SUNDAY COVE PUMP STATION - DECISIONCITY CLERK
DECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Application of
CITY OF BAINBRIDGE ISLAND SCUP/SVAR13745
PUBLIC WORKS DEPARTMENT
for Shoreline Conditional Use Permit
and Shoreline Variance
Introduction
The Applicant seeks a Shoreline Conditional Use Permit and Shoreline Variance to
facilitate construction of improvements to an existing pump station within the City's
shoreline. The Hearing Examiner held a public hearing on this matter on May 11, 2006.
Parties represented at the hearing were the Director, Planning and Community
Development Department (PCD or Department), by Brianna Holan, Planner, and the
Applicant, City of Bainbridge Island Public Works Department, by Lay Chin Foo,
Assistant City Engineer.
After due consideration of all the evidence in the record, the following constitutes the
findings, conclusions, and decision of the Hearing Examiner on this application.
Findings
Site and Proposal
1. The subject site is located within undeveloped right-of-way of Winslow Way
West near its terminus at the line of ordinary high water on the northern shore of Eagle
Harbor. This is an area of low bank waterfront with vegetation consisting of several
evergreen trees and an understory of non-native invasive plants. Approximately 140 ft.
east of the line of ordinary high water, the surface of Winslow Way changes from
pavement to gravel. The West Trail Extension of the Waterfront Trail begins in this
street end and continues in a northwesterly direction along the shore of Eagle Harbor.
[Exhibit 4; Exhibit 18; Exhibit 27, Staff Report, pages 1 & 4; Exhibit 29]
2. A sewer pump station was originally constructed in this street -end location
approximately 30 years ago. Existing facilities include a wetwell and a manhole to
access two below -grade pumps. The cover for the manhole, near the center of the right-
of-way, is also in the middle of the Trail near the point where it turns to the north. The
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manhole cover is approximately six inches higher than the grade of the Trail; tall enough
to be easily tripped over. An above -grade power panel and generator are located on the
southern edge of the right-of-way about 60-70 ft. east of the existing manhole. [Exhibit
24; Exhibit 29, photos; Exhibit 27, Staff Report, page 4; Testimony of Holan; Testimony
of Foo]
3. The subject site is within the Semi -Rural shoreline environment and the zoning is
split with R-2.9 (Residential, 2.9 units/acre) north of Winslow Way and R-4.3
(Residential, 4.3 units/acre) to the south. Adjacent properties are residentially zoned (R-
2.9 to the north and R-4.3 to the south). There are residences to the northwest and
southeast, but except for an old garage/barn immediately to the north, no structures are
nearby. [Exhibit 29, site photos and aerial photo; Exhibit 27, Staff Report; Testimony of
Holan; Testimony of Foo]
Proposal
4. The Applicant seeks to upgrade the existing pump station to resolve functional
problems being caused by the undersized pump and wetwell. Due to the small capacity
of the existing wetwell, the pump cycles on frequently, which reduces equipment life and
has required repeated replacement of the pumps. The proposed upgrades would include a
new 8 ft. diameter wetwell, a 2 ft. X 3 ft. by-pass connection vault, and a new control
panel (5 ft. 8 in. wide X 3 ft. deep X 7 ft. 6 in. tall). [Exhibit 24; Exhibit 27, Staff Report;
Testimony of Foo)
5. The wetwell would be installed below grade within the native vegetation zone just
west of the existing manhole cover. The proposed connection vault, in the right-of-way
east of the existing manhole, would also be below grade. The proposed new control
panel would be above grade and located approximately at the southern edge of the right-
of-way in line with the existing panel and generator. All the proposed new structures
would be outside the Trail (the new control panel would be painted green to match the
other above -grade structures and to blend in with the existing trees and other vegetation).
[Exhibit 24; Exhibit 27, Staff Report; Testimony of Foo]
6. The native vegetation zone disturbed by construction would be replanted with
appropriate plants [see Landscape Plan, Exhibit 241. A 15 in. diameter pine tree at the
west edge of the trail and the power pole on the east side of the Trail would be removed.
The storm pipe at the end of the graveled section of the road would be extended and
covered with gravel in conjunction with providing a 5 -ft. wide trail down to the beach.
7. The limited size of the site (i.e., within the 20 -ft. wide right-of-way) and the
location of the existing facilities, make it necessary to close the Trail during construction.
The Trail would be closed to "through traffic" at this location. This Trail closure would
be limited and temporary for the duration of construction. The Director has
recommended that a condition of decision limit closure to a maximum of three weeks.
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[Exhibit 27, Staff Report, page 5 and Recommended Condition 10; Testimony of Foo;
Testimony of Holan]
Director's Analysis and Recommendation
8. A Shoreline Conditional Use Permit (SCUP) and a Shoreline Variance (SVAR)
are required for this proposal. The variance is required to allow construction in the native
vegetation zone and the conditional use is required for a primary utility to be located in
the Semi -Rural shoreline environment. [Exhibit 27, Staff Report; Testimony of Holan]
9. The Director, in accordance with the State Environmental Policy Act (SEPA),
conducted an environmental review after giving appropriate notice of the application and
of the SEPA comment period. On March 29, 2006, the Director issued a Mitigated
Determination of Non -Significance (MDNS) with an appeal period ending April 12,
2006. That determination was not appealed. [Exhibit 21; Exhibit 28, Staff Report; page
1]
10. The Director received several public comments during review of this application
[Exhibits 18, 19, 20]. The Staff Report [Exhibit 27, page 41 summarizes the concerns as
"primarily related to related to vegetation, amenities, pedestrian safety and maintaining
the existing trail both during and after construction." The Staff Report, responding to
those concerns, advises that after construction is complete and the landscaping installed,
"the function and aesthetics of the road end and native vegetation zone" would be
improved.
11. The Staff Report includes an analysis of the proposal's consistency with Code
requirements. That analysis, including the discussion of and references to the
Recommended Conditions [Exhibit 28, pages 5 through 8], is hereby adopted by
reference into these Findings.
12. The Director found the application consistent with the applicable sections of the
Code: Shoreline Master Program BIMC 16.12.050, 16.12.060, 16.12.080, 16.12.090,
16.12.150, 16.12.280, 16.12.380; Zoning Code BIMC 18.21; and, Comprehensive Plan
policies NM 1.4, 1.10. CF 1.9, 1.11, and U 1.10. [Exhibit 27, Staff Report pages 5-8]
The Director recommends that the shoreline conditional use permit and shoreline
variance be approved with numerous conditions. (Conditions of approval, modified by
the Hearing Examiner in response to information received during the hearing process, are
included at the end of this Decision.)
Public Hearing
13. The public hearing on the application was properly noticed with posting, mailing,
and publication completed by April 24, 2006 [Exhibit 28]. At hearing on May 11, 2006,
the Director's report and recommendation was presented [Holan]. The Applicant
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provided information about the purpose of the proposed improvements and noted that
without them, there is an increasing risk that pump failure could result in overflow to
Eagle Harbor [Foo].
14. One person [Schmid] testified in the public comment portion of the proceeding.
As noted in his written comment [Exhibit 18], Mr. Schmid's concerns (representing the
Waterfront Trail Committee) focus on maintaining and improving the Trail at this
location. He commended the current landscaping plan for eliminating the `replacement'
tree previously shown to be located in what is the middle of the Trail, improving access
to the beach, and having been professionally prepared.
15. During Mr. Schmid's testimony, Mr. Foo, Assistant City Engineer, agreed that the
site plan would have a note added that the existing pine tree is to be removed. Mr. Foo
further agreed to resolve the existing problem with the manhole cover [see Finding 2] so
that it would no longer be a pedestrian safety issue or an impediment to use of the Trail.
Mr. Schmid volunteered to provide a sign identifying the Trail and asked for the Public
Works Department to advise the Committee of the construction schedule so that they can
include that information in the Waterfront Trail brochure.
16. The existing condition (with the manhole cover above the grade of the Trail
surface) impedes safe use of the Waterfront Trail in the public right-of-way. Shoreline
regulations for utilities in public rights-of-way [BIMC 16.12.280.B.41, call for sharing
use of the right-of-way with uses such as shoreline access points and trails. Requiring
that pedestrian use of the Trail around the manhole cover be made safer and limiting the
duration of the Trail closure for construction, are desirable relative to the direction of
BIMC 16.12.280.B.4. Further, such conditions [see Conditions 1, 5, and 10] would
provide appropriate mitigation for the temporary closure of the Trail.
Bainbridge Island Municipal Code
17. The Shoreline Master Program, BIMC Chap. 16.12, regulates development in the
shoreline.
18. BIMC 16.12.380 "applies to all applications for shoreline variances and
conditional use permits" and provides, in pertinent part(s), as follows:
B. Shoreline Variance. The purpose of a shoreline variance permit is strictly
limited to granting relief to specific bulk, dimensional, or performance standards set
forth in the master program, where there are extraordinary or unique circumstances
relating to the property such that the strict implementation of the master program would
impose unnecessary hardships on the applicant or thwart the Shoreline Management Act
policies as stated in RCW 90.58.020 or its successor.
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2. Criteria for Granting Shoreline Variances. Shoreline variance permits for
development that will be located landward of the ordinary high water... may be
authorized provided the applicant can demonstrate all of the following:
a. The strict requirements of the bulk, dimensional, or performance
standards... preclude or significantly interfere with a reasonable economic use of the
property not otherwise prohibited by the master program.
b. The hardship described above is specifically related to the property
and is the result of unique conditions, such as irregular lot shape, size, natural features,
and the application of the master program...
C. The design of the project will be compatible with other permitted
activities in the area and will not cause adverse effects to adjacent properties or the
shoreline environment.
d. The shoreline variance authorized does not constitute a grant of
special privilege not enjoyed by the other properties in the area and will be the minimum
necessary to afford relief.
e. The public interest will suffer no substantial detrimental effect...
C. Conditional Uses...
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...
19. The Shoreline Master Program (SMP), at BIMC 16.12.090, requires a native
vegetation zone immediately upland of the OHWM. A 50 ft. wide native vegetation zone
is required here. [BIMC 16.12.150, Development Standards, Table 4-21.
20. The SMP, at BIMC 16.12.030.A.194, defines "primary utilities" to include
facilities for the conveyance and treatment of sewage. Primary utilities are addressed in
BIMC 16.12.280 which notes that such facilities may be allowed in the Semi -Rural
shoreline environment as conditional uses and prescribes the contents of such
applications. The subject application [Exhibits 4-61 included responses regarding all the
applicable requirements of BIMC 16.12.280.B.3. With conditions to ensure improved
user safety for the Waterfront Trail in this location, the proposal would be consistent with
the BIMC 16.12.280.B.4 regulations for utilities in a public right-of-way.
21. Pursuant to the authority granted by BIMC 16.12.350.B.1.a., the Hearing
Examiner may:
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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....
22. As required by BIMC 16.12.380, the application and the presentations at hearing,
including the information and analysis provided by the Director, demonstrated that, as
conditioned, this application meets all the criteria for granting a Shoreline Conditional
Use Permit and the requested Shoreline Variance.
Conclusions
1. The Hearing Examiner has jurisdiction to hear and decide this matter and the
Code requires that the Director's recommendation be given substantial weight.
2. Required notices of the application and of the hearing were made and the hearing
was held consistent with the applicable procedural requirements.
3. A public utility should not impede (or be hazardous to) pedestrian use of a public
trail in a public right-of-way. The proposed "upgrades" here should include correcting
the pedestrian access/safety problem created by the existing manhole cover. This could
be accomplished by changing the height and/or configuration of the manhole cover
and/or the height of the grade so that manhole cover could not be tripped over, or, in the
alternative, a railing, poles with chain, fence, or some other barrier could be constructed
around the perimeter of the manhole cover to keep pedestrians from tripping over it.
4. The application meets the requirements of BIMC 16.12.380.C.2 for approval of a
shoreline conditional use permit. The SMP allows utilities of this kind in the Semi -Rural
shoreline environment and, as conditioned, the proposal is consistent with applicable
shoreline, zoning, and Comprehensive Plan policies, as well as with other permitted uses
in the vicinity. As conditioned, the improvements proposed would not interfere with
normal public use and the limited duration of construction would not be an unreasonable
adverse effect on use of the Trail or a substantial detriment to the public interest in regard
to shoreline access. The restoration of the construction area within the native vegetation
zone would mitigate for environmental impacts.
5. As conditioned, the requested shoreline variance would meet the requirements for
approval of BIMC 16.12.380.B.2 and should be granted. The narrow right-of-way and
location of the existing facilities dictate that the improvements be installed within the
native vegetation zone. Unless the proposed temporary disruption of the native
vegetation zone is permitted by variance, the improvements cannot be made and the
possibility of malfunction and associated sewage overflow into the waters of Eagle
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Harbor would not be addressed. The adverse impact within the native vegetation zone
and disruption of Trail use would be limited and temporary, and the proposed
replacement landscaping and improved beach access would mitigate these impacts. The
proposal is compatible with the existing utility use and public access within the right-of-
way and is in the service of residential uses allowed by zoning and SMP. It is not a grant
of special privilege to allow upgrades of an existing primary utility within the public
right-of-way in this shoreline environment. The proposed upgrades are the minimum
necessary to address the functional problems and, with proper mitigation, would result in
no substantial detriment to the public interest. (The public interest would be served by
reducing the possibility of sewage overflow into Eagle Harbor)
Decision
The application of the City of Bainbridge Island Public Works Department for a
Shoreline Conditional Use Permit and a Shoreline Variance to construct sewer pump
station upgrades at this shoreline location
through I I that follow on pages 8 and 9.
Entered this 26`" day of May 2006.
is hereby APPROVED WITH CONDITIONS 1
Veredith aAGetcyhes:-�'
City of Bainbridge Island
Hearing Examiner pro tem
Concerning Further Review
NOTE: It is the responsibility of a person seeking review of a Hearing Examiner
decision to consult applicable Code sections and other appropriate sources, including
State law, to determine his/her rights and responsibilities relative to appeal.
The decision of the Hearing Examiner is the City's final decision in this matter. Appeal of the
shoreline decision is to the Washington State Shorelines Hearings Board; see 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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SVAR 13745
CONDITIONS OF APPROVAL
Prior to Beginning Construction the Applicant Shall:
To the satisfaction of the PCD Director, revise the site plans to indicate how the
existing manhole cover shall be modified and/or a barrier erected so that
pedestrians using the Trail will no longer be able to trip over it [see Conclusion
3]. Regardless of the means used to resolve the manhole cover safety issue, the
clear, unimpeded width of the Trail, at all locations through the right-of-way
including between and/or around equipment and vegetation, shall not be less
than four (4) feet.
2. Make application for a Right -of -Way Construction Permit pursuant to the City
of Bainbridge Island Design and Construction Standards, Section 1-07 B.2.
3. Provide a three-year maintenance assurance to PCD for the establishment and
health of the landscaping in accordance with BIMC 18.85.090.D.
4. Install a silt fence between the line of ordinary high water and the limits of
construction disturbance and provide other Best Management Practices
measures as necessary to minimize erosion.
5. Post the Waterfront Trail in the vicinity of the subject site and notify the
Planning Department and the Waterfront Trail Committee (c/o Charles Schmid,
10677 NE Manitou Park Blvd., Bainbridge Island, WA 98110) regarding the
closure of the Trail at this location a minimum of (10) days prior to the first day
of closure. The notices of closure shall remain posted throughout the closure
and, at a minimum, shall state 1) the purpose and 2) duration of the closure (i.e.,
the date of the first day of the closure and the date of the last day of the closure),
and 3) the name and phone number of the individual in the Public Works
Department to whom questions should be directed. The Department of Public
Works shall give 24 hours notice to the Planning Department prior to
commencing construction of the upgrades.
As a Part of Construction the Applicant Shall:
6. Prevent impact on the shoreline, by restricting construction and construction
staging to areas landward of the ordinary high water mark.
7. Ensure that all graded materials removed from the site are hauled to and
deposited at City approved locations following a route pre -approved by the
Department of Public Works in consultation with PCD. (Note: Local
regulations require that a grade/fill permit is obtained for any grading or filling
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exceeding 50 cubic yards of material and that a SEPA Threshold Determination
is obtained for any fill over 100 cubic yards).
8. Paint the new electrical panel the same color (forest green) as the generator and
existing panel currently serving the facility.
9. Ensure that work is stopped immediately and the Department of Planning and
Community Development and the Washington State Office of Archaeology and
Historic Preservation notified, if any historical or archaeological artifacts are
uncovered during excavation or construction.
10. Complete the modification/construction necessary to accomplish correction of
the access/safety problem of the existing manhole cover consistent with the plan
revisions required by Condition 1 for this purpose.
11. Consistent with the Landscape Plan (L-1, Sheet 1 of 1, Received by PCD April
18, 2006; Exhibit 24), replant all areas of the native vegetation zone that are
cleared or disturbed by construction to the satisfaction of the PCD Director (the
Director may allow reasonable modifications/alterations in the Landscape Plan
in order to accomplish Condition 10). The replanting of the native vegetation
zone shall be completed during the landscape growing season or immediately
following completing of construction, whichever comes first. (If construction
work is completed in the dry season, disturbed soils shall be covered with straw
or other suitable materials and other appropriate measures taken to prevent
erosion until planting can be completed and vegetation established.)
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