SHELTON, SCOTT
BEFORE THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of
UPPER BLAKELYIHARBORMEADOW
CUPfRUE13379
Application for Conditional Use Permit
and Reasonable USle Exception
ORDER ON
MOTION FOR
RECONSIDERA TION
The Hearing Examiner's decision in this matter was issued on January 9, 2007. On
January 18, 2007, the applicants filed a Request for Reconsideration requesting
clarification and/or amendment of the decision. The applicants requested changes in:
Findings 7,8 and 11; Conditions 3 and 51; and, Sections 1.5.1,1.5.3, and 1.10 of the
Open Space Management Plan.
DISCUSSION
J[findin2 7 ~lIld Findin~ The terms "family compound" and "family members"
are sourced in the description of the proposal provided by the applicants (see e.g., Exhibit
15, Item All; Exhibit 16, page 1, Paragraph 2; Exhibit 21, page 10, Item 8; Testimony of
Shelton]l. Similarly, the references to the anticipated rate of development came directly
from the applicants [see e.g., Exhibit 15, Item A6; Exhibit 16, page 1, Paragraph 4;
Exhibit 21, page 10, Item 8; Testimony of Shelton]. Unless the information provided by
the applicants is false, grossly inaccurate, or contradicted by more credible evidence in
the record, Finding 7 and Finding 8 are properly Findings of Fact for this decision. The
Findings do not, however, control the nature of future ownership or the rate of
development. Further, the zoning code, not Finding 8, controls development of
"accessory dwelling units".
~;=ondition _ 3: This condition requires a temporary erosion and sedimentation
control plan and restricts construction to between "May 1 and September 30, unless
specifically allowed by the City Engineer..." This language is identical to that used in
the Director's Recommended Condition #3. The City Engineer routinely applies
conditions of the type and disagreement and/or misapprehension about its application
should have been raised at hearing.
rondition~51: The language of this condition was intended to make clear that the
applicants' responsibility for improvement was limited to the applicants' side of the road.
This condition should be revised to make that clear. See below.
~:)pen Spal~e Mana2elll1ent Plan (OSMP):
Section 1.5.1 does not (and should not) endeavor to provide a comprehensive list
of "permitted activities". The phrase (emphasis added) "including, but not limited to..."
Order on ]\v1otion for Reconsideration
Page 2 of2
regarding "installation and use of facilities commonly associated with recreation areas" in
I. 5. I (ii) makes that clear; as does (emphasis added) "patios, decks, gazebos or similar
accessory structures" in 1.5.1(iv).
Section 1.5.3 regarding permitted activities in "[ e ]xpansion of the designated
Meadow" or in otber meadows created within Open Space Area 2, refers to Section 1.5.1
for "permitted activities". That is, the activities permitted by 1.5.1 in the proposed
meadow, would be permitted iin an expanded or new meadow (i.e., it is the same "list" of
activities).
The provision in Section 1.5.3 that require "the majority of the Owners" in order
to enlarge the designated Meadow and/or create other meadows, comes directly from a
draft: OSMP prepared by the applicant. In Exhibit 73, Section 1.3 provides (for the entire
OSMP) that: "Changes and amendments can only be made by a majority vote of the
landowners." The provision of Section 1.5.3 requiring majority approval for changes in
meadow designation is considered appropriate and necessary.
Section 1.10.3 needs to be revised to provide for the tree retention intended. The
"30%" retention provision for individually owned building sites should refer to "existing
significant trees", not the "tree canopy". This provision is similar to, but not as restrictive
as the retention proposed in applicants' draft plan (see e.g., Exhibit 72, Section 1.6.3;
Exhibit 73, Section 1.7.3). See revised Section 1.10.3 below.
ORDER
The decision in this matter is hereby ORDERED REVISED as follows:
Condition 51 is revised to read:
51. Prior to issuance of the first building permit, the applicants shall, to the
satisfaction of the City Engineer, improve the subject property's Toe Jam
Hill Road frontage to City standards.
The Open Space Management Plan (in Appendix A) is revised to read:
1.10.3 Vegetation Retention. A minimum of 30% of the existing significant
trees (as defined by BIMC 18.06.089) shall be retained on each
individually-owned building site. Hazard trees, noxious weeds, invasive,
non-native plants may be removed. To promote slope stability, significant
trees and native vegetation should be retained on slopes exceeding 15%.
Entered this 24th day of January 2007.
signed in original
Meredith A. Getches
Hearing Examiner
DECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDG:E ISLAND
In the Matter of the Application for
UPPER BLAKELYIHARBOR MEADOW
CUP/RUE 13379
Conditional Use Permit and Reasonable Use Exception
BACKGROUND
The Applicants seek a Conditional Use Permit and a Reasonable Use Exception to
establish 27 building sites on two adjacent parcels and, in future, individually construct
up to 27 dwellings (one per building site). The Director has reviewed the application and
recommended approval with conditions. The Hearing Examiner held a public hearing on
July 27, 2006. Parties represented at the hearing were: the Director, Department of
Planning and Community Development (Department or PCD), by Marja Preston,
Planner; and, the Applicants, Harbor Meadow LLC and Upper Blakely LLC, by Scott
Shelton.
At the public hearing, the Hearing Examiner requested revision of the proposed Open
Space Management Plan [OSJ\1P] to clarify permitted and prohibited activities and future
use. A revised OSMP was submitted on November 2, 2006, and the hearing was
reconvened on December 7, 2006, to discuss it. The record was left open following the
reconvened hearing to allow the applicants to submit a revision responsive to the
directions of the Hearing Examiner On December 13, 2006, with receipt of a revised
OSMP [Exhibit 73], the record was closed.
After due consideration of alii the evidence in the record, the following constitutes the
findings., conclusions, and decision of the Hearing Examiner on this application.
FIND INGS
Site Description
I. The site consists of two adjacent parcels located between Toe Jam Hill Road (on
the west), NE Country Club Road (on the north and northeast), and Upper Farms Road
(on the east). A narrow gravel roadway (used as a logging road in the 1950's and as a
waterline maintenance road since 2000) provides vehicular access from Toe Jam Hill
Road, to the interior of the site. The 104-acre site, overlooking Blakely Harbor, includes
Lot A (NE 1/4, Sec. 11, T.24N., R.2E.) and Lot B (N\V 1/4, Sec. 12, T.24N., R.2E.) See
legal description Exhibit 18. [Exhibits 12, 52, 63; Testimony of Preston, Shelton]
Parc!cl
Lot A
Lot B
Owner
Harbor Meadows LLC
Upper Blakely LLC
.sizl~
61.20 acres
46.86 acn~
Total: ] 04.06 acres
Tax Assessor Acct. No.
] ]2402-2-043-2000
]22402-2-017-2009
CUPl3379
Page I of 20
2. The site is undeveloped and covered with second-growth hardwood and conifer
forest. Vegetation includes moderately dense stands of mature alder, maple, cedar, and
fir trees and a dense understory of sword ferns, berry bushes, vine maple, and broad leaf
ground cover, including Oregon grape and sala!. [Exhibits 26, 52, 61, 68, 69; Testimony
of Preston, Shelton]
3. Four wetlands and three streams have been identified on the site. The wetlands
(delineated and classified in 1990, 1992 and 1997 and verified in 2000) were re-examined
by a qualified wetland scientist in 2004 [see reports and recommendation, Exhibit 12].
4. Geologic conditions on-site have been subject to assessment in geotechnical
reports, including Exhibit 61 which summarizes previous reports and provides
recommendations for the subject proposal. The site topography generally has three
elements: I) steep north- and northwest facing slopes, with localized steeper slopes along
the north-south trending ravine; 2) center area with slopes less than 15%; and, 3) south
central area with slopes of 20-30%, flattening to less than 15%. Some slopes are defined
as geologically hazardous under the City's Critical Areas Ordinance. There is evidence
of older slide activity in the lower slopes and an active slide area exists at the northwest
corner of Parcel A affecting a portion of the Country Club Road right-of-way. [Exhibits
13, 57, 58, 59].
5. The zoning of the subject site is residential (R-O.4, one dwelling per 100,000 sq.
ft.). Single-family dwellings are permitted outright in this zone; multifamily dwellings
are permitted as conditional uses. The Comprehensive Plan designation is SUR (Semi-
Urban Residential). Zoning in all directions surrounding the subject site is R-O.4 (with
SUR Comprehensive Plan designation) and, except for the Country Club to the east, all
uses in the immediate vicinity are residential. The northernmost portion of the site is
within the City's shoreline and has a "Rural" designation. [Staff Report, Exhibit 52, page
10; Testimony of Preston]
Proposal
6. The site plans [Sheet 1/7 through 7/7; see Exhibit 4] were revised in the course of
the review of the application. This decision relies on the most current plans available as
follows (other versions are considered superseded):
Sheel; Exhibit Title {Depicting)
1/7 63 Conditional Use Permit (basic info: IlegaI descriptions)
2/7 70 Parcel A, Harbor Meadow LLC (wetlands: topography)
3/7 63 Parcel A, Harbor Meadow LLC (Building Sites Al - A15)
4/7 70 OSMP Areas: and Tree Retention Plan: Parcel A
5/7 63 Parcel B, Upper Blakely LLC (wetlands: topography)
6/7 63 Parcel B, Upper Blakely LLC (Building Sites Bl - B12)
7/7 70 OSMP Areas and Tree Retention Plan: Parcel B
Date
07/05/06
10/30/06
07/05/06
10/30/06
07/05/06
12/07/06
10/30/06
7. The two families who own these adjacent parcels propose to develop the site as a
condominium for residential use by family members (a "family compound"). Parcel A
would have 15 building sites (AI through A15; see Sheet 3/7, Exhibit 63) and Parcel B
would have 12 building sites (81 through B 12; see Sheet 6/7, Exhibit 71). The applicants
CUPI3379
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propose to initially construct basic infrastructure and clear a 7-acre meadow area.
Subsequently, family members would build and own their individual dwellings and share
equally in the ownership of the commonly-held property outside of the designated
building sites. [Exhibits 15, 16,52,70 (Sheet 7/7); Testimony of Shelton, Preston]
8. The road improvements and infrastructure would be constructed after approval of
this application. Individual dlwellings would be constructed by family members over
"'generations", with fewer than five houses expected to be built in the first 10 years, and
as many as seven in 20 years. Impervious surfaces (road and buildings) at "full build
out" would cover less than 10% of the total site. The maximum number of dwellings
constructed would be 27 (one dwelling per building site); each dwelling would have a
separate building permit appliication (including review of on-site septic system). It is
anticipated to take on the order of 40-60 years to reach "'full build out". [Exhibits 15; 52;
Testimony of Shelton, Preston]
9. The existing road would be improved and extended approximately 1500 ft. to
provide vehicular access to the 27 building sites. This private gravel road would be 12 ft.
wide (plus shoulders), with turnouts at 300 ft. intervals. Runoff would be collected in a
ditch along the side of the road and routed into existing culverts. Drainage from the new
portions of the road (the Upper Blakely "loop road") would be collected in a biofiltration
swale/ditch along side of the road, then routed to a detention pond sized in accordance
with current regulations. [Exhibits 11, 15, 52; Testimony of Shelton]
10 A.pproximaltely 80% of the site would be designated as Open Space and managed
according to an Open Space Management Plan (OSMP). The originally proposed OSMP
was revised during the hearing process [see Finding 29].
11. The subject property has approximately 1800 linear feet of shoreline along the
south shore of Blakely Harbor. No building sites are proposed within the shoreline and
the requiired 50-ft. wide native vegetation zone wOUlld be maintained as Open Space [i.e.,
within Areas 1 and 2A, see Sheets 4/7 and 7/7 in Exhibit 70]. The applicants propose to
dedicate an easement for a public trail within Open Space Area 1. (The Owners have
volunteered the easement and continued cooperation; they are not intending to fund the
design or construction of a trail in the shoreline within the easement.) Open Space Area
2A, at either end of Area 1, would have commonly-owned shoreline amenities and serve
as "buffers" for adjacent residences. Certain accessory structures (e.g., a boathouse up to
200 sq. ft., and deck up to 120 sq. ft.) could be permitted within the native vegetation
zone in Open Space Area 2A [see BIMC16.12.260B.9]. Such structures are not currently
proposed in the subject application. [Exhibits 8, 52, Testimony of Preston, Shelton]
12. Due to geologic instability, Country Club Road is currently restricted to one lane
of travel where it passes through the subject site. To remedy this situation, the applicants
have agreed to allow the City to relocate Country Club Road (and its right-of-way) south
of its present location. [Exhibits 8,9,52; Testimony of Preston, Shelton]
13. Water to the subject site would be supplied by Island Utility Company which
already Ihas an eight-inch main installed on the property. Puget Sound Energy would
CUP 13379
Page 3 of 20
provide electric service; Ques.t and Comcast would provide phone and cable serVIces
respectively. [Exhibit 15]
Director's Review and Recommendation
14. The future dwellings would be single-family stmctures (i.e., one dwelling unit per
stmcture), but are considered "mult~family" [see BIMC 18.06.320] because there would
be more than one dwelling per lot (i.e., ] 5 building sites on Parcel A and ]2 on Parcel B).
In the R-OA zone, "multifamily" dwellings may be allowed as a Conditional Use [see
BIMC ] 8.] 08.040.A Finding 36].
15. The application [Exhibit 21] for the Conditional Use Permit (CUP) was submitted
to PCD on November 16, 2005 and deemed complete on November 20, 2005 [Exhibit
26]. On November 30, 2005, PCD published notice of the application and of the SEP A
Comment Period [Exhibit 28]; re-notice of the application and extension of the SEP A
comment period was published on December 12, 2005 [Exhibit 39]. Because the existing
access road is located within the wetland buffer, a Reasonable Use Exception (RUE) is
also required.
16. During the comment period several concerned neighbors submitted comments to
the Director [Schaiirer, Exhibit 30; Berdan, Exhibit :3]; Kallas, Exhibits 32 and 36;
CameronlBight, Exhibit 33; Blackman, Exhibit 40; Hacker, Exhibit 41; Morgan, Exhibit
43]. Some of the comments indicated opposition to the proposal as being too much
development and baving adverse impacts on wildlife in what many consider one of the
last "pristine and wild areas on Bainbridge". Others questioned how the proposed open
space would be kept undeveloped in future. The potential for clearing and development
to increase stormwater mnoff (drainage) downslope was a major concern; the adequacy
of on-site septic systems was ,also challenged. The precise location of the Country Club
Road realignment was a particular concern to adjacent residents. The South Bainbridge
Community Association submitted comment [Exhibit 42] commending the applicants for
the low density proposed and the offer to grant an easement for a public path along the
waterfront The Association also expressed concern that the application would not be
subject to the recently adopted Critical Areas Ordinance.
] 7. The PCD Staff Report [Exhibit 52, page 11] includes a discussion of the
comments received and accurately responds to questions regarding: density; public
shoreline access; provisions for stormwater drainage; on-site septic systems; and, the
inapplicability of the City's new Critical Areas Ordinance.
18. The Director referred the application to various City departments for review and
comment [Exhibit 20]. The Public Works Department advised that the applicants would
be required to improve their side of the Tow Jam Hill Road right-of-way. Stormwater
drainage facilities for residential development would also have to meet City standards
applicable at the time individual building permit applications are submitted. [Exhibit 44].
19. The Fire 1\1arshall specified that the access road must meet Public Works
standards, including turnouts at 300 ft. intervals. Paving and/or residential sprinkler
systems could be required depending upon the road grades. [Exhibits 16 and 29].
CUP13379
Page 4 of 20
20. The Public Works Department provided a Certificate of Concurrency attesting
that existing transportation facilities would not be unduly burdened by the development
anticipated [Exhibit 64]. The Certificate of Concurrency, premised upon 9.5 Average
Daily Trips (ADT) per dwelling unit and a total of27 dwelling units, notes a total of258
ADT and 27 Peak Hour Trips associated with full build out. The project was exempt
from the traffic study requirement of BIMC 15.40.060 because the applicants agreed to
make dedications and right-of-way improvements. [Exhibits 9, 44; Testimony of
Shelton].
21. The Island Utility Company provided a commitment letter for water servIce
[Exhibit 7]. The Kitsap County Health District indicated that it would do its review (soils
and septic system design) at the time each building site application (BSA) is submitted
[Exhibits 50 and 55]
22. Two bald eagle nests are known to exist in the vicinity. In association with the
Forest Practices application for the tree cutting proposed for creation of the meadow [see
Finding 7]. a Bald Eagle Management Plan [Exhibit 10] has been drafted by the property
owners in cooperation with the State Department of Fish and Wildlife. The Director
recommends that conditions in that Plan be made conditions of approval [see Condition
22].
23 On May 9, 2006, the Director issued a SEPA Mitigated Determination of
Nonsignificance (MDNS) [Exhibit 45]. The MDNS was not appealed.
24 The City's Wetlands Advisory Committee indicated its endorsement of the
Reasonable Use Exception afiter visiting the site and interviewing the applicants. The
Committee based its approval on its belief that the intmsion of the existing road into the
wetland buffer is too small to require further mitigation and that moving the road would
cause more environmental harm than the proposed improvements. [Exhibits 51]
25 The designated Category II wetlands (Wetland 39, 41, 46) are required to have
] OO-ft. ,vide buffers. A 50-ft. wide butfer is required for the Category 111 wetlands (west
of building site AI., near Toe Jam Hill Road and Wetland 40, near the eastern property
boundary). A 15-ft. wide building setback is required around the wetland buffers.
Buffers 25- ft. wide are required on either side of the centerline of identified streams, plus
] 5-ft. wide building setbacks from those buffers. A 50-ft. buffer is required from the
edge of steep slopes. [Exhibits 63,70,71]
26. The Director correctly determined that this proposal: 1) complies with the
applicablle Conditional Use Permit criteria of BIMC 18.108.040 for "mult~family
dwellings" on the subject silte; 2) meets the requirements of BIMC 16.20.090 for
approving a Reasonable Use Exception to allow the proposed improvements of the
existing road in the wetland buffer; and, 3) is consistent with applicable polices of the
Comprehensive Plan. The Staff Report [Exhibit 52, pages 12 through 19] provides
thorough and accurate analyses of the proposal's compliance with zoning code
requirements and Comprehensive Plan consistency. These analyses, unless specifically
contradicted by other parts of this decision, are adopted as Findings. The Director's
CUPI3379
Page 5 of 20
recommended Conditions 1 through 56 [Exhibit 52, page 2-8] are also adopted (except as
modified in this decision [see Conditions of approval on pages 11-16]).
Public H~~~ring
27. The hearing, originally scheduled for June 22, 2006, was continued to July 13,
2006 Notice of the public hearing was properly given a.nd complete as of June 28, 2006
[Exhibit 54]. At the hearing, the Applicant described and explained the proposal
[Testimony of Shelton] and the Director presentedl the staff report and Recommended
Conditions [Testimony of Preston].
28. During the public comment portion of the hearing on July 13, 2006, several
members of the public spoke [Testimony of Black, Citron, and Davis]. Concerns and
questions included: how can open space be preserved through time; the need for
enforceable covenants to not develop land that is designated "open space"; the potential
to increase runoff to downslope properties (already e:xperiencing drainage problems);
and, the adequacy of the access. A representative from the Parks District verified the
applicants' cooperation for developing a public trail in the shoreline and for being a
partner D:>r shoreline restoration [Barrett].
29 The Open Space Management Plan (OSMP) originally proposed [Exhibit 53] did
not have an appropriate level of detail regarding a.ctivities that would be allowed and
those that would be prohibited. The revised OSMP (including revised plans identifying
the various open space "areas") was the focus of discussion at the reconvened hearing
held on December 7, 2006 [Exhibits 70 and 72]. The record remained open following the
reconvened hearing so that the applicants could incorporate the changes discussed. A
revised version was submitted December 13, 20016; the resultant OSMP [Exhibit 73]
requires additionall modification in order for it to provide appropriate open space
protection and management in the future. Condition 34 requires that the modified version
of the OSMP, presented in Appendix A, be adopted, recorded and implemented.
30. Further, to ensure that it is made clear that all the open space areas noted in the
OSMP maps [Sheets 2/7 and 4/7, dated 10/30/06, in Exhibit 70] are part ofthis decision,
the site plans that depict the Conditional Use Permit proposal [Sheet 1/7 and Sheet 3/7,
dated 7/5/06 in Exhibit 63, and Sheet 6/7, dated 12/7/06 in Exhibit 71] must be revised.
The revisions required (prior to the issuance of the CUP) are: 1) include on Sheet 1/7 that
portion of the subject property that lies north of Country Club Road; 2) note a cross-
reference on Sheet 3/7 indicating that Parcel A includes the open space areas north of
Country Club Road as depicted on Sheet 4/7; and, 3) note a cross-reference on Sheet 6/7
indicating that Parcel B includes the open space areas north of Country Club Road as
depicted on Sheet 7/7.
Bainbriclge Island Municipal Code [BIMC]
31. BIMC 18.06.320 defines "Dwelling, multifamily" (emphasis added) to mean "a
building or portion (~f a building containing two or more dwelling units or more than one
dwelling unit on Oj~'e lot, not including accessory dHJelling units". Future residences here
would be considered "multifamily" dwellings because there would be more than one
dwelling per lot (up to 15 on Parcel A and up to 12 on Parcel B). However, these future
CUP13379
Page 6 of 20
dwellings would be separate units; each would look like and function like a single family
residence (see BIMe 18.06.330).
32. Pursuant to BIMC 18.36.030, "multifamily mt/ellings" may be permitted as a
conditional use in the R-O.4 zone [see also Staff Report, Exhibit 52, pages 17-19].
Applicablle development standards include 10% maximum lot coverage [BIMC
18.36.050] and 30-11:. maximum building height [BIMC 18.36.070]. Due to the clustering
proposed, the yard requirements ofBIMC 18.36.060 do not apply.
33. Chapter 16.20 of the Municipal Code categorizes wetlands, streams, and steep
slopes as "Critical Areas"; protections are required for some critical areas. [See BIMC
16.20.090; BIMC 16.20.080; and, Finding 25].
34. The proposed open space areas generally incorporate buffers and setbacks
required by the Critical Areas Ordinance [BIMC 16.20]. However, some portions of the
existing road are located within the wetland buffer. The applicants seek a Reasonable
Use Exception to improve the road in its present alignment.
35 BIMC 16.200901.4 provides that a RUE may be approved if, without it an
applicant would be deprived of "reasonable use of the property", and it meets the
following criteria:
a. The proposed activities will result in the minimum intrusion,
alteration or impairment (~f the wetlands, stream or required blf;ffer
including i,mpacts to their functional characteristics, while permitting
some reasonable use (~f the property. In all cases, disturbance of a
regulated l1'etland or stream shall only occur if no reasonable use can be
achieved by disturbance of the blf;ffer only;
b. The proposed activities are located to minimize impacts to the
continued existence of endangered, threatened, rare, sensitive, or monitor
species as listed by thefederal government or the state (~f Washington;
c. The proposed activities include mitigation as appropriate to avoid
measurable degradation to groundwater or surface water quality;
d. the proposed activities comply with all relevant state, local and
.fi[~deral laws, including those related to sediment control, pollution
control, floodplain restrictions, and on-site wastewater disposal;
e. Alterations to wetland, streams and buffers will be mitigated to the
extentfeasihle considering the extent (~fthe disturbance, the size (if the site
and the necessity for the proposed activities;
.f There will be no damage to nearby public or private property and no
threat to the health or safe ty qf people on or off the property;
g. the inability to derive reasonable use of the property is not the
result qf actions by the applicant in segregating or dividing the property
and creating the undevelopable condition after the effective date of this
chapter;
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Page 7 of 20
h. The reasonable use exception will not allow a use or activity that is
inconsistent with the uses and activities and limitations of other properties
in the viciniJtv and zone in which the property is located;
i. For a nonresidentially zoned site, the reasonable use exception
should consider alternative uses that minimize impacts to wetlands,
streams, and buffers, as well as the applicant's proposed use;
j. The reasonable use exception is the minimum nece.<,'sary to provide
reasonable use of the property;
k. The reasonable use exception is consistent with all other provisions
of this code and is in accord with the comprehensive plan.
36. BIMC 18.108.040A provides that a conditional use "may be approved or
approved with mod(fication" 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 (4 the subject proper~y and with the
physical characteristics of the subject property;
2. Jhe conditional use will be served by adequate public facilities
including road<,', water, .fire protection, sewage disposal facilities and storm
drainage facilities;
3. The conditional use will not be materially detrimental to uses or
property in the immediate vicinity ~f the su~iect property;
4. The conditional use is in accord with the comprehensive plan;
5. The conditional use complies with all other provisions ~fthis code;
6. The conditional llse will not adversely affect the area or alter the
area's predominantly residential nature; and
7. All necessary measures have been taken to eliminate the impacts that the
proposed llse may have on the surrounding area.
37. Following the decision procedures of BIMC 2.16.100, the Hearing Examiner is to
hold a public hearing and then make a decision to "approve, approve with modifications,
deny or remand an application". In making this decision, the Hearing Examiner is
reqUIred to "consicler the applicable decision criteria of this code, all applicable law, and
any necessary documents and approvals." [See also BIMC 2.16.025 and BIMC
16.20.090I.2.b]
CONCLUSIONS
I. The Hearing Examiner has jurisdiction to hear and decide this matter.
CUP 13379
Page 8 of20
2. Appropriate notices of the application and of the public hearing were given and
the hearing was properly convened and all comments, testimony, and other evidence
offered and admitted to the record have been considered.
3. The applicants propose to develop the subject property in allowable residential
use at a density considerably less than that permissible under existing zoning. Residential
construction would be allowed only within the 27 designated building sites and only one
dwelling could be constructed on each building site. The applicants have shown a
noteworthy and commendable regard for the natural features, wildlife, and habitat of this
remarkable property. The owners' commitment to long-term habitat protection and
restoration is suppOJied by the provisions of the required Open Space Management Plan
[Appendix A].
4. Approval of the Reasonable Use Exception is necessary and appropriate. As
observed by the Wetlands Advisory Committee, the proposal would be less damaging to
the environment than moving the road so that such an exception would not be required.
The proposal, as conditioned, meets the Reasonable Use Exception criteria for approval
and should be approved.
5. As conditioned, the proposal meets the criteria for Conditional Use Permit
approval and the requested Conditional Use Permit should be approved. The
implementation of the Open Space Management Plan [slee Appendix A and Condition 34]
is fundamental to this conclusion and to the approval of the Conditional Use Permit.
DECISION
The application of Harbor Meadow LLC and Upper Blakely LLC for a Conditional Use
Permit and a Reasonable Use Exception for "Upper BlakelylHarbor Meadow" is
APPROVED WITH CONDITIONS 1 through 56 that follow on pages 11-16.
Entered this 9th day of January 2007.
Signed in Original
Meredith A. Getches
Hearing Examiner
CUP13379
Page 9 of 20
Concerning Further Review
NOTE: It is the responsibility of a person seeking judicial 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, Chapter 36.70C.
CUP 13379
Page 10 of20
Upper B1akelylHarbor Meadow
CONDITIONS OF APPROVAL
CUPIRUE 13379
SEPA CO~lditions:
I. Prior to any clearing or grading on individual building sites, a clearing, grading, or building
permit shall be obtained from the City.
2. All construction plans shall contain the endorsement of a Geotechnical Engineer
establllshing that he/she has reviewed the plans and approved them as being in conformance
with his/her recommendations for construction of roads and residences.
3. Prior to any construction, temporary erosion and sedimentation control plan (TESCP)
must be submitted and approved by the City Engineer. Construction shall be restricted to
dates between May I and September 30, unless specifically allowed by the City Engineer and
the Geotechnical Engineer. The TESCP shall directly address wet weather conditions that
may occur during construction. A Certified Erosion Control Professional shall be retained to
oversee the project and shall be available 24/7 throughout construction of roads, drainage
facilities and other subdivision infrastructure. (Reference Department of Ecology, Stormwater
Management Manual for Western Washington, February 2005, see "Project Management of
SWPP-Element 12".)
4. All gl:aded mat,erials removed from the project shall be hauled to and deposited at City
approved locatiions. Haul routes must have prior approval by the Department of Public
Warks.
5. To mitigate impacts on air quality during earth moving activities, contractors shall conform
to Puget Sound Clean Air Agency Regulations.
6. All construction staging shall be outside critical areas and their buffers. Construction
fencing or silt fencing shall be placed adjacent to criticall area buffers prior to issuance of any
permit that allows clearing in the vicinity of critical areas and their buffers.
7. The wetland and stream buffers shall be identified with a two-rail fence where the
buffers come within 15 feet of the designated building sites. The fencing shall be installed
prior to earth moving activities or prior to building permit issuance, which ever comes first.
8. No fe:rtilizers, p(~sticides, or herbicides shall be used ill the wetland/wetland buffer or the
streams and/or their buffers. The use of these products elsewhere on the site is
discouraged, but if necessary they shall used consistent with Integrated Pest Management
(IPM) strategies. Strategies are defined in the Puget Sound Pest Management Guidelines. A
Guide for Protection of' Our Water Quality IMenzies, G. and B. Peterson, Puget Sound Pest
Man~!,gement Quidelines,A Guide for Protecting: Our Water Quality, WSU Cooperative
Extension, 1993].
9. In order to mitigate the impact on wildlife and the streams and wetlands on the property, the
delineated buffers shall b,e preserved in native vegetation. Removal of invasive/non-
CUPI3379
Page 1 I of20
native species is encouraged and shall be implemented with a City approved replanting plan
indicating the tyvc of vegetation being removed and the type and quantity of native plants
being provided. Replanting shall occur with shrubs on three foot centers and native ground
covers to provide complete coverage within three years. Hazard tree removal may be allowed
with appropriate City approval and replanting.
10. Removal of vegl~tation for installation of the stormwater conveyance systems and road
construction shall be the minimum necessary. The disturbed areas shall be replanted
during the next available planting season following the construction with native shrubs on a
maximum of three foot centers.
II . To minimize advl~rse impact to wildlife habitat, removal of significant trees inconsistent with
the Open Space Management Plan and/or without applicable City approval, will be subject
to fine,s and require replacement. Tree replaced will be required as follows: new trees shall be
at least two inches in caliper if deciduous and six to eight feet high if evergreen, with
replacement at a rate of 1.5 inches of diameter for everyone-inch diameter of the removed
significant tree or trees within a tree stand; replacement tre~~s shall be of the same type, evergreen
or deciduous. as trees removed; and, replacement trees shall be planted in the same general
location as the trees removed.
12. Any non-exempll tree harvesting shall require appropriate Forest Practices Permit from
the Department of Natural Resources. The conditions of this decision shall become
conditions of the 1F0rest Practices Permit.
13. On-site mobile fueling from temporary tanks is prohibited unless the applicant provides
and IS granted approval for a Permit and Best Management Plan that addresses proposed
location, duration, containment, training, vandalism and cleanup. (Reference 1. Uniform Fire
Code 79045.4.2.7 and 2. Department of Ecology, Stormwater Management Manual for
Western Washington, February 2005. see Volume IV "Source Control BMPs for Mobile
Fueling of Vehicles and Heavy Equipment"; Chapter 173-304 WAC)
14. In order to mitigate any noisl~ impacts. all construction activities must comply with BIMC
16.16.025, Limitation of Construction Activities.
15 In order to mitigate the impact of the development on the ridgelines of the community, the
significant trees and vegetation in the open space should be maintained. Trees may be
limbe,d and prumed for views as provided in the Open Space Management Plan. Hazard
trees may be removed after the City has reviewed and approved an arborist report,
received concurrence from the geotechnical engineer, and approved a replanting plan.
16. To provide safe pedestrian access within the project, a private four foot wide trail linking
the building sites may be constructed as approved by the Department of Planning and
Community Development. The trail shall have a pervious surface of gravel or bark and
construction can be phased relative to the construction of individual residences. (This is not a
requirement for the applicants to design and build the public trail for which they are
dedicating an easement in Open Space Area I.)
17. The contractor is 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 lllny historical or archaeological artifacts are uncovered during excavation
or construction.
18. School impact fees in effect at the time of building p(~rmit submittal shall be paid prior to
building permit issuance for each dwelling unit.
CUP 13379
Page 12 of20
Non-SEPA Conditions
19. No more than 27 dwelling units may be developed on the project site. This condition
does not preclude the property owners from transferring the residual single-family residential
development rights to another property at a later time.
20. The infrastructure for the project, including road construction and construction of any
required stormwater or drainage facility, must be completed within three years of this
projed approval. Once construction of the infrastructure is completed, this Conditional Use
Permit approvall~)r multifamily dwellings (one dwelling per building site) shall be effective
and not expire until completion of construction of the fj,nal (2ih) home. Future changes to
the site plans or building site layout may be permitted through a conditional use permit
amendment procedure.
21. A clearing permiit must be obtained from the City prior to any clearing on the site.
22. All conditions of the Bald Eagle Management Plan date-stamped November 16, 2005 are
conditions of this project. An updated Bald Eagle Management Plan may be required prior to
future: clearing activities not covered in the plan date-stamped November 16,2005.
23. Clearing of a meadow area in the center of the Parcel B homesites shall be allowed with a
clearing permit. A.l1 approved Forest Practices Permit must be submitted to the City prior to
issuance of a clearing permit.
24. Prior to issuance of a clearing permit iur any portion of the property, the applicant shall flag
the wetland boundaries, th,e wetland buffers and tht~ stream buffers. The wetland and
stream buffers shaIl be fenced with orange construction fencing for visibility and with silt
fencing adjacent to construction areas prior to issuance of a clearing permit. Erosion control
measures shall be in place prior to commencement of construction and throughout all phases
of construction adjacent to the critical area buffers.
25 Split-rail type fencing shall be installed along the outer edge of all wetland and stream
buffers that arc adjaccnt to any of thc building areas prior to issuance of the first building
permit. Signs indicating that only passive uses of the critical arcas are allowed shall be
placed at appropriate intervals along the fencing.
26. A mitigation and monitoring plan shall be submitted to mitigate impact to 2,100 square
feet of critical area. The mitigation may occur as restoration of shoreline or other
habitat. The mitigation plan must be approved by the Department of Planning and
Community Development prior to issuance of the first building permit on the property.
27. The l~xisting road prism may not be widened in the wetland or stream buffers; the road
shall be limited to 14 feet in width, mcluding shoulders, where the road crosses critical areas.
28. Prior to issuance of a devclopment utilities permit for infrastructure construction, the
applicant must submit to the City copies of the recorded Conditional Use Permit (CUP)
documents approved by the Director of Planning and Community Development as consistent
with the CUP approval, including, but not limited to: final site plans (Sheets 1/7 through 7/7,
revised if and as necessary to be consistent with this decision and its conditions; see
ConditIOns 6 and 29); the Hearing Examiner's decision, including conditions of approval;
and, the required Open Space Management Plan [Appendix A].
29. Appropriate building permits must be obtained from the City prior to construction. Site
plans for thc building permits must be in substantial conformance with the site plans used inn
making this decision [sec Finding 6 and revisions required in Finding 30).
CUPI3379
Page 1301'20
30. Individual building permits for each of the building sites must comply with Kitsap County
Health District regulations, building code, zoning code height restrictions, drainage and
geotechnical requirements iin effect at the time of submittal of the building permit
applications
31. The allowed lot eoverage of building footprints for each of the 27 building sites shall not
exceedll6,940 square feet per building site.
32. The approval of this conditional use permit does not imply or guarantee that each of the
designated building sites is a feasible building site; construction on each site must meet
building code, gt~otechnical and health district requirements applicable at the time of
each building permit submittal.
33 All exterior lighting shall be directed downward and shielded so light trespass does not
occur off the subJect property
34 Activlities within the designated Open Space Areas on the "Open Space Management Plan
Areas and Tree Retention Plan" maps (Sheets 4/7 and 7/7 dated 10/30/06, see Exhibit 70)
shall limited as prescribed by the Open Space Management Plan (OSMP) that
complrises Appendix A of this decision. These maps and the requisite OSMP shall be
recorded with the Conditional Use Permit approval [see Condition 281. There shall be no
construction in or use of any designated Open Spac~: Area except: 1) as contemplated by the
decision and conditions of approval of CUP/RUE 13379; or, 2) provided for in the Open
Space Management Plan.
35. The existing trel~ canopy must be retained as indicated on the Tree Retention Plan maps
(Sheets 4/7 and 7/7 dated 10/30/06, see Exhibit 70). Except for invasive/non-native species
and hazard trees (see Condition 9) native trees and plants should be retained in areas with
slopes greater than 15 %.
36. An easement for a public pedestrian trail shall be dedicated through Open Space Area
1 at such time that Country Club Road is relocated. The easement shall provide for a four-
foot wide trail with a pervious surface, accessible for public use. The location of this trail
casement and th,~ relocation of Country Club Road (and dedication of right-of-way) arc
subject to agreement with the City. The trail casement would meet the requirement for public
access trails. The applicants and the subsequent property owners arc not required to deSign,
construct, and/or maintain the public trail developed through Open Space Area 1. However,
they shall continue cooperate with the City, the Parks District and/or other entities to assist in
establishing the trail. At the completion of the construction of the trail, appropriate signs
shall be erected at both ends of the trail to distinguish the publicly accessible trail from
nearby private property.
37. A 501-foot native vegetation zone is required in the shoreline. In this zone the native
vegetation zone shall be maintained; no native vegetation, including trees, shrubs and
herbaceous vegetation may be removed. Any non-nativlc vegetation removed from the native
vegetation zone shall be replaced with native vegetation appropriate for the site.
38. Shoreline regulations currently allow a boathouslc (up to 200 sq. ft.) within the Native
Vegetation Zone as an exempt development. Such a boathouse (or other exempt structure)
could be allowed on both Parccl A and Parccl B. If and when they wish to construct such
structures, the property owners would have to submit Shoreline Substantial Development
Exemption and/or other applicable application(s).
CUP 13379
Page 14 of20
39. A copy of these: conditions shall be attached to any construction plans throughout
construction on thl~ site.
40. All n~commendllltions of the geotechnical report prepared by Aspect Consulting, Inc.
(date-stamped July 5, 2006) shall become conditions of this approval, unless subsequent
geotechnical repOlts make conflicting recommendations based on updated data or techniques.
Building permits for each of the building areas shall also follow all applicable geotechnical
requirements in effect at the time of building permit application.
41. The applicants must obtain an approved development utilities permit from the Department
of Planning and Community Development prior to construction of anyon-site infrastructure,
mcluding the road and utilities. The Department of Public Works will review final
engineering plans for the road construction and final stormwater/drainage plans before
the development utilities permit is issued. The required road improvements and utilities must
be approved by the Department of Public Works prior to issuance of the first building
permit on the property.
42. Final engineering design fof' the road and for utilities must be reviewed and approved by a
licensed geotechnical engineer prior to issuance of a development utilities permit for the
infrastructure construction. The applicant's engineer shall develop full engineering drawings
for the construction of the roadways and utilities prior to issuance of a development utilities
permit Surface, stormwater collection, conveyance and treatment shall be accomplished by a
civil engineer that IS registen~d in the State of Washington. Stormwater civil plans shall be
designed in accordance with the City of Bainbridge Island Municipal Code (BIMC 15.20 and
BlMC 15.21).
43. Appropriate stoJrmwater facilities shall be provided for the entire length of the access road
to the satisfaction of the City Engineer. The applicant shall provide concurrence from a
geotechnical engineer for the engineered plan prior to the issuance of a development utilities
permit.
44. As recommended by the Aspect Consulting geotechnical report (date-stamped July 5, 2006),
a full stability study of impacts must be submitted prior to approval of on-site
infiltration for {:ach of the building sites.
45 If tightlimng of the stormwater directly to Puget Sound is proposed, a Shoreline Conditional
Use permit would be required.
46. The applicant's engineer shall design all utilities to minimize adverse effects on roadside
amenities and to preserve trees and other roadside vegetation.
47. The applicant is required to obtain a National Pollutant Discharge Elimination System
(NPDiES), Phas,e: II Construction General Permit (CGP), prior to issuance of a grading
permit for road or utility construction. The Phase II permit is administered by the
Department of Ecology. The NOI (Notice of Intent) is available on the website at
http://www.ecy.wa.gov/programs/wq/stormwater/construction/index.html#permit _ factsheet
48. The applicant shall construct all regulatory and street name marker signs in accordance
with City Stal1ldards, the Manual of Uniform Traffic Control Devices (MUTCD) and
requirements of the City Engineer. Signage locations to be established on the design
drawmgs for approvaL All signs in the public right-of-way shall have a minimum clearance
of seven feet from bottom of the sign to grade, be mounted on a cedar or break-away steel
post and not be installed in concrete. All signs shall be privately maintained and shall be
marked as "PVT'.
CUP 13379
Page 15 of20
49. If dunng the course of construction the project is found to be out of compliance with the
water quality standards established in WAC 173-20 IA-030 more than three times in any
single wet season, construction shall be halted until April I of the following year.
50. Privately held stormwater facilities require ongoing future operation and maintenance as
established in the DOE stormwater manual. Prior to final approval of utility construction, the
applicant shall name a responsible party that can appropriately maintain, repair or replace the
facility. The applicant shall submit an Operation and Maintenance Plan for the
stormwater facilities and record a Declaration of Covenant to meet the requirements of
BIMC 15.21 prior to final approval of utility construction.
51. Prior to issuance of the first building permit, the applicants shall provide "half-street"
improvements :dong the subject property's Toe Jam Hill Road frontage to the
satisfaction of the City Engineer.
52. To the satisfaC1:ll011 of the City Engineer, the applicant's engineer shall design the
intersection of the access driveway and Toe Jam Hill Road in compliance with AASHTO
sIte distance reqlllirements. The applicant shall submit the complete site distance calculations
with the submittal of the development utilities permit application for the road.
53. Mailbox location and design shall be approved by the local Postmaster. Mailboxes or their
support systems shall not extend over or within one-foot of any traveled way, including
sidewalks and paths, bicycle lanes, shoulders, or auto lanes. The applicant shall provide
details for mailboxes as part of each building permit.
54. The access road shall med City Standards and shall include turnouts at 300-foot
intervals; turnouts shall transition to 18-feet wide in a 50-foot length.
55. The access road shall not exceed a 12% grade at any point unless it is paved. If paved, the
access road shall not exceed a 15%, grade. If the road exceeds 15% grade at any point,
residential sprinkller systems will be required in all residences.
56 Fire hydrants shall be installed and spaced at 600-foot intervals in accordance with City
MuniCIpal Code requirements. New fire hydrants shall be equipped with four-inch "STORZ"
adapter couplings
CUP13379
Page 16 of20
UPPER BLAKELYfHARBOR MEADOW
Article 1: OPEN SPACE MANAGEMENT PLAN
1.0 Creation of ppen Space, Areas. Declarant hereby reserves and establishes Open Space
Areas as depicted in the Sheets 4/7 and 7/7 ("Open Space Management Plan Areas and Tree
Retention Plan". dated 110/30/06; attached hereto as "Exhibit A"), to be managed as open space in
accordance with the tt~nns of this Open Space Management Plan.
1.1 Purpose of Open Space Areas. The Open Space Areas subject to the terms of this Open
Space Management Plan are all privately owned lands to be managed for the use and benefit of
the Owners of Parccl A and Parcel B and the building sites (i. e., A I through A 15 and B 1 through
B 12) within those parcels as established by CUP/RUE 13379. All Owners shall be obligated
hereunder to maintain and preserve the Open Space Areas in accordance with the terms of this
Open Space Management Plan.
1.2 Chan2es and Amendment. The terms of this Open Space Management Plan may be
changed or amended in future by a majority of the Owners in order to reflect and be consistent
with changes in applicable laws and regulations.
1.3 Open Space_Area 1 - Country Club Road Corridor: Open Space Area I consists of
commonly-owned areas along both sides of the existing alignment of Country Club Road as
depicted III Exhibit A.
1.3.1 Permitted Activities. Activities permitted in Open Space Area 1 are limited
to passive recreational activities. such as walking, bird watching and photography. The
construction of a publicly accessible pedestrian path/trail, traversing west/east on the
shoreline side of Country Club Road within Open Space Area I, is expressly permitted;
proVided, such path/trail shaH not exceed 4 ft. in width and is designed, constructed and
maintained to minimize adverse environmental impacts. (Installation of environmentally
sensitive fences within Open Space Areas 2A at or near the east and west ends of the
public path/trail in Open Space Area 1, shall be pennitted to protect the privacy of
adjoining property owners.)
1.3.2 Prolllibited Activities. Prohibited activities in Open Space Area 1 include:
(i) construction of any builldings; (ii) installation of ball fields. sports courts and/or
similar facilities:. (iii) operation of motorized vehicles; (iv) hunting; (v) livestock or
ammal housing or grazing; (v) dumping and/or storage of waste materials (including but
not limited to trash, sawdust.. lawn clippings. tires. bricks, metal, wire, automobiles, etc.);
and, (vii) vehicle parking areas.
1.3.3 Vegetation Reh~ntion Plan. Native vegetation and Significant Trees shall
be retained in Open Space Area I. Normal non-destructive pruning and limbing of native
vegetation and trees may occur as maintenance and/or to provide for preservation of
reasonable views toward Puget Sound from adjoining properties: provided, such pruning
and limbing shall not threaten the health of the vegetation or trees. Hazard tree removal
may be allowed with City approval and replanting. Removal of invasive/non-native
vegetation is permitted.
CUP13379
Page 1701'20
1.4 Open Space Area 2 - Generally: Open Space Area 2 encompasses commonly owned
areas having slopes 40% or less. (Activities permitted and activities prohibited in the "Meadow"
portion of Open Space Area 2 are different from those generally permitted and prohibited in Open
Space Area 2 and are address separately in Section 1.5 below.)
1.4.1 Permitted Activiities. Activities permitted in Open Space Area 2 include
activities appurtenant to home ownership, as permitted by City zoning, including (i)
installation of pedestrian paths/trails; (ii) passive recreation; (iii) planting of trees and/or
other plants consistent with existing vegetation or natural habitat; (iv) gardens and/or
livestock/animal grazing on slopes not exceeding 15% and which will not cause or
ll1crease erosion and/or adversely impact water quality on-site; and, (v) construction of
fences. Permitted activities in Open Space Area 2 shall not interfere with or intrude into
any critical areas and may require site specific reports and permits from the City of
Bainbridge Island. An approved farm plan must be obtained from the Kitsap
Conservation District before housing and grazing of large animals shall be permitted.
1.4.2 Prohibited Activities. Prohibited activities in Open Space Area 2 include:
(i) impervious surfaces; and, (ii) dumping and/or storage of waste materials (including
but not limited to trash, sawdust, lawn clippings, tires, bricks, metal, wire, automobiles,
etc)
1.4.3 Veg{~tation Retellltion. Not less than 30% percent of the existing tree
canopy and native vegetation shall be retained; see the Tree Retention Plan (Exhibit A,
Sheets 4/7 and 7/7). Open Space Area 2 is intended to remain a forested open space and
trees and native vegetation should not be removed except as necessary and appropriate to
provide for Permitted Activities noted above. Dead, diseased, or otherwise hazardous
trees and plants may be removed if and as needed for safety of the Owners or the long-
term health of this forested open space.
1.5 "Meadow" Within Opelll Space Area 2: The designated "Meadow" in Open Space
Area 2 IS a commonly-owned, private recreation area within Parcel B (surrounded by Lots B-
I to B-12. see area labeled "Meadow" in Exhibit A).
1.5.1 Permitted activities. In addition to the activities generally permitted in
Open Space Area 2 [see Section 1.4.1 L permitted activities the Meadow include: (i)
private active and passive recreation by Owners and their guests; (ii) the installation and
use of facilities commonly associated with recreation areas including, but not limited to,
sport courts. swing sets, benches, challenge courses, etc.; (iii) landscaping; and, (iv)
patios. decks, gazebos or similar accessory structures. Some projects may require
specific permits from the City of Bainbridge Island.
1.5.2 Prohibited activities. In the Meadow portion of Open Space Area 2, the
prohibited activities include any activity not consistent with private recreational use as
provided in Section 1.5.1. Dumping and/or storage of waste materials (including, but not
limited to trash, sawdust, tires, bricks, metal, wire, automobiles, etc) is specifically
prohibited This prohibition, however. shall not prevent the Owners having a private
communal site fix composting or recycling of plant material.
1.5.3 Enlarging or adding Meadow(s) in the future. The majority of the Owners
may enlarge the designated Meadow and/or create other meadow(s) in Open Space Area
2; provide, no part of any critical area, critical area buffer, or slopes exceeding 15% may
be included in any such mt~adow expansion or creation. Expansion of the designated
Mcadow and/or creation of other meadow(s) shall adhere to all conditions and limitations
CUPI3379
Page 18 of20
of Sections 1.5. L 1.5.2 and 1.5.3. Applicable permits for additional clearing must be
obtained from the City of Bainbridge Island and other agencies with jurisdiction.
1.6 Open Space Area 2-A - Waterfront: Open Space Area 2A consists of two commonly-
owned areas waterward of Country Club Road that flank Open Space Area I.
1.6. I Permitted Activities. Activities permitted in Open Space Area 2A include
all activities appUltenant to waterfront home ownership as allowed by zoning and
applicable shoreline: regulations, including: (i) all shoreline recreational activities allowed
by applicable shoreline regulations; (ii) construction of a deck not exceeding 120 square
feet with pervious surface (i. e., one deck within Parcel A and one deck within Parcel B);
(iii) planting native plants and trees within the 50-ft. wide shoreline native vegetation
zone with City approval; (iv) construction of environmentally sensitive fences not to
exceed four feet in height (including fencing for the privacy of adjoining property
owners; see Section 1.3.1); (v) planting trees and other vegetation outside of the 50-ft.
wide shoreline nati ve vegetation zone; (vi) construction of a boathouse not exceeding 200
sq. ft (i.e., one boathouse within Parcel A and one boathouse within Parcel B); (vii)
parking areas having pervious surface, located outside of the 50 foot native vegetation
zone and accommodating no more then two cars (one parking area on Parcel A and one
parking area on Parcel B). Activities permitted in Open Space Area 2A shall not interfere
with any critical areas and may require site specific reports and permits from the City of
Bainbridge Island and/or other government agencies with jurisdiction.
1.6.2 Prohibited Activities. Activities prohibited in Open Space Area 2A include:
(i) construction of any buildings or other impervious surfaces except those included as
Permitted Activities in Section 1.6.1 and/or as allowed via applicable permit(s) issued by
the City of Bainbridge Island; (ii) dumping and/or storage of waste materials (including,
but not limited to trash, sawdust, lawn clippings, tires, bricks, metal, wire, automobiles,
etc); and, (iii) any action or activity not allowed under the City's Shoreline Master
Program effective at the time.
1.6.3 Vegetation Retention. Open Space Area 2A is a protected critical area with
a 50-ft. wide shoreline native vegetation zone. Any clearing or removal of trees and/or
other vegetation shall require prior approval from the City of Bainbridge and/or other
government agencies with jurisdiction.
1.7 Open Space An~~: This commonly-owned open space area in the western portion of Parcel
B shall have the same regulations as Open Space Area 2; see Sections 1.4. L 1.4.2, 1.4.3, and
1.53
1.8 Open Space Area 4 - Environmentally Critical Areas: Open Space Area 4 consists of
features defined as Environmentally Critical and regulated under current City ordinances. These
commonly-owned areas within both Parcel A and Parcel B, include: slopes in excess of 40%,
stream corridors, wetlands, and associated buffers and building setbacks.
1.8.1 Permitted Activities. Activities permitted in Open Space Area 4 arc limited
to: (i) passive recreational activities., such as walking, bird watching and photography; (ii)
non-destructive pruning and limbing of native vegetation and trees to provide for
reasonable views toward Puget Sound from building sites Al through A15 and/or BI
through B 12, provided such pruning and limbing does not threaten the health of the
native vegetation or trees; (iii) removal of hazard trees with City approval and replanting
as required by th~: City; and, (v) removal of invasive non-native vegetation.
CUP 13379
Page 19 of20
1.8.2 Prohibited Activities. Consistent with protection and preservation of the
environmentally critical areas designated as Open Space Area 4, all activities or actions
not expressly allowed by Section 1.8.1 are prohibited unless permitted by City of
Bainbridge Island pursuant to the Reasonable Use Exception and/or other critical area
review and approval process(es) applicable at the time of application.
1.8.3 Vegdation Retention. Open Space Area 4 consists of protected
environmentally cntical areas and is a 100 % retention area. Except as provided by
Section 1.8. L all must be retained.
1.9 Open Space Area 5 - Tidelands: The Tidelands located within Parcel A and Parcel B
comprises Open Space Area 5.
1.9.1 Permitted Activiities. Activities permitted in Open Space Area 5 include
the recreationally activities allowed by the State of Washington and the City of
Bainbridge Island within tidellands.
1.9.2 Prohibited Activities. Any activity not permitted in tideland areas by the
State of Washington and/or the City of Bainbridge Island shall be prohibited in Open
S pace Area 5
1.10 Individuallv Owned Buildin2 Sites: The designated building sites (i.e., Al through
Al5 within Parccl A and B I through B 12 within Parcel B; see Exhibit A) shall be the exclusive
location of residences on the subject property and are not designated Open Space Areas.
1.10.1 Permitted Activities. All activities and structures normally appurtenant to
single-family residential use as provided by City of Bainbridge Island Municipal Code
and olther applicable regulations may be permitted within the individually-owned building
sites. Permitted activities include: (i) construction of one residence on each building site
(with appurtenant driveways, garages, outbuildings, patios, decks, etc); (ii) planting of
trees and/or other landscape materials; (iii) livestock or animal grazing and housing if and
as pennitted by Code; (iv) ~~nces; and, (v) septic drain fields, storm dramage facilities,
and other infrastructure and utilities to serve the residences. The permitted activities shall
not interfere with, damage, or intrude into critical areas and may require site specific
reports and approvals from the City of Bainbridge Island. An approved farm plan must
be obtained from the Kitsap Conservation District before housing and grazing of large
animals.
1.10.2 Prohibited Actiivities. Any activity not expressly permitted by Section
1.1 0.1 shall be prohibited. Dumping and/or storage of waste materials (including but not
limited to trash, sawdust, lawn clippings, tires, bricks, metal, wire, automobiles, etc.) is
specifically prohibited. This prohibition shall not prevent composting or recycling of
plant material by individual Owners on their own building sites.
1.10.3 Vegetation Rett~ntion. A minimum of 30% of the existing tree canopy shall
be retained on each mdividually-owned building site. Hazard trees, noxious weeds,
invasive, non-native plants may be removed. To promote slope stability, significant trees
and native vegetation should be retained on slopes exceeding 15%.
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CUPI3379
Page 20 of 20