SWANSON VAR05-10-94-1
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CITY OF BAINBRIDGE ISLAND
DEPARTMENT OF THE HEARING EXAMINER
In the Matter of an Appeal
from Denial of an
Administrative Variance,
VAR05-10-94-1
Richard and Marcia Swanson,
Appellants
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FINDINGS OF FACT
CONCLUSIONS OF LAW,
AND DECISION
INTRODUCTION
Richard and Marcia Swanson own 3.5 acres of property
located on the northeast end of Bainbridge Island. The
address of their year-round residence is 16300 Agate Point
Road N.E.
The Swansons' residence is accessed by a private
road easement which meanders across six lots as it follows
the contours of the land from the public road to the Swanson
residence.
This private road easement also serves as
principal access for three neighboring residences. The
Swansons wish to build a multi-purpose accessory building
near their residence.
An accessory building is a permitted
use in the R-0.4 zone where their residence is located. The
zoning code, however, requires a building to be constructed
at a site which allows a 25-foot yard setback from the edge
of a private road easement which serves the principal means
of access to four or more lots.
The Swansons wish to build
within that required front yard setback. The Swansons
applied for a variance in May, 1994. Their variance
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application was processed by the Department of Planning and
Community Development (DPCD) as an administrative variance.
The Director of the DPCD denied the Swan sons , application
for a variance and the Swansons filed an appeal for review
by the Hearing Examiner. The bases for appeal are as
follows:
1. The Appellants were not given the opportunity to
present their application to the Director of the DPCD, who
made the decision on the application. The Director's
decision was contrary to the recommendations of her staff.
2. The Director's decision, based on incorrect
application of the variance decision criteria, is clearly
erroneous because:
a. The structure proposed is not designed
solely or even primarily as a parking structure;
it is a multi-use building.
b. The setback variance would not grant a special
privilege because neighboring properties all have
structures well within the setback.
c. No neighbors objected or found it a special
privilege request.
d. Unique site characteristics at the steeply
sloping site as well as the location of the
driveway easement and mature trees make the
encroachment on the setback necessary.
e. Other sites are not available on the property.
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f. Other properties of similar size and zoning
enjoy the use of accessory buildings similar to
the one proposed.
g. Adequate parking spcae is not available on
the property.
h. The request is the minimum necessary to
build the accessory building at the proposed
site. .
RECORD OF HEARING
A public hearing was held on this variance appeal on
September 16, 1994, at the Rolling Bay Municipal Courthouse.
The Appellants, Richard and Marcia Swanson, were present.
Mr. Swanson made the presentation on appeal.
The City of
Bainbridge Island (the City) was represented by David
Radabaugh, Assistant Planner with the DPCD. The Hearing was
attended by Mr. and Mrs. Walter Williams, John Atwill, Laura
Hull, and Richard White;
all neighbors of the Swansons who
came to support the Swansons' application for a variance.
Recording of the hearing was monitored by Sarah Wilson.
EXHIBITS
The Exhibit List reads as follows:
1. SITE PLAN DATED 3/23/94, RCVD 5/10/94
2. ELEVATION PLANS RCVD 5/10/94
3. RECEIPT FOR VARIANCE FEE, 5/10/94
4. AMENDMENT TO EASEMENT FOR ROADWAY AND
UTILITIES, RCVD 5/10/94.
5. SKETCH OF SWANSON/WILLIAMS/GARY/ATWILL
DRIVEWAY, RCVD 5/10/94.
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DECLARATION OF PROTECTIVE COVENANTS
RESTRICTIONS, RCVD 5/10/94.
NOTICE OF APPLICATION FOR VARIANCE, 5/18/94
W/VICINITY MAP AND LIST OF NEIGHBORS
LETTER TO D. RADABAUGH FROM JOHN ATWILL,
NEIGHBOR, IN SUPPORT, RCVD 5/24/94
AFFIDAVIT OF PUBLICATION OF NOTICE IN
BAINBRIDGE REVIEW, RCVD 5/25/94
LETTER TO D. RADABAUGH FROM SWANSON,
ENCLOSING GEOTECHNICAL REPORT, RCVD 6/14/94
FAX TO D. RADABAUGH FROM SWANSON RCVD 6/30/94
ENCLOSING PARKING EASEMENT DOCUMENTS
FAX TO DR FROM SWANSON RE UPCOMING SITE VISIT
AND REASONS FOR REQUEST, RCVD 7/11/94
STAFF REPORT, 7/29/94
A. VARIANCE APPLICATION
B. VICINITY MAP
C. SITE PLAN
MEMO TO RD FROM JEFF JENSEN RECOMMENDING VARIANCE
BE GRANTED. INCLUDES FAX SHEET AND GEOTECHNICAL
REPORT, RCVD 8/2/94
NOTICE OF ADMINISTRATIVE DECISION ON VARIANCE
APPLICATION, PUB DATES 8/3 AND 8/4/94
FAX FROM DR TO SWANSONS, SENDING THEM THE STAFF
REPORT, 8/4/94
LETTER TO HEX FROM SWANSONS, EXPLAINING APPEAL
OF ADMN. DECISION, DIRECTLY ADDRESSING EACH OF
S. WARREN'S OBJECTIONS, RCVD 8/15/94
AFFIDAVIT OF REVIEW PUBLICATION OF ADM. DECISION
ON VARIANCE APPLICATION, RCVD 8/17/94
AFFIDAVIT OF NOTICE SUBMITTED TO REVIEW ON 8/26/95
AFFIDAVIT OF POSTING AT CITY HALL, CHAMBER OF
COMMERCE AND FERRY DOCK, 8/30/94
AFFIDAVIT OF NOTICE SUBMITTED TO BREMER TON SUN,
8/31/94
AFFIDAVIT OF NOTICE MAILED TO NEIGHBORS ON 9/2/94
ORDER OF DISQUALIFICATION, 9/13/94.
DRAWING OF AGATE POINT W/HOUSES, RCVD 9/16/95.
DRAWING OF LATER HOUSES ON AGATE POINT W/GARY HOUSE
RCVD 9/16/96.
COLOR PHOTO OF BUNKHOUSE RCVD 9/16/96.
PROPOSED PLAN FOR BUILDING
SKETCH OF SWANSON/WILLIAMS/ATWILL DRIVEWAY, RCVD
AT HEARING 9/16/94
LETTER FROM S. BOBBITT, ARCHITECT, TO HEX, IN
FAVOR 9/21/94
MEMO TO ROBIN BAKER FROM D. RADABAUGH RE HISTORY
OF PROPOSAL AND RECOMMENDATION BY DPCD, 9/13/94
AFFIDAVIT OF POSTING OF PROPERTY BY PUBLIC
WORKS, 9/8/94.
SIGN-IN SHEET, 9/16/94
LETTER TO S. BOBBITT FROM D. RADABAUGH, RE REVIEW
OF BUILDING PERMIT, RCVD AT HEARING, 9/16/94
LETTER TO HEX FROM SWAN SONS , 8/12/94, RCVD 9/16/94
AND
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35. LETTER TO R. BAKER FROM SWANSONS, 9/11/94
36. LETTER TO HEX FROM JAMES GARY IN FAVOR, 9/8/94
37. LETTER TO D. RADABAUGH FROM JOHN ATWILL, IN FAVOR,
5/19/94, RCVD 9/16/94
38. LETTER TO R. BAKER FROM CASPAR CLARKE, 9/7/94
39. LETTER TO R. BAKER FROM W. WILLIAMS, 1/8/94, RECEIVED
9/16/94
APPLICABLE LAWS, POLICIES AND PLANS
State and local ordinances which apply to this variance
application include:
1. Bainbridge Island Municipal Code (BIMC) 18.111
2. BIMC 18.36
3. BIMC 2.16.060
4. RCW 43.21(C)
5. WAC 197-11-800(6)(b)
6. Bainbridge Island Comprehensive Plan, Bainbridge
Island Sub-area Plan, dated December 18, 1989.
7. "Definitions" section of BIMC, Title 18.
FINDINGS OF FACT
I
Richard and Marcia Swanson are the legal owners of
property located at 16300 Agate Point Road N.E. in the City
of Bainbridge Island. This property is legally described as
follows:
TRACT "A" - All that portion of government lot 6,
section 28, township 26 north, range 2 east, W.M. in
Kitsap County, Washington, described as follows:
Beginning at a point on the west boundry of said lot
6 distant south 0054'50"east, 287.20 feet from the
northwest corner of said lot: thence south 0054'50"
east along the west boundry of said lot 123.80 feet,
thence north 83'46'00" east, 1263.80 feet to the United
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States Government meander line, thence along said
meander line north 9<35'17" west, 79.49 feet, thence
continuing said meander line north 11"23'15" west,
30.11 feet, thence south 85030'11"west, 506.79 feet:
thence south 3040'00"east, 20.73 feet. Thence south
85015'41"west, 737.75 feet to the point of beginning.
Except the west 20 feet thereof as conveyed to Kitsap
County for road purposes (Agate Loop Road) recorded
under auditors file No. 675076: together with second
class tidelands adjoining to the line of extreme
low tide, number 611274, records of Kitsap County,
Washington together with and subject to easements
of record.
Tract "B" - That portion of government lot 6, section
2B township 26 north, range 2 east, W.M. in Kitsap
County, washington. Beginning at a point on the
west boundry of said lot 6 distant south 0054'50"
east 411.00 feet from the NW corner of said lot:
thence south 0"54'50"east along the west boundry of
said lot 115.50 feet, thence north 82026'00"east
1050.65 feet thence north 86054'00" east, 67.00 feet,
Thence north 78"10'00" east 162.60 feet to the United
States Government meander line, thence along said
meander line, north 9"35'17"west, 78.48 feet to a point
from which the point of beginning bears south 830
46'00"west, thence south 83'46'00" west, 1263.80 feet
to the point of beginning. Together with all tidelands
of the second class including those lying between the
line of mean low tide and the line of extreme low tide
abutting on and in front of said property, together
with and subject to easement of record.
This property is further identified with Kitsap County Tax
Assessor's numbers 282602-4-014-2008 and 282602-4-015-2007.
II
The Swanson residence is accessed by a private road
easement which leaves the public street at Agate Point Road
and enters the williams' property adjacent to the Swanson
property.
It then meanders following the contours of the
land across portions of six lots before it reaches the
Swanson residence, approximately one-quarter mile from the
public road.
The Swanson residence is located near the
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shoreline of Port Madison Bay. This private road easement
presently serves as the principal means of access for the
Swanson residence and three neighboring residences. An
easement for roadway and utilities purposes, with a width of
20 feet, was established by a document recorded under Kitsap
County Auditors No. 980713 in August of 1970 (Exhibit 4).
III
The Swansons filed an application for a variance on May
10, 1994. In that application the Appellants requested a
variance from the 25-foot front yard setback from the
private road easement which crosses their property. The
Appellants proposed to build a multi-purpose two-story
accessory building on the upland portion of their property
across the private road easement from their residence. The
siting of that building, as proposed by Appellants and their
building and landscape architects, places a portion of the
new building approximately 12 feet into the 25-foot front
yard setback. The siting of the building is shown on
Exhibit 1.
IV
The accessory building proposed by the Appellant will
increase the lot area covered by buildings on their property
by approximately seven-tenths of one percent. After
construction, the lot area covered by buildings on the
Swanson property would total approximately three percent.
This project will cause an increase in lot coverage of
approximately 31 percent.
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The new building at
greater than a 25 percent
front yard setback.
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the site proposed will cause
encroachment into the required
VI
The Director of the DPCD determined that the request
for a variance filed by the Swansons qualified for exemption
from the State Environmental Policy Act (SEPA).
VII
In preparation for building this multipurpose accessory
building on their property, the Swansons removed a 16 x 20
foot bunkhouse from the front yard setback. This bunkhouse,
built many years ago, was built totally within the 25-foot
front yard setback. The bunkhouse stood adjacent to the
proposed site for this new accessory building.
VIII
The Swanson residence is a remodelled summer residence
which had been part of a four-residence family compound
built on this property many years ago. The homes in that
compound are now owned by four different property owners.
These homes were summer residences, some of which have now
been converted to year-round residences. These residences
are all located on shoreline lots which extend from the
shoreline on Port Madison Bay up to Agate Point Road. The
residences are clustered at the shoreline and the remaining
upland properties have, for the most part, been maintained
as natural woodlands. In an effort to preserve their unique
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neighborhood and its natural woodsy environment, these
neighbors entered into an agreement entitled "Declaration of
Protective Covenants and Restrictions," in which they agreed
to preserve the rural, wooded character, natural beauty, and
pure water supply of their individual parcels with certain
restrictions. This agreement was recorded with the Kitsap
County Auditor under Auditor's File No.8403200098 in March
of 1984 (Exhibit 6).
IX
The accessory building proposed by the Swansons is a
two-story building which will include a recreation room and
guest quarters on the upper floor and a place for boat and
trailer storage, automobile storage, tool and equipment
storage, and a workshop on the lower level. The Swansons
presently have a 20 x 20-foot roofed, open carport located
near their residence. This carport is located on the east
side of the roadway easement between the Swanson and
Williams residences. The carport actually straddles the
property line between the Swansons' and the Williams'
residences. In recognition of this property encroachment,
the Swansons and the Williams entered into an agreement
granting the Swansons the right to use a portion of the
Williams' property for this carport. That agreement is set
forth in a parking easement document dated February 7, 1986,
and recorded under Kitsap County Auditor's No.8602120006
(Exhibit 11A). Under the terms of the parking easement, the
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Swansons are not allowed to expand or substantially alter or
enclose the carport area.
X
The Swansons remodelled their present residence in 1984
and shortly thereafter made improvements to the small
carport described in Findings of Fact IX above. The remodel
of their home did not include a basement area or an area for
heated storage or covered storage for tools, equipment,
boats or vehicles. The Swanson residence extends from
approximately ten feet south of the north border of the
Swanson property to a point approximately 20 feet north of
the south border of the property. There is no room for the
addition of a recreation room and guest quarters onto the
residence; therefore, the Swansons have included it in the
accessory building planned for the west side of the road
easement.
XI
Exhibit 28 shows the approximate location of the
presently existing carports and homes in the Swansons'
neighborhood. A review of this drawing demonstrates that
the parking structures for each of these residences encroach
on the required 25-foot front yard setback from the private
road easement.
XII
During the processing of the Appellant's application
for a building permit and for a variance, the staff of the
DPCD required the Appellants to obtain a geotechnical report
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assessing site conditions for the proposed project because,
"the structure is proposed on a slope of approximately 40
percent. "
(Exhibit 27).
The slopes in this area of Agate
Point have been designated as potentially unstable by the
Comprehensive Plan of the City, and therefore a geotechnical
report was required to assess the appropriateness of the
proposed site as a building site. Pursuant to that request,
the Appellant retained the services of Geological Consulting
Services, which wrote a report dated June 7, 1994 (Exhibit
14B) .
That geotechnical report was forwarded to the DPCD,
which then requested review by the Office of the City
Engineer.
The City Engineer reviewed the geotechnical
report as well as the variance application and made a
recommendation on August 1, 1994 as follows:
I find the report reasonably addresses the steep
slope concerns and recommend that the variance
be granted. (Exhibit 14)
XIII
After the Swansons were informed by the DPCD that a
variance would be required for encroachment on the front
yard setback from the road easement, they consulted with
their architect, Stephen Bobbitt, about moving the building
farther west to avoid the variance process.
Mr. Bobbitt
advised them that movement of the building site to the west
would require removal of additional mature trees and would
significantly increase the amount of cutting into the slope
of the hillside.
The slope is approximately a 40 percent
grade at the proposed project site. Moving the building to
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the west, so that it did not encroach on the front yard
setback, would cause an elevation rise of approximately four
feet for the driveway spur providing access to the new
storage facility. He did not recommend moving the building
uphill to the west. Mr. Bobbitt details in his letter dated
September 15, 1994 (Exhibit 29) why the building must be
partially sited within the road easement setback. Mr.
Bobbitt states that at the proposed building location, the
driveway spur to the building is located wholly on the
Swanson property and is of negotiable grade. He states that
pushing the building further up the hill would create a
steep, unmanageable driveway turn, and the driveway spur
could not be moved further up the hill and still remain on
the Swanson property.
Mr. Bobbitt's letter also outlines
concerns about maintaining natural drainage patterns on the
property and preserving the maximum amount of mature trees
and other vegetation at the site.
XIV
The Swanson property has a zoning designation of R-0.4
which requires a minimum lot area of 100,000 square feet and
allows a density of one dwelling unit for every 2.5 acres of
land. BIMC 18.36.010 states:
The purpose of the R-0.4 zone is to provide
low density housing in a rural environment
consistent with other land uses such as
agriculture and forestry, and the provision
of natural systems and open space.
BIMC 18.36 allows accessory uses and buildings as permitted
uses in this zone.
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XV
Mr. Radabaugh of the DPCD testified that the request
for a variance was denied because the Swansons' present
carport is located within the front yard setback on the
opposite side of the roadway easement from the proposed
building site, and to allow this additional encroachment on
the western side of the road easement would be a granting of
special privilege because it would allow for the placement
of two parking structures on the property within the front
yard setbacks. Mr. Radabaugh further stated that the denial
of the variance was based on the encroachment of the new
building into the setback and not on the geologic
information provided in the geotechnical report.
XVI
At no time during the variance application process were
the Appellants given the opportunity to pursue the regular
variance procedure rather than the administrative variance
procedure. Throughout the administrative variance
processing, the planners assigned to the application assured
the Appellants that their variance would receive the
planners' recommendation for approval and, barring
unforeseen public objection, should receive administrative
approval at the end of the process. In late June, 1994, the
Appellants were notified that the Director of the DPCD did
not agree with the recommendations made by her staff and was
inclined to deny the application because of the existence of
the carport on the Swanson property. In spite of several
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requests by the Appellants for a meeting with the Director
to present additional information in support of their
application and for a site visit by the Director, their
requests for a meeting with the Director were denied. The
Director agreed to a site visit, which she asked be made
without the presence of the Appellants. Mrs. Swanson was
present at the time of the site visit; however, no
discussion of the issues involved in the variance
application was allowed by the Director.
XVII
At the time of the hearing, the application of Mr. and
Mrs. Swanson for a variance was supported by their
neighbors, Mr. and Mrs. Walter Williams, Richard White, John
Atwill, and Laura Hull. Each of these neighbors came to the
hearing to express their concerns about the environmentally
unique area where their homes are located and the need to
preserve the mature trees and vegetation on the property
while allowing a reasonable use of the property by the
Swansons. All of the neighbors who testified were supportive
of the Swansons application as providing the site which
would be the least intrusive on the environment and the most
acceptable alternative to the neighborhood. During the
notice process, DPCD and the Hearing Examiner received no
letters or calls in opposition to the variance application
from members of the public.
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XVIII
The Swanson residence is located between the private
road easement and the shoreline of Port Madison Bay. The
only location presently available for reasonably convenient
parking of vehicles by the Swansons is the 20 x 20 foot
carport area built between the house and the roadway
easement to the west. During their many years of residence
on this property, the Swansons have struggled with the
problem of providing adequate parking space for guests or
invitees to their property without blocking the access road
for residents in the neighborhood. As a special courtesy,
the Swansons' neighbors, the Williams, have allowed the
Swansons' guests to park on the williams' property, thus
avoiding blockage of the access road, keeping it clear for
private and emergency vehicles.
XIX
The encroachment of a portion of the Swanson
multipurpose building into the front yard setback from the
road easement will not interfere in any way with the use of
the road easement by others. The encroachment is consistent
with the encroachments into the road easement front yard
setback by houses and parking structures on neighboring
properties. The removal of the 16 x 20 foot bunkhouse from
the Swansons' road easement front yard setback decreases the
percentage of encroachment into the front yard setback on
the Swanson property.
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xx
The structure the Swansons propose to build is not
designed solely as a parking structure, but rather is a
multi-use building, which provides, as one of its features,
potential additional storage for vehicles of guests or
additional vehicles owned by the Swanson family in the
future. The primary purpose of the additional building is
not to duplicate the parking function provided by the
carport. The carport is conveniently located next to the
residence. The new building will provide enclosed storage
for the boat and trailer now stored in the meadow on the
Swanson property; in addition, bicycles, yard equipment,
and other tools can be stored out of the weather. The
living quarters included in the upper story provide a
recreation room and guest space for the Swanson family.
Since the Swanson residence is a year-round family
residence, their space needs differ from those of their
immediate neighbors, who either use their residences as
part-time residences or who use their residence as an adult
couple with no children living at the residence. The
Swanson multipurpose building will allow the Swansons a use
of their property, which is consistent with the use and
privileges enjoyed by other property owners in a similar
circumstance and in the same zone on Bainbridge Island.
XXI
The variance requested by the Swansons is the minimum
required to place their building on the site recommended by
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their landscape and building architects as the most
environmentally sensitive and economically feasible for an
accessory building serving these purposes.
XXII
The proposed project is to be located greater than 50
feet from puget Sound and is to be located within 500 feet
of the United States Government meander line along the
shoreline of Puget Sound.
XXIII
Notice of the public hearing was submitted to the
Bainbridge Review on August 26, 1994, and published on
August 31 and September 7, 1994 (Exhibit 19). Notice was
posted at City Hall, the Ferry Dock, and the Chamber of
Commerce on August 30, 1994 (Exhibit 20). Notice was
submitted to the Bremerton Sun on August 31, 1994 and
published on September 6, 1994 (Exhibit 21). Notice was
addressed to neighbors from a mailing list supplied by the
DPCD, and posted by City Hall, on September 2, 1994 (Exhibit
22). Notice was posted on the property by Public Works on
September 8, 1994 (Exhibit 31).
CONCLUSIONS OF LAW
I
The Swansons are the legal owners of property described
in Finding of Fact I.
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II
Adequate legal notice was given for the public hearing
held on this appeal at the Rolling Bay Municipal Courthouse
on September 16, 1994. Notice of the hearing was posted,
mailed to neighbors, and published in the Bremerton Sun and
the Bainbridge Review in a timely manner.
III
An Order of Disqualification was filed by J. Robin Hunt
as Hearing Examiner for the City of Bainbridge Island,
recusing herself from hearing this matter due to personal
acquaintance with the Appellants (Exhibit 23). No objection
was made at the time of the hearing to the hearing of this
appeal by Hearing Examiner Pro Tem Robin Thomas Baker, and
therefore the hearing proceeded as noted.
IV
This administrative decision was appealed under the
provisions of BIMC 2.16.060 to the Hearing Examiner for
review.
V
This variance application is exempt from SEPA under the
provisions of Washington Administrative Code 197-11-
800(6) (b).
VI
BIMC 18.111 sets forth the criteria which the Director
of DPCD should use to determine whether a project qualifies
as a minor project to be included in the administrative
variance process or should be processed under the regular
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variance procedure. The administrative variance provisions
of BIMC 18.111 were added to the Bainbridge Island Municipal
Code in early 1994. Prior to the amendment to the variance
ordinance, all variances were required to be processed
through a public hearing process with the Hearing Examiner.
In an effort to streamline some of the procedures for minor
projects, the administrative variance procedure was set up
and detailed in BIMC 18.111. Guidelines for determining
whether a project should be treated as a minor project for
processing administratively or whether a project is a major
project to go through the regular variance process are
outlined in BIMC 18.111.020.
The Swanson project does not fit the guidelines set
forth in BIMC 18.111.020 as a project which should have been
processed as an administrative variance. The Swanson
project required an application for a variance from the
front yard setback requirements of BIMC 18.36.060. A
variance of the type sought by the Swansons is a minor land
use decision exempted from review under SEPA Rules (WAC 197-
11-800(6)(b). The Swanson application requests a variance
for more than a 25 percent encroachment into the required
front yard setback. The Swanson proposal will also increase
the total lot coverage by buildings on the Swanson property
by more than 25 percent. DPCD's administrative processing
of the Swanson variance application ignores the guidelines
set forth in BIMC 18.111.020.
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The Swansons were not given the option to choose the
regular variance procedures. In fact, the Swansons were not
even provided with current updated versions of BIMC 18.111
when they requested copies of the variance ordinances from
the City to begin their variance application process. Mr.
Swanson testified he was not aware of the administrative
variance amendments to BIMC 18.111 until the time of the
hearing. The Swansons therefore had no fair opportunity to
evaluate their choices for the processing of their variance
application. The Swansons were not aware that under the
administrative process the Director would not hold a public
hearing or agree to meet with them prior to the decision
being made. The administrative processing of the Swansons'
application described at the public hearing was clearly
erroneous.
VII
The Swanson property is approximately 3.5 acres and is
located east of Agate Pass Road in the City of Bainbridge
Island. The site where the new accessory building is
proposed is a potential landslide hazard area as defined by
the Environmentally Sensitive Area Ordinance of the City.
Even though it has been designated as a potential landslide
hazard area, the area may be shown to be suitable for
construction by providing a geotechnical assessment of the
site.
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VIII
The Swanson property is zoned R-0.4 and is subject to
the requirements of BIMC 18.36. The Swanson property is
significantly larger than the required minimum lot size of
100,000 square feet required for the R-0.4 zone. The
proposed multi-use building would increase the lot coverage
for buildings on the Swanson property to a total of three
percent. The maximum lot coverage allowed in this zone is
ten percent. The required front yard setback for the
proposed building is 25 feet measured by the distance from
the nearest road easement.
IX
The private driveway which serves as a principal means
of access for the Swanson, Williams, Atwill, and Gary
residences is a street as defined by BIMC Title 18.
"Street" is defined in BIMC 18.06.900 . Although it is
arguable that private driveways which pre-existed the
adoption by the City of BIMC 18.06.900 may not have been
intended to be included in the setback requirements of the
new zoning code, BIMC 18.06.900 as written requires that the
Swanson, Williams, Atwill, and Gary driveway be now defined
as a "street" under the zoning code. No exception was made
in the ordinance for historic meandering roadways such as
the Swanson driveway. A strict application of these setback
requirements to private streets which serve narrow
waterfront lots such as the Swanson neighborhood and many
other narrow waterfront lots along the shoreline of
21
Bainbridge Island, highlight the inequity of a strict
application of this street definition to roads which were
constructed long before the ordinance was passed.
A strict
application of the setback rules in this case prohibits
building structures across a 70-foot path as it meanders
through the Swanson, Williams, and other properties.
This
setback requirement creates the need for a variance by the
Swansons.
BIMC 18.111.010 states the purpose of the variance
ordinance as follows:
variances are the mechanism by which the City
may grant relief from the provisions of the
zoning ordinance where practical difficulty
renders compliance with certain provisions of the
code an unnecessary hardship, where the hardship
is a result of the physical characteristics of the
subject property and where the purpose of the
Comprehensive Plan is fulfilled. A variance is
authorized only for lot coverage, size of
structure or size of yards and open spaces....
The Swanson project qualifies for variance from the zoning
code due to the unnecessary hardship caused by a strict
application of the definition of "street" to the private
road easement.
This hardship is a direct result of the
physical characteristics of the Swanson property with its
steep slope conditions and narrow width.
The project
requested by the Swansons is clearly within the purposes
outlined for rural neighborhoods by the Bainbridge Island
Comprehensive Plan.
The Bainbridge
Island Subarea Plan states
as
a
Neighborhood Goal:
22
To develop and/or preserve and enchance
neighborhoods in order to maintain community
identity, diversity of housing types and
densities, neighborhood shopping, recreational
and cultural facilities, public facilities and
services and to generally promote the diversity
of lifestyle that is so much a part of the
character of Bainbridge Island.
Rural Residential Goal:
Allow for residential development compatible
with the preservation of open space, forestry,
agricultural activities and natural systems.
Policy NS-3:
Unstable soils should be developed in a manner
that poses no hazard to health or property and
that does not cause environmental degradation.
XI
Testimony and other evidence received at the hearing
clearly show that the DPCD made a clearly erroneous decision
in denying the Swansons' variance application. The decision
denying the variance application was based solely on the use
of
the
proposed
structure.
DPCD
ignored
special
circumstances created by the sensitive natural environment
at the building site and the unnecessary hardship imposed by
the front yard setback requirements when applied to this
meandering private driveway which predated the adoption of
those yard setbacks.
The Director's review of the decision
criteria for this variance application concluded that the
Swansons' application complied with three of the seven
criteria.
The Director found that the application complied
with 18.111.040 A.(2), (4), and (7).
Those findings by the
Director have not been appealed and are affirmed here.
23
XII
The decision of the Director is clearly erroneous in
its conclusion that the Swanson application does not comply
with 18.111.040 A.(l). Testimony at the hearing clearly
distinguished the multipurpose building proposed by the
Swansons as an accessory building on their property from the
present open carport located near the Swanson residence.
The Swanson property consists of 3.5 acres in a lot which
has a width of approximately 110 feet and extends from the
shoreline of Port Madison Bay upland to Agate Point Road.
Testimony at the hearing clearly showed that property owners
with similar or comparable properties on Bainbridge Island
have buildings which provide enclosed storage for vehicles,
tools, and other recreational equipment including boats.
The Swanson residence does not have a basement area and does
not have any dry storage area for vehicles, boats, bicycles,
yard equipment, or any other possessions of a similar
nature. Clearly, the construction of such an accessory
building is within the permitted use definition of BIMC
18.36, which sets forth the zoning requirements for the
Swanson property. Mr. Swanson describes the additional
potential parking for excess vehicles at the new building
site as an incidental purpose of the building. The
construction of a second accessory building such as the one
proposed by the Swansons is not a duplication of a privilege
already enjoyed by the Swansons at their residence and will
not grant a special privilege inconsistent with limitations
24
upon uses or other properties in the vicinity and zone in
which the property is located.
A full explanation of the
purpose of the building and the nature of its use was
described by the Swansons and, through letter, by their
architect at the time of the hearing.
XIII
The Director is clearly erroneous in her decision that:
the variance is not necessary because of
special circumstances related to the size,
shape, topography, location, or surroundings
of the subject property that are so restricted
that they would deny the Applicant use rights
and privileges permitted to other properties in
the vicinity and zone in which the property
is located. The garage can be located so that
it is outside of the 25-foot setback.
(Exhibit 13, p.6)
Mr. Radabaugh testified at the hearing that the denial of
the variance was based on the proposed use and encroachment
of
the
structure
into the
setback and not
on the
topographical restrictions of the proposed site.
In fact,
Mr Radabaugh stated that if the Swansons were to agree to
discontinue use and abandon the carport presently on their
property, then the variance would have been granted.
It was
clearly erroneous of the Director to ignore the special
circumstances which exist on the Swanson property, which
give rise to the necessity for a variance.
The Swanson
property has its residence located near the shoreline and is
very close to the eastern edge of the private roadway
easement required front yard setback.
There is no building
space available around the residence on the eastern side of
25
the roadway access easement due to the narrowness of the
lot, the width of the roadway easement and its adjacent
required yard setback. The only location for an additional
accessory building on the Swanson property is on the west
side of the private roadway easement. The upland property
to the west of the private roadway easement is a steep slope
which climbs up from the roadway to the west at a grade of
approximately 40 percent. This property is wooded, with
mature trees, and a natural understory. A drainfield for
the Swanson residence is located near the top of the slope
further restricting the siting for any potential accessory
buildings. The slope is designated by the Bainbridge Island
Environmentally Sensitive Areas Ordinance as a potentially
unstable slope; however, a geotechnical report furnished by
a consultant for the Appellants has shown that the site
chosen by the Appellants is an appropriate one for placement
of an accessory building of the type suggested by the
Swansons. The existence of the long, meandering private
access driveway across the lower portion of the Swanson
property further restricts the opportunity for building
sites for accessory buildings. This roadway provides access
for several other houses in addition to the Swanson
residence. This roadway pre-existed the Swansons' purchase
of the property. Testimony and evidence at the hearing
clearly show that the Swansons' multipurpose building cannot
feasibly be located outside of the 25-foot setback because
changes in elevation caused by a placement of the building
26
further to the west on the property will make the driveway
not negotiable and would make it impossible to build the
access to the building drive solely on the Swanson property
without encroaching on the property of their neighbors.
XIV
The Director is clearly erroneous in her conclusion
that 18.111.040(5) is not met. She bases her decision on a
characterization of the purpose of the building as a parking
structure only. This interpretation of the information
provided by the Appellants and their architect with the
variance application is clearly in error. The description
by the Swansons and their architect during the application
process together with testimony and a review of the site
plan clearly show that the proposed accessory building is a
multi-purpose building, not solely a duplication of the
parking structure already existing on the Swanson property.
This type of building is a permitted use in the R-0.4
zone and is only denied the Swansons because of the special
slope conditions and private easement location on their
property. Other properties in the same vicinity and zone on
Bainbridge Island enjoy similar storage and guest buildings.
The Swanson application satisfies BIMC 18.111.040 A.(5)
because the variance is necessary for the preservation and
enjoyment of a substantial property right possessed by other
property in the same vicinity and zone. It is incorrect to
compare the Swansons' use of their property solely to the
part-time summer residences located on the immediately
27
adjoining properties. Persons owning 3.5 acres of similarly
situated property in the City of Bainbridge Island have
constructed similar closed garage and multi-use facilities
to enhance their enjoyment of their property.
This is
clearly a permitted use in their zone which would be denied
the Swansons because of the unusual limitations on their
property created by the location of the private easement
road so close to their residence, cutting off the remainder
of the upland property from the residence and the steep
slope conditions on the remaining upland property which
limits the site for a project of this kind.
Al though the
DPCD stated as a basis for denial that alternative sites
were available for this building on the property, testimony
from Mr. Radabaugh at the time of the hearing indicated that
no other sites had been considered by the DPCD or proposed
or requested of the Applicant.
Mere speculation that
another suitable site exists is not sufficient grounds to
refute the testimony of both the Appellant and his architect
that the only suitable site, due to the topography and other
special features on this property, is the one proposed.
xv
Finally, the Director denied the variance on the
following grounds:
The variance is not the minimum necessary to fulfill
the need of the Applicant. Presently, the Applicants
28
have a single-family residence and a parking structure
on the site. (Exhibit 13, p.6)
The decision criteria of BIMC 18.111.040 A. 6. has been
interpreted by the Director to require that the variance is
the minimum necessary to fulfill the use need of the
Applicant and she has denied the variance because similar
uses are available to the Swansons from other structures
located on the site.
Decision criteria 6. states:
"the
variance is the minimum necessary to fulfill the need of the
Applicant."
The Swansons have requested a variance solely
for that encroachment required by the siting of their
building.
The variance requested is the minimum necessary
to site their building at the location recommended by their
consul ting architects and engineers.
They have not asked
for a variance from the setback requirements in excess of
that minimum needed to build the building as proposed.
Their application complies with the requirements of BIMC
18.111.040 A.6.
DECISION
This matter was reviewed by the Hearing Examiner under
BIMC 2.16.060.
The Hearing Examiner finds that the
administrative decision entered by the Director of the DPCD
under the administrative variance process was clearly
erroneous and therefore the appeal of Richard and Marcia
Swanson is granted.
Since the decision entered by the
Director was clearly erroneous, it is hereby reversed. The
appeal was heard not only on the record, but the Appellants
29
were also allowed to provide additional information to the
Hearing Examiner to support this appeal and comply with the
public hearing process of the regular variance procedure.
The Appellants' request to present additional information to
the Director had been denied. This additional evidence and
a review of the record has shown that denial of the variance
application requested by the Swansons is clearly an
erroneous administrative decision. The Swansons' request
for a variance from a front yard setback on a private road
easement located on their property is clearly a special
circumstance brought about by the location of the private
driveway across the Swanson property and the topographical
conditions to the west of the driveway on the Swanson
property. These special circumstances provide a valid basis
for a variance from the front yard setback requirements of
the BIMC 18.36.060. The Swansons' request for a variance is
hereby granted, allowing them to site their building at the
location indicated on the site plan included as Exhibit 1 in
the Hearing Examiner's record. The granting of this
variance does not constitute a special privilege for the
Swansons and is consistent with
the uses and privileges
similarly situated in the
enjoyed by other property owners
City of Bainbridge Island.
RIGHT OF APPEAL
The decision of the Hearing Examiner may be appealed to
the Kitsap County Superior Court within 30 days after this
30
decision is signed. The appeal shall be made by application
to Kitsap County Superior Court for a Writ of Review (BIMC
2.16.060 F.6.).
t\'\
Dated this t~ day of October, 1994.
P 'j
I'-~~~-Cv ,
Robin Thomas Baker
Hearing Examiner Pro Tem
City of Bainbridge Island
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~.l'~"-~
31
MEMORANDUM
UC 1 :<; ,~ '\\;li4
~6.
CO~MUNITY OEIJEI.OPM!;.NT
Date:
October 24, 1994
From:
ROBIN BAKER, HEARING EXAMINER
ROD KASEGUMA, C1Ti AT10RNEY
STEPHANIE WARREN,iiL~TOR
PLANNING AND CO~Y DEVELOPMENT
To:
Subject:
I
Motion for Reconsideration
V AR05-10-94-1
This is addressed to both the Hearing Examiner and the City Attorney because the issues I would
like clarified, and potentially reconsidered, I believe should be answered by the City Attorney,
However, since the answers may affect this decision, I am submitting it in the form of a motion
for reconsideration,
1. My first question concerns the authority by which the Hearing Examiner can determine
that a decision to process an application administratively is appealable and therefore can be
overturned. This is not a decision on an application but simply a procedural determination.
Similar decisions are made frequently in all aspects of running the department and, in past
instances, the City Attorney has determined that decisions that are not specifically decisions on
a permit are not appealable. Are non-permit decisions made by the Director subject to appeal?
2. The Hearing Examiner states that the applicant was not give the opportunity to choose
a "regular" vs, "administrative" variance. Again, the code clearly states that this is a decision
of the director, not the applicant or the Hearing Examiner. Who makes the final decision about
how an application is processed?
3. A related issue is how much discretion there is in making the decision to treat an
application administratively. BIMC 18.111.020.A clearly establishes guidelines as the Hearing
Examiner states in her decision. The language states that" An administrative variance process
may be used for minor projects as determined by the director." This section also states that
"minor projects should be limited to: . (underlining added)." Is there discretion or not? If there
is not, then the criteria are not guidelines but regulation and will be followed strictly. If there
is flexibility, how can such a decision be considered "clearly erroneous?"
, ---- X k ki
L(2/
4. Finally, I would also like the City Attorney to clarify when it is appropriate for the
Director to meet with an applicant when the Director is making a final decision. Would meeting
with the applicant constitute a violation of appearance of fairness? While I did not decline to
meet with the applicants in this case or ask that they not be present during the site visit, I was
concerned about the appearance of fairness and want to be sure that I am proceeding
appropriately in the future.
My intent by this motion for reconsideration is not to refute the final decision but to get
clarification on procedure. I hope that I can get a quick response so that this project will not
be held up any further and other projects can move ahead appropriately. If you have any
questions or need additional information, please let me know.
1t'2 cz
CITY OF BAINBRIDGE ISLAND
DEPARTMENT OF THE HEARING EXAMINER
In the Matter of an Appeal
from Denial of an
Administrative Variance,
)
)
)
)
)
)
V AR05-1 0-94-1
DECISION ON MOTION
RECONSIDERATION
Richard and Marcia Swanson,
Appellants
Having reviewed the Memorandum of the Director of DPCD dated October
24, 1994 and again reviewed the Findings of Fact, Conclusions of Law, and
Decision entered by the Hearing Examiner Pro Tem on October 1 7, 1994, and
finding no basis for revision of the original decision filed in this matter,
the Director's Motion for Reconsideration is hereby denied.
The appeal from the administrative decision was granted after a
substantive review of the variance denial and was not based solely on a
procedural review as characterized by the Director in her memorandum.
The Director's Memorandum requests a legal opinion from the City
Attorney and does not refute the final decision entered October 17, 1994.
The time for filing an appeal from the original decision has been stayed by
the filing of the Motion for Reconsideration by the Director. The appeal
period shall now begin from the date of this decision on the Director's
Motion for Reconsideration.
Dated this 2nd day of November, 1994.
~~Wu
Robin Thomas Baker, Hearing Examiner Pro Tem
City of Bainbridge Island
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