102810_TAWRESEY_HEX_ORDERBEFORE THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In the Matter of the Application of
John and Alice Tawresey SUB15353
ORDER REMANDING
APPLICATION
For a Preliminary Subdivision Approval
Order remanding
The application of John and Alice Tawresey for a multifamily subdivision of 2.39
acres of property located east of SR 305 and west of 263 -487 Cave Avenue NE plus the
lot at 439 Cave Avenue NE came on for hearing before the undersigned hearing examiner
on October 1, 2010. The record remained open to give the public, the Department of
Planning and Community Development, and the applicants opportunity for additional
comment and response. Members of the public and counsel for the Cave Avenue
Community Association requested that the matter be remanded for further consideration
of a number of issues. The hearing examiner has determined that remand is necessary as
follows:
Geologically Hazardous Area Buffer Reduction
The south slope of the Winslow Ravine adjacent to three of the proposed lots at
the north end of the site is designated as a geologically hazardous area because of a steep
slope. The minimum no- disturbance buffer required from the edge of the area is 80 feet,
based on the height of the slope "except where no other reasonable alternative exists." ,
Section 16.20.150E(2)(a), Applicants propose a reduction in the required buffer to 25 ft.
The buffer reduction also must be determined not to reduce the level of protection to the
proposed development, other properties and associated critical areas. The director
obtained the reviews necessary to satisfy the latter criterion.
The record shows that rather than determining whether any other reasonable
alternative exists, the director determined that the reduction was reasonable to allow
development of the 20 units proposed by the applicants. The proposed buffer was judged
reasonable because that number of units would increase density in the Winslow Master
Plan study area as intended by the plan and because similar reductions have been
approved on the north side of the ravine. The record does not show that there was a
determination that no other reasonable alternative exists. The Code does leave to the
director the interpretation of what would be a reasonable alternative but an uncritical
acceptance of the applicants' proposed number of units without consideration of the
number of units that could be developed with the full or a less reduced buffer is not a
determination that there is no other reasonable alternative. As there is a separate
provision, Section 16.20.080, for a reasonable use exception when the critical area and its
buffer would deny all reasonable use, the requirement that there be no other reasonable
alternative necessarily contemplates a lesser showing for buffer reduction than that for
the reasonable use exception. The record needs to reflect that the proper analysis was
conducted if the reduction is to be approved.
Transportation Concurrency
Applicants' consultant provided a memorandum identifying trip generation and
potential impacts of the proposed development, estimating that the development would
generate a total of 9 new trips during the PM peak hour and 107 for the average weekday.
With a 25 percent reduction for location within the core area of Bainbridge Island, those
numbers would be 7 during the PM peak hour and 80 for the average weekday. Though
the proposal would not be exempt from the concurrency test required by Section
15.32.040 because the trips would exceed 50 per day, the City did not perform the
concurrency test because the City uses of rule of thumb that when a project would
generate fewer than ten trips during the PM peak hour, it would not be expected to alter
the existing level of service (LOS) at intersections. While the rule of thumb of fewer
than ten trips appears to be a reasonable measure, the City Council has not delegated
authority to establish any further exceptions to the requirement for the concurrency test
so it must be performed.
Pedestrian Safety
The record shows that the site of the proposed subdivision is within walking
distance of the ferry terminal and town center; that pedestrians from residential
development to the north of the site, residents of the Cave Avenue neighborhood, and
future residents of the proposed subdivision may use the trail to avoid part of Cave
Avenue that does not have sidewalks but that the trail is unlighted so is unlikely to be
used at night; that Cave Avenue has no sidewalks at the point the trail joins the street so
even users of the trail are forced to walk in the street; that children walk on Cave Avenue
to reach their school bus stop; that residents walk in the street to the transit stop; that
parents and children walk on Cave Avenue to and from the children's facilities at the
north end of Cave; that one resident in a wheel chair uses Cave Avenue; and that it is
estimated that the proposed subdivision will add 80 cars per day to the street.
The city engineer has determined that "the streets and pedestrian ways as
proposed are adequate to accommodate anticipated traffic," Section 17.04.094A.5.d,
which addresses the new public and private streets, sidewalks, and trails provided on and
adjacent to the site. The Code also requires that the subdivision make appropriate
provisions for the public safety. Section 17.04.094A.2. The city engineer did not address
whether the additional vehicular traffic from the proposed subdivision onto the existing
street would increase the hazard to pedestrian travel in the street to the extent that
mitigation would be necessary to allow for the required finding that the public safety is
provided for by the preliminary subdivision. The decision makers will need a response to
the safety concerns raised in the record.
Order Remanding application -2
Therefore, the application is remanded to the Department of Planning and
Community Development for determination of whether there is no other reasonable
alternative to the reduction of the buffer as required by Section 16.20.150E.2(a), and to
the Public Works Department for application of the concurrency test required by Section
15.32.040 and an opinion as to whether the preliminary subdivision makes appropriate
provision for pedestrian safety.
The record shall be reopened for the filing of memoranda detailing those
determinations and for any responses from persons who have provided substantive
testimony or comment to the existing record. Notice of the availability of the memoranda
and a 14 -day opportunity to file comments shall be given to those persons when the
memoranda are filed. Additions to the record are limited to those issues. Following
receipt of the required memoranda, the 14 -day comment period, and any applicant
response to comments, the hearing examiner will make a recommendation to the City
Council.
Entered this 28th day of October 2010.
/s/ Margaret Klockars
Margaret Klockars
City of Bainbridge Island
Hearing Examiner pro tem
Order Remanding application -3