OLYMPUS BEACH VAR03-02-94-1 CITY OF BAINBRIDGE ISLAND
DEPARTMENT OF THE HEARING EXAMINER
In the Matter of an Appeal
From an Administrative
Denial of a Variance
Application,
Olympus Beach Corporation,
Applicant/Appellant
,... i-;
~i~,. C~: ~ if-' .AND'
VAR03-02-94-1
REPORT, FINDINGS OF
FACT, CONCLUSIONS OF
LAW, AND ORDER OF
REMAND
REPORT
On September 22, 1994, at 9:30 A.M., City of Bainbridge
Island Hearing Examiner J. Robin Hunt conducted a public
hearing at the Rolling Bay Municipal Court House to consider
an appeal from an administrative denial of two variances.
Applicant/Appellant Olympus Beach Corporation sought
variances for its residential property at 9677 Battle Point
Appellant Olympus
Assistant Planner
City) Department
Drive, Bainbridge Island to build a garage 15 feet into a
25-foot "front" yard setback, and to build a house ten feet
into a 15-foot "rear" yard setback.
Bruce Brunton, attorney, represented Applicant/
Beach Corporation. David Radabaugh,
with the City of Bainbridge Island (the
of Planning and Community Development
(DPCD), appeared on behalf of the City. Three other people
attended the hearing. Sarah Wilson, Hearing Examiner Legal
Assistant, monitored recording of the hearing.
1
the
perpendicular
that the west
The bases for the appeal were generally as follows:
1. An erroneoue interpretation of "street" for
purposes of the 25-foot front yard setback~
particularly where the driveway serves only three lots
after branching off from a wider mouth at the entrance
from Battle Point Drive;
2. Definition of "front yard" and "rear yard" where
the property is oriented toward a westerly view
rather than along the road to the south;
3. Failure to consider view protection for the
Tanner property to the immediate east in favor of
marginal view protection for property owners two lots
to the east;
4. Narrowness of the site; other site constraints
created by the approved septic drainfield and reserve
drainfield locations; inability to build the garage
elsewhere on the site without blocking neighbors'
views; and
5. The unreasonableness of requiring a 25-foot
setback from a private easement, particularly when the
narrow, seldom-used road comprises two pieced-together
private easements, one of which was created some thirty
years ago.
The property is a long, narrow rectangle, parallel to
access drive. The access drive connects and is
to Battle Point Drive. Appellant maintains
side of the property, which faces the Olympic
2
Mountains, is really the front the property and the proposed
house. Appellant contends that the south side of the
property, which abuts the access drive, is really a "side"
yard, as is the so-called "rear" yard on the north side of
the property. Appellant argues that the total setback for
the two side yards should be 15 feet; therefore it should
have a variance of ten feet into the 15-foot north yard and
15 feet into the 25-foot south yard for a total of 15 feet
of side yard.
To the contrary, the City contends that the south
property line is the "front" yard because it borders a
"street," and, therefore, the north property line is a
"rear" yard. The City further argues that the road serves
four residences and thus qualifies as a "street" for setback
purposes. Mr. Radabaugh testified that the purpose behind
this 25-foot setback for streets is for protection against
noise, dirt and traffic impact on the property and for
uniformity of building setbacks along shared roads. He also
attested that the City had heard only from the Pickards, who
own the house two lots to the east. Mr. Radabaugh testified
that the City was only required to consider possible view
blockage caused by qrantinq the variance, rather than view
blockage resulting from denial of the variance. In other
words, the City claims that Applicant is free to build his
structures anywhere within the building envelope,
regardless of view blockage.
3
The file contains two letters from adjacent neighbors.
On September 15, 1994, Leon and Connie Pickard sent a letter
requesting denial of the variance appeal because they fear
that the garage will obstruct their remaining view from the
patio at the southwest corner of their home. Their original
view of the Olympics and Brownsville Marina was obstructed
by the construction of the Tanner residence~ located on the
lot between the Pickard residence and the property in
question.1 Only about 30 percent of the Pickards' original
view remains (Exhibit 24).
On September 15, 1994, Rex McCabe, Jr., the neighbor to
the west of the site, wrote a letter objecting to granting
the appeal because the proposed garage would be too close to
the common access driveway to Battle Point Drive. Mr.
McCabe fears that cars backing in and out of the garage
would obstruct the access driveway if the garage is set back
only ten feet. He contends that if the garage door were to
face east toward Battle Point Drive, rather than south
toward the access drive, then most problems would be
eliminated.
Elaine Tanner, owner of the newly built house on the
property above the site to the east, testified as
Applicant's witness at the public hearing. She stated that
the lots are small and restricted because of the required
1 Construction of the Tanner house did not require a front
yard variance and was permitted without regard for
obstruction of the Pickards' view. The Pickards had enjoyed
their previously unobstructed view for about 19 years.
4
yards and that the only place she could build her house was
right in the Pickards' view. The Pickard and Tanner
properties are at about the same level. The land slopes
significantly down toward the Olympus Beach and the McCabe
properties. The Olympus Beach property has a terraced
effect: The garage would be sited on the higher portion and
the house on the lower portion. Ms. Tanner asked that
Applicant put its garage further west and lower down on the
slope so that her view blockage would be lessened. She felt
that the proposed placement of the structures on the
Applicant's site would more likely preserve her view than
would a house located in the middle of the site with an
attached garage or garage underneath.
Mr. Brunton argued that it was ludicrous to protect the
Pickard view from a patio, two lots to the east, rather than
to protect the Tanner view from the house immediately to the
east. Moreover, the garage roof would
above the level of the Pickard patio and
the Pickard house is built.
be only five feet
the slab on which
Based on views of the site before and after the public
hearing, the exhibits in the file (including those admitted
at the public hearing), the testimony at the public hearing,
and a consultation with the City Attorney concerning the
code's definition of "street" and remand procedures, the
Hearing Examiner now makes and enters the following:
FINDINGS OF FACT
I
Applicant/Appellant Olympus Beach
12,600 square foot lot located at 9677
Corporation owns a
Battle Point Drive
Island. The lot is
Northeast on the west side of Bainbridge
nonconforming in this R-2 zone; minimum lot area should be
20,000 square feet pursuant to BIMC 18.30.040 B. This lot
and the abutting lots east and west were platted in the
1960's. A legal description can be found in Exhibit 11,
attachment B-l, and is incorporated by reference.
II
The property is 140 feet deep and 90 feet wide. It is
vacant and contains grass and blackberries. Along the south
is a ten-foot wide gravel and grass easement, which provides
access to the property from Battle Point Drive to the east.
The property slopes to the west. The Olympus Beach
property is at a minimum of 13 feet below the grade of the
Pickard property two lots to the east, approximately 150
feet away. Additional soil has been deposited in the
higher, northeast corner of the lot for an approved
drainfield and septic system. The lower portion of the lot
has been designated as a reserve drainfield.
III
Applicant proposes to build a two-story house five feet
from the north property line, angled somewhat diagonally,
facing the Olympic Mountains to the west. Applicant
proposes to build a two-story garage on the southeast corner
6
of the property, 15 feet into the 25-foot setback from the
gravel driveway.
At the public hearing, it was questioned whether or not
a ten-foot driveway would provide sufficient room for cars
to back out of the garage and turn around before entering
the access road. Looking at the site plan, Exhibit 11,
Attachment C, it appears that such turn-around would be
quite tight, if possible at all. This issue was not germane
to the appeal issues which were the subject of the public
hearing and was, therefore, not resolved.
The proposed garage would be in the higher portion of
the property, although somewhat lower than the drainfield in
the northeast corner of the site. The house would sit at an
even lower elevation than the middle portion. (See Exhibit
10, April 20, 1994, letter from Bruce Brunton to Dave
Radabaugh.)
IV
The Comprehensive Plan designation is semi-rural. The
land to the north is vacant. The lot immediately to the
east of the property contains Elaine Tanner's home, recently
constructed with a 25-foot setback from the same access
drive to the south and with a variance for a nine-foot rear
yard, rather than a 15-foot setback from the north property
line. The construction of this house has blocked most of
the previously existing view of the Olympics from the
Pickard residence, east of the Tanner property.
7
V
The Pickard property fronts on Battle Point Drive but
has access to its carport from the mouth of the easement
road leading to the Tanner, Olympus Beach, and McCabe
properties. There is a community wellhouse on the
southwestern corner on the Pickard property, along the edge
of the access road and within the setback. There is some
view to the west from the patio on the south side of the
Pickard house; the view is over the treetops and rooftops
to the west, toward the Olympic Mountains.
Mr. Brunton testified that Applicant's garage and house
would not be any taller than five feet above the slab on
which the Pickard house is built and the slab of their
patio. It was difficult for the Hearing Examiner, standing
near the Pickard patio, to visualize how the proposed house
and garage might or might not
remaining view from their patio.
vI
obstruct the Pickards'
The property to the immediate west is owned by Rex
McCabe, Jr. It is further down the slope from the Olympus
Beach property. It is sited 20 feet from the access road
along the south side of the lot. Its driveway has no turn-
around space. Nor is there any shoulder along the access
drive for additional parking or turn-around space.
VII
The access road to the subject site comprises two
separate easements with two separate historic origins. The
mouth where it intersects Battle Point Drive is somewhat
wider than the rest of the drive° About 25 feet west of
Battle Point Drive, it branches into two drives separated by
a vegetation barrier. The north drive leads to the Tanner,
Olympus Beach and McCabe properties. The south drive leads
to two single-family residences, one of which belongs to
Bruce Brunton.
VIII
The portion of the access road which serves the three
westerly lots is an easement granted from a fourth lot to
the west. These four small, adjacent, non-conforming lots
were platted, and the easement granted, back in the 1960's.
The fourth lot has a separate access off Olympus Beach Drive
further to the west. The fourth lot's access to Olympus
Beach Drive does not go through to the easement serving the
other three lots. Rather, the easement serves only the
McCabes, Olympus Beach, and Tanner properties.
The McCabe/Olympus
another easement. This
IX
Beach/Tanner easement connects to
second easement runs along the south
edge of the Pickard property and includes some adjacent
property to the south. Although used for many years, this
second easement was only recently memorialized in writing to
complete access to the Battle Point Drive further to the
east.
X
The 25-foot setback requirement was adopted years after
the plat and easement were created. Applying the new 25-
foot "front" yard setback along the south property line and
a 15-foot "rear" yard setback along the north property line
to Applicant's long, rectangular lot, would narrow the
building envelope from 90 feet to 50 feet of width.
XI
The City's stated purpose for the 25-foot setback from
"streets" is to protect residences from traffic, sound, dirt
and pollution, and to meet uniform standards for building
setbacks. Those in attendance at the hearing admitted that
there was not substantial noise or pollution from the
infrequent traffic on
house which meets the
Tanner house. Both
apparently constructed
this small lane. The only existing
25-foot front yard setback is the new
the McCabe and Pickard houses were
prior to adoption of the new setback
requirements, and therefore do not conform.
XII
The City's Staff Report dated August 4, 1994 (Exhibit
11, p.4), states:
The project has the potential to block views ....
The primary concern is the views of the owner
of the property two lots east of the subject
property.
(Emphasis added.) In denying the front yard variance based
on view blockage, the City did not find that granting the
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variance would actually block views, but rather that it had
the "potential." The City further stated that:
view blockage could be injurious to the
property or improvements in the vicinity and
zone in which the property is located ....
(Emphasis added.) The City did not take into consideration
view blockage of the Tanner property which might occur if
the variance were not granted and the buildings were thus
forced more into the center of the property.
The Applicant argues that the variance would allow
separated structures on the property rather than one
attached, taller structure in the middle. Applicant also
points out that the building locations are significantly
dictated by the approved drainfields and that the proposed
setback deviations are compatible with the other houses in
the area. See Exhibit ll-A-3.
XIII
Applicant Olympus Beach filed its request for front and
rear yard variances on March 2, 1994 (Exhibit 2, Exhibit ll-
A).
XIV
On March 18, 1994, DPCD Assistant Planner David
Radabaugh filed a Letter of Transmittal to Tom Herriott,
City Engineer, stating that in his opinion the variance
should be approved as submitted because it concerned a
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private easement that will not be widened
beyond 20-foot maximum. It makes sense to allow
this from the ROW [right-of-way] standpoint.
Tom Herriott approved the project as submitted (Exhibit 5).
XV
David Radabaugh sent a letter to the Fire District for
their approval. The Fire District voiced no objection to
the proposed variance.
On March 29, 1994,
XVI
the Pickards filed an objection to
the granting of the variance, concerned about view blockage,
not knowing the house details.
XVII
On April 20, 1994, Mr. Brunton submitted additional
information to the City DPCD, as requested.
XVIII
Almost four months later, on August 10, 1994, the City
DPCD issued its notice of Administrative Decision denying
the front yard variance, and granting part of the rear yard
variance and denying part. See Exhibit 12.
XIX
Mr. Brunton filed an appeal on behalf of Olympus Beach
Corporation on August 19, 1994, and paid the $125 filing fee
(Exhibits 12 and 13, respectively).
XX
Notice of the public hearing was published in the
Bremerton Sun on September 13, 1994 (Exhibit 16). Notice
was published in the Bainbridge Review on September 14 and
12
21, 1994 (Exhibit 15). Notices were mailed, through City
Hall, from a mailing list of neighbors supplied by the DPCD,
on September 12, 1994 (Exhibit 17). Notices were posted at
the Chamber of Commerce, City Hall and the Ferry Dock on
September 12, 1994 (Exhibit 18). Notice was posted on the
property by Public Works on September 8, 1994 (Exhibit 19).
CONCLUSIOMS OF LAW
I
This matter is property before the Hearing Examiner at
this time. The DPCD Director administratively denied the
variances pursuant to BIMC 18.111.020 A., "Administrative
Variance." BIMC 2.16.060 governs appeals from administrative
decisions.
II
Notice of the appeal hearing met the notice
requirements of BIMC 2.16.060 D.
III
The City determined that the road which provides access
from Battle Point Way, is a "street" within the meaning of
BIMC 18.06.900, because it is "a private way of travel which
affords the principal means of access to four or more lots."
BIMC 18.06.660 defines "front lot line" as the "lot line
separating the lot from any street." BIMC 18.06.670 defines
"rear lot line" as:
the lot line opposite and most distant from the
front lot line; when the lot extends to tidal
13
water, the rear lot line is the ordinary high
water mark.
Reading these definitions of "front" and "rear" lot lines
together with the definition of "street" makes it clear that
the drafters intended the front yard to be measured from
something like a street rather than from a beach front or a
view, regardless of the
"front" of the property.
The subject property
requires that:
homeowner's designation of the
is situated in an R-2 zone, which
front yards, rear yards, and side yards
facing streets will not be less than 25
feet, measured by the distance from the
nearest lot line, planned right-of-way,
or road easements.
BIMC 18.30.060.A. Another access road serving two houses to
the south also emanates from the mouth of the driveway. If
this "mouth" is included as part of the road, then there are
four houses served by the road in question, rendering it a
"street." The Hearing Examiner cannot find the Director's
interpretation of "street" as applied to the instant state
to be "clearly erroneous."
IV
BIMC 18.111.020.A. provides as follows:
A. Administrative Variance. An administrative
variance process may be used for minor projects
as determined by the director. Administrative
variances shall follow the review procedures
set forth in BIMC 2.16.010. Minor projects should
be limited to:
1. Projects that are exempt from
review under the State Environmental
Policy Act (SEPA); or
14
2. Proposals for less than a 25
percent encroachment in required yards;
or
3. Proposals of less than a 25 percent
increase in lot coverage.
Use of the term "may" implies that the
exercise her discretion to decide
applications administratively in lieu
through the "regular" variance procedure,
are decided by the Hearing Examiner. The ordinance provides
that variances treated as "minor" for administrative
determination "should" be limited to three situations.
DPCD Director can
minor variance
of sending them
in which variances
One of the three types of projects eligible for "minor"
administrative treatment is a proposal for less than a 25
percent encroachment into the required yard. The instant
application is not such a proposal; rather, it is a
proposal for more than a 25 percent encroachment in the
required yards. Applicant has requested a variance to build
a house ten feet into a required rear yard of 15 feet, two-
thirds of the required yard, well in excess of the 25
percent threshold. Applicant also seeks a variance to build
a two-story garage within 15 feet of the 25-foot front yard
well in excess of
25-foot front yard.
V
a 25 percent
setback, similarly
encroachment into the
Accordingly, the variance application should have been
treated as a "regular" variance pursuant to BIMC 18.111.020
B., with a full public hearing before the Hearing Examiner
and notice to the public. The Hearing Examiner should have
15
been allowed to decide whether or not to grant the variance
as opposed to reviewing the Director's decision, governed by
the "clearly erroneous" standard set forth in BIMC 2.16.060
F.2.b. Because the variances involve more than a 25 percent
encroachment into the required yards, the Hearing Examiner
finds the Director's decision to treat the variance
application administratively to be "clearly erroneous," and
therefore remands the decision to the Director.
VI
BIMC 2.16.060 F.1. gives the Hearing Examiner four
when considering an appeal: affirm the decision;
options
reverse the decision; affirm with modifications; or remand
to the decision-maker. The Hearing Examiner is not given
the option of transforming the Director's administrative
decision into a recommendation and noting the matter for
public hearing on the merits.
VII
Pursuant to BIMC 18.111.020 E., the Hearing Examiner
may also remand to the Planning Commission for review and
recommendation. The City Attorney has confirmed that BIMC
18.111.020 E. may be read together with BIMC 2.16.060
F.2.1.d. to allow the Hearing Examiner to remand to the DPCD
Director with instructions to process the application as a
"regular" variance and route it through the Planning
Commission on its way back to the Hearing Examiner.
16
VIII
A substantive reason supporting the Hearing Examiner's
"clearly erroneous" determination is that in rendering its
decision to deny the front yard setback variance, the DPCD
listened only to the Pickards, neighbors two lots to the
east. The City did not determine whether or not denial of
the variance would cause reorientation of the proposed house
and garage, thus blocking the view of the immediate neighbor
to the east.
ORDER OF REMAND
For the foregoing reasons, the appeal is granted. The
Director's decision is vacated. The matter is remanded to
the Director to process the application according to the
"regular" variance procedure pursuant to BIMC 18.111.020 B.
The Director shall forward her recommendation to the
Planning Commission pursuant
review and recommendations.
the Hearing Examiner would
to BIMC 18.14.020 E. for their
In reviewing the application,
like the Planning Commission's
review to include consideration of these issues:
1. Is the BIMC 18.06.900 definition of
intended to apply: to small, private easements
rural areas; when the access road has little
"street"
in semi-
or no traffic;
or where it serves only one more lot after the subject
property?
2. Should this definition of "street" apply to non-
conforming lots created prior to the adoption of BIMC
17
18.06.900'S
definition of "street" and the resultant 25-foot
yard" always be determined by
there are other "fronts" for the
front yard setback?
3. Should "front
reference to streets when
lot, such as shoreline or view?
4. In weighing whether or not to grant a variance, how
important a consideration is view blockage when compared
with site constraints, drainfield location, uniformity of
setback from access drives, and giving a property owner
flexibility in determining where to site structures, so long
as they do not negatively impact other properties?
5. Should impact on adjacent property's view blockage
be given more weight than view blockage from properties
further away?
When the application comes back from the Director, with
her recommendation and the recommendation of the Planning
Commission, it will be noted for public hearing, with the
burden on Applicant to show why the variances should be
granted.
RIGHT OF APPEAL
The decision of the Hearing Examiner may be appealed to
the Kitsap County Superior Court 30 days after this decision
is made. The appeal shall be by application for Writ of
Review pursuant to BIMC 2.16.060 F.6.
18
Dated this day of October/~, 1994.
J. Robin Hunt, Hearing Examiner
City o~. Bainbridge Island
19
MEMORANDUM
tr ~
DATE:
TO:
FROM:
SUBJECT:
OCTOBER 13, 1994
ROBIN HUNT, HEAR~,~ EXAMINER
STEPHANIE WARRE IRECTOR
PLANNING AND C ITY DEVELOPMENT
DECISION ON OLYMPUS BEACH CORPORATION VARIANCE APPEAL
AND MOTION FOR RECONSIDERATION
After reading your decision on this appeal and discussing it with
the city Attorney, there a several issues I would like to raise
The first issues I hope you will consider as comments about how to
address similar issues in future cases. I would like to formally
make a motion for reconsideration in accordance with BIMC 2.16,050
H. for items 1-5 of your order as it relates to review by the
Planning commission and as I describe in items 4 and 5 or this
memo.
COMMENTS
1. I don't think it was appropriate to ask Mr. Radabaugh what the
intent of an ordinance is that he had no part in drafting or
adopting. He should have decllned to answer rather than coming up
with his own opinion which was not based on knowledge or review of
the legislative history. You could have asked Mr. Radabaugh how
the department has been administering these provisions. We have
addressed the issue of the definition of street for countless
projects, many of which were on non-conforming, insignificant
roadways and we have consistently applled the code as it reads,
i.e. a street is a public or private access for four or more lots.
This issue has been discussed in the past with the City attorney
who has concurred with this interpretation.
2. You state in your conclusions, without benefit of findings,
that the City only listened to the Pickards in making its decision.
On the contrary, because of the early notice requirements, all
adjoining property owners had an opportunity to comment and the
decision was an attempt to reach a compromise and it is clear from
the Tanner residence that an adequate home can be built on the
Olympus Beach site with only the rear yard variance. Neither the
Hearing Examiner nor the director has any basis for approving or
denying a project because of view blockage except on the Shoreline.
while I know there are often proposals that do not seem to fit the
circumstances anticipated in the codes, given the number of
applications we review, we must rely on the code as written. One
of the most frequent criticisms of the Department that I hear is
that applicants cannot get consistent information. Relying on the
words of the code and amending it when it is unclear or
inappropriate helps us to avoid this problem.
3. In your conclusions, you find my decision to treat this
applicatlon as an administrative variance" clearly erroneous."
However, you correctly state that the use of the term " may "
implies discretion which was exercised in this case. I can't find
any additional discussion in the Findings. Therefore, I don't see
how you can find the decision clearly erroneous.
MOTION FOR RECONSIDERATION
4. In D~mhers 1-3 of your order, you have asked the Planning
Commission to render an opinion about when the code is applicable.
I agree that in many circumstances the definition of street does
not make sense. However, the Planning commission should not be
asked to interpret City ordinances especially since most of the
current planning commissioners were not part of the adoption
process. They could be asked to consider an amendment to the
provisions to address the different circumstances you raise but the
words in the code are very clear. Further, to my knowledge, all is
provisions in our code apply to all property unless it was platted
within the last five years. If the Commission decides that this
provision doesn't apply to non-conforming lots what other
provisions don't apply? This is also true of the definition of
front yard. The code is clear. If it is not a good definition, we
should change it but I think it is more appropriate for the
Department and the Hearing Examiner to determine what the existing
code provisions say. The city Attorney concurs with this position.
5. In #4 of your order, you ask the Commission to consider how
important view blockage is in light of other constraints however,
in your decision you make reference several times to the Tanner's
view. Is one view more important than another? As I said above,
I don't think view is the issue. The issue is consistency with the
variance criteria, an issue that should be addressed by the
Department and the Hearing Examiner.
I know that we discussed having appllcations with potentlal appeals
go through the regular process so that there can be a hearing.
While I don't agree that this case merits the addition of what will
likely be another 2 month process especially if the Planning
Commission is included I will reprocess this appllcation as a"
regular" variance in accord with your decision so that it can come
back to the Hearing Examiner without the " clearly erroneous "
restriction. However, I urge you to reconsider your order as I
describe in # 4 & 5 of this memo related to review by the Planning
Commission.
Please accept these comments as an opportunity to share concerns
and discuss issues. We both try hard to balance the often
unreasonable requirements of our codes with the needs of
applicants. I hope we can discuss some of these issues and I look
forward to your response.
CITY OF BAINBRIDGE ISLAND
DEPARTMENT OF THE HEARING EXAMINER
In the Matter of an Appeal
From an Administrative
Denial of a Variance
Application,
Olympus Beach Corporation,
Applicant/Appellant
VARO3-02-94-1
ORDER DENYING MOTION
FOR RECONSIDERATION
BACKGROUND
On October 10, 1994, City of Bainbridge Island Hearing
Examiner J. Robin Hunt entered an Order of Remand in
granting an appeal brought by Olympus Beach Corporation from
the City's Department of Planning and Community
Development's (DPCD) administrative denial of a variance
application. The Director timely filed a Motion for
Reconsideration on October 17, 1994, pursuant to BIMC
2.16.050 H. Upon receipt of the motion, the Hearing
Examiner checked with the DPCD secretary to ask that the
Applicant also be served with a copy of the Director's
motion. On October 21, 1994, Hearing Examiner Assistant
Sarah Wilson checked with Applicant's
Brunton; he indicated that he did
response to the Director's motion.
References to Report, Findings
Law, and terms of Remand refer to
Report,
representative, Bruce
not intend to file a
Findings of Fact, Conclusions of Law,
1
of Fact, Conclusions of
the Hearing Examiner's
and Order of
Remand, entered on October 10, 1994, in the above entitled
case.
1. The Hearing Examiner's purpose in asking Mr.
Radabaugh about the intent of the ordinances defining
"street" and the 25-foot setback from "streets," was to get
a sense of what the City was trying to accomplish with such
ordinances; knowing the purpose of the ordinances would be
helpful in determining whether or not the variance
application warranted exercise of discretion in either
granting or denying the variance.
As the Director is well aware, the City is replete with
examples of deviations from the 25-foot setback, even from
public streets. Cases in point are as follows:
A. The recent Naerfurholt (SUB/PUD 12-22-93-1)
subdivision in which the City recommended, and the
Hearing Examiner agreed, to one lot's reduction of
a front yard bordering a cul-de-sac serving 11 lots,
from 25 feet to ten feet in order to increase the rear
yard buffer;
B. The Sheehan variance (VAR06-04-93-1), in which the
City recommended, and the Hearing Examiner agreed, that
the Applicant could build a detached parking deck
abutting the a public right-of-way. The entry and exit
driveways were to protrude seven feet into the right-
of-way, abutting the paved surface of Rockaway Beach
2
Drive, a public road with a blind curve nearby. A
front yard variance was granted, reducing the front
yard from 25 feet to 0 feet.
C. The MacDonald variance (VARll-01-93-1), allowing
the Applicant to demolish an existing garage which
protruded four feet into the public right-of-way along
Point White Drive, and to erect a larger detached
garage one foot, rather than 25 feet, from the edge of
the right-of-way (26 feet from the edge of the paved
surface).
Both the Sheehan and
constraints (existing homes,
and slope) which restricted
MacDonald properties had site
septic drainfields, shorelines,
the availability of places for
building parking structures on site. In the MacDonald case,
the City did not attempt to force the Applicant to abandon
its plan for a detached garage and instead to build an
attached garage further back from the right-of-way.
There have been other similar instances in
the past
when the City has recommended, and the Hearing Examiner has
agreed, that setback variances should be granted for the
building of garages, carports, and other parking structures
very close to public right-of-ways, along roads with little
traffic. The Director's decision to require strict
adherence to a 25 foot setback from a little used private
easement in the Olympus Beach case, appears to be
inconsistent with this past history of relative leniency in
granting variances from front yard setbacks for parking
structures. The 1987 Comprehensive Plan cites as a value:
"seeking a balance among private property rights, business
rights, and community needs in relation to governmental
requirements."
2. The Director asserts in item 2 of her motion, that
the Hearing Examiner states in her conclusions "without
benefit of findings, that the City only listened to the
Pickards in making its decision." (Emphasis added.)
Finding XII quotes from the City Staff Report as follows:
The primary concern is views of the owner
of the property two lots east of the subject
property [the Pickards].
The Hearing Examiner further explained in narrative form on
page 3 of her Report that Mr. Radabaugh had testified "that
the City had heard only from the Pickards, who own the house
two lots to the east." Although the City had served the
other neighbors, no others voiced opposition because the
only view which would be potentially blocked by the proposed
variance was that of the Pickards. Ms. Tanner, the neighbor
immediately to the east, between the Olympus Beach site and
the Pickards, filed a note in support of the variance
application, listed as Exhibit 8. As cited at page 3 of the
Hearing Examiner's Report, Mr. Radabaugh testified that he
"considered only possible view blockage caused by granting
the variance, rather than view blockage resulting from
denial of the variance." (Emphasis added.) In other words,
as Mr. Radabaugh testified, and as the Hearing Examiner
4
cited, the City considered view blockage of only the
Pickards in connection with the variance application.
As the Director states, the Tanner residence is
probable evidence that an adequate home can be built on the
Olympus Beach site with only the rear yard variance. This,
however, ignores the problem of view blockage of the Tanner
residence, just as the City's allowing the Tanner residence
to be built on its site was done without attention to view
blockage of the Pickard residence. Ms. Tanner testified at
the hearing that the only place she could build her
residence within the narrow building envelope, without a
variance from the front yard setback, was right in the
Pickards' view.
BIMC 16.08.160, the
follows:
City's policy on aesthetics, is as
The City policy on aesthetics shall be to
encourage development which maintains and
improves the existing character of our
neighborhoods. Consideration should be given to
existing scenic vistas, height of buildings, view
blockage, and general neighborhood character.
Similarly, the 1987 Comprehensive Plan for Winslow, which
was applicable to Bainbridge Island following annexation,1
cites as a Key Objective (K.2) "to consider view blockage in
environmental reviews (1987 Comprehensive Plan, page 33).
Contrary to the Director's assertion that neither the
Hearing Examiner nor the Director has any basis for
1 Annexation was contemplated at page 9 of the Comprehensive
Plan, which provided: "In the event of all-island
government, this plan will become part of an all-island plan
and may then require re-evaluation."
5
approving or denying a project because of view blockage,
except on the shoreline, BIMC 16.08.160 provides that view
blockage is generally to be considered. View blockage would
fall under BIMC 18.111.040 A., variance decision criterion
number 2, focusing on whether or not the granting of the
variance would be:
materially detrimental to the public
welfare or injurious to the property or
improvements in the vicinity and zone
in which the property is located.
Comprehensive Plan."
The Hearing Examiner agrees with the Director that the
code may need to be amended so that the new administrative
variance procedures (BIMC 18.111.020 A.) operate as
intended. The 1987 Comprehensive Plan at page 57 cites
"periodically re-evaluating ordinances, regulations, and
policies with an eye to their being stable but not rigid."
At page 47 of the 1987 Comprehensive Plan, a distinction is
made between "the in-town community" of Winslow and the
"secluded suburban and rural character throughout much of
the rest of the island." Thus, both before and after
annexation, there has been a distinction between the more
standardized, compact urban core and the more rural areas
beyond.
View blockage would also fall within criterion number 7,
requiring the variance to be "consistent with all other
provisions of this code and ... in accord with the
3. Conclusions of Law IV and V, at pages 14-16,
explain the Hearing Examiner's finding "clearly erroneous"
the Director's treatment of this variance application as
"administrative" pursuant to BIMC 18.111.020 A. BIMC
18.111.020 A. gives the Director discretion to decide which
projects should be deemed "minor" and therefore processed
administratively, without benefit of public hearing. The
ordinance does not give the Director blanket discretion, but
rather limits minor projects to three types: projects
exempt from SEPA, projects for less than 25 percent
encroachment into required yards, or projects with less than
25 percent increase in lot coverage. Any proposals not
falling within these three categories are not^be treated as
"minor," but rather as "regular" variances, to be decided by
the Hearing Examiner following a full public hearing.
The Olympus Beach proposal calls for variances of more
than 25 percent encroachment into required yards. Contrary
to the Director's assertion that she "can't find any
additional discussion in the Findings," Finding of Fact III
cites the Applicant's request to build a house five feet
from the north property line and a garage 15 feet into the
25-foot setback from the gravel driveway. Conclusion of Law
IV cites these facts in support of the conclusion that the
application is for a variance more than a 25 percent
encroachment into the required yards. The Hearing Examiner
reads BIMC 18.111.020 A. as tantamount to requiring
proposals for more than 25 percent encroachment to be
treated as "regular" rather than "administrative" variances.
The Director's administrative treatment of this variance is
thus outside the scope of discretion given to her under the
ordinance, and, therefore, "clearly erroneous."
Moreover, as the Director may recall, from discussions
both before and after the adoption of the administrative
variance, the intent was that variance applications in which
controversy was involved would be treated as "regular" and
accorded public hearings. "Minor" variances were to be
those not involving controversy and therefore, not
warranting a full public hearing.
Both the City Engineer and the City Assistant Planner
recommended approval of the Olympus Beach variance
applications; then four months lapsed before the Director's
summary administrative denial of the variance. This
sequence of conflicting recommendations and delay created
controversy between the City and the Applicant, who had been
led to believe that its application met the variance
criteria. See Finding of Fact XIV at page 11. There also
was additional controversy between the Applicant's proposal
and the Pickards, who raised the issue of view blockage and
voiced objection to the granting of this variance. See
Finding of Fact XVI at page 12. The controversy generated
in this application process, although not of large-scale
public interest, nevertheless was of a type which needed a
public hearing.
8
The term "may" in BIMC 18.111.020 A. implies discretion
on the part of the Director. It is this exercise of
discretion in treating the application as administrative
that the Hearing Examiner finds clearly erroneous. The term
"may" does not give the Director carte blanche to choose any
case for administrative variance treatment, but may do so
only within the parameters established under subsection A.
of that ordinance.
4. The Hearing Examiner agrees that the Planning
Commission would be the body whose input should be sought in
considering an amendment to the definition of "street" and
the setbacks in order to differentiate between urban versus
rural areas. However, the Hearing Examiner's intent in
seeking their input on this issue is not so much to have the
Planning Commission render an opinion about whether the code
is applicable on its face, but rather to recommend whether
or not it should be rigidly applied in this case or whether
a variance is warranted, as recommended by other City
officials. As Mr. Radabaugh pointed out March, in
recommending approval of the variance, the application
involves:
a private easement that will not be widened
beyond 20-foot maximum. It makes sense to
allow this from the ROW standpoint.
City Engineer Tom Herriott also approved the project as
submitted. If the Director thinks the Remand should be made
more clear to the Planning Commission, the Hearing Examiner
will rephrase Remand paragraphs 1-3 to ask whether or not
these provisions should be strictly adhered to in this case
or whether or not a variance should be granted.
On March 4, 1994, the Mayor signed into law Ordinance
94-10, concerning non-conforming lots, amending BIMC
18.87.050, to allow "any unimproved, non-conforming single
lot" to be "used for the purposes permitted by this Title,
notwithstanding minimum lot area, lot width, and lot depth."
This was adopted following hearings on non-conforming lot
requirements by the Planning Commission. It was effective
on March 14, 1994. It appears that the intent behind this
language is to prevent new laws adopted by the City of
Bainbridge Island from unduly restricting development of
previously created small, non-conforming lots. This is one
more item which the Planning Commission could take into
account in recommending whether or not the 25-foot setback
should be rigidly applied or whether or not a variance
should be granted.
5. The Hearing Examiner agrees with the Director that
an important issue in whether or not to grant a variance is
"consistency with the variance criteria." However, there is
latitude in applying the variance criteria. BIMC 18.111.040
A. asks whether or not the variance would "grant a special
privilege," be "materially detrimental," or "injurious to
the property or improvements in the vicinity," involves
"special circumstances," is "necessary," etc.
10
In considering these criteria, the issue of view
blockage is important because:
A. Mr. Radabaugh represented that the issue of the
Pickards' view was primary reason for denying the
variance;
B. The issue of view blockage for the Tanner
property next door was apparently not taken into
account by the City DPCD.
The Hearing Examiner is not suggesting that one view is more
important than the other, or that view blockage is the only
factor to be considered. In this
blockage from the Pickards' patio is
to the side, a partial view from an
case, potential view
down the slope and off
outdoor patio already
obstructed in part by trees and rooftops below. The Tanner
view, however, is more of an open view, which appears to
have greater potential for view blockage if the variance is
denied, forcing the garage and house toward the middle of
the Olympus Beach site, rather than spread apart toward the
north and south lot lines. Because the application came to
the Hearing Examiner by way of appeal of an administrative
decision rather than the regular variance procedure, there
was neither complete testimony on, nor resolution of, this
issue.
The Hearing Examiner agrees with the Director that this
case does not merit another two months' process, nor will it
be welcomed by the Applicant, who has already spent some
11
seven months or more in this process. However, as cited in
Conclusions of Law VI and VII, the Hearing Examiner has few
options. She may not transform the administrative variance
into a regular variance. The hearing was not noted as a
regular variance hearing, and thus there was not complete
testimony taken which would support a decision granting or
denying a variance. The Hearing Examiner does not have, at
this point, enough information in order to be able to
determine whether or not to reverse the Director's denial of
the variance, which might then circumvent the remand
process.
Perhaps this procedural inconvenience is another matter
which should be considered as a future amendment to the
ordinance. Perhaps variance and conditional use appeals from
administrative determinations would be combined with
hearings on the merits of the applications, in the same way
that SEPA appeals may be combined with subdivision
applications.
For the reasons cited above, the Hearing Examiner sees
no cause for changing her decision, other than perhaps
rephrasing paragraphs 1-3 of the Order of Remand to the
Planning Commission. If this Order Denying Motion for
Reconsideration does not sufficiently clarify the Re~ to
the Planning Commission, the Director may telephone or write
a short note to the Hearing Examiner requesting such
12
rephrasing.
the Motion
Dated this ~G day of October,
As for the other points raised by the Director,
for Reconsideration is hereby denied.
1994.
J/~obin Hunt Hearing Examiner
city of Bainb;idge Island
13