WYMAN, ROBERT & PATRICIADECISION OF THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Application of
Robert Wyman SCUP 14110
For a Shoreline Conditional Use Permit
Introduction
Robert Wyman applied for a Shoreline Conditional Use Permit to construct a
staircase and landing system for beach access at 10701 Manitou Park Boulevard.
An open record public hearing was held May 22, 2008. Kelly Tayara, Planner,
represented the Department of Planning and Community Development. Robert and
Patricia Wyman, applicants, represented themselves.
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 exhibits listed at the end of this decision, the following
shall constitute the findings, conclusions, and decision of the Hearing Examiner in this
matter.
Findings
1. Robert D. Wyman applied for a Shoreline Conditional Use Permit to construct a
staircase to the bulkhead at 10707 Manitou Park Boulevard NE, Bainbridge Island. The
prior viewing deck and ramps to the beach were removed along with existing cribbing
and creosote-treated timbers on the bank at the time the bulkhead was reconstructed
within the past two years.
2. The subject property is a .35-acre site developed with asingle-family residence.
The site overlooks Manitou Cove and the Puget Sound. A bluff descends approximately
30 ft. from the crest to the backfill area behind the rock bulkhead.
3. The Bainbridge Island Comprehensive Plan designates the property as Open
Space Residential, two residences per acre, and it is zoned R-2. The site is in the Semi-
Rural shoreline environment pursuant to the Shoreline Master Program ("SMP"). The
surrounding uses are all single-family residential. [Exhibit 24]
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4. The proposed staircase would run 60 lineaz feet and be 230 squaze feet in area.
Forms were incorporated in the backfill area behind the bulkhead when the bulkhead was
reconstructed to accommodate installation of the stairway, so no cut or fill is expected to
be needed. [Exhibit 24, p.4]
5. The bluff is a geologically hazazdous critical area. A slope evaluation was
conducted by a geotechnical engineer to determine whether the proposed stairs would
increase the risk of slope failure. No recent landslide activity was observed however
there was some indication of soil creep in the mantle of relatively loose soils covered by
sparse vegetation. The exposed soils aze subject to erosion. Two madrona trees neaz the
slope crest were removed recently. The azea has very dense gravely silty sand soils that
can maintain near-vertical orientations for extended periods of time, however there is a
risk of future landslide activity. The geotechnical engineer concluded that the proposal
"will not introduce a significant increased risk to the steep slope" and made number of
recommendations to help reduce risk. [Exhibit 9)
6. The Environmental element of the Comprehensive Plan includes a goal to protect
geologically hazardous areas from impacts of use and development. The regulations
include GH1.1 that requires that development be designed to prevent hazazd; GH1.3
requiring that analysis by geotechnical engineers be conducted when development is
proposed; and GHl .6 directing that any alteration to the area not decrease slope stability.
7. The City's Responsible Official issued a Mitigated Determination of
Nonsignificance (1VIDNS) pursuant to SEPA on April 10. [Exhibit 17] The MDNS
contained four conditions requiring the applicant to follow the recommendations of a
geotechnical engineer, to follow best management practices to prevent soil erosion, to
take extreme care to prevent petroleum products, chemicals or other toxic materials from
entering the water, and to stop work and notify the City and State Office of Archaeology
and Historic Preservation of any historical or archaeological artifacts uncovered during
site work. The MDNS was not appealed.
8. A Notice of Application was mailed and published on January 30, 2008, and
republished and posted on March 1, 2008. The Notice of Public Hearing was mailed
May 2, 2008, published May 3rd and posted May 7~`.
9. Bainbridge Island's SMP, which is an element of the Comprehensive Plan,
contains regulations applicable to this proposal. Section 16.12.050, Archaeological and
Historic Resources, requires that work be stopped and permission be obtained to proceed
if such resources are discovered. Though no cut or fill is proposed, a condition, No. 4,
was included in the MDNS to address this regulation. Section 16.12.060, Clearing and
Grading, addresses retention or replacement of vegetation. A condition of the MDNS,
No. 1, requires adhering to the recommendation of a geotechnical engineer and a
condition is recommended, No. 6, for a vegetation management plan that also limits
future clearing, trimming and view maintenance. Section 16.12.070, Environmental
Impacts, provides limitations and requirements to protect the environment. MDNS
Condition No. 1 and recommended conditions 5, 6, and 8 would address these concerns.
Because the stairway construction will be on the area behind the bulkhead and not on the
beach and construction access will be from a neighboring property, the beach should not
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be affected. However, the conditions would require review of the on-site drainage,
prohibit work waterward of the ordinary high water line, and the vegetation management
plan mentioned above. Section 16.12.080, Environmentally Sensitive Areas, applies
because of the geologically hazardous critical area, largely regulated through Ch. 16.20.
The NIDNS conditions and others recommended would assure compliance with these
provisions. Section 16.12.090, Native Vegetation Zone, requires a native vegetation
buffer for 50 ft. in this environment upland of the ordinary high water mark, but allows a
staircase. The geotechnical engineer made recommendations and MDNS conditions were
imposed and conditions were recommended fora 10-20 ft. wide zone of deep-rooted
native vegetation paralleling the slope crest, and especially plantings around the recently
cut madrona trees. [Condition 6]
10. The applicant asked that recommended Condition No. 6 be modified to clarify
that the vegetation zone may vary in width and contain interruptions such as for
pathways. The Planner agreed with the proposed clarification.
11. The Semi-rural Environment of the Shorelines is intended to serve as a
transitional area between the wban and rural environments and to protect natural
resources such as vegetation on steep banks, indigenous trees, beaches, banks and bluffs
while allowing development. The stairway accessory to asingle-family residence is
consistent with the intent for this environment. Conditions of the MDNS and those
recommended will provide protections for the natural resources. [Conditions 1-3, 5, 6,
and 8]
12. Section 16.12.260 considers stairways to the beach normal appurtenances to
single-family residences but requires conditional use permits if more than 120 sq. ft. in
area. Provisions are to be made for erosion control, drainage systems and wildlife
habitat. Structures are to blend in to the site, preserve views from the shoreline and of the
shoreline and minimize impact on the environment. Conditions imposed pursuant to
SEPA and recommended, 1-3 and S-8, address these concerns.
13. The Director recommended approval of the Shoreline Conditional Use subject to
imposition of the conditions of the MDNS and additional conditions discussed above.
[Exhibit 24]
14. Section 16.12.380C(1) provides:
Uses classified as conditional uses may be authorized; provided, that the
applicant can demonstrate all of the following:
a. The proposed use will be consistent with the policies of RCW
90.58.020 or its successor and the policies of the master program.
b. The proposed use will not interfere with the normal public use of
the public shorelines.
c. The proposed use of the site and design of the project will be
compatible with other permitted uses within the area.
d. The proposed use will cause no unreasonably adverse effects to the
shoreline environment designation in which it is located.
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e. The public interest suffers no substantial detrimental effect. (WAC
173-14-140(1) or its successor.)
f. The proposed use is consistent with the provisions of the zoning
ordinance (BIMC Title 18) and the comprehensive plan (Ordinance
No. 94-21).
15. Section 16.12.350 provides that:
1. The city of Bainbridge Island hearing examiner is vested with authority
to:
a. Approve, approve with conditions, or deny shoreline variance and
shoreline conditional use permit applications after a public hearing and
after considering the findings and recommendations of the director, which
shall be given substantial weight; provided, that decisions may be
appealed in accordance with BIMC 16.12.370.B.
16. The policies of the Shoreline Management Act set out in RCW 90.58.020 include
protecting against adverse impacts to the land, to its vegetation, and to wildlife and the
waters of the state. The list of priority uses includes single-family residences. The
proposal, with recommended conditions, would be consistent with these policies.
17. Because the proposed stairway is behind the bulkhead on the property and
replaces an existing access system, it would cause no interference with or alteration of the
public's access to the water. Recommended Condition No. 7 will assure that any visual
impact from the water will be minimal.
18. The proposed stairway, as an accessory to the single-family residence on the site,
will be compatible with the other single-family residences in the area.
19. The proposed stairway, built pursuant to the proposed conditions, will cause
minimal if any adverse effect on the shoreline environment in which it is located.
20. The public interest will not suffer a substantial detrimental effect from the
proposed stairway.
21. The proposed stairway would be consistent with Title 18, the Zoning Ordinance,
in that single-family residences are permitted in the zone and the stairway is accessory to
that use. With the recommended conditions, the proposed stairway would be consistent
with the SMP, and therefore consistent with the Comprehensive Plan.
Conclusions
1. The Hearing Examiner has jurisdiction to hear and decide this matter.
2. Notice and public hearing requirements of the Code were met.
3. As the findings show that all of the criteria for approval of conditional use are or
will, with appropriate conditions, be met, the application should be approved.
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Decision
The Shoreline Conditional Use Permit is granted subject to the following MDNS
and additional conditions recommended by the Department, as modified by the Hearing
Examiner:
SEPA Conditions
1. To reduce adverse impacts to the existing slope condition, construction
activities, including drainage, erosion control and vegetation measures,
shall follow the recommendations of a professional engineer licensed in
the State of Washington and qualified in geotechnical engineering.
2. To prevent adverse environmental impacts to existing water quality, best
management practices for all shoreline construction activities shall be
followed at all times, such that soil erosion is prevented from degrading
water quality on a temporary and permanent basis.
3. Extreme care shall be taken to prevent petroleum products, chemicals, or
other toxic or deleterious materials from entering the water and degrading
water quality. If a spill does occur, or if oil sheen or any distressed or
dying fish are observed in the project vicinity, work shall cease
immediately and Washington Department of Ecology shall be notified of
such conditions. Contact: Northwest Regional Spill Response Section at
(206) 649-7000.
4. Applicant 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 any historical or
archaeological artifacts are uncovered during excavation or construction.
Non-SEPA Conditions
5. A building permit shall be secured for the staircase system. The applicant
shall provide building plans approved by a professional engineer licensed
in the State of Washington and qualified in geotechnical engineering.
6. The applicant shall submit a vegetation management plan concurrent with
building permit application. Approval shall be to the satisfaction of the
Department of Planning and Community Development. The approved
plan shall be implemented. The planting plan shall provide for plantings
within the native vegetation zone and include, at a minimum:
A. Restoration of any areas disturbed by construction and supplemental
plantings within existing areas of sparse vegetation.
B. A zone of deep-rooted plantings parallel to the slope crest, generally
20 ft. in width, provided that the width may be varied to accommodate
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pathways, etc., but in no case narrower than 10 ft. The planting plan
shall include deep-rooted trees.
C. A maintenance schedule to ensure ongoing health of vegetation across
the bluff face. The maintenance schedule may allow minor trimming
of vegetation to prevent interference of the use of the staircase and to
preserve views as long at the trimming does not threaten the health of
the vegetation.
7. The staircase feature and all attendant features shall not be colored or
painted other than with neutral flat greens, browns or tans, so as to blend
into the native bluff soils and vegetation and be non-reflective.
8. Work waterward of the ordinary high water line shall not be permitted.
No construction activities shall occur on the beach.
9. Prior to building permit issuance, an indemnification/hold harmless
agreement for the staircase on the shoreline bluff shall be duly executed in
a form approved by the City Attorney, pursuant to BIMC Section
16.20.150(D)(lxa) and notice on title shall be filed pursuant to BIMC
Section 16.20.190.
Entered this 28th day of May 2008.
dZ.t.~-
Margare Klockars
City of Bainbridge Island
Hearing Examiner pro tem
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 is the final decision of the City in this matter.
Appeal of this decision is to the Washington State Shorelines Hearings Board as provided
by RCW 90.58.180 (or its successor) and Chapter 4b1-OS WAC (or its successor). To be
timely, petition for review must be filed within the 21-day appeal period following the
decision by the Department of Ecology. [see BIMC 16.12.370].
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