk across the wetland, walking trails, a visitor center in the upland area, and associated parking and new access road. The initial phase anticipates preliminary site development of trails, access, parking and an informational kiosk. Subsequent phases would include the memorial story-wall, pier, and interpretive center. See site plan RUE 12963 Page 2 of 19 Exhibits 6 and 57. [Exhibit 51, Staff Report, page 1; Exhibit 3; Exhibit 38; Exhibit 48; Exhibit 57; Testimony ofMoriwaki; Testimony of Hudson; Testimony of Machen] 10. The proposed "Memorial Walk", beginning approximately 250 ft. north of the Taylor Road/Eagle Harbor Drive intersection, would consist of a gravel path in the Taylor Road right-of-way, leading onto the proposed pier at site of the old ferry dock. The memorial walk is intended to recreate the route taken by the Nikkei in 1942. The "storywall" would be constructed along the western edge of the path, six stone pillars (symbolic of the soldiers escorting the detainees) would flank the path near the shore, and there would be a Japanese Gate (handmade from large timbers) at the foot of the pier. [Testimony ofMoriwaki; Exhibit 3; Exhibit 57]] 11. A loop driveway and an area for bus unload/drop-off would be constructed east from Taylor Road. No parking is proposed in the Taylor Road right of way. A new access roadway would be constructed in the eastern portion of the site. This road would provide vehicle access to the Visitor Center and the two parking areas. A total of 23 parking spaces are proposed. Eleven spaces would be located in a lot just north of the Visitor Center building and 12 spaces would located in the northeast comer, adjacent to the existing beach access trail. [Staff Report, Exhibit 51; Exhibit 57] 12. The Visitor Center would be located away from the shoreline and outside of the wetland and buffer areas, near the center of the site. An interpretive center, meeting place, kiosk, and restrooms would be included (building area estimated at 3400 sq. ft.). [Exhibit 18; Exhibit 48; Exhibit 57] 13. Other proposed facilities include a Japanese style garden north of Visitor Center, and a boardwalk to provide access across the existing wetland from the bus unload area to the Visitor Center. [Figure 3, Exhibit 38; Exhibit 57] 14. The National Park Service (NPS) has undertaken a study to evaluate the memorial as a potential addition to the National Park System. [See Exhibit 37.] Erosion Protection 15. The interim and proposed shoreline protection measures are discussed in the SSDP Staff Report [Exhibit 54]. The bluff is experiencing toe erosion due to wave action and the proposed shoreline protection is expected to help decrease that erosion. [Exhibit 7; Exhibit 38; Exhibit 41; Exhibit 51, Staff Report, pages 10-11] 16. As part of interim erosion protection efforts, a stormwater detention and discharge system was installed and would remain as part of the site improvements. A reinforced slope would be constructed that extends from the outfall to about 100 ft. to the east. Slope protection would consist of 30-inch diameter logs and geotextile reinforced soil. The geotechnical engineer anticipates that the slope protection would be an effective means of stabilizing the bluff [Exhibit 39; Exhibit 41; Exhibit 43; Testimony of Machen] RUE 12963 Page 3 of19 T Wetland Replacement/Enhancement 17. The location of the proposed memorial walk and wall, and the bus unloading area, passes through the buffer and encroaches on the wetland that has been delineated on the site. (The bus unloading area would impact approximately 1,656 sq. ft.) To mitigate for the wetland encroachment, the proposal includes creation of a small wetland between the existing wetland and the shoreline. In addition to this mitigation wetland, an additional 6,340 sq. ft. of buffer would be set aside and enhanced with upland vegetation. [Exhibit 12; Exhibit 57; Exhibit 51, Staff Report, pages 10-12; Testimony of Machen] 18. The Biological Evaluation [Exhibit 38] details the location of the proposed wetland and wetland buffer area; the size of the wetland and buffer replacement area; and the type and quantity of wetland plants to be provided. [Exhibit 8; Exhibit 51, Staff Report, pages 10-12; Exhibit 57; Testimony of Machen] Director's Recommendation 19. Application for a Reasonable Use Exception (RUE) and a Conditional Use Permit (CUP) was made on December 16, 2004 [Exhibits 48 and 18 respectively]. The RUE is necessary to allow encroachment in the wetland and through part of the buffer. The CUP is required to allow the project in this industrial zone. 20. A shoreline substantial development permit (SSDP) is also required for this proposal. The Director's February 16, 2005 approval of the shoreline development permit [Exhibit 53; Exhibit 54, SSDP Staff Report], includes review of the proposed pier and shoreline erosion protection. A SEP A mitigated determination of non-significance (MDNS) was issued with the SSDP. Neither the SSDP nor the MDNS was appealed. The 27 conditions [see Exhibit 54, pages 2-5] included in the MDNS and the SSDP approval, are also included in the Director's Recommended Conditions for the RUE and the CUP [see Conditions 1-27 in Exhibit 51 and at the end of this decision]. 21. The Director's report includes a consistency analysis of the proposal relative to the Comprehensive Plan and the Land Use Code [Exhibit 51, pages 9 through 12]. That analysis is adopted and incorporated by reference, and is summarized as follows: Comprehensive Plan Analysis W 7.8: The Comprehensive Plan recognizes the historical significance of the site, the habitat mitigation completed by the Environmental Protection Agency, and specifically recognizes that the Memorial as an appropriate use of the site. GW 1.3: This policy encourages the development of road ends and recognizes the need to promote public access and view corridors in the shoreline. The memorial would provide unique opportunities for access, view and to learn about history . RUE 12963 Page 4 of 19 AQ 1.11 and 1.12: These policies require restoration, creation, or enhancement of wetlands or buffers when wetland or buffers are altered. The proposal includes on-site wetland creation and enhancement to offset the wetland impacts. Land Use Code Analysis BIMC Chapter 15.34 Outdoor Lighting: All exterior lighting is required to be directed downward and shielded so light trespass does not occur offsite. The application does not contain details of the proposed lighting, but recommended Conditioned 6 would require a lighting plan to ensure lighting trespass does not occur. BIMC Chapter 16.12 Shoreline Master Program: See SSDP Staff Report Exhibit 54). BIMC 16.20 Critical Areas: Fish and wildlife habitat conservation: The shoreline contains verified Surf Smelt spawning habitat, eelgrass beds, and waters of the state where threatened species are present. A Biological Evaluation [Exhibit 38] indicates that the proposal is not likely to have an adverse environmental impact on those resources. Also, in addition to the proposed mitigation, a Hydraulic Project Approval (HPA) must be obtained from the Washington Deparbnent ofFish and Wildlife prior to work below the ordinary high water mark. All conditions of the HPA should be conditions of this approval [see Condition 24]. Geologically hazardous areas: The site has slopes areas and shoreline bluffs that are classified as geologically hazardous areas. Regulations require a minimum of 50 foot wide buffers unless a geotechnical report confirms that the proposal would not create adverse geologic hazards. The proposed "soft bank armoring" of the shoreline and the creation of wetland and drainage facilities are within the 50 foot setback. The applicant has provided a geotechnical report [Exhibit 41] that addresses these elements of the proposal. The report indicates that the proposed shoreline protection would help decrease the erosion due to wave action that has been occurring at toe ofthe bluff. Wetlands and streams: The 8-acre site includes a Category 1lI wetland [Exhibit 12]. The memorial walk proposed for the road end and the fonner Eagledale Ferry Dock, is partially within the wetland. Permitted Uses in Streams and Wetlands: As educational activities are permitted in the wetland through a conditional use permit, this application includes a request for a conditional use permit. The proposed educational activities would include: wetland viewing areas; a boardwalk across the wetland; and, educational placards describing the wetland functions and the wetland plants. A reasonable use exception is sought to permit a portion of the memorial walk to encroach into the western perimeter of the wetland. Permitted Activities and Uses in a Buffir Zone: Low intensity, passive recreation facilities are permitted in the buffer zones; the proposal includes trails and a boardwalk within the buffer. Buffir Zone Widths: A 50-ft. buffer and a 15-ft. building setback beyond the buffer are required. The visitor center building and associated parking is outside of the buffer, but the memorial wall and walk, the wetland boardwalk, the RUE 12963 Page 5 of 19 T western loop-trail, and part of the bus turnaround, would be within portions of the buffer. Due to the historic location of the ferry landing and historic cedar tree, it is necessary for the proposed development to encroach into the buffer. A reasonable use exception is sought for the encroachments and mitigation to offset the buffer impact is proposed. Reasonable Use Exception 22. The memorial walk would pass through the buffer and disturb part of the wetland and a boardwalk is proposed across the wetland. The Rea~nable Use Exception (RUE) is needed to alter the wetland and wetland buffer. [Exhibit 51, Staff Report, pages 11-12; Testimony of Machen] 23. The RUE application review procedures [BIMC 16.20.090(I)(2)(c)] include review by the Wetland Advisory Committee (WAC or Committee). The proposal was presented to the Committee on November 9, 2004. No written report was prepared, but the Committee expressed concern regarding the wetland encroachment while acknowledging the historical significance of the location. There was support for the proposed wetland enhancement and educational features of the boardwalk. The Committee's concern regarding the proximity of the replacement wetland to the steep shoreline bluffs, resulted in review by a geotechnical engineer. Other recommendations of the WAC were incorporated into the revised application. [Exhibit 51, Staff Report, pages 11-12] 24. The Director's report [Exhibit 51, Staff Report, pages 12-14] includes an analysis of the proposal relative to the Code criteria [see Finding 36] for approval of a Reasonable Use Exception. The Director's analysis ofBIMC 16.20.090(1)(4), except for subsections (h) and (i), is adopted and incorporated by reference as summarized below. BIMC 16.20.090(1)(4) ... without the reasonable use exception the applicant would be deprived of any reasonable use. . . The Comprehensive Plan recognizes the historic significance of the commencement of the internment of Japanese Americans during WWII and designates the subject property as the location for the memorial. The memorial walk passing through the buffer, is specifically that route taken by the Bainbridge Island Nikkei on that historic occasion. Without the reasonable use exception, placement in the historic location would not be possible. a. ...will result in the minimum intrusion, alteration or impairment of the wetlands... or required buffer... All of the elements of the memorial that can be functionally located outside of the wetland and wetland buffer have been so located. The proposed location of the memorial walk and wall is situated on the historical site being memorialized and is on the very periphery of the wetland. The encroachment into a portion of the RUE 12963 Page 6 of 19 wetland has been minimized and at this location it is an emergent wetland "not much more than the roadside ditch at the bottom of the wetland" [Staff Report, page 13, Exhibit 51]. This proposed encroachment would have minimal impact to the functions or values of the wetland [Exhibit 38]. b. .. .proposed activities are located to minimize impacts to endangered... species... While there is no protected eagle nest tree on the site, eagles do roost in the trees along the shoreline. The trees also provide shading of the near shore habitat important for salmon and surf smelt. The subject proposal minimizes impacts to the protected species by retaining the shoreline trees (and the majority of significant trees on the site). c. ...include mitigation... to avoid...degradation to water quality... The proposal includes a storm water management plan, with specific mitigation measures for erosion and sediment control to ensure surface water quality. The proposed septic system would be outside of the wetland and Condition 30 would require approval of the final septic design by the Kitsap Health District. d. ...comply with all relevant... laws, including those related to sediment control, pollution control... and on-site waste water disposal... All applicable permits have been applied for and must be obtained. Condition 23 would require that conditions of such state or federal permits become conditions of approval for these City permits. On-site septic disposal plans require approval by the Kitsap Health District. e. Alterations...will be mitigated to the extentfeaWble considering the extent of the disturbance, the size of the site and the necessity for the proposed activities; The disturbance to the wetland and wetland buffer would be mitigated by providing replacement wetland at a ratio of 1. 5: 1 and buffer at a ratio of 1: 1. In addition there would be enhancement of the existing wetland. 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; No threats to health or safety or damage to property are foreseen. [See also Finding 25.] The memorial would increase the public access to the shoreline at this location. g. ... The inability to derive reasonable use...is not the result of...segregating or dividing the property and creating the undevelopable condition... RUE 12963 Page 7 of 19 T The applicant has not segregated or divided the properties. * * * j. ...is the minimum necessary to provide reasonable use of the property. Due to the historical significance of the subject property and more specifically the location of the memorial, the reasonable use exception is the minimum necessary to provide reasonable use. k. ... is consistent with all other provisions of this code and is in accord with the Comprehensive Plan. As conditioned, the proposal is in accord with all other provisions of Code and the Comprehensive Plan specifically designates this site for the memorial. 25. Reasonable Use Exception criterion BIMC 16.20.090(I)(4)(h) requires that an exception not be "inconsistent with the uses and activities and limitations of other properties in the vicinity..." The dispute over the nature and extent of the Taylor Road right-of-way is beyond the jurisdiction of the Hearing Examiner, but the concerns expressed regarding access to the property to the west and the proposal's compatibility with the use of that property, are not. Public access to the shoreline would be improved and use of a portion of the right-of-way for the memorial has a public benefit, but care must be taken to ensure that access to the McNabb property be maintained so as not to adversely affect or limit uses or activities on that adjacent property. To this end, a condition of approval should require that appropriate directional, no parking, and other appropriate signs be added to the site plan and erected and maintained when the project is developed and operated. [See Condition 36.] 26. BIMC 16.20.090(I)(4)(i) requires that, for a nonresidentially zoned site, "alternative uses that minimize impacts" be considered. As conditioned, impacts to the wetland and buffer would be minimized [see also analysis of"e" above]. This location is based upon an historical event, there are no alternatives for this location. Conditional Use Permit 27. In this WD-I zone, the proposal may be permitted as a conditional use [see Finding 38]. That is, the proposal can be allowed as a water-oriented cultural/educational facility [see SSDP analysis, pages 12-13, Exhibit 54]. 28. The proposal would be well below the maximum allowable lot coverage and would be a much less intensive use than the industrial uses permitted outright in the zone. Condition 6 would require that exterior lights be hooded and shielded to prevent light "trespass" onto neighboring properties. [Exhibit 51, Staff Report, pages 10-11] RUE 12963 Page 8 of 19 Conditions Recommended by the Director 29. On December 23,2004 the Director issued a Notice of Administrative Decision and Mitigated Determination of Non-Significance (MDNS) [Exhibit 53 and Exhibit 54, SSDP Staff Report]. The Director's recommendation is for approval of the Reasonable Use Exception and the Conditional Use Permit. That recommendation includes the following fifteen conditions (i.e., Recommended Conditions 28 through 35) in addition to the SEPA and SSDP approval conditions. [Exhibit 51, Staff Report, pages 2-7] 28. The applicant shall comply with the following conditions to the satisfaction of the Public Works Department: a. No clearing or grading for roads, drainage facilities, trails or other improvements shall occur until a building permit has been submitted, reviewed and approved by the City for the project. All construction plans shall contain the endorsement of the Geotechnical Engineer establishing that he/she has reviewed and approved the said plans to be in conformance with hislher recommendations to the satisfaction of the City Engineer. The plans shall address the required stormwater conveyance and water quality for the project. b. All areas outside of the allowed impervious surface coverage shall be retained in native vegetation, landscaped, or covered with mulch or straw prior to October 1 st of each year. c. Public Works finds that the proposed activity is likely to cause measurable degradation of water quality without a proper temporary erosion and sedimentation control plan (TESCP). Therefore, prior to any construction within this site, a TESCP shall be submitted and approved by the City. Construction shall be restricted to the period between May 1 and September 30, unless specifically allowed by the City Engineer and the Geotechnical Engineer. The TESCP shall directly addres.s wet weather conditions that may occur during construction. A Certified Erosion Control Professional shall be retained to oversee the project and shall be available 24/7 throughout construction of roads, drainage facilities and other subdivision infrastructure. (Reference Department of Ecology, Stormwater Management Manual, August 2001, see "Project management of SWPP-Element 12"). d. All graded materials removed from the project site shall be hauled to and deposited at City approved locations. e. All recommendations contained in the geotechnical report prepared February 2005 shall become conditions of approval. No field changes or modifications in the geologically hazardous area, or buffers, shall be made without the Geotechnical Engineer's approval. f. On site mobile fueling from temporary tanks is prohibited unless the applicant provides and is granted approval for a Permit and Best Management Plan that addresses proposed location, duration, well-head RUE 12%3 Page 9 of19 "T protection, containment, training, vandalism and cleanup. (Reference I Uniform Fire Code 7904.5.4.2.7 and 2. Department of Ecology, Stormwater Management Manual, August 200 1, see Volume IV "Source Control BMPs for Mobile Fueling of Vehicles and Heavy Equipment".) (Chapter 173-304 WAC) g. Operations and Maintenance (O&M) division of Public Works will require the following provision to be incorporated into the design of this project: The well building reconfiguration in addition to any proposed fire protection and potable water supply, shall comply with all applicable city, county and state regulations. 29. The applicant shall comply with the following conditions to the satisfaction of the Bainbridge Island Fire District: a. Prior to building permit issuance a plan must be submitted indicating how fire flow will be achieved, which may include a hydraulic analysis of the available water system. b. Any proposed water system improvements in this area must include new fire hydrants. c. A dedicated hammerhead turnaround is required at or near the end of the visitor center access road. Specific location will be determined prior to approval of the building permit. d. A fire alarm system may be required depending on the occupancy classification of the visitor center building. 30. Prior to building permit issuance, a commercial building site application must be approved by the Kitsap Health District, including review of the septic system and potable water. 31. ~rior to any clearing or grading in the wetland or wetland buffer, a complete wetland and wetland buffer mitigation plan shall be submitted in accordance with the requirements ofBIMC 16.20.110. 32. Prior to building permit issuance, a detailed wetland education plan shall be submitted and approved by the director of Planning and Community Development. The plan shall include the number and location of the educational placards and the wording and design of the placards. 33. At the time of building permit submittal, a detailed parking plan shall be provided delineating dimensions of the stalls and aisle widths. 34. A minimum of five bicycle spaces that allow secure locking of both frame and wheels shall be provided near the entrance to the visitor center. 35. A final landscaping plan meeting the requirements ofBIMC chapter 18.85 shall be reviewed and approved by the Department of Planning and Community Development prior to building permit issuance. RUE 12963 Page 10 of19 Public Hearing 30. On March 17, 2005, the Hearing Examiner conducted a public hearing in this matter. This hearing was properly noticed with posting, mailing, and publication completed by January 29,2005 [Exhibit 50]. 31. The following public comments were submitted at the hearing: · Darrell McNabb, owner of the Bainbridge Island Marina and Boatyard to the west of the subject site, submitted written comments [Exhibit 59] and, while generally supportive of the project, voiced concern that the proposal may encroach onto his property. Mr. McNabb indicated his belief that Taylor Road had been vacated many years ago and that his property runs to what used to be the centerline of that road and now includes the existing trees and the vegetative screening proposed immediately west of the story wall. The Mr. McNabb acknowledged that the Hearing Examiner does not have jurisdiction to resolve the Taylor Road property dispute, but instead asked that the proposal: 1) not encroach on what he believes is his property; 2) respect and ensure his continued vehicular access to his property; and, 3) place all screening, including vegetative, on the City's property, not his. (A letter on behalf of Mr. McNabb dated January 28, 2005 [Exhibit 33], asserts that the project would intrude onto his property and obstruct access to his building and asserts that these concerns should be addressed in the Director's SEPA review.] · John Paul Jones, an architect, indicated his support for the project and testified that he has used Taylor Road to access the beach for at least 50 years. He also noted that he has seen cars parked in and along Taylor Road so as to interfere with access to Mr. McNabb's property. He believes that the proposed new access road to the east should help with avoiding these access conflicts. He advocated respect for surrounding properties and urged that dense vegetation be used to screen the project from the east and south. · Bob Selzner, a neighborhood resident, voiced his support for the proposal and commented that construction should not interfere with beach access (i.e., develop the new east access early). Pertinent Code Sections 32. The decision procedures of BIMC 2.16.100 apply to Reasonable Use Exceptions and Conditional Use Permits: report and recommendation by the Director, public hearing and decision by the Hearing Examiner. RUE 12963 Page 11 of19 r 33. The Wetlands and Streams section of the Critical Areas Ordinance, at BIMC 16.20.090(H), including Figure A, requires a 50-ft. buffer, and a 15-ft. building setback beyond the buffer for Category III wetlands. 34. BIMC 16.20.090(1)(1) states the purpose of the Reasonable Use Exception (RUE): ...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 reasonable use exception is authorized only for proposed alterations to required buffers, regulated wetlands or streams... 35. The Reasonable Use Exception decision procedure, at BIMC 16.20.090(I)(2)(c) requires consideration of the Wetland Advisory Committee's review. 36. The Reasonable Use Exception decision criteria ofBIMC 16.20.090(1)(4) provide that a reasonable use exception may be approved if: a. The proposed activities will result in the minimum introsion, alteration or impairment of the wetlands, stream or required buffer including impacts to their functional characteristics, while permitting some reasonable use of the property. 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; b. The proposed activities are located to minimize impacts to the continued existence of endangered, threatened, rare, sensitive, or monitor species as listed by the federal government or the state of Washington; c. The proposed activities include mitigation as appropriate to avoid measurable degradation to groundwater or surface water quality; d The proposed activities comply with all relevant state, local and federal laws, including those related to sediment control, pollution control, floodplain restrictions, and on-site wastewater disposal; e. Alterations to wetland, streams 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 activities; f. There will be no damage to nearby public or private property and no ~mw~~M~~tyifpe~k~~~~~pe~ 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 activities and limitations of other properties in the vicinity and zone in which the property is located; i. For a nonresidentially zoned site, the reasonable use exception should consider alternative uses that minimize impacts to wetlands, streams, and buffers, as well as the applicant's proposed use; RUE 12963 Page 12 of 19 j. The reasonable use exception 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 comprehensive plan. 37. Water-oriented educational, cultural, governmental or religious facilities are conditional uses within the WD~I Zone [BIMC 18.75.030(B)(5)]. 38. A conditional use may be approved ifit meets the criteria ofBIMC 18.108.040(A): J. The conditional use is harmonious and appropriate in design, character and appearance with the existing or intended character and quality of development in the immediate vicinity of the subject property and with the physical characteristics of the subject property; 2. The conditional use will be served by adequate public facilities including roads, water, fire protection, sewage disposal facilities and storm drainage facilities; 3. The conditional use will not be materially detrimental to uses or property in the immediate vicinity of the subject property; 4. The conditional use is in accord with the comprehensive plan; 5. The conditional use complies with all other provisions of this code; 6. The conditional use will not adversely affect the area or alter the area's predominantly residential nature; and 7. All necessary measures have been talcen to eliminate the impacts that the proposed use may have on the surrounding area. Conclusions 1. The Hearing Examiner has jurisdiction to decide to "approve, approve with modifications, deny or remand" after hearing and consideration of all the evidence and applicable Code provisions. [BIMC 2.16.100] 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. The location of the proposed memorial and the memorial walk in particular, is dictated by past events. This memorial is proposed here because this is for this location with the historic significance. Without the exception, this use could not be here. This is the reasonable use of the property and, as conditioned, the proposal meets all the criteria ofBIMC 16.20.090(1)(4) for granting the Reasonable Use Exception. RUE 12963 Page 13 of 19 T 4. The proposal is properly considered a water-oriented culturaVeducational facility and as such qualifies to be a conditional use in this zone. As conditioned, the proposal meets all the criteria ofBIMC 18.108.040(A) for granting the Conditional Use Permit. 5. The Reasonable Use Exception and Conditional Use Permit should be approved with Conditions 1 through 36. Decision The Reasonable Use Exception and the Conditional Use Permit to allow construction the proposed memorial are hereby APPROVED WITH CONDITIONS 1 through 36 that follow on pages 15 through 19. Entered this }1~y of April 200 ~~ Meredith A. Getches City of Bainbridge Island Hearing Examiner pro tem 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, Chapter 36.70C. RUE 12963 Page 14 of 19 CONDITIONS OF APPROVAL RUE 12963 CUP 12963 1. To protect juvenile Chinook salmon residing in nearshore areas, work that is waterward of the actual ordinary high water line shall not be permitted from March 15 through July 15th. 2. To mitigate any impact of Surf Smelt Spawning, a qualified fisheries biologist shall survey the project site prior to any construction on the beach. No work may occur below ordinary high water line if there is evidence of active surf smelt spawning. 3. In order to minimize the impact on the inter-tidal habitat, the shoreline protection that was installed as an emergency measure shall be reconstructed in accordance with the drawings contained in the Biological Evaluation (Exhibit #38) with the following modifications: a. No new logs or cobbles shall be placed waterward of the existing three foot diameter logs. b. The existing 71 feet of logs shall be buried into the existing beach grade so that not more than 18 inches are exposed, except the most westerly log may be fully exposed at the west end and partially buried at the east end. If necessary smaller logs shall be used to achieve the maximum 18 inches of exposure. c. Outside of the previous emergency repair area (71 feet east of the existing bulkhead on the property to the west), a single row of additional logs, with no more than 18 inches exposed, may be placed at the toe of the eroding bank to remedy the two scour pockets. Prior to the placement of the logs, the cavity pockets shall be filled with plastic gabion bags filled with two-inch minus rock and enclosed in coco fiber wrap. In lieu of the log, a root wad shall be used were deemed appropriate by the Washington Department of Fish and Wildlife. d. The new logs and/or root wads shall not extend more than 52 feet beyond the original soft bank logs (total project area of 123 feet). e. To the maximum extent possible, the existing overhanging vegetation shall not be altered by the construction of the soft shore protection. 4. In order to mitigate for the loss of inter-tidal habitat caused by the construction of the soft shore protection and the placement of piles, an equal amount of shoreline inter-tidal habitat shall be restored by removing existing concrete bulkhead along the eastern portion of shoreline on this lot. 5. The 25-foot shoreline native vegetation zone shall not be altered, except for the construction of trails, pier and soft bank shoreline protection. The native vegetation zone shall be replanted with species identified in the Biological Evaluation (Exhibit #38 N) during the next planting season following disturbance. 6. To mitigate possible impacts due to lighting, a lighting plan shall be prepared consistent with the lighting guidelines ofBIMC 15.34 prior to building permit issuance. 7. Prior to any earth moving activities, a cultural resource assessment shall be completed and submitted to the City, the State Department of Archaeology and Historic Preservation and the Suquamish Tribe. 8. 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 site RUE 12963 Page 15 of 19 r actIvItIes: all work will stop immediately and notification shall be promptly given to the City and State Office of Archaeology and Historic Preservation. The applicant shall receive permission from the State Office of Archaeology and Historic Preservation prior to further disturbance of the site (RCW 27.53.070 or its successor). 9. Extreme care shall be taken to prevent petroleum products, chemicals, or other toxic or deleterious materials from entering the water and degrading water quality. Ifa spill does occur, or if oil sheen or any 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. To prevent adverse environmental impacts to existing water quality, best management practices for all shoreline construction activities shall be followed at all times, such that soil and beach sand erosion is prevented from degrading water quality on a temporary and permanent basis. 11. If required by the Washington Department of Fish and Wildlife, an ambient light analysis shall be submitted and appropriate mitigation incorporated into the dock design. 12. To avoid degradation of existing water quality, no over-water application of paint, preservative treatment, or other chemical compounds shall be permitted at any time. 13. Piles shall be steel or concrete piles as proposed in the application. 14. Pilings must be structurally sound prior to placement in the water. 15. Only non-reflective materials shall be used in construction of the pier, except that under pier reflective material may be used for shading impact mitigation if approved by the Department of Fish and Wildlife. 16. No overhead wiring or plumbing shall be allowed on the pier. 17. Lighting on the pier shall be limited to the minimum necessary for safety or as required by the Coast Guard. 18. Prior to building permit issuance, an on-site septic design shall be approved by the Kitsap Health District. 19. To mitigate the impact on the Category nI wetland, a wetland mitigation plan consistent with the requirements ofBIMC 16.20.110 shall be submitted and approved prior to any work within the wetland or wetland buffer. 20. A building permit shall be obtained from the Department of Planning and Community Development prior to commencing construction on the pier. A utility or grading permit is required for grading and upland activities. 21. Work shall be completed in substantial conformance with the approved site plan dated September 27,2004. RUE 12963 Page 16 of 19 22. Except as modified by the SEP A conditions, the soft shore protection, the dock and the wetland creation shall occur in substantial conformance with the drawings included in the Biological Evaluation received February 10,2005. 23. Washington State Department ofFish & Wildlife Hydraulic Project Approval is required and Army Corps of Engineers Permit may be required prior to beginning work on this project. Copies of approvals must also be submitted to the City prior to beginning any work on the site. 24. All Hydraulic Project Approval conditions and any Anny Corp of Engineers Permit conditions shall become conditions of approval for this shoreline permit. 25. A copy of all public agency approvals and approved drawings shall be given to all contractors performing work at the site prior to beginning any construction work. 26. The applicant shall coordinate construction of the shoreline protection work with the City and Washington Department ofFish and Wildlife so representatives may be on site during construction. 27. The authorization granted by this Shoreline Substantial Development Permit shall terminate five years after the date the permit is approved by the city, unless an extension is granted in accordance with BIMC 16.12.370 D.2.d. 28. The applicant shall comply with the following conditions to the satisfaction of the Public Works Department: a. No clearing or grading for roads, drainage facilities, trails or other improvements shall occur until a building permit has been submitted, reviewed and approved by the City for the project. All construction plans shall contain the endorsement of the Geotechnical Engineer establishing that he/she has reviewed and approved the said plans to be in conformance with his/her recommendations to the satisfaction of the City Engineer. The plans shall address the required stormwater conveyance and water quality for the project. b. All areas outside of the allowed impervious surface coverage shall be retained in native vegetation, landscaped, or covered with mulch or straw prior to October 1st of each year. c. Public Works finds that the proposed activity is likely to cause measurable degradation of water quality without a proper temporary erosion and sedimentation control plan (TESCP). Therefore, prior to any construction within this site, a TESCP shall be submitted and approved by the City. Construction shall be restricted to the period between May 1 and September 30, unless specifically allowed by the City Engineer and the Geotechnical Engineer. The TESCP shall directly address wet weather conditions that may occur during construction. A Certified Erosion Control Professional shall be retained to oversee the project and shall be available 24/7 throughout construction of roads, drainage facilities and other subdivision infrastructure. (Reference Department of Ecology, Stonnwater Management Manual, August 2001, see "Project management of SWPP-Element 12"). d. All graded materials removed from the project site shall be hauled to and deposited at City approved locations. RUE 12%3 Page 17 of19 T e. All recommendations contained in the geotechnical report prepared February 2005 shall become conditions of approval. No field changes or modifications in the geologically hazardous area, or buffers, shall be made without the Geotechnical Engineer's approval. f. On site mobile fueling from temporary tanks is prohibited unless the applicant provides and is granted approval for a Permit and Best Management Plan that addresses proposed location, duration, well-head protection, containment, training, vandalism and cleanup. (Reference 1. Uniform Fire Code 7904.5.4.2.7 and 2. Department of Ecology, Stormwater Management Manual, August 2001, see Volume IV "Source Control BMPs for Mobile Fueling of Vehicles and Heavy Equipmenf'.) (Chapter 173-304 WAC) g. Operations and Maintenance (O&M) division of Public Works will require the following provision to be incorporated into the design of this project: The well building reconfiguration in addition to any proposed fire protection and potable water supply, shall comply with all applicable city, county and state regulations. 29. The applicant shall comply with the following conditions to the satisfaction of the Bainbridge Island Fire District: a. Prior to building permit issuance a plan must be submitted indicating how fire flow will be achieved, which may include a hydraulic analysis of the available water system. b. Any proposed water system improvements in this area must include new fire hydrants. c. A dedicated hammerhead turnaround is required at or near the end of the visitor center access road. Specific location will be determined prior to approval of the building permit. d. A fire alarm system may be required depending on the occupancy classification of the visitor center building. 30. Prior to building permit issuance, a commercial building site application must be approved by the Kitsap Health District, including review of the septic system and potable water. 31. Prior to any clearing or grading in the wetland or wetland buffer, a complete wetland and wetland buffer mitigation plan shall be submitted in accordance with the requirements of BIMC 16.20.110. 32. Prior to building permit issuance, a detailed wetland education plan shall be submitted and approved by the director of Planning and Community Development. The plan shall include the number and location of the educational placards and the wording and design of the placards. 33. At the time of building permit submittal, a detailed parking plan shall be provided delineating dimensions of the stalls and aisle widths. 34. A minimum offive bicycle spaces that allow secure locking ofboth frame and wheels shall be provided near the entrance to the visitor center. RUE 12963 Page l8of19 35. A final landscaping plan meeting the requirements ofBIMC chapter 18.85 shall be reviewed and approved by the Department of Planning and Community Development prior to building permit issuance. 36. The Site Plan shall be modified to the Director's satisfaction, to show the location, size, and content of signs that inform memorial visitors as to: 1) where parking is provided; 2) where parking is not allowed (including at the bus unload area); and, 3) the specific prohibition on blocking access to or parking on the neighboring property to the west. The signs shall be installed and maintained in accord with the plan approved by the Director. It is anticipated that at least four signs would be provided in addition to including directional information regarding parking at the entries (i.e., on or in association with the Taylor Road entry sign and the entry sign at the new access road to the east). The signs should be of a design compatible with the memorial, but shall also have the content and style so as to be consistent and enforceable with COBI parking regulations, BIMC Chapter 10.08. RUE 12963 Page 19 of 19 r