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040607bristleridgehexdecisionDECISION OF THE HEARING EXAMINER CITY OF BAINBRIDGE ISLAND In the Appeal of Director's Approval of BRISTLE RIDGE SHORT PLAT by the "Bainbridge Island Keepers" and Stephanie Ross CITY OF BAINBRIDGE ISLAND APR 0 6 2007 SPT13737 DEPT OF PLANNING & COMMUNITY DEVELOPMENT BACKGROUND The Director approved an application for a preliminary short subdivision (two parcels into nine lots) and that decision was appealed. The Hearing Examiner conducted an open record appeal hearing beginning on January 18, 2007, continuing on January 19, 2007, February 1, 2007, February 8, 2007, and concluding on February 13, 2007. Parties were represented at the hearing as follows: the Director, Planning and Community Development Department (PCD or Department), by Rod Kaseguma, attorney for the City of Bainbridge Island; the Applicant, Kelly Samson, by Ryan Vancil, attorney at law; and, the Appellants, "Bainbridge Island Keepers" and Stephanie Ross, by Stephanie Ross and Sally Adams, pro se. The record was closed on March 9, 2007, after receipt of written closing statements. 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. All evidence admitted in to the record was considered in making this decision. References to exhibits and testimony that are shown in brackets denote some of the evidence relied upon; these references are not intended as exclusive or exhaustive. FINDINGS DESCRIPTION Site 1. The 16.57 -acre site, north of Blakely Harbor in the Port Blakely neighborhood, consists of two adjacent parcels created through a 1999 Large Lot Subdivision [see Exhibit 51] and subsequent Lot Boundary Adjustment. The Samson Family Land Company owns one parcel containing 14.28 acres (Assessor's account number 022402 -4- 071- 2000); Richard and Carolyn Swanson and Zwicker Construction own the other, a 2.29 -acre parcel (Assessor's account number 022402 -4- 070 - 2001). Located northeast of the intersection of Blakely Hill Road NE and NE Halls Hill Road, the site is bounded on the west by Blakely Hill Road and on the south by Halls Hill Road. [Exhibit 1, pages 1, 6 and Attachment A; Exhibit 18, Sheet 1/7; Exhibit 51; Testimony ofMachen] SPT13737 Page 1 of 22 APR G pm12 26 2. The preliminary short plat map [Exhibit 18, Sheet 2/7] gives the legal description as: "Resultant Parcels C and D of the Halls Hill III Boundary Line Adjustment recorded under Kitsap County Auditor's File No. 20040060287" and notes that it is: SE %4, NW 1/4, SW 1/4., NE %4 Government Lot 2, and Government Lot 3 SE.2, - 124N., R.2E., W.M. City of Bainbridge Island, Kitsap County, Washington `;i 3. The site has residential zoning (R -0.4). The R -0.4 zone has the City's largest minimum lot size: 2.5 acres (100,00.0 sq. ft.). The Comprehensive Plan designation is OSR -0.4 (Open Space Residential). [Staff Report, Exhibit 1, pages 6 -8; Exhibit 18, Sheet 2/7; Testimony ofMachen] -The, purpose of this zone [see BIMC 18.36.010 ] is: ... to provide low densily housing in a rural environment consistent with other land uses, such as agriculture and forestry, and the preservation ofnatural systems and open space. The low density ofhousing does not require the full range of urban services and facilities. 4. Site slopes are gentle to moderate in the northern and central portions, but are steep in the southern and western portions; steepening significantly along the cut slopes of Blakely Hill Road and Halls Hill Road [see Exhibit 18, Sheet 3]. There are two former logging roads: one runs east /west across the center of the site, is in the approximate location of the proposed new road [see Finding 121, and the other splits off from the east /west road between Wetland 9 and Wetland 10, and extends into properties to the north [see Exhibit 18, Sheet 3/7]. [Exhibit 1, page I and Attachment O; Exhibit 2, Attachment D; Exhibit 18, Exhibit 35; Sheet 3/7; Exhibits Testimony ofMachen] 5. Three Category III wetlands are located in the northern half of site [see Finding 29]. There are two south - flowing stream systems in the vicinity that drain to the north shore of Blakely Harbor (one is west /southwest of the subject site and the other is east /southeast of the subject site [see illustrated in Exhibit 60]. 6 _ The subject site,_ once part_ of the extensive _ holdings of the Port Blakely _Mill Company, was logged many years ago and more recently in the 1980's. As with other areas on the Island, after having been logged, the site was subsequently covered by second - growth forest. This extensive and dense forest cover has been drastically reduced in recent years. The north - central part of the site has been subject to tree thinning and removal (under a Forest Practices Application permit) and to extensive clearing of primarily invasive non - native plants (under a Vegetation Management permit) [Testimony Samson]. Even allowing for seasonal differences (i.e., loss of leaves from deciduous trees in winter), it is evident from aerial photographs and witness testimony that at least until 1992, the area was fully forested [see 1992 aerial, Exhibit 43]. Aerial photographs taken between 2001 and 2006 show the tree "canopy" increasingly and noticeably reduced in areal extent and tree density. By 2006, most of central part of the site (including between Wetland 9 and Wetland 10) and a large area north of the site, had been totally cleared of vegetation to Halls Hill Road (see also Finding 50). [Exhibit 1, Attachment Q -14, and Document F, Soames letter; Exhibit 2, Document A; Exhibit 18, Sheet 7/7; Exhibits 35 and 431 SPT13737 Page 2 of 22 7. The area around the subject site is comprised of undeveloped and developed residential property; there are single - family residences on properties adjacent to the north and east. Zoning designations are R -0.4 on the north, east, and west, and R -2 on the south. The Comprehensive Plan designations (Open Space Residential: OSR -0.4 and OSR -2) correspond to the zoning designations. [Exhibit 2, Staff Report, , page 7] 8. Across Halls Hill Roads (downslope) to the south, aligned generally parallel to Halls Hill Road, is Seaborn Road. The area between Halls Hill Road (on the north) and Seaborn Road (on the south) has very steep slopes [see e.g., topography shown in Exhibit 61 and Attachment D, Exhibit 1]. Along the south side of Seaborn Road, a dozen residences line the shore of Blakely Harbor. Some of the residents of this Seaborn Road neighborhood are appellants here. [Exhibit 2, Staff Report, page 7; Exhibit 18, Sheet 1/7; Testimony of Machen] PROPOSAL Lots 9. With a 'gross land area of 721,707 sq. ft., this R -0.4 zoned site would accommodate seven 100,000 sq. ft. lots. The Applicant proposes to include two "affordable" lots to take advantage of the "density bonus" provisions of BIMC 18.90.030C. If a subdivision includes "affordable housing" opportunities, these provisions allow for additional lots over the base density of the zone. The reservation of lots `for purchase" by households whose incomes are "at or below moderate - income" allows for an increase of up to 40% more than the base density. Here the "bonus density" allows two additional lots over the base, for a total of nine lots. [Testimony of Machen; Samson] 10. The `Bristle Ridge" subdivision application proposes nine lots (Lots R through Z) and two open space tracts. The lots would be sold for subsequent residential development by the individual lot owners. [Exhibit 18, Sheet 4/7; Exhibit 1, Attachments A; Exhibit Testimony of Machen; Testimony of Samson] The proposed lots range in size from 38,297 sq. ft. to 48,817 sq. ft. (see below). The proposed lots are allowed at sizes less than the 1000,000 -sq. ft. minimum because the flexible lot standards of BIMC 17.12.090 apply (including minimum lot size), rather than the R -0.4 zone standards. The lots, flanking a slightly curving access road, would have somewhat irregular shapes (rather than laid out in a rectangular, grid -like pattern). [Exhibit 18, Sheet 41 SPT13737 Page 3 of 22 Size Lot R 44,065 Lot S 48,817 Lot T 39,163 Lot U 465161 Lot V 41,847 Lot W 40,685 Lot X 38,297 Lot Y 48,334 Lot Z 46,531 Total 393,900 sq. ft. SPT13737 Page 3 of 22 11. The application [Exhibit 1, Attachment A] shows setbacks and lot dimensions as follows: Building to building separation Building to subdivision boundary Building to right -of -way: Halls Hill Building to right -of -way: Blakely Hill Building to trail, open space Lot size (with on -site septic) Lot coverage Infrastructure/Utilities Proposed Required 10 ft. Minimum 10 ft. 25 ft. Minimum 15 ft. 50 ft. Minimum 50 ft. 50 ft. Minimum 50 ft. 10 ft. Minimum 10 ft. 32,200 sq. ft. Minimum 12,500 sq. ft. 85020 sq. ft. Maximum 10% 12. One new street is proposed. (Halls Hill Road and Blakely Hill Road are existing public streets, not part of this proposal.) The proposed new internal street, "Bristle Ridge Road ", would be developed to the City's "suburban residential" standards (12 -ft. wide asphalt roadway, 3 -ft. wide shoulders, turn -outs every 300 ft., and a cul -de -sac). Approximately 850 -ft. long, the road would be in a dedicated right -of -way providing access to Halls Hill Road through property adjacent to the east. [Exhibit 18, Sheets 3/7, 4/7 and 6/7; Exhibit 1, Attachments A, D, L; Testimony of Browne] 13. In addition to the Bristle Ridge Road right -of -way dedication within the short plat, the Applicant would provide right -of -way dedication along Blakely Hill Road and plans indicate "proposed right -of -way dedication" for the access easement through the adjacent property [Exhibit 18, Sheet 6/7]. The Applicant gave permission for the Halls Hill Road cut slope repairs [see Finding 50] and has indicated [Exhibit 1, Attachment L; Testimony of Samson] that he will dedicate right -of -way larger than what is standard. Director's Condition 29 would require 30 ft. wide easements along the Hall Hill Road and Blakely Hill Road frontages for the City to address road cut slope issues (see also the Public Works Department comment, Exhibit 1, Attachment R]). 14. The Island Utility has committed to serve water the proposed lots. An 8 -inch water main is proposed along the new roadway from existing Island Utility main nearby. New fire hydrants, spaced 600 ft. apart, would be installed consistent with City requirements. [Exhibit 18; Exhibit 1, Attachments A, D, J, O, P; Testimony ofMachen] 15. On -site septic systems are proposed for six of the lots. Due to the presence of shallow groundwater, drainfields for Lots W, X, and Y are proposed to be located in Open Space Tract 2, north of the internal access road. The Kitsap Health District has given preliminary approval, but separate Building Site Application review and approval would be required prior to issuance of individual building permits. [Exhibit 18; Exhibit 1, Attachments A. D, M O; Testimony of Myers, Machen] 16. The preliminary utility plan indicates that stormwater runoff would be collected from new impervious surfaces (road and future residential development), collected and conveyed by swales, drainage ditches and pipes, and ultimately discharged to Blakely Harbor. [Exhibit 1, Attachments D, E; Exhibit 18; Exhibit 29 or 61; Testimony of Browne] See also Findings 58 -61. SPT13737 Page 4 of 22 DIRECTOR'S REVIEW AND DECISION 17. The original application was submitted in 2005, with a revision having been submitted on November 23, 2005. That revised application was deemed "complete" on November 29, 2005 [Exhibit 19]. In January 2006, PCD required the Applicant to provide additional information on a number of issues [Exhibit 1, page 7]. The Applicant submitted a revised application [Exhibit 1, Attachment A] and completed environmental checklist [Exhibit 1, Attachment C] on June 12, 2006. On June 13, 2006, PCD indicated this application to be "technically complete" [Attachment H. Exhibit 1]. Notice of the submittal of the revised application and SEPA comment period was reissued on June 24, 2006. This record does not include the original or revised applications submitted in 2005, nor does it inform as to how those submittals differed from the 2006 version. 18. Public comments were received during the Director's review [Ross, Exhibit 1, Attachment Q; Penn, Brackett, Exhibit 2]. The PCD Staff Report summarizes and responds to the concerns expressed in those comments [Exhibit 1, pages 8 -9]. As noted in the Staff Report, major concerns were: clearing, drainage /erosion, traffic, and critical areas. Director's Conditions of Approval 19. BIMC 17.12.106 provides (emphasis added) that the Director "may approve, approve with modification or disapprove an application for preliminary short subdivision based on the criteria in BIMC 17.12.107. " On October 24, 2006 the Director gave notice of administrative decision for conditional approval of the short plat and a SEPA Mitigated Determination of Nonsignificance (MDNS) [Exhibit 24]. That Notice includes the Director's conditions of approval [pages 2 -61 and references the Staff Report [Exhibit 1] as the basis for the Director's decision. 20. The Director approval is conditioned upon meeting numerous conditions [see Conditions 1 -33, Exhibit 24, pages 2 -61. These conditions would effectively modify the proposal by requiring additional actions, submittals, and mitigating measures. Conditions of the preliminary short plat approval must be met in order for the application for a final plat to be approved. 21. Conditions 1 through 10 [see Exhibit 24] are "SEPA Conditions ", imposed by the Director to mitigate potential environmental impacts so as to allow for the issuance of the MDNS [see Findings 19 and 22]. The MDNS states the Director had determined that the proposal would "not have a probable significant impact on the environment" and consequently, an Environmental Impact Statement (EIS) is not required. 22. The Director's SEPA conditions to mitigate potential adverse environmental impacts would require that: • To prevent and/or minimize erosion and sedimentation during construction, a Temporary Erosion and Sedimentation Control Plan (TESCP), approved by the City as meeting applicable standards, must be adhered to during any construction. [Condition 2] • To increase slope stability and provide protective buffer, the recommendations of the geotechnical engineer shall be implemented: residences shall not be permitted SPT13737 Page 5 of 22 closer than 60 feet from the top of the existing cut slope adjacent to Halls Hill Road; a curtain drain shall be installed no closer than 50 feet from the existing cut slope; and, the existing vegetation shall be maintained and augmented with an approved replanting plan. [Condition 3] • To mitigate for potential adverse impacts from geologic hazards, a geotechnical report addressing individual residence construction on lots adjacent to the Halls Hill Road cut must be submitted prior to building permit issuance. [Condition 4] • All geologically hazardous areas and their 50 foot buffers shall be designated as open space and maintained as no cut/no build areas to mitigate potential geologically hazards. [Condition 5] • Temporary construction fencing shall be placed between the lots and designated open space areas prior to any clearing or grading to mitigate potential adverse impacts to critical areas. [Condition 6] • School impact fees shall be paid. [Condition 7] • To mitigate potential traffic safety issues associated with children waiting for the school bus and for those using public transit, a bus shelter shall be constructed in a safe location. [Condition 81 • To ensure adherence with applicable protective regulations, non - exempt tree harvesting must have the appropriate Forest Practices Permit from the Department of Natural Resources. [Condition 9] • To mitigate potential adverse impacts to historical or archaeological resources, construction activities will stop immediately and appropriate agencies notified if any historical or archaeological artifacts are uncovered during excavation or construction. [Condition 10] 23. "Non -SEPA Conditions" [Conditions 11 -33; see Exhibit 24] include requirements based on other -than SEPA substantial authority, but many of them could provide mitigation of potential environmental impacts. These conditions include: • The final plat maps shall show the increased buffer on the east wetland in Open Space Tract 1, in accordance with the wetland mitigation/restoration plan. [Condition 11] • The final plat shall be submitted in substantial compliance with preliminary plat drawings date stamped as received June 12, 2006, except as modified by conditions of approval. [Condition 121 • Required public and private improvements, facilities, and infrastructure shall be completed, have final inspection and approval prior to final plat approval. [Condition 13] • The building setbacks and lot coverage requirements shall be shown on the final plat maps. [Condition 161 • Plans submitted with the final plat application shall show a 15 foot setback from the wetland buffer on lots R and S. [Condition 17] • A final Open Space Management Plan shall be submitted with the final plat application and then recorded with the final plat. The final plan shall include: identification of allowed uses, designation of a management entity, frequency SPT13737 Page 6 of 22 and scope of maintenance activities, a plan for protecting the open space during and after construction, and provisions for the removal of invasive species and for the general enhancement of wildlife habitat. [Condition 18] The open space shall be placed in an easement or shall be protected through restrictive covenants or similar legal means. [Condition 19] • Appropriate pedestrian trails shall be provided within the plat and connecting to adjacent neighborhoods. The plat utilities permit application shall include civil drawings show trail locations (alongside Bristle Ridge Road, connecting with Halls Hill Road between lots U and V, and connecting with Blakely Hill Road at the northeast comer of the subdivision). [Conditions 20 and 21] • The applicant shall designate the "affordable housing" lots in the final plat and those lots shall be provided for purchase by qualified "moderate" income households in accordance with the affordable housing requirements of BIMC Chapter 18.90. [Condition 22] • Civil engineering plans shall be provided prior to final short plat approval. [Condition 26] • The City's standard geotechnical submittal forms must be completed and approved before final inspection of any construction. [Condition 271 • Prior to the issuance of any construction permits, an indemnification agreement consistent with BIMC 16.20 shall be provided to the City. [Condition 281 • A 30 foot slope easement along Halls Hill Road and Blakely all Road shall be dedicated for the City to address the slope stability problems. [Condition 291 • The new access road within the subdivision shall be constructed to the City's "suburban residential" standards. [Condition 30] • An individual Building Site Application must be approved by the Kitsap Health District for each drainfield and a certified installer is required for any clearing of the drainfield areas. [Conditions 31 and 32] APPEAL OF THE DIRECTOR'S DECISION 24. BIMC 2.16.130F: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 2.16.13 OF. I prescribes that the Hearing Examiner render decision on the appeal "giving substantial weight to the decision of the department director." To overcome the substantial weight accorded the Director, it must be shown that the Director's decision was clearly erroneous. 25. On November 6, 2006, the appeal of the Director's decision was timely filed [Exhibit 2]. As "grounds" for appeal it is asserted in the appeal statement [page 3], that the Director's decision is in violation of a lengthy list of sections of the Bainbridge Island Municipal Code (BIMC), many Comprehensive Plan goals, the Federal Clean Water Act, the Washington State Growth Management Act, and both the State and Federal Constitutions. As clarified in preheating submittals, at hearing, and in the Appellants' closing statement, the appeal challenges the Director's approval of the short plat as erroneous because certain materials and documentation were not submitted with the SPT13737 Page 7 of 22 application. Further, Appellants assert that plat approval would not be in the public interest due to what they see as the increased risks of harm to the downslope Seaborn Road neighbors from more stormwater runoff, slope failure, and traffic associated with development of the subject site. Neither the adequacy of the SEPA threshold determination (MDNS) nor individual SEPA conditions were expressly challenged. 26. Notice of the appeal hearing was properly made with posting, mailing, and publication completed by January 3, 2007 [Exhibit 3]. The hearing began on January 18, 2007, continued on January 19, February 1, February 8, and concluded on February 13, 2007. ISSUES ON APPEAL 27. This appeal is part of the City's administrative process. The Hearing Examiner reviews the Director's decision in light of the City's criteria for approval. A number of the "issues" raised by the Appellants, including constitutional claims (e.g., deprivation of the right "to life and freedom from injury ", violation of the "common good ", etc.), are not within the Hearing Examiner's purview. The direct application of State and Federal permit requirements is also outside the City Hearing Examiner's authority. 28. A primary assertion by the Appellants is that the Director erred in making this decision because the application does not include (or did not include at time of its submittal) all items noted as "required" in an application for a short subdivision. BIMC 17.12.102B (emphasis added) provides that for a preliminary short plat application: Appendix B(2) of this title establishes and lists the various submittal requirements... The director may specify type, detail, and number of copies of submittal requirements listed in Appendix B(2) for an application to be complete. The director may waive specific submittal requirements determined to be unnecessary for review of an application. The Director has, in effect, exercised this authority; it is not error to do what the Code expressly anticipates and authorizes. Appellants arguments founded on this "issue" should be; and are, rejected. Wetlands 29. Three wetlands on the subject site (Wetland 9, Wetland 10, and Wetland 11) were among the 46 wetlands identified in a 1990 evaluation of the 1200 -acre Port Blakely Mill Company property conducted by Jones & Stokes [Exhibit 32]. The 46 wetlands, covering a combined total of 69.9 acres, varied from small, isolated pockets, to areas larger than 8 acres. Five wetlands were found to be "Category I ", the highest rating in rating system. The three wetlands within the subject site were given the Category III rating: Wetland Size Rating Wetland Type Required Buffer 9 0.25 III Palustrine scrub -shrub 50 ft. wide 10 0.67 III Palustrine scrub- shrub/Palustrine emergent marsh 50 ft. wide 11 0.45 III Palustrine emergent marsh/Palustrine scrub -shrub 50 ft. wide SPT13737 Page 8 of 22 30. A review of the Jones & Stokes report conducted in 1997 by a consulting biologist [Exhibit 33], affirmed the descriptions, sizes, and ratings for Wetlands 9, 10 and 11. 31. In December 2005, some of the 25,000 cubic yards of imported fill that the Applicant had placed on his adjacent property to the north (to create some sort of recreational area or "ball field "), slumped onto the subject site. This slide event resulted in fill coming into the buffer wetland to the edge of Wetland 10, in violation of the City's wetland protection ordinance. [Exhibit 36; Testimony of Carr] 32. Measures were taken to stabilize the slumping fill to keep it from intruding further into the buffer and /or the wetland (see e.g., straw bales, plastic sheeting, hydroseeding in Exhibit 35]. The City's Code enforcement action required that the Applicant prepare and implement a plan to mitigate for the effects of the fill. This "Wetland Buffer Mitigation Plan" [Exhibit 36], prepared by Applicant's wetland consultants, called for several mitigating measures, including: • Overall expansion of Wetland 10 • Relocation of the buffer relative to expansion of Wetland 10 • Planting native plants on the southeastern edge of the wetland 33. In October 2006, City staff did an inspection and found that planting had been done "in accordance with the mitigation plan" [Exhibit.2, Comment 21. This compliance review apparently evaluated only implementation the Planting Plan [i.e., plantings shown in Figure 2 and Table 1 in Exhibit 36]. Other mitigation measures (e.g., stormwater conveyance and "turf maintenance" on Samson's adjacent property and other "long -term monitoring and maintenance "), will presumably be evaluated in the City's review of required "yearly" monitoring reports [see page 7, Exhibit 36]. 34. The preliminary plat maps [Sheets 1 -7, Exhibit 18] do not show the expansion of Wetland 10 and relocation of the wetland buffer required by the Mitigation Plan [see Figure 2, Exhibit 36 and Exhibit 34]. During the hearing (January 2007), the boundaries of Wetland 10 (with the expansion required by the Mitigation Plan), were "flagged" by Applicant's wetland consultant. (This work was apparently in conjunction with a new delineation of the wetlands done in December 2006.) The flags were surveyed and wetland boundaries and buffers redrawn; Exhibit 52 is the result. [Testimony of Carr]. No written report regarding the new delineation was submitted into this record. 35. The revised mapping [Exhibit 521 shows "original" and revised boundaries for all three wetlands. The areas of Wetland 9 and Wetland 11 are similar to "original ", but the shapes are somewhat different. Wetland 11 is larger and its buffer relocated to comply with the Mitigation Plan. The southern boundaries of the buffer for Wetland 10 and Wetland 11 now are shown encroaching into proposed lots R and S. [Testimony Carr] 36. Plat maps submitted with the final plat application would have to show the redrawn boundaries of the wetlands and the wetland buffers. The boundaries of proposed Lots R and S and proposed Open Space Tract 2 would need to be revised to comport to the enlarged /changed wetland and buffer areas. SPT13737 Page 9 of 22 37. BIMC 16.20.090H requires 50 -ft. wide buffers for Category III wetlands. The three Category III wetlands on the subject site are required to have 50 -ft. wide buffers. Appellants disagree with the Category III rating for Wetlands 10 and 11 and contend that the proper rating is Category II, which would require a 100 -ft. wide buffer. Appropriate "Wetland Rating Forms" for Wetland 10 and Wetland 11 were completed by the Appellants' expert [Brewster, Exhibit 381 and by the Applicant's expert [Carr, Exhibit 541. The Category III classification requires a rating score in the range of 30 -50 points; Category II requires a score in the range of 51 -69 points. The ratings' scores were as follow: Applicant Appellant Wetland 10: 37 points = Category III 56 points = Category II Wetland 11: 38 points = Category III 52 points = Category II 38. The experts who completed and reviewed the ratings [Brewster, Carr, and Christensen] gave credible testimony and have the education, experience and training qualifying them to perform wetland ratings. The decisive factor that gave rise to the different category scores was the experts' judgments with regard to use of a "multiplier" for water quality and /or hydrologic functions. That is, where the Appellants' expert [Brewster] found use of (a doubling) multiplier to be justified; the Applicant's expert [Carr] did not. This is, as revealed by the considerable testimony and cross examination of the experts, a matter professional judgment, not mistake. The explanations given by the Applicant's expert as to why the D.2 and DA multipliers are appropriately "1" rather than "2 ", well- reasoned and based on sound observations of conditions both on and off site, were more persuasive. The Category III rating for the subject wetlands was not shown to be incorrect. Open Space Management Plan (OSMP) 39. Open space tracts, wetlands and wetland buffers must "be clearly marked as an easement on the plat' and the restrictions on the use of open space tracts, wetlands and wetland buffers must be "...included in the open space management plan... " [BIMC 16.20.090D]. 40. The BIMC 17.12.092H standards for the contents of an OSMP for short subdivisions include: a list of approved uses and a plan for maintenance indicating the frequency and scope of maintenance activities (with provisions for: replacement of significant trees, identification of who is responsible for maintenance, protection during construction, and removal of invasive species). 41. Appellants criticize the draft Open Space Management Plan (OSMP) [Exhibit 1, Attachment F] as failing to satisfy the basic standards for such a plan. The draft plan is incomplete as it does not clearly or adequately address the elements required to be included in the OSMP. Director's Condition 18 requires that a final OSMP be included in the final plat application. The Director's decision was not in error in this regard as BIMC 17.12.082H (emphasis added) specifically provides for a "draft' to be submitted for review in the preliminary plat application and that "...approval of the OSMP occur at the time o1 final plat approval. " SPT13737 Page 10 of 22 42. The draft OSMP would allow "formal... recreation ", "pasture and related agricultural buildings ", and "wildlife viewing stands" [Exhibit 1, Attachment F]. As revealed by evidence in this record, open space within the subject site is comprised nearly entirely of wetlands, wetland buffers, building setbacks, retained tree canopy, and steep slopes. Given that, it would be inconsistent with preservation of valued open space features and protection of critical areas [see BIMC 17.12.092] to allow those uses. 43. Open space areas are to be "permanently maintained" [BIMC 17.12.082H]. The draft OSMP (emphasis added) indicates only that: "Open spaces areas shall be maintained by the Open Space Owner." This is unacceptably vague. The final plat application must address and resolve questions of owner and responsibility for long -term maintenance. If open space is to be owned communally, appropriate legal provisions must be made in the final plat to establish a homeowners association or other mechanism that facilitates implementation of the OSMP and puts subsequent purchasers on notice as to their responsibilities and limitations. Geologically Hazardous Areas 44. "Geologically hazardous areas" are defined in BIMC 16.20.020 (17) as areas: ...susceptible to erosion, sliding or other geological events. They pose a threat to the health and safety of citizens when used as sites for incompatible commercial, residential or industrial development. Geologically hazardous areas include erosion hazard areas, landslide hazard areas, and seismic hazard areas. 45. Due to their potential for landslide [see "Landslide hazard areas" defined at BIMC 16.20.020(24)(d)], the slopes along Halls Hill Road and along Blakely Hill Road that are in excess of 40 %, have been correctly identified by the Director as "geologically hazardous areas ". [Staff Report, Exhibit 1, page 11; Testimony ofMachen] 46. Slopes of 15 -40% can also be considered landslide hazard areas when springs or groundwater are present and clay -type soils are overlain with sandy soils. Much of the southern half of the site has slopes of 15% or greater, but the other landslide hazard indicators [see BIMC 16.20.020(24)(b) -(f)] are not present. [Exhibit 1, Attachment O; Exhibit 2D; Exhibit 85; Testimony of Myers] 47. The subject site does not contain areas properly considered "high erosion hazard areas" [see BIMC 16.20.020(24); Testimony of Myers]. Similarly, although there are two strands of the Seattle Fault Zone nearby (Macs Pond Fault to the north and Toe Jam Hill Fault to the south) and the site is subject to "seismic induced ground shaking" (as is the rest of the region), the soil conditions noted in BIMC 16.20.020(34) as indicative of likely "severe risk of damage" (emphasis added), are not. [Exhibit 1, Attachment O; Exhibits 26 -27; Testimony of Myers, Pride] 48. A highly qualified geotechnical engineer /engineering geologist with extensive experience, including evaluations and projects on Bainbridge Island, prepared a slope evaluation for the proposed short plat [Exhibit 1, Attachment O]. This report notes that the northern part of the site is capped by glacial till with Blakely Formation bedrock comprising the majority of the site and extending under the glacial till. The Blakely SPT13737 Page 11 of 22 Formation is underlain with marine sandstone, mudstone, and conglomerate bedrock. [Exhibit 1, Attachment O; Exhibit 26; Exhibit 30; Testimony Myers, Perrone] 49. The geotechnical evaluation [Exhibit 1, Attachment O] and testimony of the engineer at hearing [Exhibits 75 and 76; Testimony of Myers] credibly established that the rock layers ( "beds ") angle away from (are opposite to) the angle of the cut slope; the layers of harder rock are angled so as to impede, not increase landslides. This subsurface configuration indicates that run -out from deep ( "block ") failure extending down to Seaborn Road would be unlikely (not a "high risk" as maintained by Appellants). The geotechnical reports prepared for the City regarding Halls Hill Road [Exhibit 23: Report 1, Figure 3; Report 2, pages 1 and 3; Report 3, pages 3 -51 contain similar evaluation and conclusions regarding subsurface configuration and potential for bedrock slope failure. 50. In the past, the Halls Hill Road cut slopes bordering the south side of the subject site were much steeper. A geotechnical assessment conducted in 2001 [Exhibit 23, Report 1, page 2 -3 and see Figure 31 estimated that the road cut slopes at that time "varied from about 75 degrees from horizontal on the west, to 35 -50 degrees on the east ". In 2001, the City expanded the road cut, moving the top of the road cut slope north into the subject site, removing the very steep grades and overhanging vegetation. The resultant slopes [see in Exhibit 21 and photos: Exhibits 10, 11, 24 -281 are "steep" (30 -35 degrees; 58 -70 %), but are noticeably less steep than the former road cut slopes. [Exhibit 1, Attachment O] 51. Water (runoff and groundwater) and steepness of slope are two major factors contributing to slope failure; slides are less likely on drier and "flatter" slopes. While the steepness of the Halls Hill Road cut slopes were reduced considerably in 2001, groundwater seepage is problematic and localized slumps have continued to occur and have required corrective measures [see e.g., Exhibits 28C and D, 73, and 74]. 52. The Applicant's geotechnical engineer recommends installation of a "curtain drain cast /west across the subject site. This subsurface drain, with an upslope swale (see cross sections, Exhibit 63], would be installed 50 feet north of the crest of the slope to intercept groundwater and runoff. While the curtain drain would not keep the road cut slope "dry ", it would intercept runoff and near surface groundwater, thus reducing the amount of water in and on the cut slope to create greater resistance to sliding. The geotechnical engineer also recommends that future residences on lots adjacent to the road cut slopes be setback a minimum of 60 ft. [Exhibit 1, Attachment O; Exhibit 23, Report 3; Testimony of Myers 53. There have been slope failures in the past on the steep slope between Halls Hill Road and Seaborn Road [see Exhibit 61 and Finding 81. Soil creep and slumping continues to occur. Run off crossing Halls Hill Road from upslope is a contributing factor (e.g., in 2006 the southern edge of Halls Hill Road was sandbagged in an attempt to keep runoff from reaching this slope). To the extent that drainage improvements on the subject site would reduce the amount of runoff reaching this slope, risk of slides would be decreased. [Exhibit 2, Comment 2, Appendix 6; Exhibit 23, Report 1; Exhibit 28C & D] SPT13737 Page 12 of 22 54. Appellants' geotechnical engineer testified and reported that, in his opinion [Exhibit 2, Comment 2, Appendix 6; Testimony of Perrone], the factors contributing to the road cut slope failures had not been sufficiently investigated and that "large block failures" are a risk for the Seaborn Road residents. The Applicant's geotechnical engineer rebutted these criticisms by reporting that soil borings and soil lab test results have been considered and explaining subsurface conditions. [Exhibits 75, 76 and 78; Testimony of Myers]. 55. Appellants assert that geologically hazardous conditions affecting the subject site, and affected by it, present unavoidable and unacceptable risks that would be aggravated by the proposed short plat. This claim has not been sustained. Credible evidence indicates that risk of slope failure would be decreased, not unavoidably increased. [Testimony of Myers, Browne] Stormwater Drainage 56. As in many parts of the Island, storm water runoff in this area has been problematic [see e.g., Exhibits 42, 44 -48, and 50] and existing drainage facilities have overflowed onto public roadways. In recent years, there have been increased amounts of runoff and more sedimentation where stream discharges enter Blakely Harbor. Neighbors credibly testified that these increases are likely linked to removal of forest cover upstream. [Testimony of Winston, Brennan; Penn]. 57. As described in the preliminary utility plan [Exhibit 1; Attachment D], the subject site has three drainage basins: Basin A, that drains the northwest part of the site, including Wetland 10 and Wetland 11; Basin B, that drains most of the site where the new road and future residences would be located; and, in the easternmost part of the site, Basin C that drains southeast off the site, to a small stream and into Blakely Harbor. 58. Development of the subject site would add impervious surfaces (new roadway, residences, etc.). Precipitation falling on these impervious surfaces, rather than running off or sinking into site soils, would be collected and conveyed offsite by subsurface drains, biofiltration swales, catchbasins, and pipes. These drainage facilities would be connected by tightline to the existing drainage collection system downstream at 3T Road, with discharge to Blakely Harbor through an existing culvert and outfall. [Exhibit 1, Attachment D; Exhibits 61, 62 and 63; Testimony of Browne] 59. The engineer's analyses for the proposed drainage improvements included flow calculations both for `before' and `after' development. The engineer concluded that that the downstream drainage system has sufficient calculated capacity to convey the peak flow from the fully developed subdivision. In conducting this analysis, the engineer also found that the existing T -3 Road culvert was in poor condition and should be replaced. (This culvert had been replaced by the time of the appeal hearing.) [Exhibit 1, Attachment D; Exhibits 61, 62 and 63; Testimony of Browne] 60. The preliminary drainage plan is not a design for construction of improvements. BIMC Chapter 15.20 provides that Director of the Public Works Department administer the City's Surface and Storm Water Management Ordinance. Public Works Department recommended approval of the preliminary plat application subject to conditions. Those SPT13737 Page 13 of 22 conditions include that the final plat and construction permit phases include engineer - prepared plans for storm water facilities that demonstrate compliance with the City's stormwater and erosion control ordinance [see BIMC 15.20.060] to the satisfaction of the City Engineer. 61. Drainage improvements within Basin B would include a "curtain drain" behind the existing top of slope along the Halls Hill Road cut as recommended by the geotechnical engineer [see Finding 52]. [Exhibit 1, Attachment D; Exhibits 61, 62 and 63; Testimony of Browne] 62. There is an existing stormwater detention pond located downslope on adjacent property to the east that collects runoff from within Basin C [see map, Exhibit 1, Attachment D]. Because he did not expect any impervious surfaces to discharge into the Basin C drainage, the civil engineer did not include in the preliminary utilities plan analyses of the capacity of the pond or receiving stream to the southeast. As a section of the new road may drain to the southeast, appropriate downstream capacity assessment(s) and particulars for stormwater facilities should be included in plans for site improvements to the satisfaction of the Public Works Department. [Exhibit 1, Attachments D; Exhibit 63, Sheet 2 of 3; Testimony of Browne,,Machen] 63. Appellants claim that the Director has erred in not requiring additional and more detailed analyses in the preliminary drainage plan and in not requiring compliance with Best Management Practices (BMPs) regulations. BIMC Title 17, Appendix B(2), states (at B.5, emphasis added): "A conceptual storm water plan illustrating the proposed means of storm water runoff disposal' is to be submitted for the City's review of a preliminary short subdivision application. The analysis and information provided in this application regarding the proposed drainage improvements were prepared by a qualified civil engineer and have flow capacity calculations and analyses, maps, and cross - section drawings of proposed facilities. This level of detail is sufficient for the City's review as a "conceptual' storm water plan. Best Management Practices are obligatory by Code and would be included in the erosion and sedimentation control plans as required by Condition 2. 64. Appellants believe and assert that development of the proposed lots would result in dangerous increases in stormwater runoff that would aggravate existing conditions and /or cause "excessive sedimentation, streambank erosion, discharges to ground water, water quality violations, spills and discharges of priority pollutants, and impacts to public rights of way ". [See Appellants' Closing Brief, page 28 et seq.] As noted above, these claims are not sustained by the evidence in the record [see Findings 51, 52; 58 and 59]. Comprehensive Plan Goals 65. The PCD Staff Report [Exhibit 1] includes an analysis of the proposal's consistency with the goals and policies of the City's Comprehensive Plan. That analysis [Section D, pages 9 and 10] is adopted by reference as Findings of this Hearing Examiner decision. 66. The proposed short subdivision is consistent with goals of the Comprehensive Plan: SPT13737 Page 14 of 22 • Residential Open Space Goals for protecting the environment and island character would be met by: having all proposed lots outside prescribed wetland buffers; requiring steep slope buffer; preserving critical areas and their buffers; providing designated open space; and, complying with the flexible lot design subdivision process and regulations. • Environment The goals for the protection of natural systems and critical areas would be met by locating proposed lots outside critical areas and providing long- term protection for critical areas with buffers, building setbacks, and open space restrictions. • Fish and Wildlife This site is not designated as priority habitat for protected species, but the preservation and protection of trees and critical areas in open space and buffers would be consistent with these goals. Aquatic Resources (Wetlands) Consistent with goals for aquatic resources, the three wetlands on -site (considered aquatic resources under the Comprehensive Plan) would be protected by disallowing development within the wetlands and wetland buffers, required building setbacks, and placing the wetlands in Open Space Tracts. ■ Geolo ig cally.Hazardous Areas Consistent with these goals, geologically hazardous areas have been reviewed by a geotechnical engineer and the engineer's recommendations shall be implemented with the installation of a curtain drain to increase slope stability and the requirement for individual geotechnical evaluations to specify conditions for construction of residences. • Non- motorized Transportation Plan This site is not designated for non - motorized transportation facilities, but the inclusion of pedestrian trials is consistent with the goals of the Non - motorized Transportation Plan. • Housine The inclusion of two lots for purchase by moderate income households pursuant to BIMC Chapter 18.90 would be consistent with and further the goals of increasing and diversifying affordable housing opportunities. 67. The Director was not in error in finding consistency with the goals of the Comprehensive Plan. SPT13737 Page 15 of 22 Other Concerns 68. Appellants assert in their appeal statement that there may be insufficient water supply to serve the proposed lots. No evidence in, support of this contention was presented at hearing and the commitment for water service [Exhibit 1, Attachment P] refutes it. 69. The appeal also asserts "Traffic" is an issue and that the increased traffic associated with the development of the short plat would be contrary to the public interest. This claim is negated by the "Certificate of Concurrency" [Exhibit 1, Attachment S] issued by the City Engineer. Required by BIMC 15.32.040, this certification documents the Public Works Department's finding that there is sufficient capacity in affected transportation facilities to serve the vehicle trips generated by the development of the subject site. 70. Appellants also assert that approval of the subdivision would not be in the public interest because future residents, when traveling on the adjacent roads, would be exposed to unacceptable risks of landslides. It is undisputed that landslides and "road failures" have occurred in this vicinity [see e.g.; in photos, Exhibits 22, 29, 30]). However, site improvements, decreasing the amount of water on and in the Halls Hill Road cut slope, would reduce the potential for slides [see Findings 52 and 531. 71. The Director's finding that the proposed subdivision is in the public interest [Exhibit 1, page 15, Item F.3.b.] is not in error. As established in the record here, the proposed plat would be in the public interest in that it would provide: drainage facilities to control and convey stormwater flows; reduction in the risk of slope failure and roadway damage by intercepting runoff and groundwater and conveying away from the road cut slope; two affordable "for- purchase" housing opportunities; dedication and maintenance of open space; preservation and protection for three Category III wetlands; adequate water service and sewage disposal; dedication of public rights -of -way for Halls Hill Road and Blakely Hill Road; residential density and building setbacks consistent with the R -0.4 zoning; protective buffers for critical areas; and, an access road built to City design standards in a dedicated right -of -way CONCLUSIONS 1. The Hearing Examiner has jurisdiction to hear and decide this appeal and, in making that decision, must give substantial weight to the decision of the Director. To overcome the deference accorded the Director, it must be shown that the Director's decision was clearly erroneous. 2. The subject application does not encompass the Applicant's cutting of trees and clearing of vegetation on this site or the placing of fill that intruded into the buffer of Wetland 10. Temporary and /or other corrective actions taken by the City relative to road cut slopes within or along adjacent public roadways are also not component parts of the application. 3. Wetlands 9, 10 and 11 are properly designated "Category III ". The final plat application. should be conditioned to accurately and clearly identify the expanded wetland SPT13737 Page 16 of 22 and wetland buffer boundaries consistent with Findings 34, 35, and 36 above. To ensure effective protection for these critical areas, no wetland or wetland buffer should be within any proposed lot; Lots R and S should be redrawn to accomplish this. 4. It was not an error for the Director to review a draft of the Open Space Management Plan and to require that final Open Space Management Plan, containing all the elements and specificity required by the Code, be included in the final plat application. This approach is expressly contemplated by the Code. Consistent with Findings 42 and 43 above, the final OSMP should only allows uses and have provisions that are compatible with the preservation and protection of the natural and critical areas within the open space. S. The Director has not been shown to be in error regarding the identification and consideration of geologically hazardous conditions. The steep slopes along Halls Hill Road and Blakely Hill Road are properly designated and should be protected as "no cut /no build open space. The proposed curtain drain and future residences should be setback consistent with the setbacks recommended by the Applicant's geotechnical engineer [see Finding 52]. 6. The Director's reliance on the analyses and recommendations of the Applicant's geotechnical engineer has not been shown to be a mistake. The recommended drainage improvements are reasonably anticipated to increase resistance to sliding so as to decrease the risk of slope failures in the Halls Hill Road cut [see Findings 52 and 53]. 7. For the submittal of the final short subdivision application, the proposed plat must be revised in compliance with the Director's conditions of approval as those conditions are modified in accord with this decision. Consistent with BIMC 17.12.080C, the final plat application shall include a composite site map that accurately shows and clearly labels the following features: topography of the entire site (2 ft. contours; field measured); wetland and wetland buffer boundaries for Wetlands 9, 10, and 11 (including expanded wetland areas and relocated buffers as shown in Exhibit 52); areas of designated open space; existing and retained tree canopy; all setbacks, required and proposed (including building setbacks from buffers, road cut slopes, etc.); all easements, existing and proposed; dedicated public rights -of -way, existing and proposed; existing "top of slope" of Halls Hill Road cut; approximate location of curtain drain behind the top of slope of the Halls Hill Road cut; pavement edge and center line of Halls Hill Road and Blakely Hill Road; slopes over 15% and slopes over 40 %; and proposed lots and open space tracts 8. Significant adverse environmental impacts have not been established. The SEPA threshold determination is not erroneous and the Mitigated Determination of Non - Significance (MDNS) should be affirmed. SPT13737 Page 17 of 22 9. The Director has not been shown to have erred. Approval of preliminary short plat SPT13737 should be affirmed with the Director's conditions modified as necessary to be consistent with this decision. DECISION The Mitigated Determination of Non - Significance and the conditional approval issued by the Director regarding the Short Plat application of Kelly Samson [SPT137371 and is hereby AFFIRMED As MODIFIED with Conditions I through 33 which follow on pages 19 through 22. Entered this 6th day of April 2007. (signed in original) Meredith A. Getches Hearing Examiner 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 36.70C (see also BIMC 2.16.130F.6). SPT13737 Page 18 of 22 SPT13737 CONDITIONS OF APPROVAL SEPA Conditions 1. The following note shall be placed on the final plat: "Prior to any clearing, or grading on individual lots, a clearing, grading and /or building permit shall be obtained from the City." 2. Prior to issuance of any permit for construction (including clearing, grading, excavating, or other earthwork, building, etc.) a temporary erosion and sedimentation control plan (TESCP) must be submitted and approved by the City. Prior to any construction occurring between October 1 and April 31, a TESCP specifically addressing wet weather conditions must be reviewed and approved by the city engineer. 3. In accordance with the geotechnical engineer's recommendations, residences shall not be permitted closer than 60 feet from the top of the cut slope adjacent to Halls Hill Road. A curtain drain shall be installed no closer than 50 feet from the top of the road cut slope. Existing vegetation must be maintained and augmented, pursuant to an approved planting plan, provided that invasive species shall be removed consistent with that plan as accepted by the geotechnical engineer. 4. Prior to issuance of a building permit for any lot adjacent to the Halls Hill Road cut slopes, a geotechnical report addressing the construction of each residence shall be submitted to the City for review and approval (such reports shall address and include as recommended by the geotechnical engineer, but not be limited to, the inclusion of curtain and/or other drains and an approved vegetation augmentation plan). 5. All geologically hazardous areas and their 50 foot buffers shall be designated and maintained as "no cut/no build" (except for alterations made pursuant to a City approved slope /road stabilization project). A planting plan (including the removal of non- native invasive plants) approved by the City and the geotechnical engineer, shall be implemented in these buffer areas. Trees in the buffers may be limbed and trimmed to maintain view corridors. Trees deemed by a certified arborist to be a hazard to a residential structure consistent with BIMC Chapter 18.85. 6. Prior to any clearing, grading, excavating or other earthwork, temporary construction fencing shall be placed between that work and designated open space and critical areas. Prior to final plat approval, either a low impact fence or signs delineating the boundary of the open space and critical areas shall be installed. If signs are used, the signs shall be placed at no more than 50 foot intervals. 7. School impact fees shall be paid in accordance with the following provisions: prior to final plat approval, the applicant shall pay one half of the school impact fee in effect at the time of final plat approval. Subsequent to plat recordation and prior to building permit issuance, an applicant constructing a new 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. 8. In order to provide a safe location for children waiting for the school bus and for those using public transit, a bus shelter shall be constructed at a location approved by the City that is: near the bus stop at the intersection of Halls Hill Road and Blakely Hill Road, or at the intersection of the new access road and Halls Hill Road, or at or the intersection of Rockaway Bluff and Halls Hill Road. The bus shelter shall either have been constructed or an assurance device provided, prior to final plat approval. SPT13737 Page 19 of 22 9. Any non - exempt tree harvesting shall require the appropriate Forest Practices Permit(s) from the Department of Natural Resources. The conditions of the Bristle Ridge Short Plat SPT 13737 shall become conditions of the Forest Practices Permit. 10. Contractors are required to 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. Non -SEPA Conditions 11. A. The final plat application (and the final plat Mylars) shall include the expanded wetland boundaries of Wetlands 9, 10, and 11, and the associated relocated wetland buffers, shown Exhibit 52; wetland areas and wetland buffers shall be within the Open Space Tracts. B. In the application for the plat utility, the drainage plan shall be revised if and as necessary to address runoff within drainage Basin C from the new road; appropriate conveyance and/or other facilities shall be included as approved by the City Engineer. C. Consistent with BIMC 17.12.080C, the final plat application shall include a composite site map that accurately shows and clearly labels the following features: • topography of the entire site (2 ft. contours; field measured); • wetland and wetland buffer boundaries for Wetlands 9, 10, and 11 (including expanded wetland areas and relocated buffers as shown in Exhibit 52); • areas of designated open space; • existing and retained tree canopy; • all setbacks, required and proposed (including building setbacks from buffers, road cut slopes, etc.); • all easements existing and proposed; • dedicated public rights -of -way; existing and proposed; • existing "top of slope" of Halls Hill Road cut; • approximate location of curtain drain behind the top of slope of the Halls Hill Road cut; • pavement edge and center line of Halls Hill Road and Blakely Hill Road; • slopes over 15% and slopes over 40 %; and • proposed lots and open space tracts 12. The final plat shall be submitted in substantial compliance with preliminary plat drawings date stamped as received June 12, 2006, AS MODIFIED BY THESE CONDITIONS. 13. Public and private improvements, facilities, and infrastructure on and off the site that are required for this 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 which are not considered by the City engineering department to be life, health, or safety related items. 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: SPT13737 Page 20 of 22 "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." 14. All lot corners shall be staked with three - quarter -inch, galvanized -iron pipe and locator stakes along with all other applicable survey provisions of the Washington Administrative Code. 15. A plat certificate shall be provided with the final plat application. 16. The following building setback and lot coverage requirements must be shown on the final plat: Setback orC4YCr;} QRe ulrements R¢ "wired Measurement Building-to-building Minimum 10 feet Building to short plat boundary Minimum 25 feet Building to open space Minimum 10 feet Building to wetland buffer Minimum 15 feet Building to access road (NE Bristle Ridge Road) Minimum 15 feet Building to Blakely Hill Road NE Minimum 50 feet Building to NF Halls Hill Road Minimum 50 feet Maximum lot coverage per lot. 8,018 square feet 17. The final plat application (and the final plat Mylars) shall show and label the setbacks noted in Condition 16, including a 15 foot setback from the relocated wetland buffers; see Condition 11A above. 18. A final Open Space Management Plan (OSMP) shall be submitted with the final plat application for the Director's review and approval. The approved final OSMP shall be recorded with the final plat. At the level of detail consistent with the Findings of this decision, the final OSMP shall include and identify: allowed and prohibited uses, designation of a management entity, frequency and scope of maintenance activities, a plan for protecting the open space during and after construction, and provisions for the removal of invasive species and for the general enhancement of wildlife habitat. Uses allowed and other OSMP provisions shall only be those that are compatible with the preservation and protection of the natural and critical areas within the. open space. 19. All designated open space must be placed in an easement, and/or protected through restrictive covenants or by other legal means. 20. With the plat utilities permit application, the applicant shall submit civil drawings showing the approximate location of three pedestrian trails (i.e., alongside the proposed access road connecting the access road with Halls Hill Road; centered on the common property line between lots U and V; and, through the open space connecting with Blakely Hill Road at the northeast corner of the subdivision). The trails shall be installed or appropriate assurance device provided prior to final plat approval and shall be inspected by the city engineer. Maintenance of these trails shall be the responsibility of the homeowners association unless the trail is dedicated to the City or the Parks District. In the event that a trail is not maintained, the City shall have the right to provide the maintenance thereof and bill the owner for the cost of the maintenance. 21. All pedestrian trails within the subdivision (see Condition 20) shall be 4 to 6 foot wide, constructed with a four inch layer of crushed' /a inch gravel over a geotextile mat barrier. SPT13737 Page 21 of 22 Removal of vegetation for the trail construction shall be strictly limited to a maximum six foot swath (no soil disturbance shall occur outside of the six foot trail construction corridor). All the pedestrian trails shall be "field -fit" between or around existing trees, to avoid the removal of significant trees. To provide for safe use, limbs and branches up to 9 feet over the trail and within 1 foot of the trail edges are to be removed. 22. At the time of submittal of the final plat application, the applicant shall designate affordable housing lots as necessary and appropriate to qualify for the affordable housing density bonus. These affordable housing lots shall be for purchase only by households of moderate income or less, in accordance with the requirements of BIMC Chapter 18.90. 23. If the final plat is split into phases, each phase must be able to stand on its own at the time of final plat. 24. Fire hydrants are to be provided every 600 feet. All hydrants shall be fitted with a 4 inch Storz coupling attached to the steamer connection. 25. Approved street names, traffic regulatory signs, and accessible mailbox locations that do not restrict pedestrian access must be shown on the construction drawings which shall be submitted prior to final plat. Mailboxes or their support systems shall not extend over or within one ft. of any traveled way including sidewalks, paths, bike lanes, shoulders or auto lanes. 26. The applicant shall provide and have City approval of the civil engineering plans prior to final short plat approval. A photocopy of the City's requirements for approval must be included on the face of the construction plans. (These shall be at the original font size or larger and shall include space for inspection/review /approval of each separate requirement.) The applicant is required to retain their engineer of record to complete some of the inspections as special inspections. 27. The geotechnical report, along with the City's standard geotechnical submittal forms Parts I and 2, must be submitted and approved; Part 3 of the form must be approved before final inspection of any construction. 28. Prior to the issuance of any construction permits within the plat an indemnification agreement consistent with BIMC 16.20 shall be provided to the City for recording. 29. The applicant shall dedicate to the City a 30 foot wide slope easement along Halls Hill Road and Blakely Hill Road to facilitate corrective actions relative to slope stability problems on those roads. 30. The roadways within the subdivision shall be "suburban residential" per city standards (DWG7 -065, 066 and 067), 12 feet wide with turn-outs every 300 feet in a 30 foot dedicated public right -of -way, with a cul -de -sac per city standards DWG 8 -010. 31. A Kitsap county certified installer shall do all clearing of the drainfield areas in order to prevent removal of soils. 32. A main extension and binding water commitment must be in place with Island Utility prior to final plat approval and approval of any BSA's. 33. Conditions 1 through 7, 9, 10, 12, 13, 16, and 31 shall be listed on the final plat Mylar. SPT13737 Page 22 of 22