SMALLWOOD DESIGN & CONSTRUCTIONDECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Application of
SMALLWOOD DESIGN & CONSTRUCTION
for a Shoreline Conditional Uso Permit
and a Shoreline Variance
SCUP13195
Introduction
The Applicant seeks a Shoreline Conditional Use Permit to construc~ retaining/catchment
walls on thirteen lots and a Shoreline Variance to reduce the size of the required native
vegetation zone on one lot within the shoreline Semi-Rural Environment. The Hearing
Examiner held a public hearing on this matter on May 19, 2005. Parties represented at
the hearing were the Director, Planning and Community Development Depamnent, by
Joshua Macher~ Associate Planner, and the Applicant, Smallwood Design and
Construction~ by Rod Smallwood.
After due consideration of all the evidence in the record, the following constitutes the
findings, conclusions, and decision of the Hearing Examiner on this application.
Findings
Background
1. The tiny Rolling Bay Walk neighborhood has historically experienced landslides.
Slides in recent years were particularly destructive, resulting in the death of the Herren
family when their house was demolished by a slide in 1997. Other houses have been so
damaged as to prevent them fi.om being occupied. The slides have also forced closure of
past of Gertie Johnson Road (a public road). [Exhibit 19, pages 2-4; Exhibit 69, Staff
Report, page 6; Testimony of Machen]
2. Some of the damaged houses along Rolling Bay Walk are considered unsafe to
occupy and some are limited to seasonal occupancy due to life safety concerns. The subject
proposal is intended to rerh~ce the overall risk of landslide damage to downslope residences
so that they could be safely occupied year-round and/or property redeveloped. [Exhibit 69,
page 4; Testimony of Machen; Testimony of Smallwood]
SCUP11395
Page 1 of 15
3. In 2004 a Shoreline Conditional Uso Permit [SCUP12566] was granted for the
constmetion of retaining/catchment walls on two Rolling Bay Walk properties. Thoso walls
have been constructed at properties addressed as 10994 & 11129 Rolling Bay Walk.
[Exhibit 69, StaffReport, page 6; Photos, Exhibits 72-75; Testimony of Maeben; Testimony
of Smallwood]
Site and Vicinity
4. Rolling Bay Walk, at the terminus of Manitou Park Boulevard, is a private, narrow
road/walkway fronting Puget Sound along the southwest shore of Rolling Bay. The "Walk"
has been used as a driveway for the 8-10 houses closest to the terminus of Manitou Park
Boulevard. For about 100 yards it is wide enough for vehicle access (i.e., approximately 12
R. wide), tY~ it narrows to a walkway, generally becoming narrower as one moves to the
northwest. Never imended as a road, Rolling Bay Walk was built over timbers with a
variety of fill material (some soptic tanks are locked under the "Walk"). [Exhibit 25;
Exhibit 69, StaffReport; Testimony of Greenberg; Testimony of Clare]
5. The hoasos along Rolling Bay Walk are heilt on a ~m.wow "shelf' between the base
of the steep slope and Puget Sound. This area becomes increasingly narrow (as does the
road/way) from west to the east [see Finding 4]. As a result of past slides [see Finding 1],
some of these structures along Rolling Bay Walk have been "red tagged" and cannot he
occupied, several others are "yellow tagged" and can be occupied op, ly part of the year.
[Exlu~bit 4; Exhibit 69; Testimony of Clare; Testimony of Greenherg]
6. The slope behind the houses is quite steep, varying in height ~om 70 to 100 feet,
with an overall inclination on the order of 1.1H:IV. Vegetation consists of scattered
conifers and deciduous trees and a heavy growth of brush and blackberry bushes. The area
has a history of landsliding and slope instability, including the slide in the wimer of 1996-97
that destroyed the Heaxen residence at 11139 Rolling Bay Walk (identified now as tax
assossor's number 4156-001-005-0205). [Exhibits 19, 20, 22, 23, 26-29, 78; Exhibit 25, page
3]
7. The slides that occurred in 1996-1997 originated from the upper portion of the steep
slope and moved rapidly downslope during extended periods of heavy precipitation. The
most damage caused by these "debris slides" involved one or more large ~amps or logs and
property owners have been warned to remove dead or dying trees. [Geoteehnical Reports,
Exhibits 19, 20, 22, 23, 26-29, 78]
8. Three of the subject properties are addressed and have vehicular access from Gertie
Johnson Road [see Finding 11].
9. The zoning for all properties is R-2, residential, two units pet acre and all have a
Semi-Rural Environment designation under the shoreline master program. [Staff Report,
page 2, Exhibit 69]
SCUP11395
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Application
10. Smallwood Design and Construction, Inc. ("Applicant"), on behalf of the property
owners, bas submitted an application [Exhibit 11] for a Shoreline Conditional Use Permit
("SCUP") for the construction of catchment wall systems for 13 properties. A shoreline
variance has also been requested [Exhibits 34 & 38] in order to redevelop a vacant property
[noted by * in listing below] where a residence was destroyed by a slide. The subject
properties [being a portion of Section 14, Township 25N., Range 2E., W.M.] are identified
by tax assessor account numbem below [see Site Plan, Exhibit 4]. Note: The property
owners have agreed adjust lot boundaries in order to remove conflicts and discrepancies
[Exhibit 25 indicates boundaries before adjustmems.]
Addre~
Tax Assessor's # Owner
11069 Rolling Bay Walk
11081 Rolling Bay Walk
11091 Rolling Bay Walk
11099 Rolling Bay Walk
11129 Rolling Bay Walk
__ Rol}ing Bay Walk
11184 Rolling Bay Walk
11090 Rolling Bay Walk
11096 Rolling Bay Walk
10820 Rolling Bay Walk
4140-009-001-0003
4140-0094X12-0tXE
4156-001-008-0004
4156-001-008-0103
4156-001-006-0006
4156-001-005-0205'
4156-001-004-0107
4156-001-003-0009
4156-001-003-0207
4156-001-002-0109
Clare
Greenberg
OMG, LLC
Piper (Low Tide, LLC)
Fleck 01BW Realtafion. LLC)
~ (RBW Restoration, LLC)
Hulett (Fame Developers, Ltd.)
Mansfield
Hulett (Fame Developers, Ltd.)
11. The several properties, one residence and two vacant lots, accessed from Gnmie
Johnson Road (just to the northwest of Rolling Bay Walk) are included in this application as
listed below. These properties are on the steep hillside between on Gertie Johnson Road and
the shoreline. The slope is densely vegetated with bushes and brash and with some
deciduous and coniferous trees scattered flwoughout the ~ [Exhibit 6, Lots -053, -054,
and -055; Exhibit 21, page 2 and Figures 1 and 2].
10692 Gertie Johnson Road
Vacant lot, Gertie Johnson Road
Vacant lot, Gertie Johnson Road
112502-4-055-2008 Madigan
1125024-053-2000 Madigan
112502 a. 054-2009 Madigan
12. The Planning and Commtmity Development Department ('Department") deemed
the application to be complete on March 10, 2005 [Exhibit 44]. Notice of the application
[Exhibits 45 & 46] was given on March 16, 2005.
13. The I)q~tment requested review of the application by various City departments
and other agencies. The Suquamish Tribe commemed on the application [Exhibit 58],
noting that the Suquamish gn~opl¢ have lived in western Washington for thousands of years
and there are two Suquamish place names in the vic'mity of the proposal. The Tribe
~ed that an archaeologil~ rodew be requiwed. (No known archaeological or historic
resources exist on subject properties. [StaffReport, Exhibit 69, page 7])
SCUP 11395
Pag~ 3 of 15
14. Public comments on the application [Exhibits 47, 49-57, 59-65, 71] we,e submitted
to the Department in response to the Notice of Application. Many of the comments received
were regarding construction impacts related to Manitou Park Bird, a public road, and
Rolling Bay Walk, a private access easement. Concern was also raised regarding the
condition and adequacy of existing and proposed septic systems. Other comments
questioned the clarity of the application, the need for a survey, and public access.
15. Tlae Director issued a SEPA Mitigated Determination of Significance ("MDNS") on
April 28, 2005 and at that time gave notice of right to appeal that threshold determination
[Exhibit 66]. The MDNS was not appealed.
Proposal [Exhibits 7, 19, 20, 22, 23, 25, 26-29, 69, 78; Testimony of Tuttle]
16. The Shoreline Conditional Use Permit is to allow construction of slide debris
catchmem walls design by a geotechnical engineer for the protection of existing and future
residences. The upper of two pemllel walls vnmld form the catchment barrier. ~qe lower
wall would act as retaining wall to support the access between the two walls. The applicant
has asserted that the SCIJP application "represents a conununity-wide plan ... to reduce
landslide risk" [Environmental Checklist, page 3, Exhibit 8].
17. The consulting engineer notes that the recem slides in this area have originating from
the upper portions of the slope. Construction of the proposed walls would not change the
risk of instability of the upper slope. That is, there will continue to he landslide events
similar to those experienced in past years; the purpose oftbe walls is to provide a reasonable
level of protection for the residences below (/.e., to arrest the slide debris before it reaches
the residences). To provide this level of protection, the capacity of the catchment area must
be maintained by removing slide debris from the behind wall. The engineer has affirmed
that the project as designed would provide an adeq-~te factor of safety for the subject
property and Chat geotechnical risks to adjacent propeaies would not be increased.
18. The proposed walls wonld extend the length of each propemf s width (there are 13
parcels involved). The upper, catc, hm{~ walls would range from 8 it. to 12 ft. above the
present ground surface and the lower, retaining walls w~JId be 5 ft. to 8 ft. feet above grade.
The final wall heights would be determined based upon the specific conditions of each
property. The distance between the walls {location of the access road for cleaning out
debris) would be 14 ft.
19. Geotechnical repofls [Exhibits 19-23, 26-29] have been prepared, each addressing a
specific property (including the three Madigan lots in Exhibit 21). Each wall system would
be engineered for the conditions of the specific properties.
20. Because Rolling Bay Walk is not wide enough to provide for vehicle acems to the
properties in the northwest (about half of the properties). An access route could be
constmeted from the existing bench that was created for the eatchmem wall built last year or
an access road and benches would be constructed from Gertie Jolmson Road, uphill from
SCUP11395
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10820 and 11096 Rolling Bay Walk [see Geotechnical Reports for the Hulett, Miller,
Mansfield, and RBW properties: Exhibits 26, 27, 28, 29]. Given the distances involved and
topographic conditions, the cleating and grading needed for these access roads and benches
would appear to be quite substantial. (In a photo of one of the walls built in 2004 [Exhibit
T3], the earthwork done for the access and bench appears to be equal to or larger than that
involved in the cons;auction of the wall itself [Exhibit 75].) No estimate has been made as
to the amount of grading anticipated to be necessary to coastmct the access routes {bencbes
and roads) to the proposed wall sites. (The Environmental Checklist, page 3, Exhibit 8,
gives no quantitative information and states only that "Grading will result in the removal of
material.')
21. To create access routes, clearing and grading would likely be roquired on and/or
across private property and/or public fights-of-way [see Finding 20]. This record does not
include evidence as to what properties this would involve or whet.her the necessary rights to
use these properties have been acquired. The Director's Recommended Conditions 4, 11,
12, and 13 [see Appendix A] address the use of the property of others.
22. Most of the proposed walls would be constructed behind the existing residences and
thus are outside of the native vegetation zones. The walls proposed on the two undeveloped
Madigan properties would likely be in the native vegetation zone.
23. The proposal includes provision for the collection and control of drainage from
behind the walls and down the slope above the walls. Erosion and sediment controls would
also be required during constmctior~
Directoes Recommendation
24. The Director concluded that, as conditioned, the proposal would be consistent with
the applicable provisions of the Shoreline Master Program (BIMC 16.12.050, 16.12.060,
16.12.0g0, and 16.12.380), the Critical A,neas Ordinance (BIMC 16.20.0g0), and the Zoning
Ordinance (BIMC 18.30.070). [Exhibit 69, SttuffReport, pages 4-6; Testimony of Machen]
25. The Director recommends for approval for those properties where houses currently
exist or have existed in the past and against approving permits regarding the undeveloped
M~digan lots (1125024-053-2000 and 112502-4-054-2008). V!F..th tbe recommended
conditions, the Director found the protection of residences consistent with the applicable
shoreline and Comprehensive Plan policies [see analysis in Staff Relx~ Exhi'bit 69, pages
7-11; this analysis is hereby incorporated by reference into these Findings]. The Director
correctly draws a distinction between allowing for renewed use of existing residences (and
redevelopment of property where residences previously existed), and enabling new
development in a geologically ha:,ardous are~t [Staff Report Exhibit 69, pages 3-5;
Testimony of Maehen]
SCUP11395
Page 5 of 15
Public Heating
26. The public bearing on the application was properly noticed with posting, mailing,
and publication on Mayl9, 2005 [Exhibit 68]. Several neighbom spoke at the public heating
[Testimony ofMaclntyre, Rosenberg, Geraghty, Greenberg, Clare]. The speakers provided
information about the history and currem conditions of the area, asked question about
drainage, City liability, and ongoing maintenance. Of particular concern for upslope
residences was that the construction of the walls should not destabilize the slope or damage
C~-tie Johnson Road. Rolling Bay Walk property owners spoke in favor of approval with
the hope that the walls would provide the necessary safety to allow them to use their
residences again. They were, however, conc~raed that the con~tmction be carried out
carefully so as not to cause fimher damage to the "Walk" stmctore itself. (Two speakers
noted that £he Walk, constructed long ago a-,al not imended to can~ vehicular traffic, had
been damaged by heavy, fast moving tracks hauling soil during the 2004 wall construction.)
Use of the parking area at the soutbeast end ofthe community was also a concern. This area
is owned by ten Rolling Bay Walk property owne~,s and its use as a staging area requires
permission from tbem and needs to be managed so that some space remains available for
parking and the area kept clean.
27. One person submitted a written comment [Exhibit 77] expresaing concern that an
EIS had not been prepared, that traffic impacts would lead to costly road repairs, and that
impacts barging of equipm~mt should be considered. This writer noted that the walkway that
connects Rolling Bay Walk and G-e~ie Johnson Road had been used by local residents for
many years as public access way to the shoreline.
Code Sections
28. Shoreline Master Program (SMP), BllvlC Chap. 16.12, regulates development in the
shoreline.
29. The SIMP, at BIMC 16.12.150, Table 4-1, designates that single-family residential
uses are pemaitted in the semi-rural shoreline environment. The Director has determined
that the application for construction of retaining/catc, tunent walls to protect single-family
residences should be reviewed as a shoreline conditional use. [Exhibit 69, Staff Report,
page 8]
30. Regarding review of an application for a shoreline conditional use permits, BIMC
16.12.380.C, provides as follows:
1. Uses classified as cona~#onal uses may be authorized; provided that
the applicant can demonstrate ali of the following:
ct The proposed use will be consistent with the policies of RCW
90.58.020 or its successor and the policies of the master program.
b. The proposed use will not interfere with the normal public use of
the public shorelines.
SCUP11395
Page 6 of 15
c. The proposed use of the site and design of the project will be
compatible with other permitted uses within the arect
d The proposed use will cause no unreasonably adverse effects to
the shoreline environment designation in which it is located
e. The public interest suffers no substantial detrimental effect
f The proposed use is consistent with the provisions of the zoning
orcgnance...and the comprehensive plan...
31. Regarding uses which are not listed in the master program as permitted, conditional,
or prohibited, BIMC 16.12.380.C.2 provides that they:
...may be authorized as conditional uses provided the cepplicant can
demonstrate, in addition to the criteria set forth in subsection C. 1 of this
section, that extraordinary circumstances prvclud~ reasonable economic use
of the property in a manner consistent with the policies of RCYg 90.58.020,
or its successor, that the prod use wouM not produce significant adverse
effects on the shoreline environment.
32. The purpose and cciteria for granting shoreline variances is provided in BIMC
16.12.380:
B. Shoreline Variance. The purpose of a shoreline variance permit is
strictly limited to granting relief to specific bulk, dimensional, or performance
standards set forth in the master program, where there are earaordinary or unique
circumstances relating to the property such that the strict implementation of the
master program would impose unnecessary hardships on the applicant or thwart
the Shoreline Management Act policies as stated in RCW 90.58.020 or its
S~ccessor.
2. Criteria for Granting gnoreline Variances. Shoreline variance permits
for development that will be located landward of the ordinary high water mark) ...
may be authorized pro~ded the applicant can demonstrate all of the following:
tz The strict requirements of the bulk, dimensional or
performance standards set forth in the master program preclude or significantly
interfere with a reasonable economic use of the property not otherwise prohibited
by the master program
b. The hardship described above is specifically related to the
tmoperty and is the result of unique conditions, such as irregular lot shape, size,
naturol features, and the application of the master program, attd is not, for example,
from deed restrictions or the applicant's own actions.
c. The design of the project will be compatible with other
permitted activities in the area and will not cause adverse effects to adjacent
properties or the shoreline emnronment.
d The shoreline variance authorized does not constitute a grant of
special privilege not enjoyed by the other properties in the area and will be the
minimum necessary to afford relief.
e. The public interest will suffer no substantial detrimental effect.
SCUP11395
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33. BIMC 16.12.09.C requires that a native vegetation zone be maintained immediately
landward of the ordinary high water mark (OHWlVl). The standards for the native
vegetation zone [Table 4.2, BIMC 16.12.150] provide that 50 ff from the OHWM be
maintained in native vegetation. New plantings in this zone must he native plant species, or
other approved species.
34. BIMC 16.12.350.B. 1 provides that the Hearing Examiner has the authority to:
ct 4pprove, approve with cona~t~on~ or deny shoreline
variance and shoreline conditional use permit applications after a public
hearing and after considering the findings and recommendations of the
a~rector, which shall be given substantial weight...
Analysis
35. No archaeological or historic resources are known to exist on the subject site.
However, the SMP protections for such resources, at BIMC 16.12.050.B.1, include that: "All
shoreline permits shall contcdn provisions which require developers to immea~ate~ stop
work ami notify the cry if any phenomena of possible archaeological interest are uncovered
during excavation". Consistent with BIMC 16.12.050.B.1, the SCUP should have such a
provision as a condition of approval [Condition 5].
36. Clearing and grading would be necessary to the wall construction and the SIMP, at
BIMC 16.12.060.C, requires that areas disturbed by clearing or grading "shall be replanted
within the first applicable planting season" after completion of eonstmction. Consistem
with the SIMP requirement, the Director recommends that a condition mandating replanting
be a condition of approval [Exhibit 69, StaffRepo~t, page 3]. Proper plantings would help
with slope stabilization and would also screen the walls to provide mitigation for possible
aesthetic impact. A vegetation plan as recommended by the Director should be required
[Condition I] to ensure the plantings can accomplish their purposes. The replanting plan
and its implementation must include all areas disturbed, including when: roads and/or
benches created to reach the wall sites.
37. The SMP, at BIMC 16.12.080, notes that where environmentally sensitive areas are
disturbed, "revegetation with native or other approved vegetation shall be required".
Recommended Conditions 1 and 15 satisfactorily address thia requirement. BIMC
16.12.080 also refers to the Critical Areas Ordinance [BIMC Chap~- 16.20] as the primary
regulation for enviromnentally sensitive areas. The subject site is located in a geologically
baTardous area.
38. BIMC 16.12.080 also refers to the Critical Areas Ordinance [BIMC Chapt~ 16.20]
as the primary regulation for environmentally sensitive areas. In accordance with this
section of code, the applicant has provided engineered construction plans and a geotechnical
report detailing erosion controls, clearing limits, cut and fills sections, drainage and
SCUP11395
Page 8 of 15
recommended construction timing resuictions. The plans and geotechnical reports included
in the application [Exhibits 19, 20, 22, 23, 26-29, 78] have been reviewed by the City
Engineer and found to be consistent with the requirement that the proposal is safe and the
risk to adjacent properties from the geological hazard is not increased as a result of the
proposal [Exhibit 69, Staff'Report, page 10]. The project, as conditioned, complies with the
requirements of BIMC 16.20.080 and the applicant must submit engineered construction
plans and final gcotechnical reports addressing specific lot conditions and individual wall
designs to the satisfaction of the City Engineer [Condition 3].
39. Little attention has been given to the nature and amount of grading that would
accompany constructing access routes to the wall sites (across the slope from the existing
wall and/or down the slope from Genie Johnson Road). A si_zeable swath was created
across the slope in order to gain access to the site of an existing wall [see Exhibit 73] and the
access route to the wall sites in northern lots [see Exhibit 25] would be considerably longer.
40. Except for the undeveloped Madigan propeay and the RBW LLC parcel proposed
for redevelopment, the proposed walls would be behind the required native vegetation zone.
The variance would allow for a native vegetation zone on the RBW LLC pared (4156.001-
006.0006) to be less than the 50 fl. requirement imposed by BIMC 16.12.150 [see Finding
20]. The variar~e would allow the zone to be 20 ft. wide, which is 10 fl. t~a~,her away from
the water than was the previous house on this property. This variance would facilitate the
construction of a single-family residence with a relatively modest 900 sq. fl. footprint.
41. As required by BIMC 16.12.380.C. 1, the application, the applicant's presentation at
healing and the information and analysis provided by the Director demonstrates as follows:
a_ Consistent with the SIMP: As summarized below, the proposal, as
conditioned, would be consistent with the policies of the Shoreline
M,~nagement Act and with the City's Shoreline Master Program.
b. Not Intcrfcre with Normal Public Use: The proposed walls would be
on the slope, above and behind private residences, away from public use of the
K~oreline. Some construction activities could temporarily disrupt the walkway
between Gertie Johnson Road and Rolling Bay Walk, complicating the access
historically achieved via this rome. Minimizing the disruption and requiting
full restoration of the walkway at the conclusion of the construction should be
required.
c. Compatible with Permitted Uses: The use permitted in the area is
residential and the proposal, for the protection of residences, is compatible
with that use.
d. No Unreasonably Adverse Effects: The walls are designed so as not
to cause adverse impacts to the slope, or to increase instability, or to increase
risk to adjacem properties. (This record does not have evidence of measurable,
SCOP11395
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unreasonable effect.) Conditions 1 and 15 requiring appropriate replanting and
a native vegetation zone should ensure against unreasonably adverse aesthetic
impact.
e. No Substantial Detriment to Public Interest: Providing protection for
existing residences from destructive slides is in the public interest. Planting to
screen the proposed walls from view mitigates aesthetic impact.
f. Consistency with Zoning and Comprehensive Plan: The walls are
consistent with the residential use permitted in the zone and with the
residential use anticipated by the Comprehensive Plan.
42. The proposal for Rolling Bay Walk would restore the use of properties where
residential use was established and houses developed many years ago. As conditioned, this
is consistent with BIMC 16.12.380.C.2. Unless provisions can be made to adequately
address the life safety concerns, no use can be made of the properties. Without reducing the
risk to residents from debris slides, as the property owners and their engineers have
proposed here, the tiny Rolling Bay Walk community cannot survive. Without protection
fi'om slides, use of the subject properties is not viable: only resideatial use is permitted in the
zone, and the structures cannot he occupied or the properly redeveloped until and unless
something is done to provide a reasonable level of safety. The existing ckcumstances are
extraordinary and permitted use is precluded.
43. The Director's analysis of the variance criteria of B1MC 16.12.380.B.2 is generally
correct and complete, and is hereby incorporated by reference into these Findings:
a. ~qe Rolling Bay Walk LLC property is significantly
constrained by the unstable hillside to the west and the shoreline native
vegetation zone to the east. A reasonably sized house c.,ano~ be developed
b. The steep slope of the most of lot leaves little area for
building and a 50 foot native vegetation zone would occupy almost all of
c. The proposed variance would allow for construction of a
single-family residence. The location and size of *.he proposed residence is
consistent with other residential development in the neighborhood. The
proposed buildings would be located behind the shoreline structure setback,
ensuring no adverse impacts on views from adjacent prope~ies. The project
has been conditioned to ensure adverse impacts to the shoreline environment
are avoided.
The variance, as conditioned, for a 900 square-foot footprint,
would be the minimum necessary to allow for construction of the proposed
building on the lot. It would not grant a special privilege inconsistent with
the sarrounding property development.
SCUP11395
Page 10 of 15
e. The variance would preserve views of the shoreline and
would not result in detrimental effects to the public interest.
44. The proposal for protective walls on the undeveloped Ma&gan lots presents a
different situation from that of Rolling Bay Way. Rather than protecting existing reaidences
or allowing redevelopment where residences once existed, the proposed walls on these lots
would prepare the way for new construction.
Conclusions
1. The Hearing Examiner has jurisdiction to hear and decide this matter and is required
to give substantial weight to the Director's recommendation for approval with conditions.
2. Appropriate notice of the application was made and comments were considered.
3. The variance criteria are met and the variance for a reduced native vegetation zone
(20 ft. rather than 50 ft.) for lot 4156-001-005-0205 should be approved.
4. The requested SCUP for the proposed walls arc justified for the protection of the
long established Roiling Bay Walk residential uses and for the potential revival of this
unique waterfront community. The simat'mn is critical: without measures that substantially
reduce the life safety risk that currently exists, this community cannot survive. The expert
advice is that the proposed walls would provide the needed margin of safety for residential
use and would not increase the risk to adjacent properties.
5. The proposed wall system for the Medigan property can be justified on a similar
basis as that noted in Conclusion 4 for the Rolling Bay Walk properties: the protection is
necessary for continued residential use. Justification for SCUP approval exists only for the
protection of the existing residence, not the vacant lots.
6. As conditioned, the proposal is consistent with the applicable provisions of the
Shoreline Master Program for granting a Shoreline Conditional Use Permit and, as
recommended by the Director, the application, excluding the undeveloped Madigan lots,
should be approved with the conditions noted on pages 13-15. This conditional approval is
not without reservation, but the record supports it.
Decision
Shoreline Conditional Use Permits
The Shoreline Conditional Use Permit for construction of catchment/retaining
walls on the properties identified as:
SCUP11395
Page 11 of 15
11069 Rolling Bay Walk
11081 Rolling Bay Walk
11091 Rolling Bay Walk
11099 Rolling Bay Walk
I 1129 Rolling Bay Walk
__Rolling Bay Walk
11184 Rolling Bay Walk
11090 Rolling Bay Walk
11096 Rolling Bay Walk
10820 Rolling Bay Walk
10692 Gertie Johnson Road
4140-009-001-0003
41404)09-002-0002
4156-001-008-0004
4156-001-008-0103
4156-001-006-0006
4156-001405-0205
4156-001-004-0107
4156-001-0034X109
4156-001-0034)207
4156-00141024)109
112502-4-055-2008
Clare
G-reenberg
OMG, LLC
Piper {Low Tide, LLC)
Fleck (RBW Restoration, LLC)
Fleck (RBW Restoration, LLC)
Hulett (Fame Developers, Ltd.)
Miller
Mansfield
Hulett (Fame Developers, Ltd.)
Madi~t, an
is APPROVED WITH CONDmONS that comprise Appendix A, pages 13-15 of this
decision.
A Shoreline Conditional Use Permit for construction of catchmenffretaining walls
for the undeveloped Ma&gan properties identified herein as "V~c~ra lot, Gerti¢ Johnson
Road, 1125024-054-2009" and "Vacant lot, Gertie Johnson Road, 112502-4-053-2000" [see
Finding 11], is DENIED.
Shoreline Variance Application
Emered this 17th day of June 2005.
A Shoreline Variance for reduced native vegetation zone (20 ft. rather than 50 ft.)
on the Rolling Bay Walk ("RBW") LLC lot identified herein as 4156-001-005-0205, is
APPROVED.
City of Bainbridge Island
Heating Examiner pro tern
Concerning Further Review
NOTE: It is the responsibility of a person seeking review of a Heating
Examiner decision to consult applicable Code sections and other
appropriate sources, including State law, to determine his/bet fight~ and
responsibilities relative to appeal.
Tbe decision of the Hearing Examiner is the final docision thc City in this mattex. Appeal of this
decision is to the Washington State Shorelines Hearings Board as provided by RCW 90.58.180
(or its successor) and Chapter 461-08 WAC (or its sueeesanr). To be timely, petition for review
must be filed within the 21-day appeal period [see BIMC 16.12.370].
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APPENDIX A
CONDITIONS OF APPROVAL
SUB13195
June 16, 2005
1. To mitigate the aesthetic impact of the retaining walls on the shoreline bluff and
to ensure future stability, water quality, and wildlife habitat, a Vegetation Management
Plan shall be required at the time the building permit applications for the walls is
submitted. Before building permits can be issued the Director must approve this plan,
and at~er it is approved, the applicant shall implement it to the satisfaction of the
Director. This Vegetation Management Plan shall include at a minimum, the following
items:
a. A landscaping planting plan, which contains trees and
medium to large shrubs suitable for the slope and that will screen the
retaining walls (see DOE Publication 93-31 or its successor for guidance
on plant selection, location, etc.). All cleared areas within 200 feet oftbe
shoreline shall be included in this planting plan.
b. A maintenance schedule to ensure on-going health of
vegetation across the bluff face. Minor trimming of vegetation to preserve
views of upper properties is allowed as long at the trimming does not
threaten the health of the vegetation.
c. A three-year maintenance assurance shall be provided to
ensure the establishment and health of the landscaping in accordance with
BIMC 18.85.090.D
2. All graded materials removed from the site shall be hauled to and deposited at
City approved locations. (Note: Local regulations require that a grade/fill permit is
obtained for any grading or filling exceeding 50 cubic yards of material and that a SEPA
Threshold Determination is obtained for any fill over I00 cubic yards).
3. Prior to building permit issuance for each lot, final geotechniral reports
addressing the specific lot conditions and individual wall designs shall be submitted to
the City Engineer for review and approval. Building pet'mRs shall not he issued until the
City Engineer has approved. All recommendations contained in the geotechnical reports
shall become conditions of approval, unless modified by the engineer and accepted by the
City Engineer.
4. The applicant shall make application for a Right-of-Way Construction Permit
pursuant to the City of Bainbridge Island Design and Construction Standards section 1.07
B.2. If the work involves road or lane closures, or overweight or over-wide loads. If
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such a permit is required, the applicant shall provide a haul/transport route map prior to
permit issuance and shall make photographic and/or video tape record of the condition of
the public roadway along the haul-route before and afier construction. The applicant
shall be responsible for repair of any extraordinary wear or damage as determined by City
Engineer.
5. In order to prevent loss of significant archaenlogitJd resources, the following
measures shall be taken in the event phenomena of possible archaeological interest is
uncovered during site 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 finlher disturbance of the site (RCW 27.53.070 or its successor).
6. To prevent adverse impact on the shoreline, construction and construction staging
areas shall be landward of the ordinary high water mark and outside of the public
road end (Ocean Drive).
7. A hydraulics project approval from the Department of Fish and Wildlife shall
he obtained prior to the use of a barge to bring machinery and or materials to and from
the site.
8. The proposed Boundary Line Agreement shall be finalized and recorded prior to
building permit submittal for any of the retaining walls or the house on the Rolling Bay
Walk Restoration LLC lot.
9. Individual building permits shall be obtained for each lot. The building permit
application shall contain: an individual site plan showing the proposed wall locations; a
replanting plan; wall construction plans and details; final geotechnical reports and forms
and a signed indemnification agreement in accordance with BIMC 16.20.080.C.2.g.
10. Building permits for the retaining/catchment walls shall he in substantial
conformance with the site plans date stamped February 18, 2005.
11. Prior to building permit issuance, a detailed access and maintenance plan shall
be submitted. The plan shall clearly describe and depict: 1) how and where the walls will
be accessed for normal on-going maintenance and repair; and, 2) what measures will be
taken to avoid and mitigate adverse impact to the public's ability to access the shoreline
via the walkway between Gertie Johnson Road and Rolling Bay Walk. At the completion
of wall construction, the walkway between Gertie Johnson Road and Rolling Bay Walk
providing public access to the shoreline shall he restored to the satisfaction of the
Director.
12. Only those lots who have easement rights to the "Rolling Bay Walk" easement
shall be permitted to use the easement for construction purposes. The lots who have
access from Gertie Johnson Road must either gain access from the water or obtain
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permission of the Rolling Bay Walk Easement holders. Proof of access will be required
prior to building permit issuance.
13. If construction or structures are requ'u~l to cross onto private property or into the
public right-of-way, the applicant shall obtain proper easements and/or right-of-way
permits prior to building permit issuance.
14. The building permit for Rolling Bay Walk Restoration LLC lot (4156-0014105-
0205) that is subject to the variance shall be in substantial conformance with the site plan
date stamped March 9, 2005. Specifically the building footprint shall be limited to 900
square feet.
15. Native vegetation shall be planted between the foot print of the new house and
Rolling Bay Walk on the Rolling Bay Walk Restomtiou LLC lot.
16. No walls shall be constructed on the undeveloped Madigan lots (112502-4-053-
2000 and 112502-4-054-2008), except that the walls for the Madigan residence (10692
Gonie Johnson Road) may extend onto the lot adjacent to the house (112502-4-054-2008)
as reasonably and functionally necessary to complete the wall system for the protection
of the existing residence.
17. Prior to the issuance of building permits for the single-family residence and the
catchment/retaining walls on individual lots, either a Building Site Application (BSA) for
a new septic system or Building Clearances (BC) for existing systems must be reviewed
and approved by the Health District. The BSA's and BC's must include a plan which
identifies the exact location of the on-site septh: s2rstems (OSS). The plan needs to
indicate the horizontal separation between the OSS components and the proposed new
wall. The plan shall also detail tbe proposed depth of the wall in relation to the depth of
the existing OSS. The plan must also indicate any ingress and egress pathways for the
equipment to be used during construction and for maintenance.
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