Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
MINKS (MINX) - DECISION
CITY CLERK DECISION OF TIRE HEARING EXAMINER CITY OF BAINBRIDGE ISLAND In the Matter of the Appeal of the Director's Approval of the ORCHARD VIES✓ ("`MINKS") SHORT PLAT SPT13463 By "Neighbors Against Whitmore Proposed Development" Introductioin The Director granted conditional approval for the Applicant to divide a 5.75 acre parcel into four lots. A group of neighbors (referring to themselves as the "Neighbors Against Whitmore Proposed Development") appealed that decision. 'The (fearing Examiner conducted the hearing on February 2, 2006. Parties were represented at the hearing as follows: Director, Planning and Community Development Department (PCD or Department), by Dawn Findlay Reitan, Attorney for the City of Bainbridge Island: Applicant, Carol and David Minks, by Rob J. Crichton, attorney at law; and, Appellant "Neighbors Against Whitmore Propo.,ed Development", by Ryan Varied, attorney at law, with Roger Vogel, pro se. The Hearing Examiner conducted a site visit on February 9, 2006, At the close of the hearing, the Hf�aring Examiner left the record open for: receipt of information from Steve Dymoke regarding neighboring conservation easement [Exhibit 671; a statement from Appellant's expert regarding eagles [Exhibit 69C1; and, the parties' responses/comments on the post -hearing submittals [Exhibit 67A and Exhibit 70] and/or closing statements [Exhibit 71]. As the record only remained open for the receipt of the items specified, a critique of the wetland analysis [Exhibit 69B] that Appellants' counsel included with the permitted submittal, was denied. (At hearing, the Hearing Examiner lead specifically denied Appellants' request to submit such a document.) Other unsolicited items sent to the Office of the Hearing regarding this matter were not potential exhibits. The record was closed on March 9, 2006. 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. SPT13463 Page 1of16 Findings Site I. The subject si1:e (tax lot #052402-1-121-2003) totals approximately 5.75 acres (250,505 sq. ft.) and is addressed as 5962 Whitmore Way. Generally rectangular in shape with an irregular western boundary, the site is east of Crystal Springs in the southwest portion of the Island. [Exhibit 44; Staff Report, pages 1 and 4-5; Exhibits 2A and 2C; Testimony of Preston] 2. The legal description of the property [Exhibit 2A; Exhibit 5] is: Resultant Parcel A of the Hansen/Whitmore Boundary Line Adjustment recorded under Kitsap County Auditor's Nile No. 200009210213, situate in Government Lot 2, Se_tion 5, Township 24 North, Range 2 East, W.M., City of Bainbridge Island, County of Kitsap, Washington. 3. There is an existing house and an outbuilding in the northeastern portion of the property (house is within proposed Lot B and the shed is within proposed Lot Q. A 12 ft. wide gravel road provides access to the subject property through a 30 ft. wide easement that links to Sorrel Way [see Finding 12]. There are several decommissioned wells on the subject property, including an old stone well that is located within the wetland in proposed Lot D [see Finding 10]. [Exhibit 2C, Exhibit 5; Exhibit 63] 4. The site has two distinct vegetative communities: forested in the eastern and southern portions and open pasture in the rest. The topography is relatively flat in the west with a gradual slope up to the east. Elevations range from 158 ft. at the northeast corner of the parcel and 148 ft in the southeast corner, to 90-100 ft. in the western portion of the site. A Type 4 stream nuns diagonally through the southeastern portion of the site, entering the site at about midpoint of the eastern property boundary, and exiting about 300 ft. west of the site's southeast corner. The stream is contained in a culvert where the access roadway crosses it. Slopes of 15% or more flank the stream (in the southern half of proposed Lot C and the eastern end of proposed Lot D) and are also present in thy:, south part of proposed I,ot B and most of the eastern part of proposed Lot A. [Exhibit 2C; Exhibit 6, Exhibit 44; Staff Report, page 4] 5. Category III wetlands occupy much southwesterly portion of the site (primarily within proposed Lot D and extending north into proposed Lot A). [Exhibit 2C; Staff Report, Exhibit 44, page 6]. The total wetland area is estimated to be 35,300 sq. ft [Exhibit 2A]. The description of the wetland provided in the wetland delineation report prepared by Alkai Consultants in April 2,005 [Exhibit 6, pages 2-3] includes the following: SPT13463 Page 2 sof 16 ... comprised oil open horse pasture, open and dense forest... begins on a slight slope within the pasture and continues downslope to a nearly flat terrain. Open water areas are present within the forested system and they may have been manmade. The wetland continues off site to the west... The onsite wetland is classified a Palustrine, Emergent, Seasonally Flooded... Based upon the functional attributes... the system has been rated a Category III Wetland, scoring 33 points on the rating form ... The Upland areas with the forested system include a, canopy layer dominated by Douglas fir with dense salal, holly and sword fern. The herbaceous layer is practically absent in the upland areas... 6. A Conservation Easement is established on the adjacent parcel to the south of proposed Lot D. The Stam Report [Exhibit 44, page 6] indicates that the easement is 30 q. to the south, but information in the record [Exhibit 67; Testimony of Dymoke] establishes that the easement is directly adjacent to the subject property. The Director has confirmed this adjacency and advises that a 25 -ft. buffer should be required on the southern boundary of the subject plat. 7. The zoning is R-1 (residential, one unit per acre) and the Comprehensive flan designation is OSR-l. The surrounding properties also have single-family residential designations. [Staff Report, Exhibit 44, pages 5-6; Testimony of Preston] 8. BIMC 18.33.060 states the purpose of the R.-1 zone as follows. The purl7ose oj'the XI .:one is to provide residential neighborhoods in a rural envirorrrrer7tconsistent with other land uses such cis agriculture and forestry, acid the preservation of natural systems and open space. The low dLnsio, of housing does not require the, firll range of urban services and facilities. 9. Development in the vicinity consists of single-family residences developed on large lots. Single-family homes in the Point White subdivision are adjacent to the north and the Bainbridge View Estates are on the east. ',Beyond its intersection with Whitmore Way, Sorrell Way extends a short distance south to provide access to half a dozen recently developed lots. [see maps in Exhibit 3; Exhibit 5; Exhibit 56] 10. The early settlers in this part of Bainbridge Island included the Munro family. The subject site is part of what was the family's "Triple Creek Farm", a residence that had been the family home is located to the west. An old stone "well house" [see Finding 3 and photo in Exhibit 23] located within proposed Lot D, was built by Alexander Munro over 100 years ago and his grandson, long-time Washington Secretary of State, Ralph Munro, has requested that the well be preserved and protected. At hearing, the Applicant indicated that the stone well would not be disturbed and a plaque noting its historic SPT13463 Pine 3 of 16 significance would be installed. [Exhibit 2C; Exhibits 22 and 23; Exhibit 56; Testimony of Froton] 11. Ralph Munro has also requested that the current name of the access road, "Whitmore Way", be changed to something that acknowledges the early settlers (i.e., the Munro family and the Hansen family). [Exhibit 2C; Exhibits 22 and 23, Exhibit 561 12. Ten years ago, an easement agreement created the 30 ft. wide access that connects the subject property to Sorrel Road [see Sarrison-Hayashida easement agreement, Exhibits 47 and 48; Exhibit 241. A utilities and access easement (established with the Samson Short Plat) runs west from the eastern boundary of the subject property for about 250 ft., where it widens into a cul-de-sac and then continues, on a northwest trending diagonal, to the subject property's western boundary, there connecting with Lots B and C created by the Samson short plat. A pedestrian easement for the benefit of several residents to the east, lies within the utilities and access easement and continues west to the beach. [Exhibit 24; Exhibits 47 and 48; Exhibit 61; Exhibit 63] P oposal 13. The proposed lots are allowed to have less than the R-1 zone one acre minimum because the flexible lot standards of BIMC 17.12.090 apply (including minimum lot size) rather than the R- 1 zone standards. A "density calculation", taking into account the size of the wetland, buffer, and easement, was used to determine the allowable number of lots. The total area to be used for the density calculation is 194,064 sq. ft.; divided by the 40,000 sq. ft. per lot minimum, results in four allowable lots [.Exhibit 2A, Exhibit 44, page 7]. 14. The application seeks the subdivision of the subject property into four lots: Lots A, B, C and D. Proposed Lot A in the northwest portion of the site, would have a roughly rectangular shape, measuring approximately 480 ft. east to west and 190 it. north to south. Proposed Lot B, in the north -central part of the site, would be a rectangle approximately 140 ft east to west and 230 ft. north to south. (A residence is already developed on Proposed Lot B.) Lot C, also rectangular in shape (approximately 165 ft east to west and 230 ft. north to south), is proposed in the northeastern portion of the property. Proposed Lot D, comprising the southern portion of the site, would have an irregular, but generally rectangular shape with maximum dimensions of approximately 845 ft. east to west and 145 ft. north to south. [Exhibit 33, page 2] The lot sizes [see Lot Details, Exhibit 2D] would be: Lot A 77.140 sq. ft. (1.77 acres) Lot B 32,341 sq. ft. (0.74 acres) Lot C 38,454 sq. ft. (0.88 acres) Lot D 102,569 sq. ft. (1.71 acres) SPT13463 Page 4 of 16 15. The plat proposal includes 85,760 sq. ft. (or 34% of the total site) to be designated Open Space. This open space would be comprised of the wetland, wetland buffer, stream and stream buffer areas [see Findings 4 and 5, Exhibits 2A and 2C]. No building would be allowed in the Open Space and the area must be maintained in native species. 16. The allowable lot coverage, required setbacks and lot dimensions [Exhibit 14, pages 9 and Exhibit 2A] would be: 17. The Wetland Delineation and Analysis Report [see Finding 5] reports that that site has a Category III wetland [Exhibit 6, page 4]. A similar study conducted in 1999 [Exhibit 62, page 2] also classified the wetland as Category III, based upon size, habitat features, and the nature of the buffer. 'The wetland appears to have grown larger since the earlier delineation [cornpare Exhibit 62 with Exhibit 2C]. 18. Consistent with BIMC 16.20.090.H, the application proposes that the wetland be protected with a 50 ft. wide wetland buffer and a 15 ft. wide building setback beyond the wetland buffer. The Type 4 stream in the southeast quarter of the site would have the required 25 ft. `,vide buffer and 15 ft. wide building; setback. Exhibit 2C shows the required buffers and building setbacks. 19. On-going; protection of wetlands, streams and buffers is to be addressed in an "Open Space Management Plan" (OSMP) [see 13IMC 16.20.090.D]. 'I he application includes an OSNCP [Exhibit 8] that specifies limitations on use (i.e., no building would be permitted, trees must be retained) and permitted, activities (i.e., informal and passive recreation, planting of native and non-invasive non --native ve(getation, removal of invasive non-native plants, low -impact fencing, and septic systems as permitted by the Code). The protected areas to be covered by the Plan are identified on Sheet 3/6 of the plat maps [Exhibit 2C]. 20. The Tree Retention and Open Space areas are detailed in Sheet 6/6 [Exhibit 2F]. The proposed Tree Retention Plan calls for approximately 45,100 sq. ft. (or 32%) of the existing tree canopy (totaling 143,000 sq. ft.) to be retained. The tree canopy to be retained is all within the designated Open Space areas and 100% of the trees in the canopy within the designated areas would be retained. SPT13463 Page 5 ©f 6 Proposed_ Requirement Building to building separation 10 ft. 10 ft. Building to subdivision boundary 15 ft. 15 ft. Building to right-of-way 15 ft. 15 ft. Building to trail or open space 15 ft. 10 ft. Minimum lot width 102 ft. 50 ft. Mini;num lot size 32,341 sq. ft. 12,500 sq. ft. Maximum Lot Coverage 9,400 sq. ft. 9,400 sq. ft. 17. The Wetland Delineation and Analysis Report [see Finding 5] reports that that site has a Category III wetland [Exhibit 6, page 4]. A similar study conducted in 1999 [Exhibit 62, page 2] also classified the wetland as Category III, based upon size, habitat features, and the nature of the buffer. 'The wetland appears to have grown larger since the earlier delineation [cornpare Exhibit 62 with Exhibit 2C]. 18. Consistent with BIMC 16.20.090.H, the application proposes that the wetland be protected with a 50 ft. wide wetland buffer and a 15 ft. wide building setback beyond the wetland buffer. The Type 4 stream in the southeast quarter of the site would have the required 25 ft. `,vide buffer and 15 ft. wide building; setback. Exhibit 2C shows the required buffers and building setbacks. 19. On-going; protection of wetlands, streams and buffers is to be addressed in an "Open Space Management Plan" (OSMP) [see 13IMC 16.20.090.D]. 'I he application includes an OSNCP [Exhibit 8] that specifies limitations on use (i.e., no building would be permitted, trees must be retained) and permitted, activities (i.e., informal and passive recreation, planting of native and non-invasive non --native ve(getation, removal of invasive non-native plants, low -impact fencing, and septic systems as permitted by the Code). The protected areas to be covered by the Plan are identified on Sheet 3/6 of the plat maps [Exhibit 2C]. 20. The Tree Retention and Open Space areas are detailed in Sheet 6/6 [Exhibit 2F]. The proposed Tree Retention Plan calls for approximately 45,100 sq. ft. (or 32%) of the existing tree canopy (totaling 143,000 sq. ft.) to be retained. The tree canopy to be retained is all within the designated Open Space areas and 100% of the trees in the canopy within the designated areas would be retained. SPT13463 Page 5 ©f 6 21. The existing access road (Whitmore Way) would provide access to and from Sorrel Way for the proposed lots (including futures residences on Lots A, C, and D and the existing residence on Lot B) as shown on Sheet 4/6, Exhibit 2D. The 12 f1. wide gravel road within the 30 ft. wide easement would be improved to the City's "residential, optional standard." [see binding 26]. There are no plans to widen the road beyond its existing 12 ft. width. [Testimony of Preston; Testimony of Froton] Director's keviev,v, and Decision 22. BINK 2.16.025.A provides that consideration of applications for the short subdivision of property (i.e., division into four or fewer lots) are administrative land use decisions to be made by the Director and processed in accord with BIMC 2.16.095. 23. The subject application [Exhibit 141 and the Environmental Checklist [Exhibit 7] were received on September 1, 2005, and on September 24, 2005, the Director gave notice of the application and the SEPA comment period [Exhibit 17]. 24. Several comments were received during the comment period [see Exhibits 21-23, 26-31]. The PCD Staff Report summarizes the subiect matters of the comments (traffic, road widening, wells, view corridors, adjacent conservation easement, wetland classification, geologically hazardous areas, stream and erosion control, and easennents rights; see Exhibit 44, pages 4-6). 25. The City does riot require a traffic study for proposals having less than 50 average daily trips (ADT). The Director estimates that the average number of new vehicle trips associated with the three additional lots would not exceed 29 ADT. The Director determined that this small number of new trips would not have significant impact and, other than recommending that entire length of the access be improved to the City's "residential, optional standard" [see Finding 261, the City Engineer had no concerns about the proposed access. [Exhibit 43; Exhibit 44; Testimony of Preston] 26. The paved roadway would be 12 ft. wide, within the 30 ft. wide easement. The City Engineer recommends and the Director's Conditio,i 15 would require, improvement to the "residential, optional standard" (i.e., 12 ft. wide paved travel surface and 3 ft. wide gravel shoulders) anti dedication to the City. [Exhibit 43; Exhibit 44, page 5; Testimony of Eroton] 2-17 South Bainbridge Water would provide water service [Exhibit 10] and individual on-site septic systems are proposed. The on-site septic systems would have to meet the Kitsap County Health Department's standards which include a 12,500 sq. ft. minimum lot size. The Health Department has given preliminary approval [Exhibit 39, Staff Report, Exhibit 44, page 5]. Each lot is required to have a system specifically designed for site conditions [Exhibit 9]; the systems are individually reviewed at the Building Permit stage. SPT13463 Page 6 of 16 28. The Fire Marshall reviewed the application and made recommendations to the Director [Exhibit 20]. There is an existing fire hydrant near the center of the site [see Existing, Conditions, Sheet 3/6, Exhibit 2C] that would provide compliance with fire flow requirements. Tire grade of the access road as it enters the subject property, near the base of the west facing slope, appears to be on the order of 15% [Exhibit 2C]. For Fire Department purposes, grade may be up to 15% if the road is paved for its entire length. If the road exceeds a grad:, of 15°ro at any point, all the new residences would be required to be sprinklered. 29. The City Engineer [Exhibit 43] reviewed the application and recommended approval with conditions that: 1) the access road be improved to the "residential, optional standard" [see Finding 26]; 2) all future structures be connected to the existing storm water conveyance (on-site infiltration would not be permitted); and, 3) survey sign -off be done at time of final plat submittal review. 30. Browne Engineering did an analysis of the existing stormwater conveyance system [Exhibit 3] to evaluate its capacity to accommodate peak flows. This analysis presumed two new residences on the subject property; no residence was included for proposed Lot D. This analysis of the 11 affected catch basins concluded that none would be overtopped during a 100 -year design storm. However, one catch basin ("CBY) near the base of the slope west of the subject property (that another analysis indicated could overflow), showed considerably less available capacity ("freeboard") than the others. [See Finding 48.] 31. BIMC 17.12.106 provides that the Director- "may approve, approve wish modificcxtion or tlisapprove an application for prelirnmar.y short subdivision haled on the criteria in BIMC' 17.12.107. " 32. On November 2.1, 2005, the Director gave notice of administrative decision for conditional approval of the short plat and a SEPA Determination of Nonsignificance (DNS) [Exhibit 45]. The Director concluded that the proposal met all applicable subdivision criteria and no significant adverse environmental impacts would be a probable result of the short plat approval. The Staff Report referenced in the notice of decision includes an analysis of the proposal's consistency with applicable regulations and the conditions of approval [Exhibit 44, pages 1-41, including those required to rniti fate potential adverse environmental impacts. Appeal 33. The administrative decision procedures of BIMC 2.16.095.1-1 provide that: ""1'he decision of the Department director may be appealed to the hearing examiner ill accord ivith he procedures of BIMC 2.16.130." SPT13463 Page 7 of 16 Fogel residence closest to the access road, is approximately 110-130 ft. from the road. [Testimony of Froton] 40. As the access :road is built over the strearn, construction of road improvements could result in erosion and/or sedimentation that could impact the stream unless appropriate erosion and sedimentation control practices are utilized. Also, in response to the plausible questions raised about the capability of the culvert to withstand increased use, the City Engineer should have the opportunity to determine if the Applicant should repair or replace the culvert as part of the access improvements it before the road is dedicated. 41. No evidence was presented to support the assertion that proposed and/or required road improvements would undercut support for an adjacent septic system. Road widening is not proposed and the specific location of the septic system was not identified. [Testimony of Froton; Testimony of Vogel] 42. The appeal statement questioned whether the proposed use of the access easement would be a violation of the access easement agreement [Exhibit 24]. Statements from the parties to the easement agreement, consideration of relevant case law, and advice of the City Attorney all!, indicate that the use proposed is not inconsistent with that agreement. [Exhibit 35, Exhibit 47; Exhibit 48; Exhibit 44, page 41 In any event, as no evidence or argument regarding it 'was presented at hearing, this issue is deemed abandoned. 43. Evidence in the record indicates that an intermittent creek, not marked on the maps, is located in the southwesterly part of the wetland (in proposed Lot D). Because it is within the designated wetland area, this creek would receive the sarne protections as if it had been specifically identified. [Exhibit 59; Exhibit 67; Testimony of Burke; Testimony of S. Dymoke; Testimony of Preston] 44. The two wetland analyses [see Finding 17] indicate that the wetland has increased in size in recent years; the more recent analysis delineates the larger area. Testimony at hearing also indicated that a previous owner of the subject property had used a bulldozer to alter prior drainage patterns, including filling in a small pond. These alterations did not change the classification of the wetland. [Testi[mony of W. Dymoke; Testimony of S. Dymoke; Testimony of Preston] 45. A question regarding eagle habitat protection was raised at hearing. The Director had reviewed thus subject and determined that the applicable regulations did not require preparation and implementation of an Eagle Management Plan. The subject site is within the radius prescribed for shoreline properties to prepare an Eagle Management Plan, but as the subject site is not within the Shoreline District, the Plan is not required. [Testimony of Preston; Exhibits 65 and 66] A letter from an Audubon Society representative [Exhibit 68], provided by Appellant after hearing, includes information SPT13463 Page 9 of 16 regarding eagle habitat, but does not contradict the Director's determination that an Eagle Management Plan is not required. [Exhibit 69C] 46. No evidence was presented to support the assertion that development of the subject short plat would compromise and/or pollute existing private wells as asserted in the appeal statement. 47. There was no evidence presented to supports the assertion in the appeal statement that the Director is required by Code or other applicable law or regulation to consider a private agreement regarding view impacts in the review of a short plat application. 48. Specific concerns about stormwater drainage were raised [Exhibit 23; Exhibit 26; Exhibit 291. It was observed that since recent construction of residences "upstream" to the east, during heavy rains the catch basin near the base of the hill west of the subject property has overflowed. This experience is at odds with the hydraulics analysis [Exhibit 3] that, based upon development assumptions and calculations, concluded that the existing system has sufficient capacity to accommodate future development of the subject short plat without any of the catch basins being "overtopped" (i.e., overflowing) in a 100 - year peak storm event. The analysis, which did not include development on Lot D, did note that Catch Basin #3, located at a sharp turn, near the base of a steep slope, has the least surplus capacity and had been noted by a prior analysis as having the potential to overflow [see Finding 30]. The adequacy of the existing system (and to how Lot D conveyance would be handled) is in question, and its capacity should be reconsidered to determine whether this Applicant should be required to make improvements before development of this short l-.lat adds flow to it. (Particular attention should be paid to Catch Basin 93 which appears to be the one to have already overflowed.) Bainbridge Municipal Code 49. BIMC 17.04.050.A provides that: "All residential subdivisions shall he designed consistent with the flexihle list design process...." and the flexible lot development standards of BIMC 17.04.080 apply to those subdivisions. As conditioned, the proposed short plat meets all the applicable development standards. 50. As defined in BIMC 17.12.040, "short subdivision" is the division of land "into fir,,rr or fewer lots....for the purpose of sale, lease o..� transfer of ownership... " 51. BIMC 17.12.107.B provides the criteria that must be met for an application for a short plat to be approved. This preliminary short subdivision meets these criteria. 1. Me applicahle vihdivision development tiOndurds of BIA-IC-17.12.090, 17.12.092, 17.12.095 are seitisfied; SPT13a63 Page 10 of i6 2. The preliminary short sithdivisiort makes appropriate provisions f)r the public health, safety and general welfare, ,sand public use and interest, including those items listed in RC TV 58.17.110; 3. the preliminary residential short suhdivision has been prepared consistent with the requirements of tyre fh:xihle lot design process and applicable flexible lot design standards; 4. Any portion of a short subdivision which corttaitts a critical area, as defined in Chapter 16.20 BIMC, conforms to all requirements of that chapter; 5. The city engineer determines that the prelintirtaty .subdivision... a.... conforms to regulations concerning draincNc ... b....will not cause an undue hurden on the drainage hasin... c.... streets and pedestrian tii'ay.s... align with and are otherwise coordinated with streets serving= adjacent properties [and] J -streets crud pedestrian ways erre adequate to accommodate anticipated traffic. e. ... conjornts to the requirements of this chapter and the standards in the "City of Bainhridge Island Engineering Design and Development standards Alanual, " except as otherwise authorized by ill BIMC 17. 12.090.).3; 6. the proposal complies ia,ith all applicable provisions of this code, Chapters 36.7021 and 58.17 RCffW and all other applicable, provisions of state and federal laws and rq,ulations; 7. The proposal is in accord with the city's comprehensive plan. 52. Flexible lot standards include, at BIMC 17.12.090.A.4.c, a requirement for a 25 ft. wide buffer where "...land adjacent to the suhdivision is a... dedicated conservation land area that that has heen set aside bY... conservation easement:" Conclusions 1. The Hearing Examiner has jurisdiction to hear and decide this matter and, in making that decision, must give substantial weight to the decision of the Director [see Finding 33] and may include conditions [see Finding 34]. 2. To overcome the; substantial weight accorded the Director, it must be shown that the Director's decision was clearly erroneous. Under this standard of review, the Director can be reversed only if the Hearing Examiner is left with the definite and firm conviction that a mistake has been made. 3. It was not shown to be an error for the Director to require improvement of the access road to the "residential, optional standard" [Condition 15]. The improveirients (e.g., paving, adding shoulders, improving sightlines) would mitigate for increased traffic SPT13463 Page 11 of 16 associated with suture development. The added requirement for a separate pedestrian pathway would provide safer walking conditions and mitigate for potential impact relative to pedestrian use of the easement through the site. (As they must in all situations where walking close to travel lanes, pedestrians would still have to use caution and keep a proper lookout for their own safety.) 4. The final plat should include a new name for the access road that acknowledges the area's early settlers. 5. Paving the road's driving surface would eliminate dust impacts that would be potential on a gravel road. Paving the roadway should also reduce noise impacts associated with travel on it. The Director was not shown to be in error in not requiring a wall/barrier for mitigation of noise impacts. Significant adverse impact or impacts warranting mitigation were not sho v n to be the likely result of short plat approval. 6. To avoid adverse erosion and sedimentation impacts from construction of the access road improvements, erosion control best management practices (BM-Ps) should be required. Also, as a part of the permitting process for the access road improvements, the City Engineer should have the opportunity to ensure that that the Applicant repairs or replaces the culvert as needed before the improved access is dedicated. 7. Prior to issuance of permits for construction of any stormwater conveyance facilities, the Applicant should revise the existing hydraulic analysis [Exhibit 3] to the satisfaction of the City Engineer. The analysis should include a residence on each of the proposed lots, indicate how stormwater conveyance from Lot 6 would be accomplished, and acknowledge any known catch basin overflow events. S. The Category III wetland has been properly identified within a designated Open Space area. A 50 ft, wide buffer around the wetland would be designated, and a building setback of 15 ft. beyond the buffer established. Similarly, the Type 4 stream in the eastern part of the site would have the requisite 25 ft. wide buffer and 15 ft. wide building setback. In the designated areas, no buildings could be constructed or significant trees removed and the uses allowed would be restricted to those appropriate to the protection of the critical areas. The width of the buffer area along the southern boundary adjacent to the neighboring conservation easement should be increased to 25 ft. and noted clearly on the final plat maps. 9. As it is within the designated wetland in Lot D, the historic stone well would be protected and the Open Space Management Plan [Condition 6, 7, and 9] for Lot D Should include appropriatc provisions for the protection of this structure. 10. The Kitsap County Health Department's requirements for septic system design and location would ensure that no structures are built on or too near existing or proposed facilities. SPT13.363 Page 12 of 16 1 1. The SEP A threshold determination was not an error. No likelihood of significant adverse environmental impact has been shown. 12. The Director did not err in finding that this preliminary short subdivision meets the criteria for short plat approval. Appellants argued that the proposal does not make appropriate provisions for the public health, safety and general welfare, and public use and interest with regard to pedestrian and traffic safety and protection for wetlands. These assertions are not borne out by the record. The required improvements, including a separate pedestrian path, would make appropriate provisions for public safety. With the increase in the width of the required buffer along the southern boundary of Lot D to 25 ft., the designation of wetlands and buffers and the required open space management plans, would appropriately address the public use and interest regards critical areas. Decision The decision of the Director approving the application of Carol and David Minks for the Orchard View Short Plat [SPT 13463)] is hereby AF'FIRMFD A5 NIODIFIE'D with Conditions 1 through 20 that: follow on pages 14 through 16. Entered this 21 st day of March 2006. Meredith A. Getches Hearing Examiner;i r•o lew City of Bainbridge Island C ONC;ERNiNG FURTHER REVIEW NGTE: It is the responsibility of a person seeking review of a Hearing Examiner d cision 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 call 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 (RCW), Chapter 36.70(7. SPT13ti463 Page 13 of 16 i 1. The EPA threshold detertt�ination was not an error. Rao lil• clihood of ;i ni "ic.arnt adverse environmental impact has been shown - 12. 17re Director did not err in trading that this preliminary short subdivision meets the • r _. _ ._7_ .__ ..) A tl,�t t7,N "rnpnsni &,weq not ?'nog -f' .appropriate provisions for the public health, safety incl general welfare, and public use and interest with regard to pedes -man Fwd tailic safety and protectuion or wetlands. These, assertions axe not borne out by the record. The required imprevernents, including; a separate pedestrians path, would make appropriate provisions for public safety. With the increase in the width of the required buffer along the southern boundary of Lot D to 25 -ft., 011c designation of wetlands- and buffers and the required open space management pians, would appropriately address the public use and interest regards critical areas. Decision `Ilse decision of the Director approving the application of Carol and David Minks for the C3rchard View Short flat [SPT 13401 is hereby AFFIRMED As 410DiI MD with Conditions 1 through 20 that folloLv on pages 14 through 16. Entered this 21st jay of iviarch 2000. Meredith A. Getches Hearing Examiner pro tern City of Rainbridge Island CO1V(.;4.ItNING FURTHER REVIEW NOTE: It is the responsibility of a person seeking review of a Hearing Examiner decision t,o consult applicable lode sections and other appropriate sources_. including; State lav, to cieteernine his/her rights and responsibilities relative to appeal . pequest for j3adi,,i�l review of this decision by a person ith standing car, 'lie made by filing a land use petition in ! )t)perior court within 21 days in accordance with the [,and Use Petition Act Revised Code of VJashi),gi0n ,`R,� ,V), Chapter 36,7017. SPT2 403 V age 13 4),116 ORCHARD VIEW SHORT PLAT SPT13463 CONDITIONS OF APPROVAL 1. The final short plat shall substantially conform to the preliminary short plat sheets date- stamped September 1, 2005 [Exhibits 2A through 2F], except as necessary to be consistent with these Conditions of Approval. 2. A plat certificate shall be provided with the final plat application. 3. All lot corners shall be staked with three-quarter inch galvanized iron pipe and locator stakes along with all other applicable survey provisions of Appendix B (B1MC Chapter 17.12). 4. Accessible mailbox locations that do not restrict pedestrian access must be provided prior to final plat approval. 5. Prior to clearing of vegetation or grading for the entrance road, the applicant shall apply for and obtain a Plat Utilities Permit from the Department of Public Works. Appropriate measures shall be taken to the satisfaction of the Department of Public Works to control erosion and sedimentation during all phases of constmuion. 6. A final Open Space Management Pian (OSMP) for each lot which has , -.1 designated Open Space area shall be submitted for review and approval by the Director of Planning and Community Development. Approved plans meeting the requirements of BIN/IC 17.12.092.H and associated Covenants, Conditions and Restrictions (CC&R's) containing the frequency and scope of the maintenance and responsibility for the open space, shall be recorded. The OSMP and CC&,.Rs for Lot D shall include specific reference to the stone well and shall require that the well be protected in perpetuity; with reasonable public access to view it permitted. 7. Open space areas designated within each lot (see Sheet 4/6 [Exhibit 2D] and 5/6 [Exhibit 2E]) shall be placed in oui easement or shall be protected by restrictive covenants or other similar legal means which shall be recorded with the final plat. 8. All open space area uses and restrictions are to follow the approved Open Space Management Plan (OSMP). The OSMP shall contain the following language concerning the maintenance of open space areas: "Open space areas shall be maintained permanently by the individual property o',vners of the lots where the designated Open Space occurs. in the event that open space is not maintained consistent with the OSMP, the Citv shall have the right to provide the maintenance thereof, and bili the owner accordingly." 9. The Tree Retention Plan [Sheet 6/6, Exhibit 21] designating the area of tree canopy to be preserved within the Open Space shall be recorded Nvith the final plat documents. 10. To mitigate impacts on air quality, cleared vegetation must be removed from the site, processed by chipper, or processed using other methods of disposal that do not require burning. 1 i. The wetland and stream buffers shall be fenced on the outer edge of the buffers with split -rail or similar fencing. Signs indicating the presence of a no -disturbance wetland buffer shall be placed along the fence at 50 -foot intervals. 12. Prior to any clearing or grading on individual lots, a clearing permit or single-family r+a'dcntial building permit shall be obtained from the City. SPT 13463 Page 14 of 16 13. School impact fees shall be paid in accordance with the following provisions. For each of the created lots, prior to final plat approval the, applicant shall pay one half of the school impact fee in effect at that time. Subsequent to plat recordation and prior to building permit issuance, an applicant constructing a residence on any, of the created lots shall pay one half of the school impact fee in effect at the time of building permit issuance. 14. Maximum allowable lot coverage per lot is: 9,394 square feet. That coverage limit and the following setbacks shall be noted on the final short plat: Required Setback or Separation Building to Building Minimum 10 feet Residence to Residence Minimum 25 feet Building to Plat Boundary Minimum 15 feet Building to Southern Plat Boundary of Lot D Minimum 2 i feet Building to Interior Access Road Minimum 10 feet Building to Open Space Minimum 10 feet Building to Wetland Buffer or Stream Buffer Minimum 15 feet 15. The access roadwav within the 30 ft, wide casement extending from Sorrell Way to and including the cul-de-sac, shall be dedicated public, right-of-way, improved to the City's "residential, optional standard". A 4 ft. wide, pervious pedestrian path shall also be constructed within the access easement, generally parallel to, but separate from the 12 ft. wide paved roadway. Pursuant to B1MC 17.12.107B.5.d, prior to issuing permits for these improvements, the Citv Engineer shall determine if the culvert needs repair or replacement and shall require any necessary work to be done on it as a part of the road improvement. All construction activities in, near, or around the stream must utilize effective erosion and sediment control measures to avoid and/or mitigate adverse impacts to the stream. 16. All future structures on the subject lots shall connect to the existing storm conveyance. Infiltration shall not be permitted. Pursuant to BIMC 17.12.107B.5.a and b, prior to the issuance of any permits for stormwater conveyance construction, the Applicant shall provide to the satisfaction of the City Engineer an updated and revised hydraulic analysis that includes a residence built on Lot D and takes into account known or likely capacity problems (with particular attention given to C133 ,vhere evidence suggests storm conditions have already caused overtopping). The City Engineer shall require the Applicant to make off-site downstream improvements as necessary to ensure that the stormwater from development of the subject short plat can be added to the conveyance system without overtopping any of the catch basins under 100 -year peak conditions. 17. Public and private improvements_ facilities, and infrastructure, on and off the site that are required for the subdivision shall be completed, have final inspection and approval prior to final plat approval. Approval of public facilities will be shown by a formal letter of acceptance from the City Engineer. An assurance device acceptable to the City may be used (in lieu of physical completion) to secure and provide for the completion of necessary facilities. Any such assurance device shall be in place prior to final plat approval, shall enumerate in detail the items being assured and shall require that all such items will be completed and approved by the City within one year of the date of final plat approval. While lots created by the recording of the final plat SPT13463 Page 15 of 16 may be sold, no occupancy of any structure will be allowed until the required improvements arc formally accepted by the City. Additionally, a prominent nc' : on the face of the Final plat drawing shall state: "The lots created by this plat are subject to conditions of an assurance device held by the city for the completion of certain necessary facilities. Building permits may not be issued and/or occupancy may not be allowed until such necessary facilities are completed and approved by the City of Bainbridge Island. All purchasers shall satisfy themselves as to the status of completion of the necessary facilities." is. In the event phenomena of possible archaeological interest are uncovered during construction, all work will stop immediately and notification promptly given to the City and State Office of Archaeology and Historic Preservation. The property owner shall be required to provide for a site inspection and evaluation by a professional archaeologist to ensure that all possible valuable archaeological data is properly salvaged. The property owner shall receive permission from 'the State Office of Archaeology and Historic Preservation prior to finrthcr disturbance of the site (RCW 27.53.070 or its successor). 19. A provision ensuring that the stony; well (see location on Sheet 3/6, Exhibit 2C) is to be preserved in its current state and protected, shall be included in the Lot D Open Space Management Plan and any related easements/covenants [see Conditions 6, 7, and 9 �. 20. Prior to accepting dedication of the interior access road improvements, the City and the Applicant shall agree on a street name that reflects the history of the area and its early settlers. SP"T1.3463 Page 16 of 16 DECISION OF THE HEARING EXAMINER CITY OF BAINBRIDGE ISLAND REVISED AND REISSUED CLARIFYING CONDITIONS 6 AND IS In the Matter of the Appeal of the Director's Approval of the ORCHARD VIEW ("MINKS") SHORT PLAT SPT13463 By "Neighbors Against Whitmore Proposed Development" Introduction The Director granted. conditional approval for the Applicant to divide a 5.75 acre parcel into four lots. A group of neighbors (referring to themselves as the "Neighbors Against Whitmore Proposed Development") appealed that decision. The Hearing Examiner conducted the hearing on February 2, 2006. Parties were represented at the hearing as follows: Director, Planning and Community Development Department (PCD or Department), by Dawn Findlay Reitan, Attorney for the City of Bainbridge Island; Applicant, Carol and David Minks, by Rob J. Crichton, attorney at law; and, Appellant "Neighbors Against Whitmore Proposed Development", by Ryan Vancil, attorney at law, with Roger Vogel, pro se. The Hearing Examiner conducted a site visit on February 9, 2006. At the close of the hearing, the Hearing Examiner left the record open for: receipt of information from Steve Dymoke regarding neighboring conservation easement [Exhibit 671; a statement from Appellant's expert regarding eagles [Exhibit 69(71; and, the parties' responses/comments on the past -hearing submittals [Exhibit 67A and Exhibit 701 and/or closing statements [Exhibit 711. As the record only remained open for the receipt of the items specified, a critique of the wetland analysis [Exhibit 69131 that Appellants' counsel included with the permitted submittal, was denied, (At hearing, the Hearing Examiner had specifically denied Appellants' request to submit such a document.) Other unsolicited items sent to the Office of the Hearing; regarding this matter were not potential exhibits. The record was closed on March 9, 2006, 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. SPT134463 Revised and Reissued Page 1 of 16 Findings Site I. The sub ' ject site (tax lot 4052402-1-121-2003) totals approximately 5.75 acres (1-50,505 sq. ft.) and is addressed as 5962 Whitmore Way. Generally rectangular in shape with an irregular western boundary, the site is cast of Crystal Springs in the southwest portion of the Island. [Exhibit 44; Staff Report, pages I and 4-5; Exhibits 2A and 'Testimony of Preston] The legal description of the property [Exhibit 2A-, Exhibit 5 is: Resultant Parcel A of the Hansen/Whitmore Boundary Line Adjustment recorded under Kitsap County Auditor's File No. 200009210213, situate in Government Lot 2, Section 5, 'Township 24 North, Range 2 East, W.M., City of Bainbridge Island, County of Kitsap, Washington. 1 There is an existing house and an outbuilding In the northeastern portion of the property (house is within proposed Lot B and the shed is within proposed Lot C). A 12 It vvide gravel road provides access to the subject property through a 30 ft. wide casement that links to Sorrel Way [see Finding 12]. 'There are several decommissioned wells on the subject property, including an old stone well that is located within the wetland in proposed Lot 1) [see Finding 10]. [Exhibit 2C.- Exhibit 5.- Exhibit 63] 4. The site has two distinct vegetative communities- forested in the eastern and southern portions and open pasture in the rest. The topography is relatively flat in the west with a gradual slope up to the east. Elevations range from 158 ft. at the northeast corner of the parcel and 148 ft in the southeast comer, to 90-100 ft. in the western portion of the site. A Type 4 stream runs diagonally through the southeastern portion of the site-, entering the site at about midpoint of the eastern property boundary, and exiting about 300 ft. west of the site's southeast corner. The stream is contained in a culvert where the access roadway crosses it. Slopes of 15911 or more flank the stream in the southern half of proposed Lot C and the eastern end of proposed Lot. D) and are also present in the south part of proposed Lot B and most of the eastern part of proposed Lot A. [Exhibit 71C, Exhibit 6, Exhibit 44; Staff Report. page 4] 5. Category III wetlands occupy much southwesterly portion of the site (primarily within proposed Lot D and extending north into proposed Lot A). [Exhibit 2C., Staff Report. Exhibit 44, page 6]. The total wetland area is estimated to be 35,300 sq. fl. [Exhibit 2A]. The description of the wetland provided in the wetland delineation report prepared by Alkal Consultants in April 2005 [Exhibit 6, pages 2-3] includes the following: SlIT13463 Revised and Reissued Page 2 of 16 ...comprised of open horse pasture, open and dense forest... begins on a slight slope within the pasture and continues downslope to a nearly flat terrain. Open water areas are present within the forested system and they may have been manmade. The wetland continues off site to the west... The onsite wetland is classified a Palustrine., Emergent, Seasonally Flooded,..Based upon the functional attributes... the system has been rated a Category III Wetland, scoring 33 points on the rating form ... The Upland areas with the forested system include a canopy layer dominated by Douglas fir with dense saial, holly and sword fern. The herbaceous layer is practically absent in the upland areas... 6. A Conservation Easement is established on the adjacent parcel to the south of proposed Lot D. The Staff Report (:Exhibit 44, page 61 indicates that the easement is 30 ft. to the south, but information in the record [Exhibit 67; Testimony of Dymoke] establishes that the easement. is directly adjacent to the subject property. The Director has confirmed this adjacency and advises that a 25 -ft. buffer should be required on the southern boundary oCthe subjcct plat. 7. The zoning is R -I (residential, one unit per acre) and the Comprehensive Plan designation is (.-)SR-,I. The surrounding properties also have single-family residential designations. [Staff Report, Exhibit 44, pages 5-6: Testimony of Preston] 8. BIMC 18.33.060 states the purpose of the R-1 zone as follows. The put -pose ofthe R-- I zone is to provide residential neighborhoods in a rural environnientconsislent with other land uses such as agriculture and forestry, and the preservation qfnalural systems and open space. The low density of housing does not require the fedi range of urban services and .facilities. 9. Development in the vicinity consists of single-family residences developed on large lots. Single-family homes in the Point White subdivision are adjacent to the north and the Bainbridge View Estates are on the east. Beyond its intersection with Whitmore Way, Sorrell Way extends a short distance south to provide access to half a dozen recently developed lots. [see maps in Exhibit 3; Exhibit 5, Exhibit 561 10. The early settlers in this part of Bainbridge Island included the Munro family. 'The subject site is part of what was the family's "Triple Creek Farm"; a residence that had been the family home is located to the west. An old stone "well house" [see Finding 3 and photo in Exhibit 23] located within proposed Lot D, was built by Alexander Munro over 100 years ago and his grandson, long-time Washington Secretary of State, Ralph Munro, has requested that the well be preserved and protected. At hearing, the Applicant indicated that the stone well would not be disturbed and a plaque noting its historic SPT13463 Revised and Reissued Page 3 of M significance would be installed. [Exhibit 2C; Exhibits 22 and 23. Exhibit 56; 'Testimony. of Froton] 11. Ralph Munro has also requested that the current name of the access road, "Wl,iitmore Way", be changed to something that acknowledges the early settlers (i.e., the Munro family and the Hansen family). [Exhibit 2C; Exhibits 22 and 23; Exhibit 561 12. "lien years ago.. an easement agreement created the 30 It. wide access that connects the subject property; to Sorrel Road [see Samson-Ilayashida easement agreement, Exhibits 47 and 48; Exhibit 24]. A utilities and access easement (established with the Samson Short Plat) runs west from the eastern boundary of the subject property for about 250 ft., where it widens into a cul-de-sac and then continues, on a northwest trending diagonal, to the subject property's western boundary, there connecting; with Lots B and C created by the Samson short plat. A pedestrian easement for the benefit of several residents to the east. lies within the utilities and access easement and continues west to the beach. [Exhibit 24; Exhibits 47 and 48; Exhibit 61; Exhibit 63] Proposal 13. The proposed. lots are allowed to have less than the R-1 zone one acre minimum because the flexible lot standards of BIMC 17.12.090 apply (including minimum lot size) rather than the R- 1 zone standards. A "density calculation", taking into account the size of the wetland, buffer, and easement, was used to determine, the allowable number of lots. 'The total area to be used. for the density calculation is 194,064 sq. ft.; divided by the 40,000 sq. ft. per lot minimum, results in four allowable Lots [Exhibit 2A; Exhibit 44, page: I 14. The application seeks the subdivision of the subject property into four lots: Lots A, B, C and D, Proposed Lot A in the northwest portion of the site, would have a roughly rectangular shape, measuring approximately 480 ft. east to west and 190 ft. north to south. Proposed Lot B, in the north -central part of the site, would be a rectangle approximately 140 1t east to west and 230 ft. north to south. (A residence is already developed on Proposed Lot B.) Lot C, also rectangular in shape (approximately 165 it east to west and 230 11, north to south), is proposed in the northeastern portion of the property. Proposed Lot D, comprising the southern portion of the site, would have an irre, ,ular, but generally rectangular shape with maximum dimensions of approximately 845 ft. east to west and 145 ft. north to south. [Exhibit 33, page 21, 'The lot sizes [see Lot Details, Exhibit 2D] would be: Lot A 77,140 sq. ft. (1.77 acres) Lot. B 32341 sq. ft. (0.74 acres) Lot C 38,454 sq. ft. (0.88 acres) Lot 1) 102,569 sq. ft. (1.77 acres) 4PT13463 Revised and Reissued Page 4 of 16 15. The plat proposal includes 85,760 sq. ft. (or 34°,4) of the total site) to be designated Open Space. This open space would be comprised of the wetland, wetland buffer, stream and stream buffer areas [see Findings 4 and 5: Exhibits 2A and 2C]. No building would be allowed in the Open Space and the area must be maintained in native species. 16. 'The allowable lot coverage, required setbacks and lot dimensions [Exhibit 14, pages 9 and Exhibit 2A] would be: 17. The Wetland Delineation and Analysis Report [see Finding 5] reports that that site has a Category III wetland [Exhibit 6, page 41. A similar study conducted in 1999 [Exhibit 62, page 2] also classified the wetland as Category 111, based upon size, habitat features, and the nature of the buffer. The wetland appears to have grown larger since the earlier delineation [compare Exhibit 62 with Exhibit 2C]. 18, Consistent with BIMC 16.20.090.14, the application proposes that the wetland be protected with a 50 ft. wide wetland buffer and a 15 ft. wide building setback beyond the wetland buffer. The Type 4 stream in the southeast quarter of the site would have the required 25 ft. wide buffer and 15 ft. wide building setback:. Exhibit 2C shows the required buffers and building setbacks. 19. On-going protection of wetlands, streams and buffers is to be addressed in an "Open Space Management Plan" (OSMP) [see BIMC 16.20.090.191. The application includes an OSMP [Exhibit 8] that specifies limitations on use (i.e., no building would be permitted, trees must be retained) and permitted activities (i.e., informal and passive recreation, planting of native and non-invasive non-riative vegetation, removal of invasive noxi -native plants, low -impact fencing, and septic systems as permitted by the. Code). The protected areas to be covered by the Plan are identified on Sheet 3I6 of the plat maps [Exhibit 2C]. 20. The 'Tree Retention and Open Space areas are detailed in Sheet 616 [Exhibit 21,1. "fhe proposed Tree Retention Plan calls for approximately 45,100 sq. It. (or 32%) of the existing tree canopy (totaling 143,000 sq. ft.) to be retained. The tree canopy to be retained is all within the designated Open Space areas and 100% of the trees in the canopy within the designated areas would be retained. SPT 13463 Revised and Reissued Plage 5 cit' 16 J'r_q ose &q_uirenient Building to building separation 1011. 10 ft. Building to subdivision boundary 15 ft. 15 ft. Building to right of-�vay 15 ft. 15 ft. Building to trail or open space 15 ft. 10 ft. Minimum lot width 102 ft. 50 ft. Minimum lot size 32,341 sq. ft. 12,500 sq. ft.. Maximum Lot Coverage 9,400 sq. ft. 9,400 sq. ft. 17. The Wetland Delineation and Analysis Report [see Finding 5] reports that that site has a Category III wetland [Exhibit 6, page 41. A similar study conducted in 1999 [Exhibit 62, page 2] also classified the wetland as Category 111, based upon size, habitat features, and the nature of the buffer. The wetland appears to have grown larger since the earlier delineation [compare Exhibit 62 with Exhibit 2C]. 18, Consistent with BIMC 16.20.090.14, the application proposes that the wetland be protected with a 50 ft. wide wetland buffer and a 15 ft. wide building setback beyond the wetland buffer. The Type 4 stream in the southeast quarter of the site would have the required 25 ft. wide buffer and 15 ft. wide building setback:. Exhibit 2C shows the required buffers and building setbacks. 19. On-going protection of wetlands, streams and buffers is to be addressed in an "Open Space Management Plan" (OSMP) [see BIMC 16.20.090.191. The application includes an OSMP [Exhibit 8] that specifies limitations on use (i.e., no building would be permitted, trees must be retained) and permitted activities (i.e., informal and passive recreation, planting of native and non-invasive non-riative vegetation, removal of invasive noxi -native plants, low -impact fencing, and septic systems as permitted by the. Code). The protected areas to be covered by the Plan are identified on Sheet 3I6 of the plat maps [Exhibit 2C]. 20. The 'Tree Retention and Open Space areas are detailed in Sheet 616 [Exhibit 21,1. "fhe proposed Tree Retention Plan calls for approximately 45,100 sq. It. (or 32%) of the existing tree canopy (totaling 143,000 sq. ft.) to be retained. The tree canopy to be retained is all within the designated Open Space areas and 100% of the trees in the canopy within the designated areas would be retained. SPT 13463 Revised and Reissued Plage 5 cit' 16 21. The existing access road (Whitmore Way) 'would provide access to and from Sorrel Way for the proposed lots (including futures residences on Lots A, C, and D and the existing residence on Lot B) as shown on Sheet 4/6, Exhibit 2D. The 12 ft. wide gravel road within the 30 ft. wide easement Would be improved to the City's "residential, optional standard"' [see Finding 26]. There are no plans to widen the road beyond its existing 12 fl. width. [Testimony of Preston; Testimony of Froton] Director's Review and Decision 22. BIMC .2.16.025.A provides that consideration of applications for the short subdivision or property (i.e.. division into four or fewer lots) are administrative land use decisions to be made by the Director and processed in accord with BIMC 2.16.095. 2 3. The subject application [Exhibit 14] and the Environmental Checklist I Exhibit '71.1 were received on September 1, 2005, and on September 24, 2005, the Director gave notice of the application and the SEPA comment period [Exhibit 17]. 24. Several comments were received during the comment period [see Exhibits 21-23, 26-31]. The PCD Staff` Report summarizes the subject matters of the comments (traffic, road widening, wells, view corridors, adjacent conservation casement, wetland classification, geologically hazardous areas, stream and erosion control, and casements rights, see Exhibit 44, pages 4-6). 25. The City does not require a traffic study for proposals having less than 50 average daily trips (' ADT). The Director estimates that the average number of new vehicle trips associated with the three additional lots would not exceed 29 ADT. The Director determined that this small number of new trips would not have significant impact and, other than recommending that entire length of the access be improved to the City's ,.residential, optional standard" [see Finding 26], the City Engineer had no concerns about the proposed access. [Exhibit 43; Exhibit 44; Testimony of Preston] 26. The paved roadway would be 12 ft. wide, within the 30 ft. wide easement. The City Engineer recommends and the Director's Condition 15 would require, improvement to the "residential, optional standard" (i.e., 121 ft. wide paved travel surface and 3 ft. wide gravel shoulders) and dedication to the City. [Exhibit 43; Exhibit 44, page 5: Testimony L, or Proton] 27. South Bainbridge Water would provide water service [Exhibit 10] and individual on-site septic systems are proposed. The on-site septic systems 'Would have to meet the Kitsap County I lealth Department's standards which include a 12.500 sq. ft. minimum lot size. The Health Department has given preliminary approval [Exhibit 19, Staff Report, Exhibit 44, page 53. Each lot, is required to have a system specifically designed for site conditions [Exhibit 9]-, the systems are individually reviewed at the Building Permit stage. SPT13463 Revised and Reissued Page 6 of 16 28. The Fire Marshall reviewed the application and made recommendations to the Director [Exhibit 201. Where is an existing fire hydrant near the center of the site [see Existing Conditions, Sheet 3/6, Exhibit 2C] that would provide compliance with fire flow requirements. The grade of the access road as it enters the subject property, near the base of the west facing slope, appears to be on the order of 15% [Exhibit 2C]. For Fire Department purposes, grade may be up to 15% if the road is paved for its entire length. If the road exceeds a grade of 15% at any point, all the new residences would be required to be sprinklered. 29. The City Engineer [Exhibit 43] reviewed the application and recommended approval with conditions that. 1) the access road be improved to the "residential, optional standard" [see Finding 26]; 2) all future structures be connected to the existing storm water conveyance (on-site infiltration would not be permitted); and, 3) survey sign -off be done at time of final plat submittal review. 30. Browne Engineering did an analysis of the existing stormwater conveyance system [Exhibit 31 to evaluate its capacity to accommodate peak flows. This analysis presumed two new residences on the subject property; no residence was included for proposed Lot 1.). This analysis of the I I affected catch basins concluded that none would be overtopped during, a I00 -year design storm. However, one catch basin ("CB3") near the base of the slope west of the subject property (that another analysis indicated could overflow), shoed considerably less available capacity ("freeboard") than the others. [See Finding 48.] 31. BIMC 17.12.106 provides that the Director "rnay approve, approve with modification or disupprove an application for prelinainary short subdivision hasped on the criteria in BLVC 1 12. 10 „ 32. On November 21, 2005, the Director have notice of administrative decision for conditional approvals of the short plat and a SEPA Determination of Nonsignificance (DNS) [Exhibit 451. The Director concluded that. the proposal met all applicable subdivision criteria and no significant adverse environmental impacts would be a probable result of the short plat approval. The Staff Report referenced in the notice of decision includes an analysis of the proposal's consistency with applicable regulations and the conditions of approval [Exhibit 44, pages 1-4], including those required to mitigate potential adverse environmental impacts. Appeal 33. The administrative decision procedures of BIMC 2.16.095.11 provide that: "The decision of the Department director rncav he appealed to the hearing examiner in accord with the procedures o f b'LWC 2,16.130. ^^ SPT13463 Revised and Reissued Page 7 of 16 34. BIMC 2.16.130.1'.1 authorizes the Hearing Examiner, after holding an open record public hearing on the appeal of the Director's decision, to: "affirm the decision; reverse the decision; affirm the decision with modifications; or remand to the decision to the department director for further consideration..." BIMC 2.16.130.F.2 directs that the Hearing Exarniner is to render a decision on the appeal "giving substantial weight to the decision of the department director." The Hearing Examiner's decision on appeal ma}� include conditions... to ensure cogIbrmance with this code, the city's comprehensive plan and other applicable laws or regulation." [BIMC2.16.130.F.3]. 35. On December 5, 2005, an appeal of the Director's decision was timely Bled by "Neighbors Against Whitmore Proposed Development", a group of concerned neighbors. The appeal statement notes concerns regarding short plat requirements and SEPA considerations, including: increased traffic causing risks to pedestrians using the access road; road widening undercutting adjacent septic system; potential for compromising and polluting private wells; inadequate erosion control; inadequate protections for the stream and wetland; violation of access easement; failure to consider view impacts; failure to require a 25 ft. wide buffer along the plat boundary adjacent to a conservation easement. [Exhibit 461. 36. The appeal hearing was originally scheduled for January 26, 2006, but notice could not be timely published and the, hearing was rescheduled to February 2, 2006. Proper posting, mailing, and publication for notice of the February 2, 2006 hearing was completed by January 5, 2006 [Exhibit 50]. 37. At the hearing, some witnesses expressed the concern that because part of the access (Whitmore Way) slopes steeply down to the west from Sorrell Way, increased traffic from the proposed neve lots would make it unsafe for pedestrian use (especially by children). Also there was testimony that "sightlines" at the Whitmore/Sorrell intersection were not considered adequate.. [Testimony of Vogel; W. Dyinoke; S. Dymoke; K. Bergum 1 39. The Applicant indicated a willingness to include a path along side the paved roadway within the 30 ft. wide easement to improve pedestrian safety. [Testimony of' Froton] 39. Two witnesses observed that. some. drivers "rev" their engines in their approach to the grade. Mr. Vogel, whose property is crossed by the 30 ft. wide access easement, asserted that this "gunning" of engines would be common and would result in unacceptable noise impacts to his home. He argued that a cinder block wall should be required along the south side of the roadway to mitigate for this. He presented a $36,000 estimate for the cost of such a wall. [Testimony of Berguin, Testimony of Vogel; Exhibit 571 The measured distance from the road to the Vogel residence was not offered at hearing, but the Applicant's builder credibly testified that the carport, the par of the SPT13463 Revised and Reissued Page 8 of 16 Vogel residence closest to the access road, is approximately 110-130 ft. from the road. [Testimony of Proton] 40. As the access road is built over the stream, construction of road improvements could result in erosion and/or sedimentation that could impact the stream unless appropriate erosion and sedimentation control practices are utilized. Also, in response to the plausible question-, raised about the capability of the culvert to withstand increased use, the City Engineer should have the opportunity to determine if the Applicant should repair or replace the culvert as part of the access improvements it bel'ore the road is dedicated. 41. No evidence was presented to support the assertion that proposed and/or required road improvements would undercut support for an adjacent septic system. Road widening is not proposed and the specific location of the septic system was not identified. [Testimony of Froton.,Testimony of Vogel] 42. 'The appeal staternent questioned whether the proposed use of the access easement would be a violation of the access easement agreement [Exhibit 24]. Statements from the parties to the easement agreement, consideration of relevant case law, and advice of the City Attorney all indicate that the use proposed is not inconsistent with that agreement. [Exhibit 35; Exhibit 47, Exhibit 48; Exhibit 44, page 4] In any event, as no evidence or argument regarding it was presented at hearing, this issue is deemed abandoned. 43. Evidence in the record indicates that an intermittent creek, not marked on the maps, is located in the southwesterly part of the wetland (in proposed Lot D). Because it is within the designated wetland area, this creek would receive the same protections as if it had been specifically identified. [Exhibit 59-, Exhibit 67; Testimony of Burke, Testimony of S. DymokcTestimony of Preston] 44. The two wetland analyses [see Finding 17] indicate that the wetland has increased in size in recent years; the more recent analysis delineates the larger area. Testimony at hearing also indicated that a previous owner of the subject property had used a bulldozer to alter prior drainage patterns, including filling in a small pond. These alterations did not change the classification of the wetland. [Testimony of W. Dymoke-, 'Testimony of S. Dymoke;Testimony of Preston] 45. A question regarding eagle habitat protection was raised at hearing. The Director had reviewed this sub . ject and determined that the applicable regulations did not require preparation and implementation of an Eagle Management Plan. 'The subject site is within the radius prescribed for shoreline properties to prepare an Eagle Management Plan, but as the subject site is not within the Shoreline District, the Plan is not required. [Testimony of Preston, Exhibits 65 and 66] A letter from an Audubon Society representative [Exhibit 68]. provided by Appellant after hearing, includes information I Z:� SPT13463 Revised and Reissued Page 9 of 16 regarding eagle habitat, but does not contradict the Director's determination that an Eagle Management Plan is not required. [Exhibit 69C] 46. No evidence was presented to support the assertion that development of the subject short plat would compromise and/or pollute existing private wells as asserted in the appeal statement. 47. There was no evidence presented to supports the assertion in the appeal statement that the Director is required by Code or other applicable law or regulation to consider a private agreement regarding view impacts in the review of a short plat application. 48. Specific concerns about storrnwater drainage were raised [Exhibit 23; Exhibit 26; Exhibit 291. It was observed that since recent construction of residences-upstrea.rn" to the east, during heavy rains the catch basin near the base of the hill west of the subject property has overflowed. 'T'his experience is at odds with the hydraulics analysis [Exhibit. 3] that, based upon development assumptions and calculations, concluded that the existing system has sufficient capacity to accommodate future development of the subject short plat without an,,- o'the catch basins being "overtopped'" (i.e., overflowing) in a 100 - year peak storm event. The analysis, which did not include development on Lot D, did note that Catch Basin 43,. located at a sharp turn, near the base of a steep slope, has the least surplus capacity and had been noted by a prior analysis as having the potential to overflow [see Finding 30], The adequacy of the existing system (and to how Lot D conveyance would be handled) is in question, and its capacity should be reconsidered to determine whether this Applicant should be required to mare improvements before development of this short plat adds flow to it. (Particular attention should be paid to Catch Basin 43 which appears to be the one to have already overflowed.) Bainbridge Municipal Code 49. BIMC 17.04.050.A. provides that: "All resitlential subdivisions ,shall be designed consistent a-ilh the flexible lot design process..._" and the flexible lot development standards of BIMC 17.04.080 apply to those subdivisions. As conditioned, the proposed short plat meets all the applicable development. standards. 50. As defined in BIMC 17.12.040, "short subdivision" is the division of land "into .four or feit,er lots—fin- the purpose of sale, lease or transfer of ownership... „ 51. BIMC 17,12.107.13 provides the criteria that must be met for an application for a short plat to be approved. This preliminary short subdivision meets these criteria. 1. Th,(, applicable subdivision development standards of' T LVM-17.1.2.0 90, 17.12.092, 1;'.12.095 are satisfied: SPT 13463 Revised and Reissued Page 10 of 16 2. The preliminary, short subdivision makes appropriate provisions fbr• the public health, sq/e(y and general welt are, and public use and interest, including those items listed in RCW 58.17.110; 3. The preliminary, residential short subdivision has been prepared consistent with the requirements of the flexible lot design process and applicable flexible lot design standards, - 4. AnY portion of a short subdivision which contains a critical area, as defined in Chapter 16.20 BIMC, confirrms to all requirements of that chapter; 5. The city engineer determines that the preliminary subdivision... a. ... conforrns to regulations concerning drainage... b.... ivill not cause an undue burden on the drainage basin... c....streets and pedestrian ways... align with and care otherwise coordinated with streets .serving adjacent properties [and] d. ... streets and pedestrian ways are adequate to accommodate anticipated traffic. e. ..conforms to the requirements of this chapter and the standards in the "City of Bainbridge Island Engineering Design and Development ,S'tandardy Manual, " except as otherwise authorized by in BAK' 1;?.12.090.D.3: 6. The proposal complies with all applicable provisions of this code, Chapters 36. 70.4 and 58.17 RCW, cznd all other applicable provisions of state and federal laws and regulations,- 7'. egulations;7'. The proposal is in accord with the city 's comprehensive plan. 52. Flexible lot standards include, at B1MC 17.12.090.A.4.c, a requirement for a 25 ft, wide buffer where "...land adjacent to the .subdivision is a ... dedicated conservation land area that that has been .yet aside by... conservation easement:" Conclusions 1. The Hearing Examiner has jurisdiction to hear and decide this matter and, in making that decision, roust give substantial weight to the decision of the Director [see Finding 331 and may include conditions [see Finding 34]. ?. To overcome the substantial weight accorded the Director, it must be shown that the Director's decision Nvas clearly erroneous. Under this standard of review, the Director can be reversed only if the Hearing Examiner is left with the definite and firm conviction that a mistake has been made. 3. it was not shown to be an error for the Director to require improvement of the access road to the "residential, optional standard" [Condition 15]. The improvements (e.g., paving, adding shoulders, improving sightlines) would mitigate for increased traffic SPT13463 Revised and Reissued Page 11 of 16 associated with future development. The added requirement for a separate pedestrian pathway would provide safer walking conditions and mitigate for potential impact relative to pedestrian use of the easement through the site. (As they must in all situations where walking close to travel lanes, pedestrians would still have to use caution and keep a proper lookout for their own safety.) 4. The final plat should include a new name for the access road that acknowledges the area's early settlers. 5. Paving the road's driving surface would eliminate dust impacts that would be potential on a gravel road. Paving the roadway should also reduce noise impacts associated with travel on it. The Director was not shown to be in error in not requiring a wall/barrier for mitigation of noise impacts. Significant adverse impact or impacts warranting mitigation were not shown to be the likely result of short plat approval. 6. To avoid adverse erosion and sedimentation impacts 1-rom construction of the access road improvements, erosion control best management practices (BMPs) should be required. Also, as a part of the permitting process for the access road improvements, the City Engineer should have the opportunity to ensure that that the Applicant repairs or replaces the culvert as needed before the improved access is dedicated. 7. Prior to issuance of permits lbr construction of any stormwater conveyance facilities, the Applicant should revise the existing hydraulic analysis [Exhibit 3] to the satisfaction of the City Engineer. The analysis should include a residence on each of the proposed lots, indicate how stormwater conveyance from Lot 6 would be accomplished, and acknowledge any known catch basin overflow events. 8. The Category III wetland has been properly identified within a designated Open Space area. A 50 ft. wide buffer around the wetland would be designated, and a building setback of 15 ft. beyond the buffer established. Similarly, the Type 4 stream in the eastern part of the site would have the requisite 25 ft. wide buffer and 15 ft.. wide building setback. In the designated areas, no buildings could be constructed or significant trees removed and the uses allowed would be restricted to those appropriate to the protection of the critical areas. The width of the buffer area along the southern boundary adjacent to the neighboring conservation easement should be increased to 25 ft. and noted clearly on the final plat maps. 9. As it is within the designated wetland in Lot D, the historic stone well would be protected and the Open Space Management Plan [Condition 6, 7, and 81 for Lot D should include appropriate provisions for the protection of this structure. 10. The Kitsap County health Department's requirements for septic system design and location would ensure that no structures are built on or too near existing or proposed facilities. SPT13463 Revised and Reissued Page 12 of 16 11. I'll,- SEPA threshold determination was not an error. No likelihood of significant adverse environmental impact has been shown, 12. The Director did not err in finding that this preliminary short subdivision meets the criteria for short plat approval. Appellants argued that the proposal does not make appropriate provisions for the public health, safety and general welfare, and public use and interest with regard to pedestrian and traffic safety and protection for wetlands. These assertions are not borne out by the record. The required improvements, including a separate pedestrian path, would make appropriate provisions for public safety. With the increase in the width of the required buffer along the southern boundary of Lot D to 25 ft., the designation of wetlands and buffers and the required open space management plans, would appropriately address the public use and interest regards critical areas. Decision The decision of the Director approving the application of Carol and David Minks for the Orchard View Short Plat [SPTl 346' )] is hereby AFFIRMED AS MODIFIED with Conditions I through 20 that follow on pages 14 through 16. this I ()Ih -1006. Entered day of April'. Meredith A. GetcS Zs Hearing Examiner pro tem City of Bainbridge Island 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 (RCW), Chapter.' )6.700. SPT13463 Revised and Reissued Page 13 of 16 ORCHARD VIEW SHORT PLAT SPT 13463 CONDITIONS OF APPROVAL I . The final short plat shall substantially conform to the preliminary short plat sheets date- stamped September 1, 2005 [Exhibits 2A through 2F], except as necessary to be consistent with these Conditions of Approval. 2. A plat certificate shall be provided with the final plat application. 3. All lot corners shall be staked with three-quarter inch galvanized iron pipe and locator stakes along with all other applicable survey provisions of Appendix B (BIMC Chapter 17.12). 4. Accessible mailbox locations that do not restrict pedestrian access must be provided prior to final plat approval. 5. Prior to clearing of vegetation or grading for the entrance road, the applicant shall apply for and obtain a Plat Utilities Permit from the Department of Public Works. Appropriate measures shall be taken to the satisfaction of the Department of Public Works to control erosion and sedimentation during all phases of construction. 6. A final Open Space Management Plan (OSMP) for each lot which has a designated Open Space area shall be submitted for review and approval by the Director of Planning and Community Development. Approved plans meeting the requirements of BIMC 17.12.092.H and associated Covenants, Conditions and Restrictions (CC&R's) containing the frequency and scope of the maintenance and responsibility for the open space, shall be recorded. 'T'he OSMP and CCcKzRs for Eot D shall include specific reference to the stone well and shall require that the well be protected in perpetuity; with reasonable access to view it permitted for those who otherwise have right of access to use the easement to Sorrell Way, including those who have right of access to use the pedestrian easement [see Finding 12]. 7. Open space areas designated within each lot (see Sheet 4/6 [Exhibit 2D] and 51/6 [Exhibit 2E]) shall be placed in an easement or shall be protected by restrictive covenants or other similar legal means which shall be recorded with the final plat. K. All open space area uses and restrictions are to follow the approved Open Space Management Plan (OSM11). The OSMP shall contain the following language concerning the maintenance of open space areas: "Open space areas shall be maintained permanently by the individual property owners of the lots where the designated Open Space occurs. In the event that open space is not maintained consistent with the OSMP, the City shall have the right to provide the maintenance thereof, and bill the owner accordingly." 9. The Tree Retention Plan [Sheet 6/6, Exhibit 2F] designating the area of tree canopy to be preserved within the Open Space shall be recorded with the final plat documents. 10. To mitigate impacts on air quality, cleared vegetation must be removed from the site, processed by chipper, or processed using other methods of disposal that do not require burning. if. The wetland and stream buffers shall be fenced on the outer edge of the buffers with split -rail or similar fencing. Signs indicating the presence of a no -disturbance wetland buffer shall be placed along the fence at 50 -foot intervals. SPT13463 Revised and Reissued Page 14 of 16 12. Prior to any clearing or grading on individual lots, a clearing permit or single-family residential building permit shall be obtained from the City. 13. School impact fees shall be paid in accordance with the following provisions. For each of the created lots, prior to final plat approval the applicant shall pay one half of the school impact fee in effect at that time. Subsequent to plat recordation and prior to building permit issuance, an applicant constructing a residence on any of the created lots shall pay one half of the school impact fee in effect at the time of building permit issuance. 14. Maximum allowable lot coverage per lot is: 9,394 square feet. That coverage limit and the following setbacks shall be noted on the final short plat: Required Setback or Separation Building to Building Minimum 10 feet Residence to Residence Minimum 25 feet Building to Plat Boundary Minimum 15 feet Building to Southern Plat Boundary of Lot D Minimum 25 feet Building to Interior Access Road Minimum 10 feet Building, to Open Space Minimum 10 feet Building to Wetland Buffer or Stream Buffer Minimum 15 feet 15. The access roadway within the 30 -ft. wide easement extending from Sorrell `Jdays to and including the cul-de-sac, shall be dedicated public right-of-way, improved to the City's "residential, optional standard" to the satisfaction of the City Engineer; provided, that only that portion of the access roadway that is located within the subject Orchard View short plat, currently owned by Applicant Minks, shall be dedicated to the City. The portion of the 30 -ft. wide easement outside the subject short plat, currently owned by Appellant Vogel, shall not be dedicated to the City, but shall be improved to the City's "residential, optional standard" to the satisfaction of the City Engineer, A 4 ft. wide, pervious pedestrian path shall also be constructed within the access easement, generally parallel to, but separate from the 12 ft. wide paved roadway. Pursuant to BIMC 17.12.107B.5.d, prior to issuing permits for these improvements, the City Engineer shall determine if the culvert needs repair or replacement and shall require any necessary work to be clone on it as a part of the road improvement. All construction activities in, near, or around the stream must utilize effective erosion and sediment control measures to avoid and/or mitigate adverse impacts to the stream. 16. All future structures on the subject lots shall connect to the existing storm conveyance. Infiltration shall not be pennitted. Pursuant to BIMC 17.12.107B.5.a and b, prior to the issuance of any permits for stormwater conveyance construction, the Applicant shall provide to the satisfaction of the City Engineer an updated and revised hydraulic analysis that includes a residence built on Lot I) and takes into account known or likely capacity problems (with particular attention given to CB3 where evidence suggests storm conditions have already caused overtopping). The City Engineer shall require the Applicant to make off-site downstream improvements as necessary to ensure that the stormwater from development of the subject short plat can be added to the conveyance system without overtopping any of the catch basins under 100 -year peak conditions. SPT13463 Revised and Reissued Page 15 of 16 17. Public and private improvements, facilities, and infrastructure, on and off the site that are required for the subdivision shall be completed, have final inspection and approval prior to final plat approval. Approval of public facilities will be shown by a formal tetter of acceptance from the City Engineer. An assurance device acceptable to the City may be used (in lieu of physical completion) to secure and provide for the completion of necessary facilities. Any such assurance device shall be in place prior to final plat approval, shall enumerate in detail the items being assured and shall require that all such items will be completed and approved by the City within one year of the date of final plat approval. While lots created by the recording of the final plat may be sold, no occupancy of any structure will be allowed until the required improvements are formally accepted by the City. Additionally, a prominent note on the face of the Final plat drawing shall state: "The lots created by this plat are subject to conditions of an assurance device held by the city fir the completion of certain necessary facilities. Building permits may not be issued and/or occupancy may not be allowed until such necessary facilities are completed and approved by the City of Bainbridge Island. All purchasers shall satisfy themselves as to the status of completion of the necessary facilities." 18. In the event phenomena of possible archaeological interest are uncovered during construction, all work will stop immediately and notification promptly given to the City and State Office of Archaeology and Historic preservation. The property, owner shall be required to provide f6r a site inspection and evaluation by a professional archaeologist to ensure that all possible valuable archaeological data is properly- salvaged. The property owner shall receive permission from the State Office of Archaeology and Historic Preservation prior to further disturbance of the site �,RCW 27.5 3.070 or its successor). 19. A provision ensuring that the stone well (see location on Sheet 3/6, Exhibit 2C) is to be preserved in its current state and protected, shall be included in the Lot D Open Space Management Plan and any related easements/covenants [see Conditions 6, 7, and 8]. 20. Prior to accepting dedication of the interior access road improvements, the City and the Applicant shall agree on a street name that reflects the history of the area and its early settlers. SPT13463 Revised and Reissued Page 16 of 16 BEFORE THE HEARING EXAMINER CITY OF BAINBRIDGE ISLAND In the Matter of the Appeal of the Director's Approval of the ORCHARD VIEW ("MINKS") SHORT PLAT SPT13463 By "Neighbors Against Whitmore Proposed Development" ORDER ON REQUEST FOR RECONSIDERATION The Hearing Examiner's decision on this appeal was issued on March 21, 2006. On April 3, 2006, Appellant filed a Motion for Reconsideration requesting clarification of Condition 6, regarding public access to the stone well, and Condition 15, regarding improvement and dedication of the access roadway. The other parties have advised that they do not object to the amendments/clarifications sought by Appellant and the Hearing Examiner has determined that the changes are warranted. The conditions of decision in this matter should be, and are hereby ORDERED REVISED as follows (changes/additions underlined), and the decision REISSUED as of the date of this Order. C'nndi►inn 6- A final Open Space Management Plan (OSMP) for each lot which has a designated Open Space area shall be submitted for review and approval by the Director of Planning and Community Development. Approved plans meeting the requirements of B1MC 17.12.092.11 and associated Covenants, Conditions and Restrictions (CC&R's) containing the frequency and scope of the maintenance and responsibility for the open space, shall be recorded. The OSMP and CC&Rs for Lot D shall include specific reference to the stone well and shall require that the well be protected in perpetuity; with reasonable access to view it permitted for those who otherwise have rivJit of access to use the easement to Sorrell Way, including those who have right of access to use the pedestrian easement see Finding; 121. Condition 15: The access roadway within the 30 -ft. wide easement extending from Sorrell Way, to and including the cul-de-sac, shall be dedicated public right-of-way, improved to the City's "residential, optional standard" to the satisfaction of the City Engineer. provided, that only_that rt'on of the access roadway that is located within the subject Orchard View short plat, currently owned by Applicant Minks, shall be dedicated to the.Ciity. The portion of the. 30 -ft. wide easement outside the_subiect short plat, currents owned Order on Motion for Reconsideration Page 2 of 2 ,Appellant Vogel, .shall not be dedicated to the Com, but shall be improved to the City's ``residential, optional standard" to the satisfaction of the City Enaineer. A 4 ft. wide, pervious pedestrian path shall also be constructed within the access easement, generally parallel to, but separate from the 12 ft. wide paved roadway. Pursuant to BIMC IT 12.107B.5.d, prior to issuing permits for these improvements, the City Engineer shall determine if the culvert needs repair or replacement and shall require any necessary work to be done on it as a part of the road improvement. All construction activities in, near, or around the stream must utilize effective erosion and sediment control measures to avoid and/or mitigate adverse impacts to the stream. Entered this 10`h day of April 2006. a Meredith A. Getches Hearing Examiner pro tem City of Bainbridge Island