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