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CAPSTONE PARTNERS, INC. - DECISIONR';1TY CLERK DECISION OF THE HEARING EXAMINER CITY OF BAINBRIDGE ISLAND In the Matter of the Application of CAPSTONE PARTNERS LLC CUP 13719 REMAND for a Conditional Use Permit for DECISION Wing Point Patio Homes" BACKGROUND The Applicant seeks a Conditional Use Permit (CUP) to construct eleven houses on one parcel in the R-2.9 zone. The Director, Department of Planning and Community Development, has reviewed the application and recommends. approval with conditions. A public hearing was held beginning September 27, .20.07 and continuing on November 1, 2007. The Applicant, Capstone Partners LLC, was represented at the hearing by its attorney Dennis D. Reynolds,. and the Director, Department of Planning and Community Development (PCD or Department), City of Bainbridge Island, was represented by Jay Derr, attorney for the City. In 2006, the Hearing Examiner denied the CUP (that decision is in the record here as Exhibit 129; referred to as the "Wing Point decision"). The applicant appealed that denial to Kitsap Superior Court. and, in 2007, the matter was remanded to the jurisdiction of the Hearing Examiner (referred to herein as the "remand"). The record for the subject remand decision contains the evidence admitted into the record for the prior "Wing Point decision" [including Exhibits 1-63], as well as the evidence associated with the remand hearing [including Exhibits 64-129]. The procedural history of this matter is summarized in Findings 1-4. 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. All evidence admitted in to the record was considered in making this decision. References to exhibits and testimony that are shown in brackets denote some of the evidence relied upon; these references are not intended as exclusive or exhaustive.. Except where "WP" precedes the citation (which indicates the 2006 Wing Point decision), references to specific "Findings" or "Conclusions" refer to the findings :and conclusions as enumerated in this remand decision. FINDINGS PROCEDURAL HISTORY 1. The Conditional Use Application (CUP 13719) of Capstone Partners LLC, for its proposed "Wing Point Patio Homes" project, came before the Hearing Examiner in 2006, CUP 13719 Page 1 of 22 and after proper notice and hearing, the Hearing Examiner denied the CUP [see Wing Point Decision, Exhibit 129]: December 5, 2005 Capstone Partners submits CUP Application for "Wing Point Patio Homes" [Exhibit 12]; PCD deems Application complete December 7, 2005 Exhibit 13]. March 29, 2006 PCD Director issues SEPA Mitigated Determination of Nonsignificance (MDNS) [Exhibit 36]; the MDNS was not appealed. Ma_y 4, 2006 Hearing Examiner conducts CUP hearing [see WP Findings 32-44]. May 9, 2006 Finding conflicting evidence as to the proper location of the "top of the ravine bank ", the Hearing Examiner orders that the record be reopened and supplemented [Exhibits 41, 43, 44, and 52]. June 22, 2006 The hearing is reconvened, additional information submitted and testimony. given [Exhibits 53-59; see also WP Findings 37-44]; the record is closed. July 21, 2006 Finding that the record did not establish that all the CUP approval criteria would be met, Hearing Examiner issues the decision denying the requested CUP [Exhibit 129; also see WP Finding 58 and Conclusions 3-5]. 2. Pursuant to the Land Use Petition Act, the Applicant (Capstone Partners LLC) and the property owner (Wing Point Golf and Country Club), filed an appeal in Kitsap Superior Court, seeking reversal of the Hearing Examiner's decision denying the CUP. 3. In 2007, the matter was remanded to the Hearing Examiner, additional public hearing was held and additional evidence admitted into the record: July 17, 2007 Based upon the joint request of Capstone Partners and the City, Judge Costello, Kitsap Superior Court, issues an Order [Exhibit 64] vacating. the Hearing Examiner's Wing Point decision and remanding the matter for additional proceedings. August 16, 2007 The Hearing Examiner receives notification of the issuance of the "Stipulation and Agreed Upon Order". September 12, 2007 The Office of Hearing Examiner provides public notice for the remand hearing [Exhibit 65] September 27, 2007 and November 1 2007 Hearing Examiner conducts remand hearing; the record remained open to allow the Applicant and Director to file additional comments [Exhibits 126 and 127]. Written comments from interested persons [Exhibits 121-123], as well as different size/scale versions of maps already in the record, were also admitted into the record after hearing [Exhibits 124 and 113A]. November 16, 2007 With receipt of Exhibit 113A, the record closes. 4. Several persons who submitted public comment, advocated that the subject application be reviewed using the City's current laws and regulations, rather than those in effect when the application was filed. As a conditional use permit application is properlyreviewedunderthelanduselawsandregulationsineffectwhentheapplicationisfiled CUP 13719 Page 2 of 22 see Weyerhaeuser v. Pierce County, 95 Wn. App. 883 (1999)], this is CUP application is properly reviewed using City ordinances in effect on December 5, 2005. SITE DESCRIPTION Size and Location 5. The 3.92-acre (170,755 sq. ft.) site is located on the north side of Wing Point Way NE, east of Ferncliff Avenue NE and south of the Wing Point Golf and Country Club. The Wing Point Golf and Country Club is the owner of the subject property; Capstone Partners seeks to purchase and develop the property; see Exhibit 25) Assessor's tax parcel number is 262502-1-005-2008 [abbreviated legal description: NE 1/4, Sec.26, T.25N., R.2E., W.M. [Exhibit 40, Sheet Al and Sheet 1/1; Exhibit 39, page 6] 6. The general shape of the site is a narrow rectangle. The north/south axis is approximately 1,000 ft. with the east-west dimension is 149 ft. fronting Wing Point Way and 180 ft. at the northern property boundary. [Exhibit 40, Sheet Al and Sheet 1/1] Natural Features 7. The site is undeveloped and covered with mature forest (except for the area in the southwest where the age and type of vegetation reflects past clearing and the lawn of the neighboring property encroaches). Vegetation includes mature alder, maple, cedar, and fir trees, with a dense understory of woody shrubs, blackberry, salal, and sword fern. English ivy, classified in Washington a "noxious weed" (due to its destructive, invasive nature) is widespread; dominant in the south part of the site. [Exhibits 6, 27, and 108] 8. A ravine containing a Class 4 stream extends along the east side of the site. This intermittent stream is referred to by some as "Hawley Creek" [Exhibit 26]. Except where it enters a culvert in the southeastern corner of the subject. site, the centerline of the stream is within Lots 11-22 of the "Wing Point Greens" plat [see Exhibit 5 and Sheet 4.2, Exhibit 109], not the subject site. From the culvert under Wing Point Way, the stream flows south to a wetland located near the shore of Eagle Harbor [Exhibit 8; Exhibit 55]. There is no fish migration to the stream reach north of Wing Point Way [Exhibit 26]. West of the adjacent property, there is another stream that flows in a southerly direction; it crosses beneath Wing Point Way through a different culvert [see illustrations in Exhibits 7 and 8]. 9. Along much of the east side of the subject property, the ravine slopes steeply down to the stream. [Exhibit 6; Exhibit 26; Exhibit 27; Exhibit 113A] See Findings 44- 45 for further description of the ravine slopes. The site also slopes moderately from north-to-south (overall elevation change of approximately 50 ft. in 1,000 ft.), with an overall slope on the order of 4-6%, and maximum slope of 12% [Exhibits 6, 8, and 113A]. VV icinity 10. Except for the Wing Point Golf and Country Club to the north, all uses in the immediate vicinity are residential. CUP 13719 Page 3 of 22 11. Azalea Avenue, to the east is developed with two dozen residences. The street extends north from Wing Point Way, terminating at a cul-de-sac approximately 1,000 ft. to the north. Lots 11-22 of the "Wing Point Greens" plat, on the west side of Azalea Avenue, are adjacent to the subject site along the entire length of its eastern boundary. The stream itself and the base of the western slope of the ravine are within Lots 11-22. The residences on these lots are generally located west of the crest of the slope. [Exhibit 40, Sheet 1/1; aerial photo, Exhibit 48; Exhibit 58] 12. Immediately to the west of the southern third of the subject site, is developed residential property; north of it is undeveloped residentially-zoned property. The Wing Point Golf and Country Club extends north of that property and north of the subject property. There are also single-family residences to the south, across Wing Point Way. Exhibit 40, Sheet 1/1; aerial photo, Exhibit 48; Exhibit 58] Zoning 13. The zoning of the subject site is R-2.9 (residential, one dwelling per 15,000 sq. ft.) [see BIMC 18.30.040]. At the R-2.9 density, this site would be permitted 11 lots (i. e., 170,775 sq. ft. divided by 15,000 sq. ft./lot = 11.3 lots). 14. The Comprehensive Plan designation is SUR (Semi-Urban Residential). Zoning in all directions is R-2.9 (with corresponding SUR-2 Comprehensive Plan designation). Exhibit 39, page 6; Testimony of Bonsell] 15. Although they would be single-family structures (i. e., one dwelling unit per structure), the houses are considered "multifamily dwellings" under the Code definition see BIMC 18.06.320] because they would be located on one lot. BIMC 18.30.030 provides that "Multifamily dwellings" may be allowed in the R-2.9 zone as a Conditional Use. [See criteria for conditional use approval at BIMC 18.108.040A; Finding 62.] PROPOSAL: "Wing Point Patio homes" 16. The Applicant proposes to construct 11 two-story detached residences, approximately 10 ft. apart, each with a "footprint" of approximately 2,200 sq. ft. An attached two-car garage of approximately 500-600 sq. ft. and individual driveways, would provide parking area for the individual units. Nine parking spaces for guests would be located adjacent to the access drive (3 spaces near middle of the site and 6 spaces at south end, near Wing Point Way). [Exhibit 5; Exhibit 12; Exhibit 39; Exhibit 78 and 78A; Testimony of Wenzlau] 17. The proposal was revised for the remand hearing [Testimony of Wenzlau]. The houses had formerly been an identical shape and uniformly aligned perpendicular to the access drive (except for units #1 and #2 in the south end of the site which were, and remain, generally parallel to the access drive). The revised site plans show some variation in shape, and the houses are now angled northeast to southwest. This reconfigured layout allows for more space between the houses and the ravine slope, the same number of houses with footprints comparable to the original proposal, better views of the forested open space and, consequently less views of adjacent neighbors (increasing privacy). [Site plans: Exhibit 4 and Exhibit 78A.] CUP 13719 Page 4 of 22 18. "Wing Point Patio Homes" is proposed as a condominium with the houses individually owned and shared rights and responsibilities for everything else ("common elements"). The houses would would look like and function like typical single family homes. [Testimony Wenzlua] Ownership rights and responsibilities for the common elements would be documented in a Condominium Declaration for the "Wing Point Patio Homes" prepared pursuant to the Washington Condominium Act (presently codified in RCW Chapter 64.34). 19. A draft Condominium "Declaration was submitted without discussion at the remand hearing [Exhibit 116]. An owners' association, as prescribed in the Declaration, would manage on-going usage and maintenance of the common elements (including access drive, parking spaces, storm water system, Open Space, and critical area buffer). The decks, patios, and porches immediately accessible to each unit, and the yards surrounding it, would be reserved for the exclusive use of that unit. Individual home owners would have responsibility for maintenance of those immediately adjacent areas as provided in the Declaration. 20. Vehicular access would be provided to Wing Point Way at a point near the southwest corner of the site. -The applicant has agreed to "construct and install street improvements and make dedications" according to City standards as required by the Public Works Director [see Finding 43]. 21. An access drive (also referred to as "private lane" or "access road") would extend the entire length (north/south axis) of the site with a vehicle turn-around in the Open Space area in the north. The road would have a 12-ft. wide paved surface and 3-ft. wide graveled shoulders; the turn-around would accommodate emergency vehicles (as required by the Fire Department). At the approach to Wing Point Way, there would be an 18-20 ft. wide, 40 ft. long "landing". [Exhibit 124, Sheet 4.7; Testimony Wenzlau] 22. City water and sewer would serve the project [Exhibit 7] and storm water facilities would provide detention on-site and discharge into the existing public system. See Findings 37-40 regarding storm water system.] 23. Along the east side of the property, a 30-ft. wide stream buffer (measured from the "top of the ravine) is proposed, rather than the minimum 25-ft. buffer required by the Code [see Finding 49]. There would also be a 15-ft. wide "building setback" beyond the 30-ft. wide buffer. No buildings could be constructed in either the buffer or the building setback, but the setback area could be cleared and/or graded as necessary to facilitate construction of the proposed houses. 24. No revised landscape plan was submitted during the remand proceeding and the cross-section at the driveway [Exhibit 80, Sheet A0.3.2] shows the storm water drainage ditch/swale beginning at the property line, leaving no room for the landscaped screen along the western property line as originally proposed [Exhibit 25]. The Director recommends that the final landscape plan include asight-obscuring fence or vegetative barrier along the west property line [Exhibit 75, page 2]. CUP 13719 Page 5 of 22 DIRECTOR'S REVIEW AND RECOMMENDATION 25. BIMC 18.06.320 defines "Dwelling, multifamily" (emphasis added) to mean "a building or portion of a building containing two or more dwelling units or more than one dwelling unit on one lot, not including accessory dwelling units ". 26. After Capstone Partners filed its application in December 2006, PCD gave notice of the application and of the SEPA Comment Period [Exhibit 18]. Several concerned neighbors submitted comments to the Director during the SEPA comment period [Exhibit 20, Leatherman/Miller; Exhibit 21, Smith; Exhibit 22, Miller; Exhibit 23, Peters; Exhibit 24, Atkinson]. The Staff Report [Exhibit 39, pages 7-8] includes a discussion of the major themes" of the comments (i. e., critical area protections and improvements needed for traffic safety on Wing Point Way). 27. The Director referred the application to various City departments for review and comment [Exhibit 11]. The Public Works Department advised that the location would be served by City water and sewer [Exhibit .7] and that the storm water drainage system must be designed by a civil engineer. The Public Works Department also considered likely traffic impacts and issued a Certificate of Concurrency [see Finding 41 ]. The Fire Department specified that new hydrant(s) would be required in accordance with City standards and that the access drive must have a minimum width of 12 ft. and an approved turn-around. 28. The Director reviewed the revised site plans for the remand proceedings and characterized the revisions as "minor". The Director's memo for the remand hearing Exhibit 75] affirmed previous recommendation [Exhibit 39] that the CUP be approved with conditions. Some modification of the previously recommended conditions was suggested, including: asplit-rail fence and signs along the buffer should be required; an Open Space Management Plan should be submitted for the Director's review; a final landscape plan should address parking areas and a vegetative barrier or a 5-6-ft. tall view- obscuring fence along the west property line; pesticide us should not be permitted in the Open Space; and, City enforcement of buffer maintenance should be clarified. [Exhibit 88; Testimony of Machen] PUBLIC COMMENT 29. In 2006 and on remand in 2007, this CUP application has been the subject of considerable public comment, both in writing and at the public hearings. 30. During the public comment portion of the hearing on May 4, 2006, several members of the public spoke [including testimony of: Williams, Smith, Atkinson, West, Gace, Peters, Miller, Cain, Carmell]. Written comments were also submitted [including: Leatherman, Miller, Smith, Peters, Atkinson, Carmell, Wing .Point Way Neighborhood Association, Azalea Avenue Residents; Exhibits 20, 21, 22, 23, 24,28, 29, 32, 33, 34, 35, 45, 46, 47, 61, 63]. 31. Information provided in the 2006 public comments, indicated that some of "flags" used to stake/mark the "top of ravine", were not at the "top", but on the bank itself [see WP Finding 35]. The record was reopened and the hearing reconvened in an attempt to reconcile conflicting evidence in the record so that the "top of ravine bank" could be CUP 13719 Page 6 of 22 37. Stormwater would be collected, conveyed, and detained on-site before discharge into existing stormwater drainage facilities in the Wing Point Way right-of--way. Runoff from the northern ("upper" portion) of the access drive would drain to a biofiltration Swale. Drainage from roofs and patios would be collected and tight-lined to a 10 ft. X 40 ft. underground detention vault at the southern end of the site. Afilter-treatment unit for runoff from the lower portion of the road (i. e., downslope from the biofiltration swale) would be located adjacent to the vault. [Exhibits 8, 82, 84, 85, 86; Testimony Browne] 38. The on-site facilities would be designed in accordance with DOE's 1992 Washington State Stormwater Management Manual. The applicable standards require detention sufficient so that the peak flows from the site are not increased from pre- developed conditions. Based upon modeling for peak flows, before and after development, the project engineer testified that peak flows would not exceed pre- development levels. An operations and maintenance schedule and manual for the on-site storm water facilities would be required with applications for construction permits. Testimony of Browne] 39. The current standards for storm water systems (that became effective after the subject application was filed), require lower rates of discharge and regulate duration of flow, as well as volume of flow. The proposed system would meet the applicable standards; the new standards would necessitate a larger detention vault. [Testimony of Browne] 40. Neighbors commented about instances when public storm water facilities did not functioning adequately and questioned the adequacy of downstream and culvert capacity. The project engineer credibly testified that there is sufficient capacity in the culvert under Wing Point Way to receive storm water from the developed site and that his visual inspection downstream revealed no sign of capacity problems. [Testimony of Browne] During the hearing. in the 2006, information was received about insufficient capacity in the culvert under Wing Point Way west of the subject property resulting in damage to property on the south side of Wing Point Way [Testimony of Miller]. That culvert would not receive discharge flows from the site's storm water system [Exhibit 8 and Exhibit 86]. TRAFFIC SAFETY 41. The Public Works Department issued a Certificate of Concurrency attesting that existing transportation facilities would not be unduly burdened by development of the proposal [Exhibit 38]. The Certificate of Concurrency is premised upon 9.5 Average Daily Trips (ADT) for each residence for a total of 105 ADT. Wing Point Way and Ferncliff Avenue were the transportation facilities considered. The project was exemptfromthetrafficstudyrequirementbecausetheapplicantagreedtomakeright-of--way improvements [BIMC 15.40.060]. 42. The access drive "landing" [see Finding 21 ] would accommodate at least two vehicles in queue waiting to turn onto Wing Point Way and have space for simultaneous entry and exit. This resolves questions about whether there would be enough space for vehicles to queue and/or to enter and exit at the same time. [Exhibit 38; TestimonyWenzlau, Hathaway] CUP 13719 Page 8 of 22 B. Interpretation.. The provisions of this chapter shall be held to be minimum requirements in their interpretation and application and shall be .liberally construed to serve the pur oses of this chapter. C. Applicability. This chapter establishes regulations for the protection of sites which contain critical areas or are adjacent to sites which contain critical areas. Development and land use activities proposed on critical area sites shall comply with the provisions o this chatamer. No action shall be taken by any person, company, agency, or applicant, which results in any alteration of a critical area except as consistent with the purposes, requirements, objectives, and goals. of this chapter. An area is a critical area if it is an aquifer recharge area, fish and wildlife habitat, frequently flooded area, geologically hazardous area or regulated wetlands and/or stream. 62. BIMC 18.108.040A (emphasis added) provides that a conditional use "may be approved or approved with modification " if: 1. 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; S. 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 taken to eliminate the impacts that the proposed use may have on the surrounding area. 63. The proposal for Wing: Point Patio Homes, as conditioned, meets the approval criteria of BIMC 18.108.040A as follows: 1) It would be harmonious and appropriate with the character of the vicinity and the subject property: The size. and design of the proposed residences would similar to and compatible with the single-family development in the vicinity. The "density" dwellings per .acre -would be consistent with. the zone's limit of one dwelling per 15,000 sq. ft.; the distance separating. residences does not determine "density". That the houses would be closer to one another than existing development, does not diminish their "residential" character and is consistent with Code and policy goal of clustering development for the preservation and protection of critical areas. The proposed residences would be screened from view along Wing Point Way by the 50-ft.-wide open space and from the golf course by the open space at the northern end of the site. Azalea Avenue residences on the east side of the CUP 13719 Page 13 of 22 ravine may be able to see some parts of the proposed residences, but the tall trees in the buffer and other vegetation in close proximity to the proposed residences would at least partially screen them from view. The property to the west is undeveloped and a fence and/or a vegetative barrier along the western property .line (as recommended by the Director) would adequately obscure views from the west. As conditioned, the Open Space Management Plan and the Condominium Declaration would adequately provide assurance that the site's developed character and appearance would be harmonious with the character of the vicinity. 2) It would be adequately served b~public utilities• Adequate water and sewer service is available to serve the proposed residences. The storm water drainage system, designed by a licensed engineer and maintained by the home owners' association, would meet applicable City standards. 3) It would not be .materially detrimental to uses or pro e~rty. in the vicinity' No material detriment to uses or property in the vicinity would result from this proposal. That some the proposed houses might be seen from neighboring properties (or that they would relatively close to one another) would not be materially detrimental. The proper establishment and maintenance of the buffer and Open Space areas would mitigate and/or preclude adverse impacts on the stream and ravine slopes. 4) It would be in accord with the. Comprehensive Plan• With a pattern of development similar to the existing development in the vicinity (i. e., single family houses along a road extending north from Wing Point Way), the houses would reflect neighborhood character and be in accord with the SUR (Semi-Urban Residential) Comprehensive Plan designation. Construction of street improvements, including bike lanes along Wing Point Way, would be consistent with the Non-Motorized Transportation Plan. Retaining trees along Wing Point Way would be in accord with Comprehensive Plan goals of preserving the forested view from highways. 5) It would comply with applicable provisions of this Code• As modified by the conditions of this decision regarding relocation out of areas mapped as 40% slope or greater, the "top of the ravine banl~' would be credibly established and a satisfactory buffer would provided. 6) Would not adversely affect the area's residential nature: The project would, in appearance and function, be similar to "single-family" development; consistent with the area's "residential nature". [See also (1), 3), and (4) in this Finding.] 7) All measures have been taken to eliminate impacts As conditioned, all measures to eliminate impacts would be taken, including: properly establishing the critical area buffer for ongoing mitigation of CUP 13719 Page 14 of 22 r potential adverse water quality impacts; .providing open space and buffer areas; setting back development from geologically hazardous slopes; and providing for safe and appropriate access to and within the site. CONCLUSIONS The Hearing Examiner has jurisdiction to hear and decide this matter. 2. This application was previously denied because the record was not adequate for determining if the proposal would meet, or be conditioned to meet, the criteria for approval. There is now credible and sufficient evidence in the record to make that determination. 3. A major sticking point with the prior consideration was anomalous evidence regarding the "top of the ravine" location that would be used as a basis for establishing a buffer consistent with the applicable requirements of the Code. The record on remand establishes that the "top of the ravine", as determined (somewhat roughly) in the field, while not the topographic "top", can be refined by conditions to be the proper starting point for the stream buffer. With the 30-ft. width proposed. by the Applicant, measured from the "top of the ravine:" relocated so that it is entirely out of steep slope areas, and augmented with an additional 5-ft. wide vegetated area (in lieu of a private trail) [see Findings 23, 49-53, 56-57], the buffer would be provided consistent with the applicable requirements of BIMC 16.20.090. [See Conditions 8-10, 31-34] 4. Conditions to ensure protection of the buffer and. its effectiveness. are required by CUP criterion BIMC 18.108.040A.7, as are conditions regarding the .access drive, storm water system, construction mitigation measures, and geotechnical review. Similarly, conditions regarding the revision of the proposed Open Space Management Plan areas and restrictions, and the clear declaration and notice of responsibility for on-going maintenance, are necessary to satisfy BIMC 18.108.040A. 5. Conditions of approval are necessary to ensure that the Conditional Use decision criteria would be met. With. these conditions, the proposal would meet all decision criteria of BIMC 18.108.040A and should be approved. DECISION The application of Capstone Partners LLC for a Conditional Use Permit to develop the 11-unit "Wing Point Patio Homes" 1S APPROVED WITH CONDITIONS 1 through 36 in Appendix A which follows on pages 17-22. Entered this 13th day of December 2007. Signed in Original Meredith A. Getches Hearing Examiner CUP 13719 Page 15 of 22 APPENDIX A- Conditions of Approval CUP 23719 Wing Point Patio Homes These Conditions of Approval are generally both SEPA conditions and conditions required to meet the CUP approval .criteria of BIMC 18.108.040. Non-SEPA conditions are marked with an asterisk ("). Unless otherwise indicated, "Director" refers to the Director, Planning and Community Development (PCD). PERMIT REVIEW 1. *All appropriate City permits must be obtained prior to construction of dwelling units or infrastructure. Site plans for the building permits must be comparable to the site plans (dated. 1.1/01/07) as revised to conform to these conditions of approval (Repositioning of units as necessary to comply with the conditions of approval shall be allowed consistent with limits of buffer, setbacks, etc., and fewer units and/or smaller building footprints shall be allowed..) 2. *At the time of building. permit submittal, the applicant shall address Public Works requirements and obtain necessary approvals/permits with regard to: a) Required water and sanitary sewer mains within the condominium and along Wing Point Way. b) Improvements in the Wing Point Way .right-of-way (bicycle lanes and sidewalk) consistent with the Wing Point Way Improvement Project.. c) Fire hydrant(s) in accordance.with City Municipal Code requirements as directed and approved by the Fire Department. 3. *Prior to issuance of any clearing, grading or construction permit, the Applicant shall comply with applicable provisions of BIMC 18.85 to the satisfaction of the Director. 4. *Prior to construction,. the applicant shall submit a .final landscape plan to the Director for review and approval. Landscape plans shall include: the revegetation of the eastern 5 ft. of the building setback [see Condition 31] and the 3-5-ft. west of the top of the drainage ditch; a view-obscuring fence along the western property line; sod lawn or other ground cover to stabilize the area of construction between the houses and the "Buffer Perimeter Space"; landscaping of street frontage. and between and around. the houses consistent with original landscape plan [see Sheet L1 submitted 12/05/05]; and, appropriate landscaping of guest parking spaces adjacent o the access drive. The landscaping shall be installed prior to issuance of any Certificate of Occupancy. 5. *All lighting associated with this project shall comply with the City's Lighting Ordinance, BIMC Chapter 15.34. 6. *A copy of these conditions shall be attached to any construction plans throughout construction on the site. 7. .Prior to building permit issuance, school impact fees in effect shall be paid if and as applicable. BUFFER LOCATION 8. The "top of ravine" location shall be revised on the Topographic Information map Exhibit 113A], Open Space Management Plan map [see Sheet A0.4.7, Exhibits 109 and CUP 13719 Page 17 of 22 DECISION OF THE HEARING EXAMINER CITY OF BAINBRIDGE ISLAND In the Matter of the Application of CAPSTONE PARTNERS LLC Wing Point Patio Homes" CUP13719 for a Conditional Use Permit Background The Applicant seeks a Conditional Use Permit to construct eleven houses on one parcel in the zone. The Director, Department of Planning and Community Development, reviewed the application and has recommended approval with conditions. The Hearing Examiner held a public hearing on May 4, 2006. Parties represented at the hearing were: the Director, Planning and Community Development (Department or PCD), by Tom Bonsell, Planner; and, the Applicant, Capstone Partners LLC, by Don Audleman and Charlie Wenzlau. On May 9, 2006, noting that it was essential to establishing a proper buffer and setback, the Hearing Examiner ordered that the record be supplemented with evidence regarding the location of the "top of the ravine bank" [Exhibit 52]. The applicant was directed to provide mapped information so that the Hearing Examiner could determine whether the top of the ravine bank" had been accurately located. The applicant's response [Exhibits 51, 53-59] was submitted and subject to review and comment at a reconvened hearing held on June 22, 2006. Bob Katai represented the Director at the reconvened hearing. The record was closed at the conclusion of the reconvened hearing. After due consideration of all the evidence in the record, the following constitutes the fmdings, conclusions, and decision of the Hearing Examiner on this application. Findings Site and Vicinity 1. The 3.92-acre (170,755 sq. ft.) site is located on the north side of Wing Point Way NE, east of Femcliff Avenue NE and south of the Wing Point Golf and Country Club. The Wing Point Golf and Country Club is the present owner of the subject property; Capstone Partners seeks to purchase and develop the property; see Exhibit 25) Assessor's tax parcel number is 262502-1-005-2008 [abbreviated legal description: NE 1/4, Sec.26, CUP13719 Page 1 of16 corresponding SUR-2 Comprehensive Plan designation). [Staff Report, Exhibit 39, page 6; Testimony of Bonsell] Proposal 13. The Applicant, Capstone Partners LLC, proposes to construct 11 single-family detached residences with access from Wing Point Way via a 12-ft. wide "private lane". The 3 bedroom homes would have maximum height of 25 ft. (two stories facing the private lane, with one-story to the rear). Each house would have a patio and landscaped front, side and rear yards. Each house would be approximately 2,300 sq. ft., have a courtyard and a two-car garage (with space in the driveway for two vehicles). Four additional parking spaces would be available in the turn-around near the north end of the site and three spaces would be located at south end of the private lane. [Exhibit 5; Exhibit 12; Exhibit 25; Staff Report, Exhibit 39; Exhibit 40, Sheet AI, L; Testimony of Wenzlau; Testimony of Bonsell] 14. Approximately 125 ft. of the northern end of the site (across its entire width) would be designated open space; the southernmost approximately 120 ft. would be similarly treated. Along the east side of the property, a 25-ft. wide stream buffer measured from the top of the ravine) would be required, with a 15-ft. wide building setback beyond that. No buildings would be allowed to be constructed within the building setback, but nearly all of the setback area is within the "limit of work" line [see Sheet L1] to be cleared and landscaped. No cutting of trees would be allowed within the designated open space and buffer, but a pedestrian path is proposed, extending the length of the site from the north property boundary shared with Wing Point Golf and Country Club, south to near Wing Point Way. Exhibit 40, Sheet L1] 15. There would be a 50-ft. wide open space setback along Wing Point Way and a landscape screen approximately 9-ft. wide with plants 6-8 ft. tall, would be provided along the western perimeter between the private lane and the western property boundary. Exhibit 25; Exhibit 40, Sheet L1] 16. Development would occur on 62% of the site; 38% would remain undeveloped Exhibit 12, page 9]. 17. The proposal includes a landscaping plan [see Sheet Ll, Exhibit 40]; approximately 31 % of the site would be landscaped [Exhibit 12, page 9]. Some existing trees would be retained [see Finding 18], and the cleared areas would be replanted as indicated in the landscape plan. [Exhibit 40, Sheet LI; Exhibit 31; Testimony of Wenzlau; Testimony of Bonsell] 18. Approximately 38% (64,000 sq. ft.) of the existing 166,000 sq. ft. ''tree canopy" would be retained (30% is the minimum required to be retained). The existing trees in the northern portion of the site would be retained as open space [see Finding 14]; the rest CUP13719 Page 4 of 16 42. Unfortunate for resolution of questions regarding the proper location of the "top of the ravine bank" (including how the mapped location relates to slopes 15% or greater), the contour lines on the "field verified" map stop at the anticipated limits of work rather than extending to the base of the ravine (or even to the site's eastern property line). The nature and extent of the "field verification" was not described and the decision to not survey all the property and/or not to reveal the surveyed topographic conditions on the ravine slope, deprives the record of valuable information with regard to compliance with the stream buffer requirement. 43. In the five year "evolution" of the mapped location for the ''top of slope", there have been a number of opportunities for mistakes: some of stakes may have been improperly ("I know when I see it") placed, or they got moved, or improperly re-staked or re-verified, or mapped inaccurately when revised [Exhibit 58], and so on. There is not a credible and satisfactorily precise mapping in the record that could reasonably be relied upon to ensure the critical area protection envisioned by the Code. 44. At the June 22nd reconvened hearing, several members of the public also gave testimony [Testimony of Bispham, Atkinson, Jorgensen, Cartmell, Ostling] and submitted written comment [Exhibit 60, Atkinson; Exhibit 62, Perry; Exhibit 61, Wing Point Way Neighborhood Association; Exhibit 63, Azalea Avenue Residents]. Comments were to be focused on the new information regarding location of the "top of the ravine bank". Some of those providing comment urged that the line indicating where 15% slope ends should be used to mark the "top of the ravine bank". Bainbridge Island Municipal Code 45. BIMC 18.06.320 defines "Dwelling, multifamily" (emphasis added) to mean "a building or portion of a building containing two or more dwelling units or more than one dwelling unit on one lot, not including accessory dwelling units". The proposed residences are considered "multifamily" because they would be on one lot. Each structure would, however, be a separate dwelling unit and would look like and function like, single family homes (i. e., a detached structure with a permanent foundation; see BIMC 18.06.330). 46. Pursuant to BIMC 18.30.030.J, "multifamily dwellings" may be permitted as a conditional use in the R-2.9 zone. 47. BIMC 16.20.010 establishes that "streams and their protective buffer lands" are included among the "critical areas" that are "of special concern to the city". BIMC 16.20.090.H provides that Class 4 streams must have 25 ft. wide buffers and building setbacks of 15 ft. wide beyond the buffers. CUP13719 Page 10 of 16 Conclusions 1. The Hearing Examiner has jurisdiction to hear and decide this matter. 2. Appropriate notices of the application and of the public hearing were given and the hearing was properly convened and all comments, testimony, and other evidence offered and admitted to the record have been considered. 3. The applicant's assertion that the project would be "identical" to single family development is not accurate. The project would not provide a perimeter landscape buffer on the west side of the site and plans and the commitment for ongoing open space protection that would be typical of a single family subdivision development of this size. Indeed, in order to fit eleven residences on this narrow site, many features are proposed to be "narrower" than would be typical: the access road with I-ft. wide, rather than 3-ft. wide shoulders; the western landscape "perimeter" would be 5-9-ft. wide rather than 25- ft. wide; and, most of the residences would have their "long" side oriented east-west facing adjacent residences), rather than north-south (toward views of forest east and west). If all the requirements for "typical" single family subdivision were met, it appears that the number of dwelling units possible would be less than the eleven proposed here. 4. The applicant has known that the accurate mapping of the location of the "top of the ravine bank" is essential for a decision here [Exhibit 52; Exhibit 53; Testimony of Wenzlau]. The applicant also knew that there were inaccuracies in and conflicts between the maps presented. The comments from neighbors given at the meeting held in November 2005 should have made it clear that the accuracy and objectivity of the mapping would be an issue [Exhibit 25]. The reopening of the record was an opportunity for the applicant to provide updated, credible and accurate information. Instead, the most accurate and refined topographic information available did not extend to include the ravine - - where more credible and accurate information was most needed. 5. Not all the Conditional Use Permit approval criteria of BIMC 18.108.040.A are met [see Finding 58] and it is not possible on this record to impose reasonable conditions to ensure all the criteia would be met. The application should be denied. Decision The application of Capstone Partners LLC for a Conditional Use Permit to develop the II-unit "Wing Point Patio Homes" is DENIE Entered this 21 st day of July 2006. eredith A. Getches Hearing Examiner City of Bainbridge Island CUP 13719 Page 15 of 16