012407 Upper Blakely-Harbor Meadow HEX DecisionBEFORE THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of
UPPER BLAKELY/HARBOR MEADOW CUP /RUE13379
Application for Conditional Use Permit ORDER ON
and Reasonable Use Exception MOTION FOR
RECONSIDERATION
The Hearing Examiner's decision in this matter was issued on January 9, 2007. On
January 18, 2007, the applicants filed a Request for Reconsideration requesting
clarification and/or amendment of the decision. The applicants requested changes in:
Findings 7, 8 and 11; Conditions 3 and 51; and, Sections 1.5.1, 1.5.3, and 1.10 of the
Open Space Management Plan.
DISCUSSION
Finding 7 and Finding 8: The terms "family compound" and "family members"
are sourced in the description of the proposal provided by the applicants (see e.g., Exhibit
15, Item A11; Exhibit 16, page 1, Paragraph 2; Exhibit 21, page 10, Item 8; Testimony of
Shelton]. Similarly, the references to the anticipated rate of development came directly
from the applicants [see e.g., Exhibit 15, Item A6; Exhibit 16, page 1, Paragraph 4;
Exhibit 21, page 10, Item 8; Testimony of Shelton]. Unless the information provided by
the applicants is false, grossly inaccurate, or contradicted by more credible evidence in
the record, Finding 7 and Finding 8 are properly Findings of Fact for this decision. The
Findings do not, however, control the nature of future ownership or the rate of
development. Further, the zoning code, not Finding 8, controls development of
"accessory dwelling units ".
Condition 3: This condition requires a temporary erosion and sedimentation
control plan and restricts construction to between "May 1 and September 30, unless
specifically allowed by the City Engineer..." This language is identical to that used in
the Director's Recommended Condition #3. The City Engineer routinely applies
conditions of the type and disagreement and/or misapprehension about its application
should have been raised at hearing.
Condition 51: The language of this condition was intended to make clear that the
applicants' responsibility for improvement was limited to the applicants' side of the road.
This condition should be revised to make that clear. See below.
Open Space Management Plan (OSMP):
Section 1.5.1 does not (and should not) endeavor to provide a comprehensive list
of "permitted activities ". The phrase (emphasis added) "including, but not limited to..."
Order on Motion for Reconsideration
Page 2 of 2
regarding "installation and use of facilities commonly associated with recreation areas" in
1.5.1(ii) makes that clear; as does (emphasis added) "patios, decks, gazebos or similar
accessory structures" in 1.5.1(iv).
Section 1.5.3 regarding permitted activities in "[e]xpansion of the designated
Meadow" or in other meadows created within Open Space Area 2, refers to Section 1.5.1
for "permitted activities ". That is, the activities permitted by 1.5.1 in the proposed
meadow, would be permitted in an expanded or new meadow (i.e., it is the same "list" of
activities).
The provision in Section 1.5.3 that require "the majority of the Owners" in order
to enlarge the designated Meadow and/or create other meadows, comes directly from a
draft OSMP prepared by the applicant. In Exhibit 73, Section 1.3 provides (for the entire
OSMP) that: "Changes and amendments can only be made by a majority vote of the
landowners." The provision of Section 1.5.3 requiring majority approval for changes in
meadow designation is considered appropriate and necessary.
Section 1.10.3 needs to be revised to provide for the tree retention intended. The
"30 %" retention provision for individually owned building sites should refer to "existing
significant trees ", not the "tree canopy ". This provision is similar to, but not as restrictive
as the retention proposed in applicants' draft plan (see e.g., Exhibit 72, Section 1.6.3;
Exhibit 73, Section 1.7.3). See revised Section 1.10.3 below.
ORDER
The decision in this matter is hereby ORDERED REVISED as follows:
Condition 51 is revised to read:
51. Prior to issuance of the first building permit, the applicants shall, to the
satisfaction of the City Engineer, improve the subject property's Toe Jam
Hill Road frontage to City standards.
The Open Space Management Plan (in Appendix A) is revised to read:
1.10.3 Vegetation Retention. A minimum of 30% of the existing significant
trees (as defined by BIMC 18.06.089) shall be retained on each
individually -owned building site. Hazard trees, noxious weeds, invasive,
non - native plants may be removed. To promote slope stability, significant
trees and native vegetation should be retained on slopes exceeding 15 %.
Entered this 24th day of January 2007.
signed in original
Meredith A. Getches
Hearing Examiner