HEY, PAUL AND LINDA
DECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of
Paul and Linda Heys CVAR14139
From a Critical Areas Variance Condition
Introduction
Paul Heys applied for a Critical Areas Variance to allow construction of a single-
family residence in the 7700 block of Yeomalt Point Drive NE within the required 50
foot setback from a geologically hazardous area.
A public hearing was held July 17, 2008. Mr. Heys represented appellants and
Rosemary Larson, Inslee, Best, Dozie & Ryder, P.S., represented the Department of
Planning and Community Development.
All section numbers in the decision refer to the Bainbridge Island Municipal
Code, unless otherwise indicated.
After due consideration of all the evidence in the record consisting of the
testimony at the hearing and the documentary evidence admitted at the hearing, the
following shall constitute the findings, conclusions, and decision of the Hearing
Examiner in this matter.
Findings
1. Paul Heys, applicant, filed a critical areas variance application July 28, 2006 and a
revised application September 7, 2007. The requested variance would allow construction
of a single family residence in the 7700 block of Yeomalt Point Drive NE within 50 feet
of a geologically hazardous area. On May 28, 2008, the Department of Planning and
led an
appeal challenging two of those conditions.
2. The subject property is a .49-acre site located on a steep coastal slope. The
western two thirds of the site, the upper slope, averages 100 percent dropping about 55
feet across 55 ft. to a bench. The lower slope drops from the bench to Yeomalt Point
Drive from which access is proposed. Angles on the lower slope range from near
horizontal to near vertical.
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3. A preliminary geotechnical report by Jane Myers was provided. The geotechnical
engineer observed the near-vertical bluff, soil cracks, near-vertical scarps, periodic
bulging of the slope face and landslide debris, including some 15 ft. that extends below
the ground surface of the mid-slope bench. These are all indicators of historic and recent
slope instability.
4. The entire property is classified as a geologically hazardous area pursuant to
Section 16.20.150. No clearing, grading, or new construction is permitted within 50 feet
of the edge of all slopes that are classified as geologically hazardous, according to
Section 16.20.150E2a.
5. Where compliance with the geologically hazardous areas development standards
would be an unnecessary hardship, an applicant may seek a variance pursuant to Section
16.20.070. The director of the Department may grant a variance if the application meets
the following criteria:
1. Special circumstances applicable to the subject property, including size,
shape, or topography, and the strict application of this chapter is found to
deprive the subject property of rights and privileges enjoyed by other
properties in the vicinity; provided, however, the fact that those
surrounding properties have been developed under regulations in force
prior to the adoption of this chapter shall not be the sole basis for the
granting of a variance; and
2. The special circumstances referred to in subsection A of this section are
not the result of the actions of the current or previous owner; and
3. The granting of the variance will not result in substantial detrimental
impact to the critical area, public welfare or injurious to the property or
improvements in the vicinity and area in which the property is situated;
and
4. The granting of the variance is the minimum necessary to accommodate
the permitted use; and
5. No other practicable or reasonable alternative exists; and
6. A mitigation plan has been submitted and is approved for the proposed
use of the critical area; and
7. If structures are the approved use for which the variance is applied, the
structures shall be no greater than the minimum size necessary to
accommodate the permitted use; and
8. Retention of existing native or equivalent vegetation in other portions of
the site is provided in order to offset habitat loss from buffer reduction;
and
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9. A habitat management plan has been prepared pursuant to BIMC
16.20.060, unless it is determined through the applicable review process
that such a plan is unnecessary.
Section 16.20.070B.
6. The Director concluded that there are special circumstances present that are not
would deprive the property of rights and privileges enjoyed by other properties in the
vicinity. To determine what rights and privileges are enjoyed by other properties and
what the minimum size necessary to accommodate the permitted use would be, the
Department obtained Kitsap County Assessor building records for the five properties
immediately adjacent to the subject site and determined that the average total living area
of the residential development on those properties is approximately 2,050 square feet and
the average area dedicated to carports and garages is about 535 square feet. In addition,
porches and decks on some of the properties average 570 square feet. Therefore, the
Department concluded that a residence of 2,585 square feet, including garage or carport,
would afford development comparable to the adjacent properties with similar topography
and imposed a condition of approval of the variance, No. 6, limiting floor area to that
amount.
7. At the hearing, the Department conceded that a basement for one of the properties
was not included in the calculation. The Department calculated that including that area in
the total for averaging purposes, less 600 ft. already included as garage, resulted in an
average of 2,836 square feet and agreed that the restriction on floor area should be
amended accordingly.
8. The Department also imposed a condition, No. 2, that the variance expires and is
void if the applicant does not file a complete building permit application and any other
necessary development permit within three years. Appellants initially appealed this
condition but determined that it is reasonable that it can be accomplished within the three
years so withdrew that component of their appeal.
9. Section 16.20.070E2 addresses development design. Development is to be
minimize the footprint of buildings in other disturbed areas, minimize removal of
that the design shall utilize under-structure parking, multi-level construction and tiered
foundations.
10. Section 16.20.150B sets out the intent of the regulations for geologically
hazardous areas:
The intent of this section is to prevent the potential for personal injury or
loss of life or property due to flooding, erosion, landslides, seismic events,
or soil subsidence. Development must not increase slope instability, and
must avoid on-site and off-site impacts, as well as potential risk to
structures. Preserving the existing vegetation may be an important part of
minimizing those risks.
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11. Among the goals and policies in the Comprehensive Plan that the Department
found applicable to this application are the following:
OS 1.1 Provide protection for critical areas through public and
private initiatives, including limiting the amount of lot coverage and other
techniques.
OS 1:5 New development should strive to be responsive to the
natural landscape and should be sited so as to have the least visual and
environmental impact on the island landscape.
GH 1.1 Land uses on landslide hazard areas and erosion hazard
areas should be avoided. If the hazard caused by development can be
mitigated, then land use should be designed to prevent damage to persons
or property and environmental degradation, and to preserve and enhance
existing vegetation to the maximum extent possible.
12. While Appellants accept that the City has the authority to restrict the size to
protect the stability of the slope and the environment, they contend that restricting the
total floor area bears no relationship to this purpose. They refer to various provisions in
the Critical Areas chapter of the Code to support their argument that the regulations
indicate that the danger from building on steep slopes is best minimized by reducing the
amount of disturbance, hence the size of the footprint is the critical factor. Even the size
of the structure to be allowed with a reasonable-use exception is measured by lot
coverage, not total size. Section 16.20.080 G.5. Appellants pointed out that with the
current condition, they could build a single story home covering over 2,500 sq.ft. of lot
area. A condition requiring a smaller footprint would limit site coverage while allowing
the owners to achieve more floor area by building up or under.
13. Ms. Tayara, the planner who reviewed the application, offered several reasons for
restricting floor area instead of restricting footprint. First, the Comprehensive Plan
indicates that land uses on landslide hazard areas should be avoided and, in this case, no
development of the property would be possible without variance if the setback regulation
were strictly enforced because the entire site is within a hazardous area or buffer from the
edge of a slope. Further, the Code states that development to be allowed by variance
must be the minimum necessary to accommodate the permitted use, if it can be done
without substantial detriment to the critical area and will not injure any other property in
the area. In determining what that minimum size necessary for a residential use is, she
also looked at the criterion that directs consideration of rights and privileges enjoyed by
other properties in the vicinity. She concluded that the minimum necessary is the average
size of the structures on the other lots surrounding the subject site, even though the
subject property is almost twice the size of most of the others. She also concluded that
the maximum flexibility for designing a residence needed to be maintained since no
design had yet undergone review. A footprint limitation could cause a problem for the
applicant if a tiered design to fit the slope, suggested by the code, were the best design, or
if extensive retaining walls were needed for the structure there could be very little
footprint left for living area.
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14. Considerable comment on the application was received by the Department prior
to making its decision on the application. Most of the comment addressed concern about
potential harm from developing the geologically hazardous site.
Conclusions
1. The Hearing Examiner has jurisdiction to hear and decide this appeal pursuant to
Sections 2.16.095 and 2.16.130.
The Hearing Examiner is required to give substantial weight to the decision of the
Director. Section 2.16.130F2. The "substantial weight" requirement means that the
decision must be reviewed under a "clearly erroneous" standard. Norway Hill Pres. &
Prot. Ass'n v. King County Council, 87 Wn.2d 267, 275, 552 P.2d 674 (1976), superseded
by statute on other grounds as recognized in Moss v. City of Bellingham, 109 Wn. App. 6
, 21, 31 P.3d 703 (2001). A finding is clearly erroneous when, although there is evidence
to support it, the reviewer is left with the definite and firm conviction that a mistake has
been made. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d
123 (2000).
3. Here, the planner explained her reasons for relying on floor area rather than
footprint. Though the Hearing Examiner might have chosen differently, there is a sound
basis for each of the reasons, i.e., the property is entitled to only the minimum necessary
to allow somewhat comparable development to others in the vicinity, using the footprint
total area provides greater flexibility for design on this difficult site than limiting the
footprint would, directly relating to designing development to protect the slope and other
properties and being responsive to the natural landscape to lessen visual impact. While
there are more Code references to footprint and the Comprehensive Plan goals and
policies would support either view, the Hearing Examiner is not left with a definite and
firm conviction that the choice made by the planner was a mistake. Therefore, the
variance condition should be affirmed, as modified to reflect the corrected average of the
surrounding properties.
Decision
The appeal is denied and the determination affirmed, except that Condition No. 6 is
modified to read:
The proposed residence is limited to a total of 2,836 square feet, including
any area dedicated as a garage/carport, a size that is comparable to
surrounding residences.
Entered this 31st day of July 2008.
/s/ Margaret Klockars__
Margaret Klockars
Hearing Examiner pro tem
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Concerning Further Review
NOTE: It is the responsibility of a person seeking review of a
Hearing Examiner decision to consult applicable Code sections
and other appropriate sources, including State law, to determine
his/her rights and responsibilities relative to appeal.
The decision of the hearing examiner shall be final in this matter unless, within 21
days after issuance of a decision, a person with standing appeals the decision in
accordance with Chapter 36.70 RCW.
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