SEWELL, HOWARD - DECISIONDECISION OF THE HEARING EXAMINER x
CITY OF BAINBRIDGE ISLAND:;
CIA
In the Matter of the Application of
HOWARD SEWELL SCUP12802
for Shoreline Conditional Use Permit
to Reconstruct Stairway to Beach and
Construct Rock Bulkhead
Background
The Applicant seeks a Shoreline Conditional Use Permit to construct a wooden stairway
to the beach and a 100 ft. long rock bulkhead. The Hearing Examiner held the public
hearing on this, matter on June 1, 2006. Parties represented at the hearing were the
Director, Planning and Community Development Department, by Marja Preston, Planner,
and the Applicant, Howard Sewell, pro se.
After due consideration of all the evidence in the record, the following shall constitute the
findings of fact, conclusions of law, and decision of the Hearing Examiner on this
application.
Findings
Site
1. The 1.52 acre project site, addressed as 5525 Crystal Springs Drive [tax parcel
332502-4-030-2003], is located in southwestern Bainbridge Island overlooking Port
Orchard Bay. Existing structures include a stairway to the beach constructed by a prior
owner without shoreline permit. [Site Plans, Exhibit 3; Application, Exhibit 9; Staff
Report, Exhibit 25]
2. The site, a residentially developed parcel, is generally rectangular in shape
(approximately 650 ft. east -west and ranging from 100 to 200 ft. in the north -south
dimension). The site is approximately 100 ft. wide along the shoreline. The site
topography consists of an upper slope between the street and the residence, a series of
terraces where the residence and back yard are located, and a steeply sloping beach bluff
that descends to the shoreline of Port Orchard Bay on the west. The terraces provide an
effective setback for the residence of 75 ft. from the top of the bluff. The bluff face has a
slope ranging from 30-40% in the upper half, to 50-100% in the lower half. Total
elevation change is on the order of 30 vertical feet. [Site Plans, Exhibit 3; Exhibit 5]
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3. The zoning is R-2, residential with two units per acre; the Comprehensive Plan
designation is OSR-2, Open Space Residential, two units per acre. The City's Shoreline
Master Program designates the upland as Semi -Rural. [Staff Report, Exhibit 25, pages 1
and 4]
4. The subject site lies within a drift sector that begins south of Pt. White and
terminates to the north at approximately Battle Point. There is a northerly net shore drift
and the beach and bluff show signs of long-term wave erosion. The neighboring
properties adjacent to the north and south both have rock bulkheads approximately 6 ft.
tall. These bulkheads have created a "pocket beach" at the subject site. [Exhibit 5]
5. There is no evidence of incipient deep-seated rotational slides on the site which is
at the toe of a prehistoric slide. While there is a low potential for deep-seated rotational
slides, they are possible with extreme seismic forces and leakage from the 12 -inch drain
pipe. (Such leaks would add water to the slope which could cause sliding on this site and
the property to the north.) The site is subject to ongoing, shallow debris slides involving
the weathered soil and vegetation that mantles the steep slope. The steep slope angle,
solid types, and surface and groundwater conditions indicate the site will continue to
experience such "surficial" landslide activity. [Exhibit 5]
6. The geotechnical consultant who examined the site concluded that erosion at the
toe of the slope will continue and it would contribute to future surficial slides within the
steep bluff. The yard and the drainage system and landscaping are "at near term risk
from continued bluff retreat, but the residence is "not at immediate risk". Shoreline
armoring would protect the bluff, existing drainage outfall, and stop toe erosion. [Exhibit
5; Testimony of Preston]
Application
7. The Applicant proposes to construct an open -tread, wooden stairway with a total
area of 400 sq. ft. The stairway, approximately 4 ft. wide, would extend from the crest of
the slope down to the beach, changing direction at small landings and terminating just
landward of the Ordinary High Water Mark (OHWM). The upper portions of the
existing stairway would be rebuilt to comply with current building code requirements.
The lower portions of the existing stairway (that extend beyond the OHWM) would be
removed and new stairs and landing constructed, extending to the north, parallel and
behind (landward of) the proposed bulkhead. The stair structure would generally be 2 ft.
above existing grade and 10 ft. above grade at the highest point. Consistent with the
native vegetation zone requirements, vegetation removed or disturbed by construction
would be replaced with native plants and native plants would also be planted under the
stairs. [Site Plan in Exhibit 5; SEPA Checklist, Exhibit 6]
8. A 100 11 long (5 ft. tall, 4 ft. wide) rock bulkhead, intended to stabilize the toe of
the bluff, is proposed to be constructed parallel to the to the shoreline, landward of the
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OHMW. The proposal includes repairing and/or replacing the existing 12 in. diameter
drainage pipe located in the western portion of the site and adding a diffuser in the
bulkhead. [Site Plan in Exhibit 5]
Director's Review and Recommendation
9. As a "normal appurtenance" to residential use, a beach stair does not require a
Shoreline Substantial Development Permit (SSDP). However, because this stairway has
a footprint greater than 120 sq. ft., it must have a Shoreline Conditional Use Permit
(SCUP) [see Finding 21 ]. All beach stairs are required to have a building permit.
10. Bulkheads are disfavored by the Shoreline Management Act (SMA) due to their
propensity to alter shoreline processes which, in turn, result in adverse impact to marine
habitat and fish and wildlife. BIMC 16.12.3 10 provides that bulkheads may be permitted
as a Shoreline Conditional Use and only where erosion is a threat to existing development
[see Finding 22].
11. On December 15, 2005, the Department received the application for a SCUP to
construct a stairway and rock bulkhead. [Application, Exhibit 9; Staff Report, Exhibit
25]
12. Notice of Application [Exhibit '15] was given on January 14, 2006. On April 14,
2006 and the Director issued a SEPA threshold determination [Mitigated Determination
of Non -Significance, MDNS] and at that time gave notice of right to appeal that
determination [Exhibits 22 and 23]. The MDNS was not appealed. [Staff Report,
Exhibit 25]
13. The Director recommends approval of the stairway and denial of the bulkhead.
The Director analyzed the proposal relative to Comprehensive Plan policies (GH 1. 1, GH
1.3, GH 1.6, GH 1.7), Shoreline Master Plan regulations (BIMC 16.12.040, General
Regulations; BIMC 16.12.050, Archaeological and Historic Resources; BIMC 16.12.060,
Clearing and Grading; BIMC 16.12.070, Environmental Impacts; BIMC 16.12.080,
Environmentally Sensitive Areas; BIMC 16.12.090, Native Vegetation Zone; BIMC
16.12.110, Public Access; BIMC 16.12.260, Residential Development; BIMC 16.12.310,
Shoreline armoring; BIMC 16.12.380, Shoreline Conditional Use Permits), and R-2
zoning (BIMC 18.30.020.C). The Director's analysis [Staff Report, Exhibit 25, pages 5-
11] is hereby incorporated by reference and adopted as Findings of this decision.
14. BIMC 16.20.080.0 provides requirements for development in geologically
hazardous areas. The stairway would meet the requirements of BIMC 16.20.080.0
regarding erosion control, minimizing disturbance, location, design, and landscaping.
[Staff Report, Exhibit 25; Testimony of Preston]
15. The conditions of approval that the Director recommends for the stairway are
necessary and appropriate to ensure consistency with shoreline policies, applicable land
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use regulations, and to mitigate potential environmental impacts. [Staff Report, Exhibit
25; Testimony of Preston] If the bulkhead is not permitted, an additional condition
would be needed to ensure that the proposed repair and/or replacement of the drainage
pipe would be implemented and that an appropriate outfall diffuser be included.
16. The Director concluded that the stairway complies with the applicable regulations
and should be approved, but that the proposed bulkhead does not meet the requirement of
BIMC 16.12.310.B.5. The geotechnical report is clear that the residence is not in
imminent danger.
Hearing
1.7. Notice of the Hearing Examiner's public hearing on the SCUP application was
properly given with posting, mailing, and publication completed by May 17, 2006
[Exhibit 24].
18. The Director's report and recommendation was presented at the hearing
[Testimony of Preston]. The Applicant testified that he recognizes that the geotechnical
consultant's assessment (i.e., that his residence is not presently threatened) means that his
proposed bulkhead does not meet the City's standard for permit approval [Testimony of
Sewell]. Although a bulkhead may not be necessary at this time, the Applicant is
concerned that the bulkheads on either side of his property are causing a "pocket beach"
on his property which could aggravate bluff retreat. Tracking changes on the bluff with
photographs and measurements, along with monitoring by a geotechnical professional,
should assist the owner in determining if and when a bulkhead could be considered
necessary. [Testimony of Johnson] There was no public comment at the hearing.
Bainbridge Island Municipal Code (BIMC)
19. The Shoreline Master Program, BIMC Chap. 16.12, regulates development in the
shoreline. BIMC 16.12.260, emphasis added, provides that
A. Applicability. All development in the shoreline jurisdiction must comply
with the Shoreline Management Act... and the roaster program. While an
individual owner -occupied, single-family residence and its "normal
appurtenances" are exempt from the requirement that a substantial development
permit (SSDP) be obtained from the local government... they must comply with
this section and other provisions of the master program...
In some circumstances a conditional use permit is required for developments
which are exempt from the SSDP...
Residential development is subject to Part IN, General Regulations, which
contains provisions for a native vegetation zone adjacent to and landward of the
ordinary high water mark (OHWM), clearing and grading restrictions, public
access requirements, environmentally sensitive areas provisions, on-site utilities,
and others. Part IV, Environment Designations, also applies to residential
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development. Shoreline modifications (e.g., bulkheads and revetments, piers and
docks) are provided for in Part VI, Shoreline Modification Regulations.
Residential development is also subject to the Chapter 16.20 BIMC, Critical
Areas.
B. Regulations — General.
1. Residential development shall be permitted in the rural, semi -rural,
and urban environments...
9. No accessory structures shall be located within the required native vegetation
zone, except a stairway to the beach, a tram, a pier or dock, a boat house, permeable
decks less than 30 inches in height above grade, and fences....
20. BIMC 16.12.030.A. I l defines "Appurtenance" to mean "a structure... which is
necessarily connected to the use and enjoyment oj' a single-family residence" and
appurtenances must be landward of the ordinary high water mark.
21. The regulations for residential development in the shoreline, at BIMC
16.12.260.13.5 and .16, require that a 50 -ft. native vegetation zone be preserved in the
semi -rural environment and that stairways exceeding 120 sq. ft. are required to have a
shoreline conditional use permit.
22. The regulations for revetments and bulkheads, at BIMC 16.12.310.13.5, provide
that they:
... may be allowed only when evidence is, presented which conclusively
demonstrates that...
a. Serious wave erosion threatens an existing development or land...
23. BIMC 16.12.380.0 "applies to all applications for shoreline... conditional use
permits" and provides, in pertinent part, as follows:
1. Uses classified as conditional uses may be authorized; provided,
that the applicant can demonstrate all of the following:
a. The proposed use would be consistent with the policies of RCW
90.58.020 or its successor and the policies of the master program.
b. The proposed use would not interfere with the normal public use of
the public shorelines.
c. The proposed use of the site and design of the project would be
compatible with other permitted uses within the area.
d. The proposed use would cause no unreasonably adverse effects to
the shoreline environment designation in which it is located.
e. The public interest suffers no substantial detrimental effect.
f. The proposed use is consistent with the provisions of the zoning
ordinance... and the comprehensive plan...
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24. BIMC 16.12.350.B. La provides that the Hearing Examiner has the authority to:
Approve, approve with conditions, or deny shoreline variance and
shoreline conditional use permit applications after a public hearing and
after considering the findings and recommendations of the director, which
shall be given substantial weight....
25. As required by BIMC 16.12.380.0.1, the application and the information
provided by the Applicant and the information and analysis provided by the Director
demonstrate as follows regarding the proposed stairway:
a. The stairway is consistent with the policies of the Shoreline
Management Act and with the City's Shoreline Master Program.
b. Because the structure terminates above the line of ordinary high
water (OHWM), the stairway would not interfere with the normal use of
the public shoreline.
C. As the stairway is accessory to single-family residential use and
would not be visible from neighboring property, it would be compatible
with the residential use and zoning of the area. The stairway would be
painted a neutral color to blend in with the surroundings and native shrubs
are to be planted to aid in making it visually unobtrusive.
d. As conditioned, the stairway would cause no unreasonably adverse
effects to the shoreline environment. Located above ordinary high water
mark, the structure would not have a direct impact on the nearshore
habitat. (Replanting and neutral paint color would also help ensure
minimal, visual impact.)
e. By mitigating environmental impacts, not interfering with public
beach access, replanting with native plants, and painting with a neutral
color, the stairway would have no substantial. detrimental effect to the
public interest.
f. The stairway, accessory to the residential use of the zone, is
consistent with the provisions of the zoning ordinance and the type and
density of use anticipated by the Comprehensive Plan.
26. As the record does not include a demonstration that there is a risk of imminent
harm to the residence, the proposed bulkhead does not meet the regulations of BIMC
16.12.310.B.5 and consequently does not demonstrate consistency with the requirements
of BIMC 16.12.360.C.
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Conclusions
1. The Hearing Examiner has jurisdiction to hear and decide this matter and is
required to give the Director's recommendation substantial weight.
2. Appropriate notices of the application and the public hearing were given and all
relevant evidence was considered.
3. The Director's recommendation and the facts do not support approval of the
proposed bulkhead. In the future, if serious erosion threatens the existing residence, as
confirmed by a geotechnical professional, shoreline armoring consistent with the
Shoreline Master Program could be proposed. (A bulkhead would not be considered
necessary solely for the purpose of protecting the stairway approved here.)
4. To avoid potential adverse impacts (including accelerating bluff retreat or
shoreline erosion), repair/replacement of the existing drainage pipe and construction of an
outfall diffuser should be required as a condition of permit approval.
5. As conditioned, the proposed stairway to the beach would be consistent with the
applicable provisions of the Shoreline Master Program for granting a Shoreline
Conditional Use Permit and should be approved with conditions as noted below.
Decision
The application of Howard Sewell for a Shoreline Conditional Use Permit for
construction of a rock bulkhead is DENIED and the application for a wooden stairway to
the beach is APPROVED WITH CONDITIONS 1-17 t .-follow on pages 8 and 9.
Entered this �,lday of June 2006. ,
Meredith A. Getches
Hearing Examiner
Concerning Further Review
The decision of the Hearing Examiner is the final decision the City in this matter. Appeal is to
the Washington State Shorelines Hearings Board as provided by RCW 90.58.180 (or its
successor) and Chapter 461-08 WAC (or its successor). To be timely, petition for review must be
filed within the 21 -day appeal period [see BIMC 16.12.370].
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SCUP12802
Conditions of Approval
Prior to Issuance of Building Permit
1. As a part of the building permit process, a geotechnical engineer shall complete the City's
standard geotechnical forms to fulfill the intent of BIMC 16.20.080. (The geotechnical
engineer is not required to claim that the feature will be stable.)
2. A set of Best Management Practices (BMP's) for erosion and sediment control shall be
submitted to and approved by the City of Bainbridge island City Engineer. The BMP's
shall be designed by a professional engineer with expertise in such measures.
3. The site plan date-stamped December 15, 2005 [see Exhibit 3] shall be revised to the
satisfaction of the Director to include details regarding the location and design of the
drainage pipe and outfall diffuser. Prior to making this revision, the drainage system (pipes
and collection facilities) leading to the outfall shall be inspected for leaks and other
problems and repaired or replaced as needed to ensure that the drainage collection and
conveyance system functions properly so as not to cause or aggravate bluff retreat or
shoreline erosion.
4. To prevent degradation of water quality and habitat, the stairway shall not utilize support
pilings composed of new or used creosote treated wood materials.
5. Design of the stairway and the outfall diffuser shall be in substantial conformance with the
revised site plans [see Condition 3] and shall be engineered and stamped by a professional
engineer licensed in the State of Washington with expertise in such features.
6. To prevent degradation of shoreline bluff stability, water quality, and habitat area, a
vegetation management plan, approved by the Director, shall be submitted concurrent with
a building permit application. This plan shall include, but not be limited to the following
provisions:
i. Removal of existing vegetation shall be limited to that necessary for placement of
support pilings and storm water control measures. The plan shall specify that in no
case will vegetation larger than 12 inches diameter at breast height be removed in
conjunction with the stairway placement or maintenance.
ii. Prior to commencing construction and throughout the construction period, silt fencing
and/or orange construction fencing shall be installed to protect the native vegetation
outside the disturbance area.
iii. All removed vegetation outside the stair footprint shall be immediately replaced with
native species appropriate to Puget Sound shoreline bluffs. Replacement species,
quantities and locations shall be specified within the vegetation management plan.
iv. Herbicides and pesticides shall not be allowed to directly enter water bodies or
wetlands unless approved for such use by the appropriate agencies (Washington State
Department of Agriculture or Washington State Department of Ecology, U.S.
Department of Agriculture, Environmental Protection Agency).
v. A maintenance schedule shall be included in the plan, to ensure on-going health of
vegetation across the bluff face. Minor trimming of vegetation may occur to prevent
the stairway steps from being overgrown with vegetation.
7. Prior to issuance of a building permit, an indemnification agreement for all activities and
structures on the shoreline bluff shall be duly executed in a form approved by the City
Attorney, pursuant to BIMC 16.20.090.C.2.g.
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During Construction
8. Prior to site disturbance, an approved building permit shall be secured for the stairway,
drainage pipe, and outfall diffuser.
9. No clearing, grading or construction shall occur outside of the dry season, April 1 to
October 1. Disturbed soils shall be mulched or seeded immediately. No disturbed soils
shall remain exposed for more than three days.
10. A copy of all public agency approvals and approved drawings shall be given to all
contractors performing work at the site.
11. To avoid degradation of water quality and shoreline bluff stability during construction the
BMPs approved by the City Engineer [see Condition 21 shall be implemented.
12. The stairway, drainage pipe, and outfall diffuser shall be constructed/installed in substantial
conformance with the revised site plans as approved [see Conditions 3].
13. The provisions of the approved vegetation management plan [see Condition 6] shall be
adhered to, including that:
i. Prior to commencing construction and throughout the construction period, silt fencing
and/or orange construction fencing shall be installed to protect the native vegetation
outside the disturbance area.
ii. Removal of existing vegetation shall be limited to that necessary for placement of
support pilings and storm water control facilities. In no case will vegetation larger than
12 inches diameter at breast height be removed.
iii. All removed vegetation outside the stair footprint shall be immediately replaced with
appropriate native species as specified in the approved vegetation plan.
iv. Herbicides and pesticides shall not be used.
14. The stairway and all attendant features shall be colored or painted with neutral flat, browns
or tans or dark green, so as to blend with the colors of native bluff soils and vegetation and
be non -reflective. The intent is to obscure the features from surrounding view.
15. Extreme care shall be taken to prevent petroleum products, chemicals, paint, preservatives,
and/or other toxic or deleterious materials from entering the water or degrading water
quality. If a spill does occur, or if an oil sheen or distressed or dying fish are observed in
the project vicinity, work shall cease immediately and 'Washington Department of Ecology
shall be notified of such conditions. Contact: Northwest Regional Spill Response Section
at (206) 649-7000.
16. Equipment for the transportation, storage, handling, or application of potentially polluting
and/or toxic materials [see Condition 15] shall be maintained in a safe and leak -proof
condition. If there is evidence of leakage, use of such equipment shall be suspended until
the deficiency has been satisfactorily corrected.
17. Contractor(s) shall stop work and immediately notify the Department of Planning and
Community Development and the Washington State Office of Archaeology and Historic
Preservation if any historical or archaeological artifacts are uncovered during excavation or
construction.
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