HOLLY LANE GARDENS. . _ ~ ,.. ~: o~~
•
DECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal by
Stephani and B. Dean Mar-Horstman
of the Director's Approval of the
HOLLY LANE GARDENS CUP 11649
Conditional Use Permit. Application for
Property Addressed as 9432 Holly -Farm Lane
INTRODUCTION
The Applicant seeks a Conditional Use Permit (CUP). to allow the following uses in the
R-0.4-zone: four-bedroom bed. and breakfast, agricultural retail, and commercial hosting
of weddings and other outdoor events. The Director approved the requested CUP and
that decision was appealed by neighboring property owners: The Hearing Examiner held
a prehearing conference with-the .parties on June 13, 20Q7, The appeal. hearing began on
June 28, 2007 and concluded on June 29, 2007. Parties.represented at the hearing were:
the Appellants, .Stephanie. Mar-Horstman and B. Dean Horstman; the Applicant, Patricia
Dusbabek; .and, the Director, Planning and Community Development (Department or
PCD), by Bob Katai, Manager, Current Planning.
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 VICINITY
1. The 8.63-acre site,: addressed as 9432 Holly Farm Lane, is located north of New
Brooklyn Road, south and west ofMandus Olson.Road [see aerial photo and parcel map,
Exhibits 8 and 9 respectively].. The Assessor's tax parcel number 212502-2-056-2009.
[Exhibit 1, Staff Report, pages 1-2 and Attachment A; Exhibits 8 and 9; Testimony of
Katai; K. Crawford]
2. Development on the subject site includes a large single-family residence and a
separate dwelling unit ("cottage"), both located in the northeastern part of the property.
The house has: a licensed commercial kitchen (for cooking food served to bed and
breakfast guests and at events, and baked goods sold at a farmers' market -see Finding
13). The cottage and several bedrooms in the house are used as a bed and breakfast.
(B&B). North of the driveway, in the northwest part of the property, there is a barn and a
large garage. [Exhibit '1, including Attachment. A, SEPA Checklist, pages 6-7; Exhibits 8
and 9; Testimony oflVlar-Horstman; K. Crawford; Dusbabek]
3. In 2002 there was an estimated 4.4 acres of cleared land around the house
(including a large oval-.shaped. field west of the house and one smaller area; see Finding
6). The Applicant indicates that those fields are. for vegetables, flowers, herbs, and
berries and that there are also fruit trees. East of the house, a large grassy area, where the
outdoor events occur, extends north/south through most of the eastern part of the site (a
smaller grassy area is .located west of the residence) [see in Exhibit 8]. Second-growth
forest covers most of the southern part of the site and the northeastern and southeastern
corners. [Exhibit 1, Attachment A, including Attachment A, SEPA Checklist, pages 6-7;
Exhibits 8, 9, 13; Testimony of Dusbabek]
4. The subject property resembles the shape of a pipe: the driveway, extending
approximately 1250 ft. east from Holly Farm Lane, looks like the `stem', with the bulk of
the property forming the `bowl' [see parcel. map and aerial .photo, Exhibits 8 and 9]. The
property to the west shares the driveway and the northern boundary of the Appellants'
property is adjacent on the south side of the "pipe stem". [Testimony of Mar-Horstman;
K. Crawford; Dusbabek]
5. Access is via Holly .Farm Lane, a private road that. extends north from New
Brooklyn Road. Holly Farm Lane, which serves 16 parcels [see Exhibit 26], is a narrow,
single-lane gravel road which the Director determined to measure 8 '/z to 9 '/2 feet wide.
The road is not wide enough for two cars to pass one another; at several places driveways
connecting to the. road provide enough space for one car to pull off or back up so that
another can pass. The road is dusty in summer and can be extremely muddy in wet
weather. [Exhibit 1, Staff Report, pages 1-2; Exhibits 8, 9, and 11; Testimony of Katai;
Mars-Horstman; K Crawford]
6. In 2002, Kitsap County approved an "Open Space .General" classification for 7.63
acres of the site for tax purposes (including approximately 4 acres of second-growth
forest). This use classification provides a 60% tax reduction on those acres. The
Applicant had sought an "Open Space -Agriculture" classification, which requires a
minimum gross of $1500 from agriculture in three of five years. There was no evidence
presented to indicate that the $1.500 threshold has been achieved or that the "Agriculture"
classification has ever been approved or rejected. The property was farmed as early as
1951, but as of the 1980's it was no longer being farmed. The applicant indicates that the
strawberry crops grown here 40 years ago exhausted the soil and a large part of her
current efforts are focused on restoring the health of the soil. [Exhibits 16, 18 and 34;
Testimony of Dusbabek]
7. The "Agricultural Retail Plan" application for the property indicates that five
acres of the site are used for agricultural activity. This overstates the agricultural acreage
as the total includes the large forested areas. (The tax classification research done in
2002 -see Findings. 3 and 6 and Exhibit 16 -makes note of a 0.6-acre field and another,
smaller field as "being. planted to [sic] commercial crops.") No harvest (volume of crops)
information was provided and the Agricultural Retail Plan application lists as "all crops
and value-added products": wreaths, baskets, candles, vinegars, jams, bread. The Plan
application indicates weddings as special events. [Exhibits 16 and 34]
8. The zoning designation of the subject property is residential (R-0.4, one dwelling
unit per 2.5 acres) and the Comprehensive Plan designation is OSR-0.4, Open Space
CUP 11649
Page 2 of 16
• •
Residential (2.5 acre minimum lot size). [Exhibit 1, Staff Report, page 3; Testimony of
Katai]
9. Adjacent property in all directions is also designated R-0.4 and OSR-0.4. A
recent aerial photo [see Exhibits 8 and 9] show that. eight of the ten properties that share
property boundaries with the subject. site are developed with single-family residences
(south: Mar-Horstman, Christian; west: Crawford; north: Quintua, Lord; northeast:
Galvin; east: Bunn; southeast: Gable/Tupper/O'Brien). There is considerable
undeveloped property in the vicinity and many of the developed parcels are large enough
to be subdivided into 2 or more lots, each meeting the Z.5 acre minimum lot. size. Short
plats are currently anticipated on two parcels adjacent to Holly Farm Lane at the New
Brooklyn Road intersection. [Exhibits 8, 9 and 13]
10. The homes in this area are separated from each other by several hundred feet of
open space [see aerial photo, Exhibit 8]. The low residential density and large
undeveloped areas of second-growth forest make for a quiet, "end-of-the-road" rural
setting. Residents in the vicinity highly value the tranquility and natural beauty of the
area; they established their homes here because of those qualities and desire to maintain
them. [Exhibit 1, Attachment D; Exhibits 11, 28 and 32; Testimony of Dusbabek; S.
Mar-Horstman; D. Horstman; Grabo; Lord; Bunn; Galvin; Gable; O'Brien]
11. Agricultural activities are common in the vicinity (e.g., row crops, orchards,
corrals, pastures and other fields are evident in the aerial photo). The "Grand Forest"
public park is located not far to the northwest and northeast, across the east/west section
of Mandus-Olson Road. [Exhibits 8]
PROPOSAL
12. The Applicant purchased the subject property about 6 years ago (apparently in
2001) and began operating a B&B. The website for this "Holly Lane Gardens Bed &
Breakfast" [see Exhibit 28] describes the B&B as " a flower farm with developing
gardens, many acres of woodlands, streams, walking paths, end-of--the road quiet."
Homemade breads, .pastries, homegrown fruits, and herbs are included in the meals
served to guests and Craft items made by the Applicant (wreaths, candles, weavings,
hand-spun hats, and scarves, embroidery, dolls) are sold on-site. The website shows a
one-bedroom cottage and, in the main house, the "Moroccan Room", "Tropical Room",
"Hemmingway Room" and the "Guest Suite". The facility is offered as available to "host
a party, wedding, special occasion event or holiday." [Exhibit 1, page 3; Exhibit 28;
Testimony of Dusbabek]
13. Some of the food prepared and served to B&B guests and attendees at the
wedding events (e.g., baked goods, pastries), .incorporate ingredients grown on site (e.g.,
herbs, some vegetables, and fruits). The baked goods-are also routinely sold at the local
farmers' market. The Applicant also makes and .sells wreathes and candles that
incorporate holly and other natural materials that grow on the site. [Exhibit 1, Staff
Report Attachment A: Exhibit 28; Testimony of Dusbabek]
14. The Applicant identifies herself as a farmer and refers the subject property as "a
farm" and, more specifically, "a flower farm". In her CUP Application [letter August 21,
2006], she notes that, rather than growing the flowers as a crop for sale, she is selling the
CUP 11649
Page 3 of 16
• •
flower gardens as a "setting" for the weddings hosted on the site. She plants the farm
"knowing that this is a scene I am creating for future weddings." (The application
indicates that "many" of the gardens are "grown exclusively for wedding settings."
During the growing season the Applicant may sell 6-8 bouquets at a weekly farmers'
market. The flowers grown on-site are also used for wedding decoration, but what is
being `sold' here are the "wedding-settings" that the gardens form. Quoting the
Applicant: "People pay me for the privilege of standing in the midst of my flower garden
to say their wedding vows." [Application, Attachment A, Exhibit 1; Exhibit 28;
Testimony of Dusbabek]
15. The Applicant asserts that providing "gardens in which couples can be married" is
a "crop-related' activity within the meaning of "Agriculture" in BIMC 18.06.070, and
that all the activities on her land are "farm related". [Exhibit 1, Attachment A, Letters
dated: 08/21/06, 08/22/06, and 09/17/06]
16. Apre-application waiver for
bedroom B&B was submitted January
[Exhibit 1; Testimony ofKatai]
a modification from atwo-bedroom to a four-
I5, 2003. No application was filed at that time.
17. Beginning in the summer of 2005, the property began to be used as a venue for
weddings/receptions and other outdoor events. Three weddings were held in 2005 and
eight events (including 7 weddings) were held in 2006. The largest events had 120-150
attendees, the smaller gatherings had 65-70, and 80-100' was typical. Wedding events
included posting balloons and directional signs along the lane and parking was provided
on-site, along the driveway and. in cleared areas near it. Parking 40-50 cars was normal.
[Exhibit 1; Testimony ofKatai; Dusbabek; S. Mar-Horstman]
18. On August 3, 2006, in response to complaints, the Department issued a Code
enforcement letter .giving notice to the Applicant that the property was not permitted for a
four-bedroom B&'B and that. use for weddings and other events required a Conditional
Use Permit (CUP). [Exhibit l; Exhibit 28; Testimony of Katai; Dusbabek]
19. The CUP application filed on August 15, 2006 [Attachment A, Exhibit 1] lists the
proposed uses as.
• Lodging
• Processing
• .Direct sales of faun products
• Renting ofgarden settings for activities, including weddings
• Catering
• Crafting
• Training
20. In addition to .hosting of weddings and other events, 3-4 "Christmas in the
Country or similar farm-sale" activities are mentioned [see Applicant's letters dated
August 21 and 22, 2006 and September 17, 2006, included with the CUP Application,
Attachment. A, Exhibit 1]. Sales of wreaths, candles; and knit items (such as those shown
on the website; see Exhibit 28) would seem likely products to be sold.
CUP 11649
Page 4 of 16
• •
DIRECTOR'S REVIEW AND DECISION
21. Notice of Application was published by the Department on September 27, 2006.
[Exhibit 1, Attachment C] During the SEPA comment period, the Department received a
number of public comment letters from residents in the vicinity opposed to the hosting of
events, expressing their concerned about the noise and traffic impacts they had
experienced during the past events. Comments received included letters of support for
the Applicant's proposal, including several written by satisfied B&B guests who had
enjoyed their stay there. [Exhibit 1, Attachment D]
22. The Kitsap County Health District commented on the application [Exhibit 1,
Attachment E]. The District's approval (water and on-site septic) for the proposal (B&B
and events) included the special condition that "portable toilets are required for all
weddings and special activities". This requirement is Condition 4 in the Director's
approval [see below; Testimony of Katai; Exhibit 1, Attachment E].
23. The Director determined the project to be consistent with the Comprehensive Plan
and the applicable sections of the Bainbridge Island Municipal Code, including the
criteria for Conditional Use Permit approval [see Exhibit 1, Staff Report, pages 4-6].
24. On April 30, 2007 the Director issued a SEPA threshold determination of non-
significarce (DNS) and a Notice of Administrative Decision [Exhibit 2] approving the
CUP with conditions. The Director's approval imposed the following Conditions
[Exhibit 1, page 2]:
1. In order to limit the traffic impacts during events at the Gardens, a shuttle shall be
used to transport guests. to the property to the extent possible.
2. Outdoor noise shall be limited during weddings and events and shall cease at 10:00
p.m. No speakers or amplification equipment shall be used outside of enclosed
buildings on the property.
3. The mature, forested buffers along the southern and eastern property lines shall
remain. No native, significant trees shall be removed from these buffers. Hazardous
trees may be removed if a report from a qualified arborist, along with a replanting
plan, is submitted to and approved by the Director.
4. To the satisfaction of the Kitsap County Health District, portable toilets shall be
installed for all weddings. and special events.
5. To the satisfaction of the Bainbridge Island Fire Department, fire suppression
concerns shall be addressed, including wall mounted 2AlOBC fire extinguishers on
each floor and signage for adequate access for emergency vehicles.
APPEAL HEARING
25. On April T3, 2007, the Appellants timely filed notice of appeal [Exhibit 3]. The
appeal objects to the Director's approval and specifically cites Conditions 1 and 2 as
inadequate to mitigate the traffic and noise impacts associated with use of the property to
host wedding and other events.
26. Notice of the hearing was properly given and complete as of June 6, 2007.
[Exhibit 4] The Hearing Examiner conducted the appeal hearing on June 28 and 29,
CUP 11649
Page 5 of 16
• • •
2007; all parties were present, each party had opportunity to present evidence, including
calling and cross examining witnesses.
Noise Impact
27. Condition. 2 of the Director's approval requires that events cease at 10 p.m. and
prohibits outdoor amplification. Condition 2 is relied upon to achieve noise reduction
essential to the Director's conclusion that the use would be compatible with the
residential neighborhood. That is, Condition 2 is imposed to reduce noise impacts in
order to satisfy the CUP criteria [BIMC 18.108.040]. Appellants challenge this
conclusicn asserting that noise from the events would disturb the uphill neighbors (to the
north and northeast) for many hours on an unlimited number of days. Appellants also
note that the prohibition on amplifiers outside would not be effective mitigation as the
equipment could be inside and windows left open. [Exhibit 1, Attachment A, SEPA
Checklist, page 6]
28. As credibly testified to by neighbors, in the summers of 2005 and 2006 the noise
from the outdoor events was noticeable and uncharacteristic for the neighborhood. The
party sounds (loud music, DJ comments, announcements/toasts, cheering, loud voices
and laughter, etc.) readily traveled uphill (to the north and northeast) and those with open
yards and/or sparsely wooded .areas between them and the festivities, complained that
they had to go inside their homes and close doors and windows to avoid the noise. Some
reported that they could distinguish the words of conversations and lyrics of songs, and
that even inside, with their windows and doors closed, noise from the event got through.
[Testimony of S. Mar-Horstman; D. Horstman; Lord; Bunn; Galvin; Gable; O'Brien]
29. Sound can be diminished by intervening structures acting as barriers between
source and the receiver. Sound will travel through inadequate barriers and across open
areas and can reach uphill receivers, over intervening barrier. An intervening vegetative
buffer 200 ft. or wider will diminish the sound reaching the receiving property. [Exhibit
1; Testimony ofMar-Horstman]
30. Not all neighbors were disturbed by the sounds coming from the events. Mr. and
Mrs. Crawford, whose property is just west of the subject property, heard the only the
"loudest" sounds and occasionally some laughter. They reported that they had not been
disturbed as they were "ready for it" and thought of it as "happy noise". Mr. Crawford
noted that the only problem had been some fireworks.
31. It is worth noting that the Crawfords, unlike the uphill neighbors, have two
structures (an earth berm on the east side of their property and the Applicant's residence)
between their residence and the location of the open area on the far eastern side of the
subject property where the outdoor events were held. These structures may have served
as barriers so that, despite their proximity, they received less noise than uphill residents
who have no such intervening structures.
32. Another Holly Farm Lane neighbor, Ms. Charvet, although concerned about
traffic and noise in this "bucolic" area, has not been bothered by the events. Ms. Charvet,
whose home-based business "Sacred Groves" is a gathering place for various spiritual
activities, enjoys hearing people outside having fun (the first "event" on the subject site
was her daughter's wedding). Ms. Charvet's property is on the west side of Holly Farm
CUP 11649
Page 6 of 16
• •
~,~i
ti..
r~
Lane, west of the starting point. of the '/4 mile driveway leading to the subject property.
[Attachment,D, Exhibit. l; Exhibits 8 and 9; Testimony Charvet; Dusbabek]
.FA
33. Mr. Kotz, a neighbor to the east who operates a small sawmill and kiln, only
heard loud. music from a couple of the earliest. events'. (In order to mitigate the noise
impacts of his own business, he limits mill operations to weekdays between 9 a.m. and 4
p.m.
34. The Applicant asserts in the CUP application. that that noise created by or
associated with the .events would be "minimal". As to the past events, she testified that
when she became aware of loud music; she quieted if, and that she had listened from
various locations on her property and .did believe that sounds of the events could reach far
enough to disturb neighbors.. She indicated that she had used a sound meter and the
readings did :not exceed 60-dBA (which she believes is the maximum allowed). No
information was provided as to the' type of meter used or when it was used. or where it
was located when used. [Chapter 16.16 BIMC (see also Appendix A; Exhibit 1,
Attachment A, SEPA Checklist, page 10; Exhibit 25; Testimony Dusbabek]
35. As both the "source" property (subject site) and: the receiving properties
(neighbors) are residential, the maximum noise level would. be 55 dBA (at the property
line of the receiving .property) the 'not -limit of 60 dBA (for commercial property) that the
Applicant believes applicable.
Traffic Impact
36. Event attendees traveling.. to and from the site add. noticeable traffic, and generate
dust and vehicle noise along Holly Farm Lane [see Finding 5]. Traffic counts for the
road were not provided. However, witness testimony supports the reasonable assumption
that as a private, narrow, unpaved deadend road, volumes are very low. There has been
only one accident on :Holly Farm Lane in recent years, but there have been close calls due
to the narrowness of the road and drivers going too fast and/or being unfamiliar with the
conditions of the road. Testimony at hearing included instances in which event-attendees
were involved in such close calls. [Exhibit 1; Testimony of Katai; K. Crawford;
Dusbabek; Charvet;. Wilcox; 'S: Mar-Horstman; Moravec; Grabo]
37. Director's Condition l requires that the Applicant use. a "shuttle" to transport
guests "to the extent possible." The Director relies. on this condition to provide
effectively mitigation for traffic impacts so that the use would be harmonious with the
residential character of the neighborhood. There is no shuttle and no plans for a shuttle
and it is not indicated what trip. reduction .might be achieved. if a shuttle were to be used.
There is no reason to believe °that this condition... would achieve any reduction in the
number vehicle trips on Holly Farm Lane. The "to the extent possible" language is vague
and unenforceable as tprovdes no way to evaluate compliance.
BAIIVBRIDGE ISLAND MulviCrnAL CODE (BIMC)
38. Various sections of the Code {BIMC) were referenced during this proceeding,
including those excerpted. in :Appendix A at the end- of this decision: All sections
applicable to this appeal were reviewed in making this. decision this decision,. whether
included below or in Appendix A.
CUP 11649
Page 7 of 16
~~„~~.~ .,_„_, _„r ,
' ~ ~ •
-r,; .
~<
39. The R-0:4 zone, with one dwelling unit per 2.:5 acres, is the City's lowest density
residential zone. The purpose of this zone [BIIVIC 18.36,010; emphasis added] is to:
"provide low density housing in a rural environment consistent with other land uses,
such as agriculture and forestry, and the preservation of natural systems and open space.
The low density of housing does not require the full range of urban services and
'~~ facilities."
40. BIMC 18.36.020 provides that-the following uses are :permitted in the R-0.4 zone:
A. Accessory dwelling units;
B. Accessory uses and buildings;
C. Agriculture;
D. Family day care homes;
E. Forestry;
F. Manufactured homes;
G. Minor home occupations;
H. Parks; active recreation;
I. Parks, passive recreation;
J. Single family dwellings built to IBC standards.
41. Both "agricultural retail" (and "Bed and breakfast establishments may be
allowed in the R-0.4 zone as Conditional Uses [see BIMC 18.108.030].
42. A conditional use may be permitted if it meets all the conditions specified in
BIMC 18.108.040 (emphasise added).
A. A conditional use tray be approved or approved with. modifications if
1. The conditional use is harmonious and appropriate in design, character and
appearance with the existing or :intended character and quality of development in the
immediate vicinity of the subject property and with the physical. characteristics of the
subject property;
2. The .conditional use. will be served by adequate. public facilities including
roads, water; fire protection; sewage disposal factlities and storm drainage facilities;
3. The conditional use will not be materially detrimental to uses or property in
the immediate vicinity of the subject property;
4. The conditional use is in accord with the comprehensive plan;
S. The conditional use .complies with all other provisions of this code;
6: The conditional use will not adversely affect the. area or alter the area's
predominantly residential natare; and
7. All necessary measures have been .taken: to eliminate the impacts that the
proposed use mayhave on the surrounding area.
43. B1MC 18,108.040B authorizes the imposition of conditions with CUP approval
and. directs that "If `no .reasonable condi ions can .be imposed that ensure the application
meets the decision criteria of this chapter, then the application shall be denied. "
44. BIMC 2.16.025B.1 authorizes the Hearing Examiner to hear and decide appeals
from the Director's administrative decisions. (including CUP decisions and SEPA
threshold determination). Following the decision procedures of BIMC 2.16.130, the
Hearing Examiner may do one of the following [see BIMC 2.16.130F.1]: affirm the
Director's decision; reverse the decision; affirm.. the decision with modifications; or,
remand the decision to the department director for further consideration.
CUP 11649
Page 8 of 16
' •
~' ,
e 45. In making a decision on appeal, the Hearing Examiner is required by BIMC
BIMC 2.16.130F.2, to give "substantial weight to the decision of the department
director. "
CONCLUSIONS
1. The Hearing Examiner has jurisdiction to hear ;and decide this matter. To
overcome the substantial weight accorded the Director's decision, it must be shown that
the decision is clearly erroneous. Under this standard of review, the Director can be
reversed if the Hearing Examiner is left with the definite and firm conviction that a
mistake has been made.
2. Tne Applicant sought an after-the-fact Conditional Use Permit for uses that began
several years ago, including afour-bedroom bed and. breakfast and the on-site sale of
agricultural products grown or value-added on-site. The appeal does not dispute the
Director's decision to approve a CUP for these uses. Thee demonstrated impacts of the
bed and breakfast consist of some additional vehicle trips on Holly Farm Lane and a few
instances of B&B guests wandering onto neighboring properties. While these impacts
are noticeable, they have been relatively minor and not- disruptive to the residential
character of the neighborhood. Approval of this part of the proposal has not been shown
to be a mistake and accordingly, the Director's decision with regard to it should be
affirmed.
3. As with the bed and breakfast, Appellants did not dispute. the Director's decision
approving on-site agricultural retail .sales (including wreaths and other "value added
products" and edibles grown on-site). This use is proposed to include a few seasonal
"farm-sale" events [see Applicant's August 22, 2006 letter with regard to "Christmas in
the Country" or similar activity; Attachment A, Exhibit 1]. This kind of minor
agricultural retail sales (with na more that four special events) would. not .likely be
inconsistent with the residential character of the neighborhood. Approval of this part of
the proposal has not been shown to be a mistake and accordingly, the Director's decision
with regard to it should be affirmed.
4. Appellants focused their. objections on the Director's approval of the CUP for
hosting an unlimited number of weddings and other social. events. Appellants presented
evidence to show that (based on past experience), these events would have adverse noise
and traffic impacts, and they argued.. that the Director's approval was erroneous because
this use would be inconsistent with. and disruptive to the existing residential character of
the area. The Applicant's fundamental argument for approval is that her property is a
"farm" and because of that, an hin done there is "agriculture" or an agricultural activity
(or agriculture-related or agri-tourism). The evidence in the record, and an objective
reading of the .Code, provides virtually no support for Applicant's view.. The undersigned
is not. .persuaded that planting gardens to create "wedding settings" [see Finding 14] is
"agriculture", or that the settings are properly considered a "crop", or that renting out the
settings for large :outdoor social events is a "crop related" activity or "agricultural retail".
5. The proposal, even with the Director's conditions, does not satisfy the CUP
criteria. The Director erred in concluding that the hosting an unlimited number of
CUP 11649
Page 9 of 16
,_..
. •
;:
?~,~'
,, weddings and other social events would meet the all the .criteria of BIMC 18.108.040A.
i~' It was a mistake to disregard and/or give insufficient weight-to information regarding past
events which provide the evidence in this record that.:
^ The unlimited hosting of weddings and other special events would create noise
~,: and traffic. uncharacteristic in this otherwise quiet, low-density residential area
and that these large social events would not be harmonious with the existing (and
intended) character of the immediate vicinity [BIMC P8.108.040A.1];
^ The narrow, single-cane, deadend gravel access road is not adequate (i. e., not.
wide enough for two-way travel) to safely handle the volume of traffic associated
with such use [WING '1'8.108°:040A.2];
^ The noise and traffic from these events would adversely affect and/or alter the
neighborhood'spredomnantly residential character [BIMC 18.108;040A.6]; and,
^ As the conditions imposed by the Director could not reasonably- mitigate all..
potential adverse noise and. traffic impacts; all the measures. necessary to
eliminate the impacts of th'e use, have not been taken [BIMC 18.108.040A.7].
6. The conditions imposed by the Director would. be inadequate to achieve
appreciable lessen noise and traffic volumes. The Director erred in approving the CUP
without effective mitigation measure to ensure that -thee decision criteria of BIMC
18.108.040A would be met.
7. There is nothing in this. record to sustain.. the Director's confidence that Condition
2 would be effective to eliminate 'the noise impacts. .Even if Condition 2 were to be
followed faithfully and to the letter, there could still be amplified music (inside with
windows open) -and the sounds of large crowds celebrating until 10 p.m. throughout the
summer months could still disrupt neighbors' peaceful enjoyment of their properties.
This is not a reasonable or effecfue condition to mitigate noise impacts: The Director
erred in finding that it would achieve satisfaction of the approval criteria of BIMC
18.108.040A and 18.108.040B.
8. Similarly, the record.: does: not support the Director's confidence in the
effectiveness of Condition 1 to reduce traffic impacts. There is no evidence that use of a
shuttle "to the extent possible" would eliminate any trips on Holly Farm Lane. Given the
equivocal. language, enforcing; compliance would be unworkable. This is not a
reasonable :condition that would mi igate traffic impacts so that the proposal would
satisfy BIMC 18.108.04OA and 18.108.040B. The Director erred in finding that it would.
9. A peaceful; quiet, rural-residential .area, characterized by single-family ,homes on
large lots with sizeable areas of undeveloped forested land and a scattered assortment- of
small farms, literally urrounds the subject: property. Permitting: the unlimited
commercial hosting of large parties here would be inconsistent with the character of this.
neighborhood. There ,nay be R-0.4 zoned locations with. different topography and
patterns of development (i. e., where noise would not. travel so readily or would. be
substantially buffered) and with adequate: access (i. e:, to safely accommodate the
additional traffic), These locations could have this type: of use consistent with the CUP
criteria. The subject, site is not such, a `location. The conditional use process allows for
use of property where that use is otherwise not permitted, if that use meets the requisite
CUP 11649
Page 10 of 16
,.. ~ •
conditions to be harmonious in character and not adversely .impact the neighborhood.
Here, the criteria are not met: unlimited large outdoor ,parties would have unmitigated
volumes of noise and traffic that would repeatedly disturb some residents and alter the
quiet, end-of the-road character of the neighborhood.
10. The events facility element of the conditional use .proposal does not satisfy BIMC
18.108.040A and 18.108.040B. The Director erred in making this approval and that part
of the proposal should be denied.
DECISION
The decision of the Director approve the application for a Conditional Use Permit (CUP)
to allow: (1) afour-bedroom "bed and breakfast"; (2) agricultural retail; and, (3)
commercial hosting of events (social events including weddings and associated
receptions) at property addressed as 9432 Holly Farm Lane, is REVERSED IN PART as
follows:
The Director's approval.. for :unlimited hosting of social events including weddings
and wedding receptions; is REVERSED; this use does not satisfy the criteria of
BIMC 18.108.040A and it should be, as directed by BIMC 18.108.040B, DENIED.
Entered this 27 day of July 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 rights andresponsibilities 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, Chapter 36.70C.
CUP 1.1649
Page 11 of 16
~~
,. ~ •
.APPENDIX A
Bainbridge Island Municipal Code (BIMC)
TITLE 18.36 BIMC: R-0.4 ZONING
BIMC 18.36.010 Purpose
The purpose of the R-0.4 zone is to "provide low density .housing in a rural environment
consistent with other land uses; such as agriculture and forestry; and the preservation of natural
systems and open space. The low density of housing does not require the full range of urban
services and facilities."
BIMC 18.36.020 Permitted Uses
The following uses are permitted in the. R-0.4 zone:
A. Accessory dwelling units;
B. Accessory uses and buildings;
C. Agriculture;
D. Family day care homes;
E. Forestry;
F. Manufactured homes;
G. Minor home occupations;
H. Parks, active recreation;
L Parks, passive recreation;
J. ,Single-family dwellings built to IBC standards.
BIMC 18.36.030
The following uses may be permitted in the R-0.4 zone as Conditional Uses [see BIMC
18.108.040]:
A. Agricultural retail as established in BIMC 18.99.060;
B. Bed and breakfast establishments;
C. Cemeteries;
D. Clubs;
E. Cultural facilities;
F. Day care centers...
G. Educational, governmental,. religious or health care facilities;
H. Group care,facilities;
I. Major home occupations;
J. Mining and duarrying;
K Multiple. family dwellings;
I. Open air sales for garden supplies;
M. Park and ride lots;
N. Public and private utility buildings and structures,.
O. Recreation activities, indoor;
P. Recreation activities; outdoor;
Q. Recycling centers...
R..Shared-use. park and ride lots.
BIMC 18.36.040
The R-0;4 zone -has. the largest minimum residential lot size (100, 000 sq. ft. minimum lot
area)-and the owest density(1 unit per 2.5 acres
CUP 11649
Page 12 of 16
;s-.. -
. ~. ~
CHAPTER 18.99 BIMC: AGRICULTURE
BIMC 18.36.0'10 Purpose
The purpose of this chapter is to provide for all forms of the keeping of livestock and crop related
activities, e.g., crop growing and processing; for commercial and noncommercial agricultural
ventures. To the extent possible; agriculture shall be treated as a preferred use in zones in which
it is a permitted use.
1.8.99.020 Permitted uses
When permitted as a use in a zone, agriculture shall be subject to the. following conditions:
A. Annual and perennial crops from plants, bushes and trees are permitted subject to
compliance with soil erosion considerations and impact on the water resources...
***
18.99.030 Accessory uses
The following are accessory uses to agriculture:
A. Processing agricultural products produced on the Island. Certain zones may permit
agriculture but only allow processing as a conditional use.
B. Storage of heavy equipment used for agricultural purposes.
C. A produce. stand and consequent seasonal agricultural retail sales of products grown
or livestock raised primarily on the Island is allowed.
D. Retall sales, in R-Q 4, R-1 and R-2 zoning districts, of cropsgrown, or livestock raised
primarily on the Island, or value added products made from those crops or livestock or
agricultural-tourism associated with the growing of crops or raising of livestock, or
incidental associated agricultural products, that meets the criteria found in BIMC 18.99.04,
are allowed year-round.
18.99.040 Accessory use with review
A. Purpose. To provide.. for the economic viability of Bainbridge Island farmers by
allowing certain year-round on-site retail activities as an accessory or administrative
conditional use in zoning districts where agriculture is an allowed dnd preferred use.
B. Procedure.
1. Agricultural retail complying with the criteria. established iii BIMC 18.99.050 shall be
considered minor and permitted in zones R-0.4, R-1 and R-2, in which agriculture is a
permitted and preferred use. An administrative review by the p" Tanning department will be
conducted within 30 days of the city's receipt of an agricultural retail plan application to
determine compliance with this chapter.
2. Agricultural retail plans that meet the established criteria shall. be kept on file at the
city and the applicant shall be notifred about review of the plan, and the. criteria required by
this chapter for the agricultural retail activity.
3. The agricultural retail plan shall be updated by the applicant as necessary to reflect
current and accurate retail operation conditions.
4. Agricultural retail activity complying with the criteria established in BIMC 18.99.060,
thresholds. for major agriculturatretail operations, shall follow an administrative conditional
use permit process as outlined in Chapte 18.108 BIMC...
18 99.050 Criteria for-minor agricultural. retail sales
Agricultural retail in zones R-0.4.. shall meet all of the following criteria:
A. The retaiCactivity shall be on site(s) where crops are grown or livestock is raised, and
joint use of farinstatTds by multiple producers is allowed, including use of retail sites for pick-
up of community supported agricultural (CSA) deliveries.
B. The retail activity shall be subordinate to the agricultural activity on-site.
C. Products sold shall be primarily Island grown crops, value added products if the
deftning ingredient was Island grown, and associated products that are incidental to the
agricultural activity on the site.
.CUP 11649
Page 13 of 16
i .. ~ ~ •
v.?:,
~..
D. Parking Shall be provided on-site that does not adversely impact sensitive areas or
water quality and accommodates'the anticipated traffic volumes.
E. Noise hresholds as established in Chapter16.16 BIMCshall not be violated.
***
G. Shall be allowed up to four special events per year.
H. No more than 24 (round trip) retail-related automobile trips per day (on average,
annually) shall be generated except that:
1. An agricultural retail operation activity within an R-0.4; R-1 or R-2 zoning district that
is located on a road classified as a secondary arterial or above, and has the capacity on-site
to accommodate the required parking may generate an unlimited number of automobile trips
per day for agricultural retail activities.
I. Agricultural-tourism activities are allowed as defined in Chapter18.06BIMC.
J. All applicable local, county, state and/or federal requirements. must be met.
18.99.060 ~Iaior agricultural retail
A. Major agricultural retail shall be determined as follows:
1. Agricultural retail in zones R-0.4; R- 1 and R-2 with volumes, that are located on a
roadway classified ar a collector or lower, that are expected to exceed the allowed thresholds
of 36 (round-trip) trips per day average; or
2. Agricultural retail in zones R-0.4; R-1 and R-2 offering more than four special events
on-site per year.
B. All agricultural retail activity that exceeds the thresholds set in this section shall be
considered major agricultural. retail operation and shall be processed according to BIMC
18.108.020: C, Administrative Conditional Use.
BIMC 18.108:040 Conditional.. Use. Permit Decision Criteria
A. A conditional use may be approved or approved with modifications if
•- =yo
1. The conditional use is harmonious and appropriate. in design, character and
appearance with the existing or intended character and quality of development in the immediate
vicinity of the subject property and with the physical characteristics of the subject property;
2. The conditional use wih be served by adequate public facilities including roads,
water, fire protection, sewage disposal facilities and storm drainage facilities;
3. The conditional use. wtll not be materially detrimental to uses or property in the
immediate vicinity of the subject property;
4. The conditional use is in accord with the comprehensive plan;
5. The conditional use complies with all other provisions of this code;
6. The conditional use will not adversely affect the. area or alter .the area's
predominantly residential nature; and
7. All necessary measures'hrn~e been taken to eliminate the impacts that the proposed
use may have on the surrounding area.
B. A conditional. use may be approved -with conditions. If no rerasonable conditions can be
imposed .that ensure the application meets the decision criteriaof this chapter, then the
application shall be denied.
C. 1. Educational, cultural, governmental, religious or health care facilities in residential zones
must be processed as regular conditional use permits and meet the following criteria; in
addition to those listed above:
a. Applicants' are. required to submit a traffrc report, showing the effects onlevel of service on
affected roads. Proposed mitigations for degradation of the LOS must be submitted as part of the
application.
b. All cites must fronton roads classified as residential suburban or above on the Bainbridge
Island Functional Road Classification Map.
c. Noise levels shall be in compliance with BIMC16.16.020 and 16.16.040A.
CUP 11649
Page 14 of 16
... ~ ~
d. The appropriate approvals of sewer and water supply must be submitted at the time of
application:
e. _9 fencing plan or alternative methods to protect the public health, safety and welfare must
be submitted at the time of application.
f. The applicant shall provide perimeter buffers of vegetation either retaining existing or
planting a new one'. in compliance with BIMC18.85.070 D.4 (this only applies to residential
districts outside Winslow).
***
h. Vehicular, pedestrian, and bicycle access and site circulation must be submitted at the time
of application and approved by the city. The city engineer may modify the requirements of
BIMC18.81.020D.
i. The applicant shall submit a site and building design proposal that meets the design
principles and guidelines found in BIMC18.41.070 Light manufacturing design guidelines, and
incorporates conditions deemed applicable by the director in .accordance with .this chapter. Each
proposal will be evaluated for adequate vegetated roadside views, landscaping buffers for parking
and service areas, scale of proposed construction including bulk and height and harmonious
architectural design. features compatible with the surrounding neighborhood.
2. All of the above facilities which have attendees and employees numbering fewer than SO or
an assembly seating area. of less han 50 may have any or all the. above requirements waived by
the director, except those required elsewhere in the city code.
3. Educational programs in residential zones that are temporary or of short duration, as
determined by the director, may be exempt from conditional use permit requirements.
CHAPTER BIMC 18.06: DEFINITIONS
16.26.020A `.Agricultural land" means land primarily devoted o agricultural operations.
16.26.020E `Agricultural operation" means any facility or activity for the production or intent of
production for commercial or family use purposes of dairy; apiary, livestock, camelids, ratites,
vegetable or animal products, and crop products including, butnot limited to, ornamental crops.
Incidental vegetable gardening, landscaping and keeping common pets are not defined as
agriculture.
18.06.060 Agricultural processing" means the preparing and manufacturing of commodities
primarily from. island fartns except for small-scale incidental processing such as a cider press.
18.06.065 `Agricultural retail ".means the sale of crops grown or livestock raised by a farmer or
value added products made from crops grown or livestock raised by the. fainter, agricultural-
tourism, and incidental associated agricultural products sold on-site where agricultural crops or
livestock are grown or raised that is subordinate to the actual agriculture on-site. (Ord. 2004-11
~¢' 2, 2004)
18.06.057 `Agricultural retail plan" means a document, filed with. the city, which contains
.information on agricultural activity occurring at a specific location. Different from, but may be
supplemented by, Trust for Working .Landscapes or Kitsap County conservation district farm
plans.
18.06.068 `Agricultural-tourism" tneans agriculturally related accessory uses that are
subordinate to fhe growing of crops or the raising of livestock, designed to bring the public to the
farm on a temporary or continuous basis,. sucft a:c V piclc farm'sales, retail sales of farm products,
farm mazes, pumpkin patches, farm animal viewing and petting, wagon rides, farmland and
facility tours; horticulture nurseries and associated display gardens, cider pressing, classes or
workshops, wine or cheese tasting, etc.
18.06.070 `Agriculture" means all forms of crop-relrrte~l activities, such as growing crops and
processing island-grown crops as part of a farm, and' artt~ttal husbandry using best management
practices. Incidental vegetable gardening, landscaping tind.keeping common pets are not defined
as agriculture. Agricultural land-and agricultural operations shall be as defined in Chapter 16.20
BIMC.
CUP 11649
Page 15 of 16
~~~r. r
t,
•
18.06.071 `Assoeidted p"roducts ancUor activity" :means a required agricultural input, product or
activity related to the primary crop, product or activity.
BIMC 16.16 NOISE
BIMC 16.16.001 Declaration of policy
The city council finds that inadequately controlled noise adversely affects the health, safety
and welfare of the people, the value of property, and the quality of the environment. Therefore, it
is declared to be the policy of he city to minimize the exposure of citizens to the harmful,
physiological and psychologicaC effecfs of excessive noise. It is the express intent of the city to
control the level of noise- in a manner'which promotes use, value and enjoyment of property, sleep
and repose, and quality of the environment and commerce.
BI1vIC 16.1b.020 Maximum environmental noise levels
WAC 173-60-020, 1:73-60-040 and 1'73-60-090 are adopted by reference. WAC 173-60-050 is
also adopted by reference;. except as'to WAC 173-60-050(3)(a).
WAC 173-60-020 Definitions:
(6) "EDNA" means the environmental designation for noise abatement; being an area or zone
(environment) within which maximum permissible noise levels are established.
WAC 173-60-030'Identifiaction of environments:
(1) (aj Class AEDNA - ._.
(i) Residential
(ii) Multiple family living accommodations
(iii) Recreational and entertaintrient, (e.g., camps, parks, camping 'facilities, and resorts)
(iv) Community service:..
(b) Class B EDNA..,
(i) Commercial living accommodations
(ii) Commercial dining establishments
(iii) Motor vehicle services
(iv) Retail services'
(v) Banks and office buildings
(vi) Miscellaneous commercial services...
(vii) Recreation and entertainment, property not used for human habitation...
(viii) Community services;. property .not used.. for human habitation (e.g., educational,
religious;. govenunental, cultural and recreational facilities).
(c) Class. CEDNA - ...:involving: economic activities of such a nature that higher noise levels than
experienced in other areas. snormally to be anticipated...
(i) Storage,. warehouse, and distribution facilities.
(ii) Industrial....
(iii) Agricultural and silviculturaL...the production of crops, wood products, or livestock:
~**
WAC 173-60-040 Maximum pernti'ssible environmental noise levels;.
(l) No person shall cause or permit noise to ::intrude into the property of another person which noise
exceeds the maximum permissible noise leuels set forth below in this section.
(2,xa)The noise limitations esta6hshedarc as sel forth ipthe following table... [Table show is from
Exhibit 25]
Noise Source Recerv~ng'.Property
Class A C7ass;B Class C
Class A 55 dBA 37 dBA 60 dBA
Class B 57 6Q 65
Class C 60 65 70
CUP 1164.9
Page 16 of 16