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 ;
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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
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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]
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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 .
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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
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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
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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...
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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]
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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
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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.
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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.
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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;
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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.
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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.
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CONDITIONS OF APPROVAL
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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
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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.
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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.
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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.
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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.
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