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MEADOWLARK SUB03-14-97-1 BAlNBRIDGE ISLAND ~LQR 1 9 1998 nEPT. OF PLANNING & \i\UNIT'r' DEVELOPMENT /0 h;~~~ 1 ::: .'~:n 8"; 1:,.,~ ~ 1_,"'-:_' ( BEFORE THE HEARING EXArvllNER FOR BAINBRIDGE ISLAND In the Matter of the Application of Schneider Homes Inc , . For Approval of a Flexible Lot Design Subdivision ) ) ) ) ) ) No. SUB03-14-97-1 FINDINGS, CONCLUSIONS, DECISION AND RECOMMENDATION SUMMARY OF DECISION ON SEPA APPEAL & RECOMMENDATION ON APPLICATION The appeal of a threshold determination made by the city's responsible official pursuant to the State Environmental Policy Act is granted in part and denied in part. An application for approval of a Flexible Lot Design Subdivision to subdivide a 6.4 acre parcel of land into 24 single family residential lots is recommended for approval, subject to conditions. BACKGROUND & SUMMARY OF RECORD Aoolication: Schneider Homes, Inc. (Applicant) requests approval of a Flexible Lot Design Subdivision to subdivide a 6.4 acre parcel of land into 24 single family residential lots and five open space tracts. The subject property is located between Wyatt and Shepherd Way, just east of Weaver Road. Aooeal: The application was reviewed under the provisions of the State Environmental Policy Act (SEPA) to determine if the proposal would have significant environmental impacts such that an environmental impact statement would be required. The applicant submitted an environmental checklist. Based on that checklist, the city determined that any environmental impacts would not be significant if mitigating conditions were applied to the proposal. The City issued a Mitigated Determination of Nonsignificance (MONS) on December 31, 1997. The MONS was appealed by Jennifer Parker, Sean Parker and Rick Blumenthal. Hearinq Date A consolidated open record hearing on the SEPA appeal and the application was held before the Hearing Examiner for Bainbridge Island on February 23, 1998 The .SEPA open record appeal was heard first; followed immediately by an open record hearing on the application. Testimonv At the hearing on the SEPA appeal, the following individuals presented testimony under oath II Findings, Conclusions and Recommendation Hearings Examiner of Bainbridge Island Meadowlark Subdivision SUB03-14-97-1 Page 2 Jennifer Parker; George Johnsten; Joshua Machen, Ken Peckham. At the hearing on the applicetion, the following individuals presented testimony under oath: George Johnsten; Ken Peckham; Dick Allen; Sean Parker. Exhibits: At the hearing on the SEPA appeal, the following exhibits were ad.mitted as part of the official record: Exhibit 1: Staff Report with Attachments: A. Preliminary Subdivision Application B. Preliminary Plat Map and Vicinity Map, October 16, 1997 C. SignificantTree Survey, August 15, 1997 D. Preliminary Utility Plan, June 12, 1997 E. Mitigated Determination of Nonslgnificance. F. SEPA Checklist G. Letter of Complete Application H. Notice of Application I. Fire Department Approval Memo J. Park District comment and .review letter K. Memorandum from Assistant City Attorney regarding Park Impact Fees L. Preliminary Plat approval from Kato & Warren (Engineering Consultants), received July 28, 1997 M. Preliminary Stormwater Drainage Plan approval from Kato & Warren' (Engineering Consultants), received August 14, 1997 N. Water availability letter O. Draft Open Space Management Plan P. Proposed Declaration of Easements, Covenants, Conditions and Restrictions, Meadow Lark Lane O. Wiltermood Wetland Report, August 15, 1995 R. Memo from Stephen Morse, Watershed Technician regarding Wiltermood Wetland Report January 14, 1997 S Public Comment and response letters T SEPA Appeal U Letter from Schneider Homes to SEPA appellant V Notice of Public Hecring and Appeal /.,z Findings, Conclusions and Recommendalion Hearings Examiner of Bainbridge Island Meadowlark Subdivision SU603-14-97-1 Page 3 Exhibit 2: Supplemental Appeal Stalement Exhibit 3. Excerpts from Comprehensive Plan; Exhibit 4 Memo from Morse to Johnston dated 8/4/97 At the hearing on the application, the following exhibits were admitted as part of the official record: Exhibit 1: Staff Report with Attachments: A. Preliminary Subdivision Application B. Preliminary Plat Map and Vicinity Map, October 16, 1997 C. Significant Tree Survey, August 15, 1997 D. Preliminary Utility Plan, June 12, 1997 E. Mitigated Determination of Nonsignificance F. SEPA Checklist G. Letter of Complete Application H. Notice of Application 1. Fire Department Approval Memo J. Park District comment and review letter. K Memorandum from Assistant City Attorney regarding Park Impact Fees L. Preliminary Plat approval from Kato & Warren (Engineering Consultants), received July 28, 1997 M. Preliminary Stormwater Drainage Plan approval from Kato & Warren (Engineering Consultants), received August 14, 1997 N. Water availability letter O. Oraft Open Space Management Plan P. Proposed Declaration of Easements, Covenants, Conditions and Restrictions, Meadow Lark Lane Q Wiltermood Wetland Report, August 15, 1995 R Memo from Stephen Morse, Watershed Technician regarding Wiltermood Wetland Report January 14, 1997 S Public Comment and response letters T SEPA Appeal U Letter from Schneider Homes to SEPA appellant V Notice of Public Hearing and Appeal Exhibit 2. Revised Condiiions 25 and 26 /3 Findings, Conclusions and Recommendation Hearings Examiner of Bainbridge Island Meadowlark Subdivision SUB03-14-97-1 Page 4 Based upon the exhibits and the testimony submitted at the open record hearings, the following Findings and Conclusions are entered by the Hearings Examiner: FINDINGS Findinos Aoolicable to SEPA Aooeal and Plat Aoplication 1. Schneider Homes of Tukwila, Washington, filed an application on March 14, 1997, requesting approval of a Flexible Lot Design Subdivision to subdivide 6.4 acres into 24 single family residential lots. The proposal includes clustered lots in order to provide an open space tract in the center of the subdivision and open space buffers along existing roads. The smallest proposed lot is 5402 square feet and all lots exceed 50 feet in width. The subject property is located between Wyatt and Shepherd Way, just east of Shepherd Road. Exhibit 1, Attachment A; Testimony of Mr. Machen. 2. The subject property is zoned R-3.5 (3.5 dwelling units per acre). The Comprehensive Plan designation for the site is Semi-Urban Rural (SUR). The purpose of the SUR designation is to provide areas that are suitable for a transition from urban uses to less intense development. The designation allows for residential density between 2.9 and 3.5 units per acre. Exhibit 1, Staff Report; COBI Comprehensive Plan W10.1 and W1 0.2. The surrounding zoning is R-3.5 to the north, R-2.9 to the south, R-3.5 to the east, and'R-3.5 to the west. The surrounding land uses are single family residential. Testimony of Mr. Machen; Site View. 3. Twenty-four lots would be created is the subdivision is approved including two lots to be developed as affordable housing. The proposal is consistent with the density standards of the zoning code as calculated by the planning staff. Testimony of Mr. Machen. 4. The subject property slopes gradually to the southwest. The property is undeveloped with the exception of a dilapidated barn (proposed to be removed) and the remnants of an access road. Testimony of'Mr. Machen; Site View 5 Access to the site would be from Wyatt Way NE and Shepherd Way. All lots would have direct access to an internal roadway. Exhibit 1 B. Sidewalks and a trail system through the open space area would be provided to facilitate pedestrian circulation. Exhibit 1 B 13 The Bainbridge Island Wetland Inventory indicates a Type 4 stream on the Southwest corner of the percel, with no associated wetlands indicated on the Inventory. This stream was not identified during the site investigation for the wetlands delineation. Exhibit 10 Subsequent to the wetland delineation report, a City watershed technician walked the site and generally concurred with the observations made Exhibit 1 R The stream crosses Wyatt at 12. Three forested swales exist on site, one main swale that runs North/South and two minor swales that run EastlWest. The minor swales flow into the main swale at separate junctions. These streams meet the criteria for Type 5 systems because they lack defined channels, do not affect the water quality of downstream water bodies, and do not provide fish habitat. Two small wetlands within the main swale have been delineated and classified as Category 111 wetlands. The wetlands are less than 5,000 sq. ft. and unregulated by the City Exhibit 10; Exhibit 1R; Exhibit 4. 11. Police service will be provided by the Bainbridge Island Police Department. Fire service .will be provided by Bainbridge Island Fire District #23. The Fire Department has reviewed and approved the emergency access and has reviewed and conditionally approved the propos ad locatioh of fire hydrants. Exhibit 11. 10. The proposed stormwater drainage system would tie into the existing stormwater drainage system along Weaver Road. The system utilizes bioswales to treat a six month design storm for each of two stormwater basins proposed by the applicant. The City Engineer reviewed the preliminary. stormwater management system and recommended that it be approved. Exhibit 1 M. No one presented any testimony against approval of the plan as submitted. 9. All essential utilities can be extended to serve the site. Water and sewer can be provided by the City or Bainbridge Island. Exhibits 11, 1L & 1N. 8. Transit stops along Wyatt Way and We.aver Avenue will serve the. site. Exhibit 1; Testimony of Mr. Machen. 7. The proposed subdivision is within the Bainbridge Island School District. The School District has identified impacts resulting from the development in the amount of $3,030.00 per lot. Exhibit 1, Staff Report. 6. A landscaped berm is proposed along Wyatt Way. The roadside vegetation along Shepherd Way would be disturbed by the proposed road location and stormwater management system. Testimony of Mr. Machen, Exhibit 1 B & 1 C. Findings, Conclusions and Recommendation Hearings Examiner of Bainbridoe Island Meadowlark Subdivision SUS03-14-97-1 Page 5 IT IS: Findings, Conclusions and Recommendation Hearings Examiner of Bainbridge Island Meadowlark Subdivision SUB03-14-97-1 Page 6 Weaver and then enters a storm drain system and is piped to Eagle Harbor and does not enter the subject property. Exhibit 4. 14. Pursuant to Flexible Lot Design Standards, the calculation of open space area includes all common publicly or privately held open space areas, all provisions for the right-of-way for public roads and the easement width for private roads, storm water facilities, recreational areas, trails and greenways and areas protected consistent with Chapter 16.2 of the BIMC. BIMC 17.04.080 (E). Forty three percent (43%) open space will be provided. The proposed subdivision has four open space tracts. Proposed open space tract D will provide protection for many significant cottonwood and fir trees and preserve native vegetation, provide passive recreation trails, and active recreation. The other tracts concentrate open space along the roadways. Exhibit 1, Staff Report; Exhibit 1 B. A draft Open Space Management Plan (OSMP) has been submitted. Exhibit 10. The proposed open space will be held in common by a home owners association (the proposed Meadow Lark Lane Subdivision Homeowners Association) and will be protected through restrictive covenants. Exhibit 10 and P. 15. No playgrounds are proposed. The subdivision is not adjacent to any existing or proposed parks.. Bainbridge Island Park and Recreation District has requested a flat park and recreation impact fee of $500.00 per lot. Exhibit 1 J. Exhibit 1, Staff Report. 16. Approximately 80 significant trees exist on the site. Approximately 30% will be preserved in the open space tracts and on individual lots. Exhibit 1, Staff Report; Testimony of Mr. Machen. Findinas Applicable to SEPA Aooeal 17. The project is subject to State Environmental Policy Act (SEPA) review. The City of Bainbridge Island was designated as the lead agency for review of the environmental impacts A Mitigated Determination of Nonsignificance (MONS) was issued. The publication date of the MONS was December 31, 1997. Exhibit 1 E. An appeal was filed by Jennifer Parker, Sean Parker and Rick Blumenthal on January 21, 1998, contending that ,the information provided on the environmental checklist was inadequate and that the intent of the Flexible Lot Design Ordinance was not met. Exhibit 1T. In their appeal, the Appellants question the adequacy of the checklist. The appellants specifically state they do not ask that an Environmental Impact Statement be prepared The appellants do request that the Hearing Examiner order that the Threshold Determination be withdrawn and a new /6 Flndlnos Conclusions and Recommendation ~ , Hearings Examiner of Bainbridge Island Meadowlark Subdivision SUB03-14-97-1 Page 7 checklist be submitted with adequate information for review such that the City can make informed decisions regarding the impacts fmm the proposal. 1 18 The MONS issued by the City has nineteen conditions attached to it designed to mitigate potential impacts to the environment that might otherwise be significant. These conditions are: 1. To mitigate impacts associated with the clearing, grading or building activities, the applicant shall submit a Temporary Erosion and Sedimentation Control Plan to the City Engineer for review and approval prior to any clearing, grading or building activities. This plan shall incorporate Best Management Practices. (Section 15.20, BIMC) 2. A Clearing and Grading Permit shall be approved by the City Engineer prior to any clearing, grading or building on site. 3. Limits of clearing or grading shall be clearly marked in the field and inspected by the City of Bainbridge Island prior to beginning of any clearing or grading on the site. 4. No clearing or grading for infrastructure shall occur until. preliminary subdivision approval. 5. No clearing or grading of building lots shall occur until building permits for the lot have been approved. In their appeal, the Appellants also questioned the interpretation of the Flexible Lot Line Ordinance. The appellants contend thaI the intent of the Code is not being met, and specifically questioned the following: 1) Whether the base maps provided are adequate to show the required features; 2) Whether the preservation of significant trees and open space features were prioritized as is done in the Flex Lot Design Handbook; 3) Whether the hydrology was sufficiently considered when designing the drainage plan; 4) Whether a tree management plan was done: 5) Whether the tree groves were sufficiently considered when placing the roads. Although these issues are clearly compelling to the appellants in that a careful analysis waS presented pertaining to each issue, the issues are not appropriate for the Examiner to review within the context of an appeal of a threshold determination. The appeal must be of the MONS itself. The issues regarding the Flexible Lot Line Ordinance may be relevant within the context of a hearing on an application; but no decision on the appeal of the MONS can address the issues related to the Flexible Lot Line Ordinance II Findings, Conclusions and Recommendation Hearings Examiner of Bainbridge Island Meadowlark Subdivision SUB03-14-97-1 Page 8 6. All clearing and grading shall be performed during the dry months from April 1 through October 1 to reduce the potential for erosion. An extension may be granted by the City Engineer. 7. To mitigate impacts on air quality during earth moving activities, contractors should conform to Puget Sound Air Pollution control Agency Regulations which insure that reasonable precautions are taken to avoid dust emissions. (Section 16.08.040, 8IMC) 8. To mitigate impacts on air quality, cleared vegetation must be removed from the site, processed by chipper, or processed using other methods of disposal that does not require burning. 9. Impacts associated with emissions and odors from heating, ventilation and air conditioning units shall be mitigated by installing units that meet current air quality standards as required by State and Federal' Laws. 10. To mitigate impacts associated with surface water runoff, the proponent shall submit a comprehensive stonmwater management plan for the total proposed build-out condition to the City Engineer for review and approval prior to clearing, grading or building activities. The stonmwater management plan must address how existing site drainage will be accommodated. The location of the stormwater facilities shall be indicated on the preliminary plat (Section 15.20, BIMC): 11. The proposed entry sign and landscaping shall be reviewed .and approved by staff prior to installation. 12. Any street lighting within the subdivision if proposed will be required to be hooded and shall not exceed 14 feet in height and shall not protrude over the roadway. 13. A school impact fee shall be paid in the amount established by City Resolution. One half of the impact fee shall be paid prior to final plat approval. The remaining half of the impact fee shall be paid with building permit applications. The requirements for school impact fee payments shall be shown on the face of the final plat. (Chapter 15.28 BIMC) IS Findings, ConclUSions and Recommendation Hearings Examiner of Bainbridge Island Meadowlark Subdivision SUB03-14-97-1 P2ge 9 14. All utilities shall meet all applicable City of Bainbridge Island Public Works Standards. 15. Fire main and hydrant installations shall meet City of Bainbridge Island Public Works Standards, shall be approved by Fire District and installed prior to final plat approval. 16. An approved open space management plan shall be included in the covenants for the subdivision and shall be strictly enforced. 17. To mitigate impacts associated with the installation of infrastructure and the development of lots, only those trees specifically identified by the applicant and approved by the City for removal may be removed. All trees to be removed shall be tagged and inspected by the City prior to any clearing grading or building activities. 18. To mitigate noise impacts to area residences, construction activities shall only occur between the hours of 7:00 a.m. and 6:00 p.m. Monday through Friday. 19. The above mitigation measures will become the conditions of the FP A (Forest Practices Application) if one is required from the Department of Natural Resources. Exhibit 10. 20. At the open record appeal hearing, the Appellants stated that the unresolved issues on appeal are the following: 1) Issues pertaining to the impact to the stream and wetlands; 2) Whether a wildlife corridor exists on the site; 3) If trees will be preserved to the greatest extent possible; and, 4) Traffic impacts The appellants requested that the environmental checklist be revised 2nd re-circulated and that' the mitigation conditions be revised to reduce significant impacts to streams, wetlands, wildlife, trees and traffic. Testimony of Jennifer Parker; Exhibit 2. 21. Condition 1 of the MONS is intended to "mitigate impacts associated with clearing, grading and building activities" and Condition 10 of the MDNS is intended to "mitigate impacts associated with surface water runoff." Exhibit 1 D. These impacts could include those related to the streams and wetlands CONCLUSIONS Jurisdiction The Hearing Examiner is authorized and directed to hear appeals of threshold determinations pursuant to SEPA in Section 216.130 of the Bainbridge Island Municipal Code (BIMC) The Examiner may affirm the decision, reverse the decision, affirm with modifications or remand the decision to the responsible official The Hearing EX2miner has the responsibility and authority to recommend action to the City Council on Flexible Lot Design subdivision 23. There are no SEPA conditions designed to mitigate traffic impacts. Exhibit 10. City studies have concluded that there will be no significant impacts to traffic from the cumulative impact of the development of land within the City. Exhibit 3. Thus, the City's Responsible Official concluded there would be no significant traffic impacts due to the proposed development that would require a mitigation measure Testimony of Mr. Johnston. 22. Condition 16 of the MDNS requires "an approved open space management plan." There is no reference in that condition as to what impacts that condition is intended to mitigate. An open space management plan could address impacts to wildlife. Exhibit 10; Testimony of Jennifer Parker. Conditions 20, 22, 23, 28, 29, & 30 recommended by the planning staff as "Non-SEPA Conditions" relate to the use, maintenance and protection of open space tracts. Recommended Condition 23 recognizes there are "significant trees" within an open space tract and requires a landscape plan. Exhibit 1, page 3. No recommended condition would require the preservation of any trees. A greater number of trees could be preserved if the road was located in a different place. Testimony of Jennifer Parker. No ordinance of the city requires the preservation of significant trees. Approximately 33% of all significant trees on the subject property would be preserved under the proposed site plan. Testimony of Mr. Johnston. on the site Wetlands on the site are less than 2,000 square feet in size. Exhibit 1R; Testimony of Mr. Johnston. A City "Natural Resource Specialist" concludes that "the Type Four stream that crosses Wyatt at Weaver does not flow on the subject property. The stream flows toward lower Weaver and then enters a storm drain system that is piped to near Eagle Harbor." The swale on the subject property is classified as a Type Five stream. Thus, the city has not provided protections for these streams. Exhibit 4, Memorandum from Mr. Morse; Testimony of Mr. Johnston. The written testimony of Mr. Morse, although not qualified as an expert on streams, must be accepted as a verity in absence of credible expert appellant testimony that shows his conclusions to be in error. f'indings, Conclusions and Recommendation Hearings Examiner of Bainbridge Island Meadowlark Subdivision SUB03-14-97-1 Page 10 /1 c{O Findings, Conclusions and Recommendation Hearings Examiner of Bainbridge Island Meadowlark Subdivision SUB03-14-97-1 Page 11 applications. Pursuant to BlivlC Section 2.16.110, the Examiner has the authority to make a recommendation on the application to approve, deny or approve with conditions the Examiner finds necessary to make the application compatible with its environment, the comprehensive plan, and other land use regulatory enactments. Backoround & Criteria for Review of SEPA Aooeal SEPA is a legislative pronouncement of our state's environmental policy. It recognizes "the necessary harmony between humans and the environment in order to prevent and eliminate damage to the environment and biosphere, as well as to promote the welfare of humans and the understanding of our ecological systems." Stempel v. Department of Water Resources, 82 W.2d 109, 117, (1973). While SEPA does not demand a particular substantive result in government decision-making, SEPA does require that "environmental amenities and values be given appropriate consideration in decision making along with economic and technical considerations." Stempel, 82 W2d at 118; RCW 43.21C.030(2)(b). Under SEPA, before a local government processes a permit application for a private land use project, it must make a "threshold determination" of whether the project is a "major action significantly affecting the quality of the environment." RCW 43.21C.030(2)(c); Sisley v. San Juan County, 89 W2d 78,82-83 (1977). A "threshold determination" by the "responsible official" of the "lead agency" is required for any proposal that meets the definition of "action" under SEPA and is not "categorically exempt" WAC 197-11-310(1) and (2). In order to facilitate the "threshold determination," the applicant must prepare an environmental checklist, which must provide information reasonably sufficient to evaluate the environmental impact of the proposal. WAC 197-11-315 to 335. The responsible official must then thoroughly consider a proposal's potential environmental significance as documented in the environmental checklist. WAC 197-11-315(1 )(a). Based upon independent review of all relevant information and enalysis, the responsible official determines whether the proposal is "likely to have a probable significant adverse environmental impact." WAC 197-11-330(1)(b). The responsible official then renders a "determination of significance" (OS) or a "determination of non-significance" (DNS). A DS mandates intensified environmental review through preparation of an EIS. WAC 197-11-360. Conversely, a DNS means thet no EIS will be required. WAC 197-11-340. It does not mean, however, that environmental review will not be undertaken. An alternative threshold determination is the "mitigated determination of non- Significance," or "IVIDNS," which involves chenging or conditioning a project to d/ Findings, Conclusions and Recommendation Hearings Examiner of Bainbridge Island Meadowlark Subdivision SUB03-14-97-1 Page 12 eliminate its significant adverse environmental impacts. WAC 197-11-350. With a MONS, completion of a formal EIS is not required, although, as here, environmental studies and analysis may be quite comprehensive. An applicant may clarify or change a proposal by revising the environmental checklist and permit application so that a MDNS can be issued for the revised project. WAC 197 -11-350(2). Alternatively, the governmental agency may specify mitigation measures and issue a MDNS only if the proposal is changed to incorporate those measures. WAC 197-11-350(3). For the MDNS to survive scrutiny on appeal, the city must demonstrate that "environmental factors were adequately considered in a manner sufficient to establish prima facie compliance with SEPA," and that the decision to issue a MONS was based on information sufficient to evaluate the proposal's environmental impact. Brown v. City of Tacoma, 30 Wash.App. 762, (1981). The mitigation measures imposed must also be reasonable and capable of being accomplished. RCW 43.21C.060; WAC 197-11-660(1)(c); Kiewit Constr. Group, Inc. v. Clark County, 83 Wash.App. 133, 143 (1996). An agency's decision to issue a MONS and not to require an EIS must be accorded substantial weight. RCW 43.21C.090; Indian Trail Property Owner's Assoc. v. City of Spokane, 76 Wash.App. 430, 442 (1994). The Legislature created the MONS process to encourage agencies and applicants to work together to reduce the impacts of a project below the threshold level of significance. WAC 197-11-350. With an MONS, promulgation of an EIS and intense public participation are rendered unnecessary because the mitigated project will no longer cause significant adverse environmental impacts. Use of mitigation to bring projects into compliance with SEPA, without promulgation of an EIS, has been viewed favorably by the Washington courts. The Washington State Supreme Court deems the MDN$ process to be "eminently sensible." Hayden v. City of Port Townsend, 93 Wash.2d 870, 880 (1980); SANE v. Seattle, 101 Wash.2d 280 (1984). The Court of Appeals, ~ivision One has held that , SEPA encourages compromise and accommodation by requiring that the decision-maker consider mitigation and state why it is inadequate to relieve the adverse impact. When the decision-maker' imposes some mitigation measures, this does not necessarily mean that unmitigated impacts no longer exist or will be totally eradicated by mitigation, but merely that as mitigated, the project as a whole is acceptable. Victoria Tower Partnership v. City of Seattle, 59 Wash.App. 592,603 (1990). Findings, Conclusions and Recommendation Hearings Examiner of Bainbridge Island Meadowlark Subdivision SUB03-14-97-1 Page 13 ~CJ,. Similarly, the Washington Department of Ecology (DOE) has favorably characterized the MONS process as conducive to efficient, cooperative reduction or avoidance of adverse environmental impacts:' The mitigated DNS provision in WAC 197-11-350 is intended to encourage applicants and agencies to work together early in the SEPA process to modify the project and eliminate significant adverse impacts. The mitigated DNS process is not intended to reduce the amount of environmental review done on a project, but to reduce the paperwork needed to document the process. See, Richard L. Settle, DOE Interpretations of Determination of Non-Significant Provisions, at 466 app. (1988 SEPA Handbook G-1 to G-6). The SEPA Rules provide that if in the course of formulating a MONS, the lead agency determines that "a proposal continues to have a probable significant adverse environmental impact, even with mitigation measures, an EIS shall be prepared." WAC 197-11-350(2). This touchstone of the SEPA review process provides protection from abuse. If a MONS is issued and an appealing party proves that the project will still produce significant adverse' environmental impacts, then the MDNS decision must be held to be "clearly erroneous". and an EIS must be promulgated. Conclusions on Aopellants' SEPA Aooeal 1. With modifications to the conditions, an MONS is appropriate for the project proposal. The appellants requested a review of the environmental checklist and MDNS on appeal and requested that a revised checklist be circulated so that appropriate revisions could be made to the mitigation conditions. Finding of Fact No 20. The appellants agree with the City that an EIS is not required for this project proposal because any probable significant adverse impacts can be mitigated through conditions placed on any approval of the clearing and grading permit. In this case, the City reviewed environmental documents to ascertain the impacts of the proposal and has prepared mitigation conditions to address most or those impacts. With some modifications to those conditions of mitigation, there will be no probable significant adverse environmental impacts that would require the preparation of an EIS. Revisions to the mitigation conditions 2re necessary to reduce the potential environmental impacts below a level of significance Findings of Fact No. 12, 13, 14, 16, 18, 19, 20, 21, 22. 2 The City followed an appropriate process for review of the potential environmental impacts of the proposed project. The City considered ~3 Findings, Conclusions and Recommendation Hearings Examiner of Bainbridge Island Meadowlark Subdivision SUB03-14-97-1 Page 14 appropriate environmental factors in the environmental checklist, circulated the checklist to appropriate agencies and reviewed comments from those agencies, and formulated mitigation measures to be included in the MONS. It is clear from the record that the City and the applicant worked cooperatively to reduce the project's significant adverse environmental impacts as envisioned in WAC 197- 11-350(2) The applicant altered its plans, and the City imposed mitigating measures. These mitigation measures reduced nearly all adverse environmental impacts below the threshold level of significance, such that an EIS was no longer required. This is precisely'how SEPA is intended to work. Environmental review was not "avoided" for the proposed project; it was an integral part of the City's analysis of the proposal. The mitigation measures of the MONS likely provide more effective environmental protection than would have the preparation of an EIS, since an EIS does not automatically result in substantive mitigation. Although some information on the streams and wildlife corridor proposals was not contained within the environmental checklist, this alone does render invalid the environmental review process of the City. As that information was discovered, the City prepared mitigation conditions .to address potential impacts. The appellant has failed to provide any evidence demonstrating that the City failed to follow the appropriate process when conducting an environmental review of the proposed project. Findings of Fact No.6, 10, 12, 13, 14, 16, 18, 19,20,21,22,23. 3. More specific MONS conditions are needed to ensure that all environmental impacts will be reduced below a significant level. It is possible that some of the plans required by the City within the MONS conditions will address the potential environmental impacts .in a way that reduces impacts to insignificant levels. However, this cannot be determined from a reading of the conditions as imposed. A greater level of specificity is required with an MONS to help ensure appropriate protections as well as io reduce the potential for conflict as to what is required in the plans. For example, a stormwater management plan is required "to mitigate impacts associated with surface water runoff.". See Condition 1 O. This plan may address the wetland and stream areas that the appellant is concerned about. One potential impact associated with surface water runoff is contamination of wetlands and streams. This could be addressed in the stormwater management plan by buffers, prohibition of herbicides within CCRs or other proven methods that help reduce contamination. Without a specific requirement, however, these protection measures are unlikely to appear within a stormwater management plan. Similarly, Condition 16 requires an open space management plan This plan could address protection of wildlife (such as bird nesting areas) and preservation of significant treES Without a specific requirement to do so, however, it is unclear whether or not the plan should include those protections. Thus, the conditions attached to the MONS must be more specific in order to ensure that the plans prepared pursuant to the ~i Findings, Conclusions and Recommendation Hearings Examiner of Bainbridge Island Meadowlark Subdivision SUB03-14-97-1 Page 15 requirements of the MONS address the areas where significant environmentel impacts might otherwise occur. Findings of Fact No.6, 10, 12, i 3\, 14, 16, 18, 19, 20, 21, 22. Criteria for Review of Preliminary Pial Aoolications The BIMC requires that the Heering Examiner's recommendation and the City Council decision find that the application meets all of the following requirements: A. The subdivision may be approved or approved with modification if: 1. The preliminary subdivision makes appropriate provisions for the public health, safety and general and public use and interest, including the following: a, Highways, roads, streets, and other transit facilities; b. Streets, including street names, traffic regulatory signs and mailbox locations; . c. Transit stops; d. Pedestrian facilities; e. Other public ways leading to, and providing access to and within the subdivision; f. Schools; g. School grounds; h. Open spaces; I. Parks; J. Recreation facilities; k. Playgrounds; I. Fire and emergency vehicle access; m. Fire flow; n. Drainage and storm water facilities; o. Water supplies, including potable water; p. Sanitary waste. 2 The preliminary residential subdivision has been prepared consistent with the requirements of the flexible lot line process, and applicable flexible lot standards, including: a. Minimum lot size must be 5,000 square feet. b. Building setbacks must comply with the development standards set forth in Chapter 17.04 080 A BIMC c Minimum lot width must be 50 feet. dS- Findings, Conclusions and Recommendation Hearings Examiner of Bainbridge Island Meadowlark Subdivision SUB03-14-97-1 Page 16 d. Maximum Lot Coverage must comply with that of the underlying zone. e. All buildings must make stormwater management provisions. f Open space must be consistent with the performance standards set forth in Chapter 17.04.080.B BIMC. g. Open space must be 60% in a R-1 zoning district. h. Open space features must be prioritized, consistent with requirements set forth in Chapter 17.04.080.D BIMC. I. Open space shall be calculated, consistent with Chapter 17.04.080.E BIMC. J. Ownership of regulated open space must be consistent with Chapter 17.04.080.F SIMC. k. An open space management plan (OSMP) must be prepared by the applicant for review and approval by the City.. I. Open space must be maintained permanently by the property owner, the property owner's association, or the City for properties owned by.the City. m. Landscaping must. be established consistent with the requirements of Chapter 18.85 SIMC. n. Roads and Access Performance Standards must be consistent with the requirements of Chapter 17.04.080.J. 3. Any portion of a subdivision which contains an environmentally sensitive area, as defined in Chapter 16.20 SIMC, conforms to all requirements of that ordinance; 4. The subdivision reasonably maintains and protects productive agricultural uses in the vicinity of the property, including complying with BIMC 16.20.181; 5. The overall design of the proposal minimizes soil erosion and the possibility of on or off-site stream siltation, landslides and mudslides and meets the requirements for drainage control, codified in Chapter 15.20 BIMC; 6. The preliminary subdivision design is compatible with the physical characteristics of the proposed subdivision site; 7. The proposal complies with all applicable provisions of this code, Chapters 58.17 and 36.70A RCW, and all other applicable provisions of State and Federal laws and regulations, 8. The proposal is in accord With the City's Comprehensive Plan, Findings, Conclusions and Recommendation' Hearings Examiner of Bainbridge Island Meadowlark Subdivision SUB03-14-97-1 Page 19 dg 5 No clearing or grading of building lots shall occur until building permits for the lot have been approved. 6. All clearing and grading shall be performed during the dry months from April 1 through October 1 to reduce the potential for erosion. An extension may be granted by the City Engineer. 7. To mitigate impacts on air quality during earth moving activities, contractors should conform to Puget Sound Air Pollution control Agency Regulations which insure that reasonable precautions are taken to avoid dust emissions. (Section 16.08.040, BIMC) 8. To mitigate impacts on air quality, cleared vegetation must be removed from the site, processed by chipper, or processed using other methods of disposal that does not require burning. 9. Impacts associated with emissions and odors from heating, ventila'tion and air conditioning units shall be mitigated by installing units that meet current air quality standards as required by State and Federal Laws. 1 O. To mitigate impacts associated with surface water runoff, the proponent shall submit a comprehensive stormwater management plan for the total proposed build-out condition to the City Engineer for review and approval prior to clearing, grading or building activities. The stormwater management plan must address how existing site drainage will be accommodated and must identify how forest woodlots, individual trees, and other existing vegetation and permeated surfaces (which provide watershed protection, groundwater recharge, climate moderation, and air purification of the public health and welfare) will be protected to the maximum extent feasible. The stormwater management plan shall include CCR provisions that prohibit the use of herbicides and discourage the use of fertilizers. The approved CCR provisions shall be incorporated into the final CCRs applicable to all property owners within the approved subdivision. The location of the stormwater facilities shall be indicated on the preliminary plat (Section 1520, BIMC). 11 The proposed entry sign and landscaping shall be reviewed and approved by staff prior to i.nstallation. 12. Any street lighting within the subdivision if proposed will be required to be hooded and shall not exceed 14 feet in height and shall not protrude over the roadway cJ,'1 Findings, Conclusions and Recommendation Hearings Examiner of Bainbridge Island Meadowlark Subdivision SUB03-14-97-1 Page 20 13. A school impact fee shall be paid in the amount established by City Resolution. One half of the impact fee shall be paid prior to final plat approval. The remaining half of the impact fee shall be paid with building permit applications. The requirements for school impact fee payments shall be shown on the face of the final plat. (Chapter 15.28 BIMC) 14. All utilities shall meet all applicable City of Bainbridge Island Public Works Standards. 15. Fire main and hydrant installations shall meet City of Bainbridge Island Public Works Standards, shall be approved by Fire District and installed prior to final plat approval. 16. An approved open space management plan shall be included in the covenants for the subdivision and shall be strictly enforced. The open space management plan shall protect the existing habitat carrying capacity of the property by providing wildlife corridors, <Jnd by preserving areas used for nesting and foraging by endangered, threatened or protected species to the extent consistent with the proposed new use. 17. To mitigate impacts associated with the installation of infrastructure and the development of lots, only those trees specifically identified by the applicant and approved by the City for removal may be removed. All trees to be removed shall be tagged and inspected by the City prior to any clearing grading or building activities. A minimum of 30% of al/ significant trees on the subject property must be preserved. 18. To mitigate noise impacts to area residences, construction activities shall only occur between the hours of 7:00 a.m. and 6:00 p.m. Monday through Friday. 19. The above mitigation measures will become the conditions of the FPA (Forest Practices Application) if one is required from the Department of Natural Resources. RECOMMENDATION ON SUBDIVISION APPLICATION Based upon the above Findings and Conclusions, the Hearings Examiner recommends APPROVAL of the Flexible Lot Design Subdivision to subdivide a 6 4 acre parcel of land into 24 single family residential lots, subject to the following conditions' 1 All SEPA MONS Conditions as revised and set forth above must be complied with in full RCW 5817 110 requires that the following findings be made in order to approve a preliminary plat 5. Existing habitat carrying capacity of the property by providing wildlife corridors, and by preserving areas used for nesting and foraging by endangered, threatened or protected species to the extent consistent with the proposed new use. 4. Forest woodlots, individual trees, and other existing vegetation and permeated surfaces which provide watershed protection, groundwater recharge, climate moderation, and air purification of the public health and welfare; and, 3. The scenic value of existing vistas which provide substantial value to the State and public at large, such as views from public rights-of-way, parks and open space; 2. Proposed' new utilities, facilities and services, and the proposed additional use of existing utilities, facilities and services will not degrade the existing level of operation and the use of such utilities, facilities a'ld services below accepted standards; . 1. All public and private facilities and improvements on and off the site necessary to provide for the proposed subdivision will be available with needed; C. In making a determination of approval, approval with modifications or disapproval using the criteria in subsections A and Ej of this section, the following additional factors without limitation will also be considered: B. A proposed subdivision shall not be approved unless written findings are made that the public use and interest will be serviced by the platting of such subdivision. 10. The preliminary subdivision meets road and storm water management requirements. ' 9. Wherever feasible, the preliminary plat design includes measures to minimize clearing, with priority given to maintenance of existing vegetation and re-vegetation is incorporated into the preliminary plat design when possible; and, dh Findings, Conclusions and Recommendation Heaings Examiner of Bainbridge Island Meadowlark Subdivision SUB03-14-97-1 Page 17 C:<7 Findings, Conclusions and Recommendation Hearings Examiner of Bainbridge Island Meadowlark Subdivision SUB03-14-97-1 Page 18 "Appropriate provisions must be made for the public health, safety and general welfare and such open spaces, drainage ways, streets or roads, alleys, other public ways, transit stops, potable water supplies, sanitary waste, parks and recreation, playgrounds, schools and school grounds and all other relevant facts including sidewalks and other planning features that assure safe walking conditions for students that only walk to and from school." Conclusions On Subdivision Application vVith conditions of approval, the proposal to divide a 6.4 acre parcel into 24 lots using the flexible lot line design process will comply with the criteria for approval as specified in the BIMC and the Revised Code of Washington. Conditions of approval are necessary to address impacts related to open space, schools, setback areas, affordable housing, roads, fire protection, pedestrian access and surface water drainage. Findings of Fact No. 1-17. DECISION ON SEPA APPEAL With revisions, the Mitigated Determination of Nonsignificance will mitigate all potentially significant environmental impacts. Revisions to the MDNS are necessary to ensure that the stormwater plan will address the protection of stream and wetland areas and that the open space management plan will protect wildlife and preserve significant trees. The MDNS conditions shall be revised as follows (revisions to the December 31., 1997, MONS shown in italics): 1. To mitigate impacts associated with the clearing, grading or building activities, the applicant shall submit a Temporary Erosion and Sedimentation Control Plan to the City Engineer for review and approval prior to any clearing, grading or building activities. This plan shall incorporate Best Management Practices. (Section 15.20, BIMC) 2 Clearing and Grading Permit shall be approved by the City Engineer prior to any clearing, grading or building on site. 3 Limits of clearing or grading shall be clearly marked in the field and inspected by the City of Bainbridge Island prior to beginning of any clearing or grading on the site 4 No clearing or grading for infrastructure shall occur until preliminary subdivision approval Findings, Conclusions and Recommendation Hearings Examiner of Bainbridge Island Meadowlark Subdivision SUB03-14-97-1 Page 21 36 2. All open space areas shall be graphically depicted on the final plat specifying their permitted uses and locations. 3. A full screen landscaping plan, as outline in BIMC 18.85, shall be prepared for the Wyatt Way roadside open space tracts A, 2nd B.The plan shall include a landscaped berm that will screen views from Wyatt way and noises between the roadway and the development. 4. A 6 foot wide trail and easement shall be created between lots 16 & 17 to connect to the off site trail to the east of the property. All trails within the subdivision shall be constructed with a surface of crushed rock 5/8 of an inch or less layered 4 inches deep or more or shall be paved with a durable surface. 5. Open space tract D shall preserve significant trees and native vegetation to the extent possible, while providing passive recreation trails and a area for active recreation. A landscape plan for this tract shall be submitted to and approved by the City prior to final plat approval. The plan shall include areas for passive and active recreation and a trail that will connect to the off site trail link through lots 16 and 17. Landscaping and trails shall be installed prior to any building permit issuance in the plat. 6. Street trees shall be planted along the internal roadways, spaced not more than 25 feet apart. Planting shall be completed prior to final plat approval. Recommended tree types that will not buckle the sidewalk, examples include; Norway maple, ash, or black locus. 7. It is suggested that shared driveways be considered and garages be recessed from the front facade of each single family residence a minimum of 10 feet. 8 It is suggested that front porches be provided for each residence Porches should cover no less than seventy-five percent (75%) of the building frontage 9. A school impact fee of 53,030.00 is to be paid for each of the newly created lots. One half shall be paid prior to final plat approval; the remaining $1,515.00 shall be paid at the time of building permit issuance. (Ord. 92-01). 10. Covenants Conditions and Restrictions containing the frequency and scope of open space maintenance and responsibility shall be recorded prior to final plat approval. .3/ Findings, Conclusions and Recommendation Hearings Examiner of Bainbridge Island Meadowlark Subdivision SUB03-14-97-1 Page 22 11. The homeowners association shall maintain the open space. Failure to maintain will result in City maintenance and the billing of the homeowners association. 12. All open space area uses and restrictions are to follow the approved Open Space Management Plan. 13. The following setback and lot coverage information shall be noted on the final Plat: Building to Building Building to Exterior Property Line Building to Open Space or Trail Building to Wyatt Way Building to Internal Right-of Way Maximum Lot Coverage Per Lot Minimum 10 feet seoaration Minimum 15 feet ' Minimum 10 feet Minimum 40 feet Minimum 15 feet 2,922 square feet 14. Prior to final plat approval, 2 of the 24 lots shall be designated as affordable Jots. These lots shall not be segregated from the markEit rate hOUSing; a duly executed covenant shall be recorded as outlined in BIMC 18.90.020(C.); and completion of the affordable dwellings must be in proportion to the completion of the market rate dwellings. 15.' All the requirements of the City Engineer and the adopted 'Design and Construction Standards and Specifications of the City shall be followed (Attachment L). 16. The conditions of the Fire Department shall be met prior to final plat approval (Attachment I). 17. Public and private improvements, facilities, and infrastructure, on and off the site that are required for the plat shall be completed, have final inspection and approval prior to final plat approval. Approval of public facilities will be shown by a formal letter of acceptance from the City Engineer. An assurance device acceptable to the City may be used (in lieu of physical completion) to secure and provide for the completion of necessary facilities. Any such assurance device shall be in place prior to final plat approval, shall enumerate in detail the items being assured and shall require that all such items will be completed and approved by the City within one year of the dete of final plat approval. The assurance device shall be in a form acceptable for recording by the Kitsap County Auditor and shall be recorded prior to the final plat documents While lots created by the recording of the final plat may 3;( Findings, Conclusions and Recommendation Hearings Examiner of Bainbridge Island Meadowlark Subdivision SUB03-14-97-1 Page 23 be sold, no occupancy of any structure will be cllOl'jed until the required improvements are formally accepted by the City Additionally, a prorninent note on the face of the Final plat drawing shall state: "The lots created by this plat are subject to conditions of an assurance device recorded at (cite Kitsap County Auditors reference) for the completion of certain necessary facilities. Building permits may not be issued and/or occupancy may not be allowed until such necessary facilities are completed and approved by the City of Bainbridge Island. All purchasers shall satisfy themselves as to the status of completion of the necessary facilities." All lot corners shall be stcked with three-quarter inch galvanized iron pipe and locator stakes along with all other applicable survey provisions of Appendix A(BIMC Chapter 17.04) 18. A plat certificate shall be provided prior to final plat approval. 19. Approved street names, traffic regulatory signs, and accessible mailbox locations that do not restrict pedestrian access must be provided prior to final plat approval. 20. Conditions of approval and SEPA MONS conditions shell be referenced on the final plat mylar. The Planning Department may require inscription of specific conditions on the mylar if it is warranted to ensure compliance. Decided this 17th day of March, 1998. dd02~~tbp~ J Theodore Paul Hunter' - Hearing Examiner for Bainbridge Island