021110_SMITH_HEX_DECISIONBEFORE THE HEARING EXAMINER
FOR THE CITY OF BAINBRIDGE ISLAND
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION
SUMMARY
Applicant: Gregory Smith
15642 Point Monroe Drive
Bainbridge Island, WA 98110
File No: SVAR15304
Request: Shoreline Variance
Location: Lots 122 and 37, Point Monroe Drive, within Section 35, T26N, R2E,
W.M.
Shoreline
Environment: Semi -Rural
Summary of
Proposal: To reduce the shoreline native vegetation zone on Lot 122 and on Lot 37.
The reduction would accommodate construction of a single family
residence of lot 122 and the development of a reserve drain field on
Lot 37. The depth of the native vegetation zone would be reduced from
25' to Won Lot 122 and from 50' to 34' on Lot 37.
Public Hearing: The Hearing Examiner conducted a public hearing after due notice on
January 29, 2010.
Decision: The application is approved, subject to conditions.
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FINDINGS OF FACT
1. Gregory Smith seeks a shoreline variance to reduce the shoreline native vegetation
zone on two lots in order to build a single family residence and install a reserve drainfield
2. The variance locales are Lots 37 and 122 on the Point Monroe sand spit, north of Fay
Bainbridge State Park. The lots are part of the Madison Beach Tracts platted in 1931. Lot 37 is
on the west side of Point Monroe Drive and Lot 122 is on the east side. The properties are
situated within a portion of Section 35, T26N, R2E, W.M. The shoreline environment
designation for the lots is Semi - Rural -- a designation that accommodates low to medium density
residential development.
3. The two lots are presently covered with gravel, except for a small shed on Lot 37.
There are existing bulkheads on both lots. Lot 121 directly north of Lot 122 has an existing
single family residence that is owned by the applicant's mother.
4. The proposed new residence is to be on Lot 122. The request is to reduce the depth of
the native vegetation zone from 25 feet to 0 feet on that lot. Part of the reserve drainfield will be
installed across the street on Lot 37, where the request is to reduce the depth of the native
vegetation zone from 50 feet to 34 feet. For purposes of the vegetation zone requirement, the
Lot 37 reserve drainfield is regarded as a structure.
5. The plan is to plant new native vegetation on open portions of the lots in an amount
that will more than offset the potential vegetation area lost by placement of the structures.
6. A total of 1250 square feet of native vegetation is required on Lot 122. The applicant
plans to provide 1100 square of native vegetation on that lot and to attribute 168 square feet of
native vegetation on Lot 37 to Lot 122. The total of native vegetation provided for Lot 122 will
thus be 1268 square feet -- 18 square feet more than required. The reserve drainfield will use
135 square feet of the vegetation zone on Lot 37. This will be replaced by adding 196 square
feet of vegetation elsewhere on that lot -- meaning 61 square feet more will be provided than is
required.
7. Lots 37 and 122 are two of the last lots on the sand spit that have received Health
District approval for the construction of a drainfield within 50 feet of the Ordinary High Water
Mark (OHWM). There is one other such lot. Current Health District regulations require that
drainfields be located a minimum of 100 feet from the OHWM. Because the spit is so narrow,
there are no known lots that can meet the current setback requirement. Therefore, the subject
lots are among the last on the spit that can be developed with on -site sewage treatment systems.
8. Because of the small size of the lots, the reserve applicant's reserve drainfield is being
split between Lots 122 and 37.
9. Surrounding uses along Point Monroe Drive are single - family residences. The
proposed new residence on Lot 122 will meet the zoning front and side setbacks, the shoreline
structure setback and the 30% shoreline sideyard setbacks.
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10. The proposed residence, including garage, has a footprint of 1,305 square feet. This
is smaller than the average residential footprint on the sand spit of 1,774 square feet. In meeting
the 30% sideyard setback, the project will protect the view corridor and conform to
neighborhood character.
11. To meet the old Health District drainfield setback requirement, the residence on Lot
122 must be located toward the shore, leaving only the 18 feet nearest the road to be used in
partial fulfillment of drainfield needs. The necessity for placing the house within the native
vegetation setback along the shore is the reason for the requested variance.
12. The native vegetation zone is a required buffer covering all uplands above the
OHWM to the dimension specified for the particular shoreline environment. Its purpose is to
protect and enhance habitat and natural character along the shoreline.
13. Past practice which has been to require the amount of native vegetation that is lost to
be compensated for by a substitute area. The substituted area must contain vegetation of
comparable or better quality than the area being deleted. The design of the subject project
creates a surplus of area in native vegetation beyond that required for the vegetation zones. On
the two lots, vegetation will be substituted for areas that currently have no vegetation at all.
14. The applicant initially submitted an application for a Shoreline Variance on
September 18, 2008, but more information was required. The initial application was completed
on February 5, 2009. A Notice of Application was published on March 13, 2009. During the
comment period five written comments were received, all in support. A revised application was
completed on September 17, 2009. A revised Notice of Application was published on October 9,
20009. No public comments were received during the second comment period.
15. The application, as amended, is subject to the Point Monroe Comprehensive Plan
Amendment of November 2008. The amendment was adopted in expectation of the imminent
construction of a sewer system for the Point Monroe area, with treatment to occur at a package
plant located at Fay Bainbridge State Park. Subsequent funding problems appear to have
delayed this project for five years or longer.
16. Of the 101 legal lots on Point Monroe, 59 have been developed with single family
residences. Without sewer service, the unbuilt lots grandfathered for septic system development
under the old Health District regulations include the two covered by this application and one
other. No other development will be possible until the sewer is built.
17. With the construction of the sewer, only 7 of the 42 vacant lots remaining can be
developed with a single family residence without a variance to the native vegetation zone. If
variances are given, 27 lots can be developed. In anticipation of the sewer, the Comprehensive
Plan Amendment was sensitive to the potential of cumulative impacts from numerous individual
variances. Comprehensive Plan Policy AQ 1.3 states: "Reductions in vegetated buffers shall be
allowed only in areas where such reductions, if consistently applied, would not result in
significant cumulative impacts to aquatic resources and fish and wildlife habitat."
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This policy is implemented through the regulatory provisions of BIMC 16.12.380(B.4)
18. The subject proposal does not contribute to the cumulative impact of variances that
might be given in the uncertain future when and if a sewer is constructed. As nearly the last of
the residences that can be built with a septic system, the home contemplated does not set a
precedent for like development in the future.
19. The Staff Report concludes:
"As the subject sites are graveled, free of vegetation and are already developed
with a bulkhead, the cumulative impact of development is considered a net gain
to the environment as native vegetation will be replacing gravel whereas, without
the granting of the variance, these lots will continue to not provide any native
vegetation."
20. A Mitigated Determination of Non - Significance (MDNS) under the State
Environmental Policy Act (SEPA) was issued on January 1, 2010. The MDNS was not
appealed. The conditions of the MDNS are set forth below under "SEPA conditions."
21, The Staff, in analyzing this application has recommended numerous non -SEPA
conditions that insure compliance with the policies and regulations of the Shoreline Master
Program (SMP). The Staff Report is by this reference incorporated herein, as though fully set
forth. The Examiner adopts the Staff s analysis and accepts the recommended conditions. He
finds that, with the approval of the variances, the proposal as conditioned will meet the relevant
SMP requirements.
22. At the hearing testimony was heard from Heather Beckmann, Associate Planner;
Gregory Smith, Applicant; and J.Mack Pearl, Project Architect. There was no public testimony.
One letter of comment, received the day before the hearing, addressed concerns that are not
relevant to the approval of the subject variance.
23. The SMP criteria for Shoreline variances landward of the OHWM are as follows
(BIMC 16.12.380(B.2):
a) The strict requirements of the bulk, dimensional, or performance standards set forth in
the master program preclude or significantly interfere with a reasonable economic use of
the property not otherwise prohibited by the master program.
b) The hardship described above is specifically related to the property and is the result
of unique conditions, such as irregular lot shape, size, natural features, and the
application of the master program, and is not, for example, from deed restrictions or the
applicant's own actions.
c) The design of the project will be compatible with other permitted activities in the
area and will not cause adverse effects to adjacent properties or the shoreline
environment.
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d) The shoreline variance authorized does not constitute a grant of special privilege not
enjoyed by other properties in the area and will be the minimum necessary to grant relief.
e) The public interest will suffer no substantial detrimental effect.
24. Without the requested variance development on Lot 122 would be limited to a
dwelling much smaller than, and out of character with, the surrounding residential development.
In context, such constraint would significantly interfere with a reasonable economic use of
the property. The need for the variance is dictated by the smallness of the lot and the existence
of multiple setbacks. It is not the result of the applicant's actions. The design is compatible in
dimension and appearance with adjacent development and will not adversely affect neighbors.
Historically many residences on Point Monroe have been constructed in the native vegetation
zone. No special privilege will be granted here. The variance is the minimum needed to
accommodate the planned development. Shoreline values, if not actually enhanced, will be
minimally impacted by this development. Accordingly there will be no detriment to the public
interest.
25. Any conclusion herein which may be deemed a finding is hereby adopted as such.
CONCLUSIONS OF LAW
1. The Hearing Examiner has jurisdiction over the subject matter of this appeal.
2. The requirements of SEPA have been met.
3. The requested variance, as conditioned, is consistent with the variance criteria of the
local Master Program (BIMC 16.12.380(B.2).
4. The proposal will not result in significant adverse cumulative impacts to the shoreline
environment. See BIMC 16.12.380(B.4).
4. Any finding herein which may deemed a conclusion is hereby adopted as such.
CONDITIONS
SEPA Conditions
1. No fertilizers, pesticides, or herbicides shall be used in the native vegetation zone.
The use of these products elsewhere on the site is discouraged, but if necessary they shall be used
consistent with Integrated Pest Management (IPM) strategies.
2. Upon completion of construction, all cleared areas and areas designated to be
replanted on the site plan date stamped August 27, 2009, shall be landscaped with native
vegetation within the first planting season. A planting plan shall be reviewed and approved by
the City prior to planting. Once planted, removal of any native plants within this zone is
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prohibited. Removal of invasive /non - native species may be permitted with a City approved
replanting plan indicating the type of vegetation being removed and the type and quantity of
replacement native plants being provided.
Non -SEPA Conditions:
3. The applicant shall obtain an approved building permit from the Department of
Planning and Community Development prior to construction of the proposed residence and
attached garage.
4. The footprint of the residence and garage shall be in substantial conformance with the
drawing date - stamped January 13, 2010, and shall not exceed 1,306 square feet.
5. A geotechnical report shall be required for the foundation design and shall be
submitted with the building permit application. A geotechnical engineer shall fill out the City's
standard geotechnical forms during the building permit process.
6. Prior to issuance of a building permit, an indemnification agreement for all activities
and structures on the sites shall be duly executed in a form approved by the City Attorney,
pursuant to BIMC 16.20.150(D)(1)(a).
7. Prior to applying for a building permit, a flood elevation certificate is required to be
filled out by a licensed surveyor. The site plans submitted for the building permit shall show the
top of the lowest floor one (1) foot above base flood level (13'). The design of the residence
shall employ measures to minimize flood damage and will be reviewed for such during building
permit submittal.
8. An approved BSA from the Health District is required at the time of building permit
submittal.
9. Civil and mechanical drawings for sewer and storm water systems are required at the
time of building permit submittal. Best Management Practices for erosion control shall be
reviewed and approved by the City at the time of building permit issuance.
10. 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.
11. Equipment for the transportation, storage, handling, or application of such materials
shall be maintained in a safe and leak -proof condition. If there is evidence of leakage, the further
use of such equipment shall be suspended until the deficiency has been satisfactorily corrected.
12. Prior to building permit issuance, a right -of -way use license agreement approved by
the City Council is required for all structures constructed within the platted right -of -way.
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13. Prior to submittal of the building permit, an easement for the proposed drainfield is
required from the owner of parcel no. 4155- 000 - 036 -0201 and a copy of said easement shall be
submitted to the City.
14. The residence and garage must meet the shoreline height restriction of 30 feet, as
measured from average existing grade to the top of the roof.
15. The native vegetation zone shall be replanted with native shrubs and grasses within
the first planting season. A restoration/planting plan shall be submitted and approved by the
Department prior to issuance of a building permit. The plantings shall be installed and inspected
prior to final inspection of the proposed residence.
16. To mitigate potential off -site glare, lights shall be hooded and shielded so that the
light or glare does not extend beyond the property boundary in accordance with the standards
listed in BIMC Chapter 15.34.
17. A professional archaeologist shall conduct a cultural resources assessment on Lot 37
prior to construction activities. For all lots where work is performed, the 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. This provision shall
appear as a note on construction drawings submitted as part of the building permit application.
18. A copy of these Conditions of Approval shall be attached to the building permit
application for the residence and the garage.
DECISION
The requested Shoreline Variance (SVAR 15304) is approved, subject to the conditions
set forth above.
DONE this 11th day of February, 2010.
Wick Duffo , Hearing Examiner Pro Tempore
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