STAFF REPORT
SSDP13500 Page 1
STAFF REPORT City of Bainbridge Island
Department of Planning
And Community Development
Project: Gerlach SSDP13500
File number: SSDP 13500
Date: March 15, 2013
Project
Manager: Heather Beckmann
I. INTRODUCTION
Applicant: Marcus and Suzanne Gerlach
Request: Four related requests to construct: (1) 110 linear feet of bulkhead; (2) a 174 foot
dock; (3) a 196 square foot gatehouse/boathouse; and (4) a 50 linear foot retaining
wall (Attachments 1 & 2).
Project Location: 579 Stetson Place, Bainbridge Island, WA.
Zoning Designation: R-4.3, 4.3 units per acre zone.
Comprehensive Plan Designation: Urban Residential, 4.3 units per acre zone.
Shoreline Designation: Semi-Rural
Environmental Review: A Mitigated Determination of Non-significance, in accordance with
the State Environmental Policy Act (SEPA) WAC 197-11-340 will be issued concurrently with
the administrative decision on this application.
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Staff Analysis
II. FINDINGS OF FACT
A. Site Characteristics
1. Assessor’s Record Information:
a. Tax Lot Number: 342502-1-085-2001
b. Owners of record: Marcus and Suzanne Gerlach
c. Site size: .48 acres
d. Land use: Single-family residential
2. TERRAIN:
The site consists of a gently sloping northern upland area where the existing
house and guest house are located. The beach face consists of an approximately
10H:1V slope of sand, gravel and cobble surface (Attachment 3).
3. SOILS:
The upland soils have been identified as Kapowsin gravelly sandy loam, 6 to 15
percent slopes and the shoreline has been identified as having moist, tan gravelly,
silt and sand (Soil Survey of Kitsap County Area, Washington, 1980) interpreted
as Vashon lodgment till (Attachment 3).
4. SITE DEVELOPMENT:
Upland: The parcel is developed with a single family residence, a guest house and
a carport.
Shoreline: Logs are secured to the shore and a pocket beach exists (Attachments 3
& 4).
5. ACCESS:
The main driveway for the site is from Eagle Harbor Place N.E.
7. PUBLIC SERVICES:
a. Police - Bainbridge Island Police Department.
b. Fire - Bainbridge Island Fire District.
c. Water-Winslow Water Service Area.
d. Sewer-Winslow Sewer Service Boundary with Gravity Lines.
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8. SURROUNDING USES:
a. North: Single-family residential
b. East: Single-family residential
c. South: Single-family residential
d. West: Eagle Harbor
9. EXISTING ZONING/SHORELINE MASTER PROGRAM DESIGNATION:
The site is zoned Residential 4.3 Units per Acre (R-4.3). The City’s Shoreline
Master Program designates the site as Semi-Rural upland environment.
10. SURROUNDING ZONING/SHORELINE MASTER PROGRAM
DESIGNATION:
The surrounding vicinity is zoned R-4.3. The City’s Shoreline Master Program
designates the surrounding shoreline also as Semi-Rural environment.
11. EXISTING COMPREHENSIVE PLAN DESIGNATION:
The City Comprehensive Plan Land Use Map designates the site as Single Family
Residential (4.3-6 units per acre).
12. SURROUNDING COMPREHENSIVE PLAN DESIGNATION:
The City Comprehensive Plan Land Use Map designates the surrounding area as
Single Family Residential (4.3-6 units per acre).
B. Site Background
The property is located in inner Eagle Harbor. Eagle Harbor is a narrow east-west oriented bay,
approximately 2.2 miles long and 0.4 miles wide near its mouth. About a quarter of the Harbor
consists of scattered areas of tidal flat and an extensive shoal area, which extends in a southeast
direction from Wing Point at the harbor entrance. The extreme western end of the Harbor
consists entirely of tidal flats fully exposed daily during moderately l ow tides, supporting a large
mudflat with fringing marshes (Attachment 5). This area, about 1,000 feet west of the subject
property has been officially designated by the City of Bainbridge Island as an Aquatic
Conservancy Zone. The Aquatic Conservancy Zone is intended to preserve those portions of the
marine waters of the City, whose existing natural state is relatively free of human influence, or
whose resources, biological diversity, or other features are particularly sensitive to human
activity, or whose unique, historical, archaeological, cultural or educational features merit special
protection (BIMC 16.12.140).
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Inner Eagle Harbor has historically contained significant salt marsh habitat complexes
(Attachment 8). Many of those marshes were filled and dredged for industrial, residential and
commercial development. The subject site is connected to the fourth largest inner tidal salt marsh
remaining in the Harbor (Attachment 45). There are several documented salmon bearing streams
within the Harbor, including Cooper Creek and Weaver Creek.
The Harbor has historically served as the commercial and industrial heart of the Island. It has
supported a creosote treatment facility and several ship building facilities, to name a few
(Attachment 48).
The Harbor currently continues to serve the Washington State Ferries, a marina, commercial and
primarily residential development. With these developments, 50% of the shoreline in the inner
Harbor is modified and approximately 50% of the properties have docks (Attachment 6).
Recent efforts were made to improve the ecological functions of the Harbor including two major
restoration projects (Wyckoff Site (Attachment 7) and Strawberry Park (Attachment 8) and the
reseeding of a salmon bearing fish stream known as Cooper Creek (Attachment 9) (See
Attachment 66 for a map of these sites).
C. Application Background
1. A pre-application conference between the applicant (who is also the property owner) and
staff was held on January 10, 2012.
2. The applicant received a pre-application letter and checklist dated January 25, 2012
(Attachments 10 & 11).
3. The applicant applied for this shoreline substantial development permit application on
July 31, 2012 (Attachments 12 & 13).
4. The applicant received a notice of complete application on August 30, 2012 (Attachment
14).
5. A Notice of Application was published on September 14, 2012 (Attachment 15). The
public comment period ended on October 14, 2012. During the public comment period,
11 comments were received (Attachments 16-26).
Discussion Between the Applicant and the City:
Beginning with the pre-application phase of this project, the applicant and the City have
actively and frequently communicated in the forms of emails, memos or other written
communications. Since receipt of the SSDP application on July 31, 2012, the City has
received approximately nine letters, e-mails, memos or other written communications
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from the applicant to the project planner, Planning Director and/or City Manager over
this application. A highlight of those exchanges with dates are provided below and
attached:
1. A letter from the applicant to the project planner dated October 15, 2012 providing
supplemental information to their SSDP application supporting the request for the
bulkhead, dock, gatehouse, boat hoist and retaining wall (Attachment 27).
2. A letter from the applicant to the project planner dated December 7, 2012 responding
to comments received during the public comment period (Attachment 28).
3. A letter from applicant to project planner dated December 14, 2012 requesting that
Ryan Ericson not accompany the proposed site visit (Attachment 68).
4. A letter from the applicant to the project planner dated December 18, 2012 objecting
to a proposed site visit from a 3rd party and comparing the subject property to a
neighboring property developed with a bulkhead (Lovell) (Attachment 29).
5. E-mail from project planner to applicant dated December 18, 2012 cancelling the
scheduled December 19, 2012 site visit (Attachment 30).
6. E-mail from applicant to project planner dated December 21, 2012 regarding marsh
on property, the City’s request for an outside party to perform the site visit, and the
applicant’s request that the City relinquish the application to Kitsap County and the
Lovell property (Attachment 31).
7. Email from project planner to applicant dated December 21, 2012 requesting a site
visit with additional expertise on proposed dates (Attachment 34).
8. Letter from project planner to applicant dated December 31, 2012 discussing the
marsh and the conflict between the existence of glasswort and the potential of a marsh
and the request for a 3rd party review dated December 31, 2012 (Attachment 32).
9. Letter from applicant to City Manager dated January 2, 2013 expressing concern over
the Planning Commissioner’s comment submitted during the comment planning
period and a request that the permit be transferred to Kitsap County (Attachment 69)
10. Letter from applicant to project planner dated January 4, 2013 regarding the 2004
Batelle report, salicornia, Lovell property and Harbor properties developed with
bulkheads (Attachment 33).
11. Email from the Planning Director to the applicant dated January 8, 2013 responding
to the applicant’s request that Kitsap County or City of Poulsbo process the permit
(Attachment 35).
12. E-mail from applicant to project planner dated January 11, 2013 regarding a marsh, a
site visit, a supplemental inspection report from Norwest Marine dated January 9,
2013 (Attachment 36) and requesting that the City relinquish the permit to the City of
Poulsbo or Kitsap County for processing (Attachment 37).
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13. Response from City Manager to applicant dated January 11, 2013 addressing the
applicant’s request to transfer the application to an outside party and Commissioner
Gale’s comments (Attachment 38).
14. Letter from applicant to City Manager dated January 14, 2013 requesting issuance of
permit or transfer of permit application to Kitsap County (Attachment 39).
15. E-mail from project planner to applicant dated February 1, 2013 with a final request
for a site visit (Attachment 40).
16. Email from applicant to project planner dated February 6, 2013 discussing the
Norwest Marine reports, the Lovell property and request to transfer property
(Attachment 41).
D. Proposal & Decision Summary:
The applicant is proposing a gatehouse/boathouse, retaining wall, dock and a concrete bulkhead.
Gatehouse/Boathouse: The proposed gatehouse/boathouse will be 196 square feet and located
in the native vegetation zone (NVZ). The footprint dimensions are 14’ X 14’.
Recommendation: Approve with conditions as this is an allowed use in the native vegetation
zone that meets the size and height limitations under City code requirements and standards.
Retaining Wall: The proposed retaining wall is 50 feet long and no taller than 4’ in height. The
wall will be located outside of the 50’ NVZ.
Recommendation: Approve with conditions as it is located outside of the native vegetation zone
and otherwise meets City code requirements and standards.
Dock: The proposed dock will be 174 feet, as measured from OHWM. It will consist of a metal,
grated 100’ X 6’ catwalk, a boat hoist, a 50’ X 4’ gangway and a 10’ X 30’ wooden float,
supported by seventeen, 12 inch, steel pilings. The boat hoist is approximately 280 square feet
constructed of wood deck material with steel pile caps.
Recommendation: Approve with conditions as it meets the size requirements and potential
impacts can be mitigated.
Bulkhead: The proposed concrete bulkhead will be 110’ linear feet and 2’ high. It is proposed to
connect to the neighboring bulkhead to the north and will be set back 5’ from Ordinary High
Water Mark (OHWM).
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Recommendation: Deny for several reasons. First, hard armored (i.e. concrete) bulkheads are
not permitted in “marshes” habitat, and this site is comprised of marshes habitat. Second,
shoreline standards and regulations allow for hard armored (i.e. concrete) bulkheads only where
the site is experiencing serious wave erosion that is threatening the property or development, and
this site is not experiencing serious wave erosion that is threatening any structure or
development. Third, under the City’s shoreline regulations and policies, hard armored (i.e.
concrete) bulkheads are the limited exception, and other forms of shoreline armoring – logs,
rocks or other natural materials – are the preferred form of shoreline armoring.1
This Staff Report analyzes these four proposals separately, beginning with the
gatehouse/boathouse, retaining wall, dock and concluding with the bulkhead. Incorporated in the
analysis for each proposal are public and agency comments and relevant sections of the
Shoreline Master Plan (SMP). A recommendation for each proposal is provided, along with
appropriate conditions.
E. Concerns Raised by Applicant
Throughout the review process, the applicant questioned the City’s requests for information and
expressed concern regarding several review procedures as outlined below.
Eelgrass Survey:
Eelgrass (Zoster Marina) is a flowering underwater grass that provides feeding areas for fish and
marine birds, as well as the stability of the shoreline (Attachment 45). Staff utilizes eelgrass
surveys to analyze the potential impacts of development in the shoreline. Staff requested a site-
specific and current (within 2 years) eel grass survey from the applicant. Staff made this request
during the pre-application phase, after the applicant supplied a Preliminary Eelgrass and
Microalgae Habitat Survey performed in 2002 as part of the pre-application package
(Attachment 44).
The eelgrass survey submitted by the applicant was 10-years old and, most importantly, for site-
specific locations (mooring buoys in Eagle Harbor) that did not include the applicant’s property
(Attachment 45 (see map)). It reported that eelgrass was not present at these other locations. As
with all shoreline applications, the staff sent the pre-application materials to the Washington
Department of Fish and Wildlife (WDFW) for comment. Prior to the pre-application meeting
with the applicant, staff received a comment from WDFW that a macro-algae vegetation survey
eelgrass survey would be required (Attachment 46). WDFW stated that they “…will require a
HPA and macro-algae vegetation following WDFW guidelines” (Attachment 47).
1 See, e.g., Stollar v. City of Bainbridge Island SHB decision, Attachment 43
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In addition to the WDFW information above, and prior to the pre-application meeting with the
applicant, City Staff reviewed the Bainbridge Island Nearshore Assessment Habitat
Characterization and Assessment, Management Strategy Prioritization, and Monitoring
Recommendations, November 2004 (hereafter referred to as Nearshore Assessment, Attachment
48) that indicates patchy eelgrass exists in the subject properties reach. At the pre-application
meeting, staff informed the applicant of the comment from the WDFW and the findings from the
Nearshore Assessment. Staff also informed the applicant that a current – either newly prepared
or within the past two years -- site-specific eelgrass survey would be required to evaluate the
proposals.
Following the meeting, the applicant sent staff a letter requesting the policy, written stateme nt or
declaration that mandates eelgrass surveys must be performed within two years of an intended
action. (Attachment 49). The City provided the applicant with a response (Attachment 50)
stating that this requirement for a current (no more than two years old) eelgrass study was
WDFW’s standard practice (Attachments 46 & 47).
The applicant sent a second letter (Attachment 51) requesting the name of the person in the
Planning Department that recommended the two year standard. Staff informed the applicant that
it was the City’s shoreline planner (at the time, now Associate Planner), Ryan Ericson
(Attachment 52). During the last five years, Ryan Ericson performed eelgrass surveys for
shoreline projects. This hands-on experience in shoreline permitting provided Ryan Ericson with
knowledge of WDFW’s requirement for eelgrass surveys to be site-specific and generally within
two years of any intended action. In an attempt to be helpful and to not delay the applicant’s
application with WDFW, this information was shared with the applicant.
Following these exchanges, the applicant supplied a current (February 2012) and site-specific
eelgrass survey with this application (Attachment 53). The survey indicated that no eelgrass was
present on the property.
Marsh:
Staff’s review of the Nearshore Assessment also found that the site’s geomorphic class was
marsh/lagoon. At the pre-application phase the applicant did not submit any information
supporting or denying the presence of a marsh. Therefore, Staff also requested a report from the
applicant addressing the geomorphic class of the subject shoreline.
The presence of a marsh/lagoon is critical to staff’s review of the application because the
Shoreline Master Plan (SMP) prohibits hard armored bulkheads if the site supports or contains
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“marshes”, and shoreline stabilization is prohibited in wetlands (as further described in this
report and in Attachment 45, marshes and wetlands are synonymous).
To respond to the request for information on the geomorphic class of the property, the applicant
hired a consultant, Chad Croker from Norwest Marine Services, to prepare a report on the
geomorphic class (Attachment 53). The report indicates that the shoreline was non-marsh since it
did not meet the SMP’s definition of “marsh”. The report also states that glasswort (aka
Salicornia sp, pickleweed, from here on referred to as glasswort) was present on-site, as did a
separate geologic report prepared for the applicant by Aspect Consulting (Attachment 3). In
reviewing this report, City Staff concluded that the consultant misused the definition of marsh by
referencing a freshwater marsh in lieu of a saltwater marsh, or marsh/lagoon (Attachment 45). In
addition, the presence of glasswort (marsh/lagoon vegetation) indicates that the site exhibited
marsh/lagoon characteristics.
Glasswort, is an obligate wetland plant. Obligate species are plants which almost always occur
(estimated probability>99%) in wetlands under natural conditions, but which may also rarely
occur (estimated probability <1%) in non-wetlands (Attachment 45).
In order to resolve the conflicting information, the project planner requested a site visit, and the
applicant agreed. Before the scheduled site visit, the project planner informed the applicant that
the City’s shoreline planner, Ryan Ericson, would be joining the site visit because of his
expertise in shoreline characteristics and evaluation. The applicant insisted that the project
planner come alone, as the applicant did not want the shoreline planner on his property. To
accommodate that request, the City agreed to not bring the shoreline planner, but instead
requested that an outside, third party shoreline expert assist in the determination of the existence
of marshes. The City requested on three separate occasions that either the Department of
Ecology (DOE) and/or the WDFW attend with the project planner to provide an evaluation of the
shoreline. The applicant has steadfastly refused to allow any third-party shoreline expert to
accompany the project planner onto the property to evaluate the shoreline at the site. Thus, to
date, no site visit has taken place, and the City has not had any opportunity to have a third party
shoreline expert evaluate the shoreline environment at the property (see Attachments 29, 30, 31,
32 and 71). However, although DOE has not been allowed to conduct an actual site visit, the
agency reviewed the project file for this application as well as aerial photographs of the site and
concluded that a salt marsh is in fact present on-site (Attachment 54).
Absent a site visit, DOE’s review of the application, Staff’s professional knowledge of the
shoreline, the 2004 Nearshore Assessment report and the existence of glasswort on-site all
support staff’s determination that the site contains marshes. (See VI, A, 2.c. below for further
analysis on the presence and definition of marshes and Attachment 45).
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Neighboring Bulkhead Approval:
In support of the request for a bulkhead, the applicant has indicated that the Harbor is heavily
bulkheaded (Attachment 6) and because of this fact, he should be entitled to a concrete bulkhead.
The applicant is correct that many properties in the Harbor do have concrete or other “hard-
armored” bulkheads, and that the City has in the past approved applications for the repair,
replacement and construction of new hard-armoring in the Harbor. However, this does not
provide a basis for approval for a concrete bulkhead for this site, under the facts known to the
City and under these circumstances. First, it is important to recognize that neither the City’s
SMP nor any other provision of the City code authorizes a hard-armored (concrete) bulkhead for
a shoreline site simply because other properties near the applicant’s site may already have them,
or because much of the built shoreline environment may have them. This is not a recognized
standard which would support approval of such a structure.
Second, the date of construction for each existing bulkhead is unknown for many properties, and
it is likely that many were constructed prior to the adoption of the City’s Shoreline Master Plan.2
In fact, some of these properties may have installed their bulkhead without a permit or approval
from the City.
Third, each property’s shoreline and other site conditions are differ ent. Just because one or other
properties in the area may have a hard-armored bulkhead does not mean that the site conditions
here, for this applicant, are identical to those other properties. For example, in addition to the
bulkheaded properties, at least three properties in the Harbor have recently constructed soft shore
armoring (Attachment 55).
Fourth, The City’s current SMP discourages hard-armoring, and it is only to be used where no
other form of shoreline protection will work, or it’s clearly necessary to prevent damage to
structures or land, caused by serious wave erosion. Hard armoring is intended to be a shoreline
measure of last resort, to be used in limited and exceptional circumstances. For example, the
SMP prohibits them on feeder bluffs, marshes, wetland or accretion shore forms or a barrier
beach. It encourages the use of natural materials and processes as an alternative and requires
conclusive demonstration that serious wave erosion is threatening an existing development or
land.
One bulkhead just three properties north of the subject property (427 Lovell, hereafter referred to
as “Lovell”) (Attachments 55, 56 & 67) has been of particular interest to the applicant. The
bulkhead was approved in 2004 as an expansion under the same, existing Code that this
2 The City’s first SMP was adopted on 1996.
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application is subject to and, like the subject property, the project is identified in the Nearshore
Assessment to be adjacent to a marsh (Attachment 48). However, it’s important to note that the
Nearshore Assessment had not been completed when the application was submitted and
approved at this site.
The applicant contends that the City is “equitably estopped from manufacturing new standards
that only apply to the Gerlachs” because the City approved the Lovell bulkhead approximately 9
years ago. It is important to note that the doctrine of equitable estoppel does not apply in this
situation. As discussed below, this doctrine cannot be applied to mandate the same permit
decision for one property as was made for other properties in the past.
To establish equitable estoppel, the applicant must prove three elements: (1) an admission,
statement, or act by the City inconsistent with a claim later asserted; (2) reasonable reliance on
that admission, statement, or act by the applicant; and (3) injury to the applicant if the Court
permits the City to contract or repudiate its earlier admission, statement, or act. Dep’t of Ecology
v. Theodoratus, 135 Wn.2d 582, 599, 947 P.2d 1241 (1998). “Each element must be proved by
clear, cogent and convincing evidence.” Id. (emphasis added).
Applying the doctrine of equitable estoppel against the government is not favored. Concerned
Land Owners v. King County, 64 Wn. App. 768, 777, 827 P.2d 1017, rev. den., 119 Wn.2d 1008,
(1992). “A party claiming equitable estoppel against the government bears a most heavy
burden.” Laymon v. Dep’t of Natural Resources, 99 Wn. App. 518, 525, 994 P.2d 232 (2000)
(emphasis added). Moreover, in order to prove equitable estoppel against the City, the applicant
must establish two additional elements: (1) that the application of the doctrine is necessary to
prevent manifest injustice; and (2) that its application would not impair the exercise of
government functions. Theodoratus, 135 Wn.2d at 599; Concerned Land Owners, 64 Wn. App.
at 777. These two additional elements are not established in any of the documents or
information available to the City regarding the applicant’s SSDP application, particularly the
request for the concrete bulkhead. Further, it is a well established principle that “where the
representations allegedly relied upon are matters of law, rather than fact, equitable estoppel will
not be applied.” Theodoratus, 135 Wash.2d at 600; Concerned Land Owners, 74 Wn. App. at
778; Laymon, 99 Wn. App. at 526. Furthermore,
The burden of compliance with codes, regulations and ordinances remains the
responsibility of the applicant. A builder can rely on the county division of land
development for accurate information and building permits binding upon the
governmental authority if the individual can show that there was a particular
duty owed to him and that he could justifiably rely on assurances which he
specifically sought and which the government expressly gave. It is only where a
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direct inquiry is made by an individual and incorrect information is clearly set
forth by the government, the government intends that it be relied upon and it is
relied upon by the individual to his detriment, that the government may be
bound.
Meaney v. Dodd, 111 Wn.2d 174, 179, 759 P.2d 455 (1988) (emphasis added). Here, the
applicant has never specifically sought any express assurances from the City regarding the
availability of or issuance of a shoreline bulkhead permit or approval – either before he
purchased the property, or at any other time. The approval of SSDE 12757 (the Lovell property)
has no bearing on this. The applicant’s claim in his letter of December 18, 2012 (Attachment
29), that “when COBI approved SSDE 12757, in 2004, the standard was set for bulkheads in the
Inner Harbor of Eagle Harbor,” is not correct, is not supported by any evidence known to the
City, and is not consistent with the law. There is no such statement or representation anywhere
in that permit approval, or in any other City authored or approved document. And, such a
statement or finding would contravene City code and state law, and essentially eliminate the
mandated process for independent review, analysis and decision-making for all future shoreline
development.
The case of Kramarecvcky v. DSHS, which the applicant relies on in his December 18 letter, is
not applicable to the facts at issue in this application. In Kramarecvcky, the Court found that
DSHS was estopped from collecting the overpayment of benefits to the plaintiffs. It had nothing
to do with the issuance of substantial shoreline development permits which are heavily regulated
by both the State and the City; nor did it involve any discretionary land development permits at
all. Further, in Kramarecvcky, DSHS had direct contact with the plaintiffs and issued benefits
payments directly to them based upon information submitted by the plaintiffs as to eligibility of
benefits. Here, the applicant has not had any contact or assurances directly from City employees
that any of his permits will be approved. The applicant is simply relying on the previous
approvals for other different properties with distinct site characteristics, handled at different
times, and which are different from his property in many ways. See the matrix showing some of
the many differences between the applicant’s property and the Lovell property, below.
The applicant also contends that the City has manufactured new standards just for his property.
That is not true. The City has not created new or different standards3 for the applicant’s
property; rather his property simply has different features and characteristics that do not support
approval of a concrete bulkhead. Staff notes that some of the standards related specifically to
armoring have been analyzed more critically by Staff since a 2007 ruling from the Shorelines
3 The City does not create or apply new standards; rather, the City reviews this application – like
all others -- under the Bainbridge Island Municipal Code, its SMP and other applicable
regulations.
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Hearing Board (SHB) (Stollar v. City of Bainbridge Island (Attachment 43)), and the City’s 2004
Nearshore Assessment Report (Attachment 48).
The Stollar ruling by the State Shoreline Hearing Board (SHB) is important to this and all other
shoreline applications, and is applicable to Staff’s analysis of the applicant’s request for a
bulkhead for this site. The Stollar case involved a five- lot, joint application for a strand of
bulkheads of approximately 420 linear feet at Agate Pass on a feeder bluff. The City’s Hearing
Examiner approved three of the properties and denied two. The City’s decision was denied by
the DOE. The denial was heard by the SHB. The SHB’s ruling focused heavily on the
regulations and prohibitory language of the armoring section in the SMP and highlighted three
critical findings the City shall make in order to approve a new bulkhead. In their Conclusions of
Law, the SHB concluded that the SMP prohibits bulkheads on shorelines with valuable geo-
hydraulic or biological processes are sensitive to interference. The Board highlighted the strong
policies and regulations of the SMP, which favor soft shore protection alternatives and require
more diligent and exhaustive consideration of options other than strict hard armoring.
Particularly, the case highlighted the prohibition section of the Master Plan and the two-prong
test which requires 1) a conclusive demonstration that existing development is threatened and
that 2) nonstructural solutions to bank stabilization are unworkable.
The 2004 Nearshore Assessment Report provides information on the Nearshore Environment for
the entire Island. This report indicates the geomorphic classes (i.e. feeder bluff, marsh) of the
nearshore environment. This report has been used by Staff particularly since the Stollar decision
to indicate if armoring is permissible on a site based on the geomorphic class. The report
indicates that the Gerlach property is classified as a marsh/lagoon (Attachment 45). The SMP
prohibits bulkheads in areas with these environmental characteristics.
The City informed the applicant at the pre-application meeting and in their pre-application letter
of the prohibition policy, that the Nearshore Assessment indicated the site was a marsh and of
the “two-prong test” policies and regulations of the SMP. If the applicant desired to continue
pursuing armoring of the shoreline, staff encouraged the applicant to consider a “hybrid”
(Attachment 10). In the Stollar decision, the SHB proposed hybrids as a possible alternative to
shores that prohibit hard armoring. While the Code does not define hybrids, guidance from the
SHB is that “possible hybrid solutions combine elements of soft bank materials with rock or
other traditional hard armoring techniques”.
Despite the applicant’s assertion that the Lovell bulkhead was issued under nearly identical
circumstances, staff notes that there are significant differences in the site conditions and other
circumstances which clearly distinguish the two properties and bulkhead decision and
recommendation. Some of those differences are noted in the table below:
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Gerlach Property Lovell Property
Request New Bulkhead full length of
property
Extension of existing
bulkhead (date constructed
unknown, extension request
2004).
Reason for Request To protect a grass lawn
(Aspect) and sandy beach.
To protect a rather dense
assortment of native
vegetation including
madrones, cedars, firs,
rhododendrons and a variety
of shrubs and ferns
(Attachment 67).
Distance from Residence to
OHWM
90 feet 10-25 feet
Height of Bank Gradual slope from shore to
upland
6 – 7 feet
Neighboring Bulkheads To the North only On subject property, and on
either side.
Marsh Known to exist due to
availability of Nearshore
Assessment in 2004
Nearshore Assessment not
finalized at time of
application, so no documented
or widely used evidence of
marsh on site. A Biological
Evaluation (Attachment 67)
prepared for this project did
not identify a marsh.
Recent Changes in
Regulations in the Harbor
Water skiing prohibited in
Harbor in 2006 (Attachment
57)
Water skiing permitted in
Harbor until 2006
(Attachment 57)
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Planning Commissioner Comment:
In multiple letters to City staff, the applicant has asserted that the appearance of fairness doctrine
has been violated because a member of the City Planning Commission, Maradel Gale , sent a
letter to the City commenting on the applicant’s SSDP application and recommending denial of
his requested bulkhead (Attachment 18). This comment letter was written by Ms. Gale as a
private citizen, during the public comment period – not in her capacity as an un-paid member
of the Planning Commission,
Contrary to the applicant’s opinion, the appearance of fairness doctrine does not apply to this
situation (the granting or denial of a shoreline substantial development permit), for several
reasons. First, Ms. Gale made her comments not as a Planning Commission member, but as a
private citizen – something she has every right to do without impacting the appearance of
fairness doctrine. Her comments appear on her own, private stationery, and do not mention or
indicate in any way that she is a member of the City Planning Commission, or that she was using
her position as a Planning Commission member as a basis for her comments.
Second, even if Ms. Gale had written her comments as a Planning Commission member, it would
not create an appearance of fairness issue or a conflict since the Planning Commission does not
make a decision of SSDP’s. Rather, the Department of Planning and Community Development
Director issues an administrative decision4 on a Shoreline Substantial Development Permit
application. See, BIMC 16.12.360.E.4.
Third, the appearance of fairness doctrine does not apply to administrative decisions; it only
applies to quasi-judicial decisions (not at issue here). The appearance of fairness doctrine only
applies to actual decision-makers. “Application of the appearance of fairness doctrine to local
land use decisions shall be limited to the quasi-judicial actions of local decision-making
bodies….” RCW 42.36.010 (emphasis added).5 As stated in a recent Washington court case:
4 The City code does provide that the director “may refer [an SSDP] application to the planning
commission for review and recommendations prior to deciding the application. The application
shall also be referred to the planning commission for a recommendation at the request of the
applicant. The planning commission makes its recommendation following its review of the
proposal, the environmental checklist, and the tentative threshold determination.” BIMC
16.12.360.E.4.f. This provision of the code is inapplicable here. The Director is not referring
this application to the Planning Commission. Staff is unaware of any instance in recent history
where an SSDP application was referred by the Director to the Planning Commission. And, the
applicant has not requested that the planning commission review this application.
5 The Washington State Supreme Court has not “found a single violation of the [appearance of
fairness] doctrine in a land use case since the Legislature acted in 1982.” W.T. Watterson, What
SSDP13500 Page 16
For local land use decisions, the application of the appearance of fairness doctrine
is limited to quasi-judicial actions of local decision making bodies that determine
the legal rights, duties, or privileges of specific parties in a hearing or contested
case proceeding. RCW 42.36.010. Particularly applicable to this situation, the
appearance of fairness doctrine ‘has never been applied to administrative
action, except where a public hearing was required by statute. The appearance
of fairness requirements which have been developed for hearings are
inappropriate in the building permit application process which necessarily
involves frequent informal contacts between the applicant and employees of the
building department.’ Polygon Corp. v. City of Seattle, 90 Wash.2d 59, 67–68,
578 P.2d 1309 (1978).***
Here, because a hearing is not required in this SSDP application process, the
appearance of fairness doctrine does not apply. Furthermore, as stated in
Polygon, the appearance of fairness doctrine is impractical in the realm of a
permit application process.
Families of Manito v. City of Spokane, 291 P.3d 930, 938-939 (2013) (emphasis added).
Under the Bainbridge Island Municipal Code (BIMC), the Department of Planning and
Community Development Director issues an administrative decision under the Shoreline
Substantial Development Permit Process. BIMC 16.12.360.E.4. No hearing on the underlying
permit decision (the SSDP) is permitted. Thus, pursuant to the holdings in the Families of
Manito and Polygon cases, the appearance of fairness doctrine does not apply to this permit
application because an administrative decision is applicable.
“The appearance of fairness doctrine only applies to judicial and quasi-judicial decision
makers.” State v. Finch, 137 Wn.2d 792, 808, 975 P.2d 967 (1999) (emphasis in original). The
application of the doctrine is limited to the actions of the decision-making bodies, not those who
are not part of the decision-making process. All of the statutes under Chapter 42.36 RCW make
reference to the “decision-making bodies” or “decision makers” when discussing the appearance
of fairness doctrine. The appearance of fairness doctrine does not apply to a person not involved
in the decision-making process. See, Post (cited below). Since Ms. Gale is not and will not be a
decision-maker on this SSDP application, the appearance of fairness doctrine does not apply.
Ever Happened to the Appearance of Fairness Doctrine? Local Land Use Decisions in an Age
of Statutory Process, 21 Sea. U. L. Rev. 653, 666 (1998).
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Past decisions of this court have applied the appearance of fairness doctrine when
decision-making procedures have created an appearance of unfairness. E.g.,
Smith v. Skagit Cy., 75 Wn.2d 715, 453 P.2d 832 (1969). Our decision here does
not overrule this line of decisions, but reformulates the threshold that must be
met before the doctrine will be applied: evidence of a judge’s or
decisionmaker’s actual or potential bias. This enhanced threshold requirement
is more closely related to the evil which the doctrine is designed to prevent.
State v. Post, 118 Wn.2d 596, 619 n.9, 826 P.2d 172, 837 P.2d 599 (1992) (emphasis added); see
also, State v. Carter, 77 Wn. App. 8, 11, 888 P.2d 1230, rev. denied, 126 Wn.2d 1026 (1995)
(recognizing Post holding that in order for appearance of fairness doctrine to apply evidence of a
judge’s or decision-maker’s actual or potential bias); see also, Organization to Preserve
Agricultural Lands (OPAL) v. Adams County, 128 Wn.2d 869, 890, 913 P.2d 793 (1996) (citing
Post, a challenger must present evidence of actual or potential bias on the part of a decision
maker to support an appearance of fairness claim).
The Post court held that the focus is on the decision maker. “The probation officer is not
the decision maker at the sentencing hearing and is not subject to the appearance of fairness
doctrine. Therefore, we hold that the appearance of fairness doctrine will not disqualify an
allegedly biased writer of a presentence report. [T]he bias affects the weight of his testimony
and report.” Post, 118 Wn.2d at 618.
[T]he appearance of fairness doctrine is directed at the evil of a biased or
potentially interested judge or quasi judicial decision maker. Post has not shown
how the judge at his sentencing hearing was biased. Without evidence of actual
or potential bias, an appearance of fairness claim cannot succeed and is without
merit. Because Post’s appearance of fairness claim does not contain evidence
of actual or potential bias of the judge [or decision maker] toward him,
Post’s appearance of fairness claim is without merit.
Id. at 619 (emphasis added). Ms. Gale is not participating in the decision-making process in any
way. As Mr. Schulze set forth in his letter of January 11, 2013 (Attachment 38) “Ms. Gale, in
her role as a Planning Commissioner, has absolutely no involvement in the permit applicati on
review process.” It is the Planning Director who makes the administrative determination as to
Mr. Gerlach’s permit. There is no quasi-judicial proceeding or a hearing.
Mr. Gerlach references the case of Hayden v. Port Townsend as support for his appearance of
fairness claims. This case is not applicable. First, it was decided before the enactment of the
appearance of fairness statutes in 1982. Second, as discussed above, there is no hearing allowed
SSDP13500 Page 18
on this permit application. Third, Ms. Gale was not involved in – nor will she be involved in --
the decision-making process on the applicant’s SSDP application. The Planning Commission is
not making a quasi-judicial determination as to this permit application. This is solely an
administrative decision by the Planning Department Director.
Applicant Request to Transfer File to Another Jurisdiction:
The applicant has also make requests on several occasions to have this application, and decision-
making authority on the application, transferred to another jurisdiction for handling (either the
City of Poulsbo or Kitsap County, or another nearby jurisdiction). The City has consistently
advised the applicant that it cannot accommodate these requests, for a number of reasons. First,
under both State law and City code, the City of Bainbridge Island is the only government entity
with jurisdiction to process and decide the applicant’s SSDP. See, e.g., BIMC 16.12.360 and
WAC 173-27. The applicant’s property lies fully within the corporate limits of the City of
Bainbridge Island. The applications were submitted to the City, and City staff have been
reviewing and processing the applications, and meeting with the applicant for a year or more.
All permitting and decision-making authority lies solely with the City; no other jurisdiction has
any authority to take in the application, review or process it, or to make a decision on it.
Second, there is no legal authority which authorizes transferring a SSDP application to another
jurisdiction for handling or decision-making. City staff could not locate any code, rule, policy or
authorization in the BIMC or in State law (the Revised Code of Washington, the Shoreline
Management Act or any other statute) which would authorize the City to transfer this application
to another jurisdiction. The City does not have an interlocal or other agreement authorizing such
transfer. Furthermore, in the appearance of fairness cases, the only remedy is recusal of the
allegedly disqualified decision-maker (i.e., a city councilmember who may be biased). Under
the appearance of fairness doctrine, there is no allowable basis to transfer a matter to another
jurisdiction – even assuming there was such a violation here.
III. FINDINGS OF FACT (Gatehouse/Boathouse)
Proposal: A 196 square foot boathouse is proposed in the native vegetation zone, just a
few feet landward of the proposed bulkhead.
Public Comment: No comment was received for the gatehouse/boathouse.
A. BIMC Chapter 16.12 Shoreline Master Program:
1. Archaeological and historic resources, BIMC 16.12.050
SSDP13500 Page 19
All shoreline permits shall contain provisions which require developers to
immediately stop work and notify the City if any phenomena of possible
archaeological interest are uncovered during excavation.
As the boathouse is proposed near the shoreline, the applicant shall protect any found
archeological and historic resources. The project is conditioned to meet the BIMC
procedure (Condition # 1).
2. BIMC 16.12.080, Environmentally Sensitive Areas
Environmentally sensitive areas are primarily regulated through BIMC 16.20,
Critical Areas. When a development site includes some or all of one or more
environmentally sensitive areas, or part of a native vegetation zone for such area(s),
the sensitive features and their native vegetation zones shall be left undisturbed and
maintained as open space, except as permitted by other provisions of the shoreline
master program.
When sensitive areas and/or sensitive area native vegetation zones are disturbed,
revegetation with native or other approved vegetation shall be required.
If development results in impacts to a sensitive area, in-kind and on-site replacement
of resource functions shall be provided unless it is found that in-kind and on-site
replacement is not feasible or practical due to the physical characteristics of the site,
and/or that a greater benefit can be demonstrated by an alternative location. In such
cases, substitute resources of equal or greater ecological value shall be provided.
The functions of replacement areas shall be equal to or greater than those being
altered. The replacement ratio will be determined on a case-by-case basis and shall
be proposed in a mitigation plan developed by appropriate experts, approved by the
director and paid for by the applicant. All mitigation plans shall also be approved by
resource agencies.
Where sensitive area replacement activities are proposed, an applicant shall
permanently protect the replacement area through legal instruments such as sensitive
area tracts, conservation easements, or a comparable use restriction.
The boathouse/gatehouse is proposed in the native vegetation zone (NVZ) and a
wetland buffer. Boathouses are a permitted use in the NVZ. Environmentally
sensitive areas (ESA’s) are defined as those areas with especially fragile biophysical
characteristics. ESA’s include, but are not limited to, aquifer recharge areas; wildlife
habitat areas; fish breeding; rearing or feeding areas; wetlands (i.e. marshes, bogs,
SSDP13500 Page 20
and swamps); streams; tidal lagoons; mud flats; salt marshes and marine vegetation
areas. As the site has a wetland (i.e. marshes), it is an ESA.
A biological assessment and mitigation plan shall be prepared to offset the area of the
NVZ and wetland buffer that will be lost and impacted as a result of the boathouse.
Permanent protection of the area shall occur through a notice to title for future
property owners. Additionally, any future proposed clearing in the replacement area
shall first be reviewed by the City through a clearing permit with a replacement plan.
(Conditions 13-17).
3. BIMC16.12.260, Residential Development
In the semi-rural environment, a boat house or boat storage deck in no case shall
exceed 200 square feet in size and 12 feet in height above existing grade and shall be
in accordance with subsection B.5 and B.10 of this subsection. It shall also be
considered a normal appurtenance to residential development permit (SSDP);
provided that the location is not upland of an aquatic conservancy environment.
The gatehouse/boathouse is proposed in the semi-rural environment. As proposed, it
meets the height and size requirements. The structure, with mitigation, is allowed in
the zone at the size (196 square feet) and height (12 feet) proposed.
IV. FINDINGS OF FACT (Retaining Wall)
Proposal: A 50’ long, 4’ tall retaining wall is proposed outside of the 50’ native
vegetation zone.
Public Comment: No comments were received for the retaining wall.
A. Land Use Code Analysis
1. BIMC 16.12 Shoreline Master Program
a. Residential Development BIMC 16.12.270
Design and location of accessory structures shall protect existing views from adjacent
principal buildings on adjacent properties and minimize adverse impacts to the
environment.
No accessory structures shall be located in the native vegetation zone (NVZ), except a
stairway to the beach, tram, a pier or dock, a boat house, permeable decks less than 30
inches in height above grade and fences.
SSDP13500 Page 21
The 4’ high retaining wall will not adversely impact existing views from adjacent
principal buildings and is not anticipated to have an adverse impact to the environment.
As demonstrated with the previous list of permitted structures in the NVZ, retaining walls
are not allowed. The wall is proposed just landward of this zone. Prior to the construction
of the wall, the 50’ NVZ shall be staked in the field and inspected by staff. If necessary,
Staff can assist the applicant in identifying the OHWM, which is at the beginning of the
NVZ (Condition 18).
b. Clearing and Grading BIMC 16.12.070
Clearing and grading shall be permitted landward of the NVZ when associated with a
permitted shoreline use; provided, that upon completion of construction, remaining cleared
areas shall be replanted within the first applicable planting season. Replanted areas shall
be fully reestablished within three years of completion of construction and shall be properly
maintained.
The yard will be regraded for the installation of the wall. Areas cleared for the installation
of the retaining wall shall be replanted. The applicant shall complete the planting within the
first applicable planting season. A replanting plan designating the type and location of
proposed plants shall be submitted with the building permit application for the retaining
wall. The replanted area shall be reestablished within three years and properly maintained
(Conditions 16 &17).
V. FINDINGS OF FACT (Dock)
Proposal: A new single use dock is proposed with a boat hoist.
Public Comment: During the public comment period, many concerns were expressed
regarding the dock and its potential impact on boaters and kayakers navigating the Harbor
(Attachment’s. 17, 19, 20, 22, 24 , 25 & 70). Concerns raised were primarily from the
rowing and kayaking users of the Harbor.
A specific concern was raised over the location of the dock in relation to Stetson Point. It
was noted that the dock will be located just past the turn at Stetson Point, a “choking point”
of the Harbor. The commenter stated that this Point is considered to already limit visibility
and the concern is that rowing shells will be forced into the navigable channel that heads out
of the harbor (Attachment 22). There was also a specific recommendation that lights be
added at the end of the dock for the safety of rowers (Attachment 25).
1. Shoreline Master Program: Shoreline Modification Policies: Environmental Element
SSDP13500 Page 22
1. Shoreline Master Program: Shoreline Modification Policies
a. Piers and Docks Policy F.3. Piers and docks should be designed to cause
minimum interference with navigable waters, the public’s use of the shoreline,
and views from adjoining properties.
To analyze the potential impact of this dock on navigation, as expressed by many of
the commenters, Staff referenced the US Army Corps of Engineers guidelines
(Attachment 58) for the placement of fixed and floating structures in navigable
waters of the United States. For a linear waterway, they state that “a reasonable area
of public water should be maintained in the public interest to sustain activities not
specifically related to simply transiting the area in safety. Such activities which
require open, unobstructed water should not be limited for private interest”.
Further, in such areas, no structure should extend more than 25% of the waterway
width at mean low water. This shall maintain 50% of the width as open water, an
even split, between public and private interest.
The approximate waterway width at mean low water is 1,000 feet. Under this
guideline, the 25% width allotted for the Gerlach property would be 250’. The
proposed dock is 176’. The proposal is found to meet this guideline and not impede
a reasonable area of public water.
In addition to this guideline, the proposal was reviewed against the suggested
construction limit line. The line was developed by the US Army Corps of Engineers
for Eagle Harbor (-4.5, Mean Lower Low Water). The proposed dock would be
about 100 feet landward of this line.
This cumulative analysis confirms that the dock will cause minimum interference
with navigable waters, the public’s use of the shoreline and views from adjoining
properties.
b. Piers and Docks Policy F.4 - 7. Piers and docks should be sited and designed to
minimize possible adverse environmental impacts, including potential impacts on
littoral drift, sand movement, water circulation and quality, and fish and wildlife
habitat. Use of natural, non-reflective construction materials should be
encouraged. The size of the structure and intensity of use of any dock and/or pier
should be compatible with the surrounding environment and land and water uses
.
SSDP13500 Page 23
The applicant submitted an eelgrass and macroalgae habitat survey that found no
eelgrass (Attachment 53). According to this survey, only small barnacles with
sparse species of rock weed covered the cobble, sand and mud substrate. The
report also identified glasswort6 and a small area of quack grass. The shading
created by the dock will impact the glasswort. The project is conditioned to
mitigate its impact.
The applicant proposes the use of natural materials or naturally occurring alloys,
such as wood and steel. This is consistent with the SMP policy cited above. A
more detailed discussion of construction materials may be found under Section
II.A.5 of this report below and Attachments 1, 2 & 59.
The size of the dock is compatible with the surrounding environment and land and
water uses, with the exception of the width of the float at 10’ (discussed further
below). Piers and docks are permitted uses in the water environment and the
majority of the surrounding residential properties have docks. The proposed
development is typical of those in the area, and does not extend more waterward
than the average length of the docks on the adjacent properties. It also does not
extend more than 25% of the waterway width at mean low water, maintaining
more than 50% of the width of the open water for the sustain activities related to
transiting the area. The dock also does not extend past MLLW.
2. Environmentally Sensitive Areas: BIMC 16.12.080
Environmentally sensitive areas are primarily regulated through BIMC 16.20,
Critical Areas. When a development site includes some or all of one or more
environmentally sensitive areas, or part of a native vegetation zone for such area(s),
the sensitive features and their native vegetation zones shall be left undisturbed and
maintained as open space, except as permitted by other provisions of the shoreline
master program.
When sensitive areas and/or sensitive area native vegetation zones are disturbed,
revegetation with native or other approved vegetation shall be required.
If development results in impacts to a sensitive area, in-kind and on-site replacement
of resource functions shall be provided unless it is found that in-kind and on-site
replacement is not feasible or practical due to the physical characteristics of the site,
6 As noted above, and discussed in more detail in the next section reviewing the concrete bulkhead
proposal, glasswort is present and its presence is indicative of the presence of a marsh (Attachment 45).
SSDP13500 Page 24
and/or that a greater benefit can be demonstrated by an alternative location. In such
cases, substitute resources of equal or greater ecological value shall be provided.
The functions of replacement areas shall be equal to or greater than those being
altered. The replacement ratio will be determined on a case-by-case basis and shall
be proposed in a mitigation plan developed by appropriate experts, approved by the
director and paid for by the applicant. All mitigation plans shall also be approved by
resource agencies.
Where sensitive area replacement activities are proposed, an applicant shall
permanently protect the replacement area through legal instruments such as sensitive
area tracts, conservation easements, or a comparable use restriction.
Environmentally sensitive areas (ESA’s) are defined as those areas with especially
fragile biophysical characteristics. ESA’s include, but are not limited to, aquifer
recharge areas; wildlife habitat areas; fish breeding, rearing or feeding areas; wetlands
(i.e. marshes, bogs, and swamps); streams; tidal lagoons; mud flats; salt marshes and
marine vegetation areas. The site contains a band of glasswort across the property that
will be covered by the new dock. Glasswort is sensitive to sunlight and it is
anticipated that there will be a loss of vegetation due to the construction of the dock.
The dock is proposed to be grated, yet loss of glasswort is likely.
To determine the amount of impact the dock will have on the glasswort, it is
important to have an accurate bathymetric survey. The tidal elevations presented in
the documents submitted with the application do not match city data. Unless
supported otherwise, a revised bathymetric survey should be prepared and submitted
at time of building permit submittal (Condition 20).
Pursuant to this Regulation, the applicant shall prepare a mitigation plan with a
suggested replacement ratio (Condition 13). The plan shall be prepared by appropriate
experts, approved by the director and paid for by the applicant. The plants shall be
planted within 30 days of the construction being completed (Conditions 14 & 16).
The applicant shall permanently protect the replacement area through legal
instruments (Conditions 15).
3. Master Program Summary Matrices: BIMC 16.12.150
SSDP13500 Page 25
The subject property is located in the upland Semi-Rural upland shoreline environment and the
Aquatic water environment. Piers and docks are listed as a permitted use within these
environments.
1. Piers and Docks BIMC 16.12.340
i. Piers and docks should be designed to cause minimum interference with
navigable waters, the public’s use of the shoreline, and views from adjoining
properties.
The dock is designed to minimize interference with navigable water and
views from adjoining properties by limiting the length to the average of the
two nearest adjacent docks, by limiting the length to less than 1/4th of the
waterway width at MLW, by being located approximately 100’ landward of
the suggested construction limit line and by not extending past MLLW.
ii. Piers and docks should be sited and designed to minimize possible adverse
environmental impacts, including potential impacts on littoral drift, sand
movement, water circulation and quality, and fish and wildlife habitat.
The dock will impact the marsh habitat by covering the glasswort. The dock
has been designed to minimize some of the impacts (grating), but additional
mitigation is required. Since the glasswort spans the width of the property, the
dock cannot be sited to completely avoid it.
Glasswort provides habitat for fish and wildlife. Glasswort is sensitive to
sunlight and it is anticipated that there will be a loss of vegetation due to t he
construction of the dock (Attachment 60). The applicant shall prepare a
mitigation plan with a suggested replacement ratio. The plan shall be prepared
by appropriate experts, approved by the director and paid for by the applicant.
The applicant shall permanently protect the replacement area through legal
instruments (Condition 15).
The design of the dock does minimize impacts by having approximately 64%
grating and the addition of a boat hoist to store the boat during low tides and
storm events. The bottoms of the hoist frames are located at 25.5’ elevation
(MLLW), which will reduce its shadow; i.e. shading impacts. The catwalk and
gangway are proposed to be metal and grated. Staff is conditioning that the
pier and ramp be 100% grated for 60% functional light penetration (Condition
8).
SSDP13500 Page 26
The proposed wooden float is proposed at 10’ X 30”. Washington Department
of Fish and Wildlife (WDFW) voiced a concern over this width during the
pre-application phase and suggested that the float be reduced to 8’
(Attachment 47). WDFW stated that “the float seems excessive over 8’ wide
especially at such a shallow depth it will block light reaching the substrate
which is critical for both epibenthic production and juvenile fish migration”.
Staff is conditioning the project so that the float is reduced to 8’ in width to
minimize possible adverse environmental impacts on fish and wildlife
(Condition 7). WDFW also stated that grating would be required for the float.
Staff is requiring that the float be 50% grated (Condition 9).
iii. Use of natural, non-reflective materials in pier and dock construction should
be encouraged. When plastics and other non-biodegradable materials are
used, precautions should be taken to ensure their containment.
The 110’ walkway and 50’ gangway are proposed as grated, metal
construction. The float will be of wood construction with poly tub flotation.
As proposed, the project is ensuring containment of these non-biodegradable
materials.
iv. The proposed size of the structure and intensity of use of any dock should be
compatible with the surrounding environment and land and water uses.
The proposed dock provides recreational opportunities compatible with the
residential uses and activities in the surrounding upland Semi-Rural shoreline
and Aquatic environments. Eagle Harbor contains many residential docks,
particularly on the west side of the Harbor. The Harbor is actively used by
rowers and kayakers. The dock does not expand past the average of the two
nearest docks, the Army Corps of Engineers suggested construction limit line;
making the length compatible with the existing uses of the Harbor.
b. Regulations - General
i. Piers and docks shall be a permitted use in the Semi-Rural and Aquatic
environments.
The property is located in the Semi-Rural and Aquatic environments, and the
dock is therefore a permitted use.
SSDP13500 Page 27
c. Regulations – General Design and Construction Standards.
i. Elements of the dock that have direct contact with water shall not be treated
or coated with biocides. Use of elements treated with creosote or arsenic
compounds is discouraged. Over-water field applications shall be prohibited
except in accordance with best management practices.
The proposed dock will be supported by galvanized steel pilings and the
catwalk and gangway are proposed to be made of aluminum to avoid risk of
leaching contaminants. The project is conditioned so that the float is not
treated or coated with biocides, that wood is not treated with creosote or
arsenic and that over-water field applications are prohibited (Condition 2).
ii. The minimum number of structurally sound pilings shall be used. Pilings
must provide at least one foot of vertical clearance above extreme high water.
The pier is supported by 17, twelve-inch diameter galvanized steel piles to
support the access walkway, pier and hoist frames and boarding float and
gangway. To mitigate and minimize the impact of the pilings, the project is
conditioned to obtain building permit approval to assure structural soundness
of the steel pilings, and to follow sound attenuation methods (Conditions 3 &
18).
iii. Docks shall include float stops that serve to keep the floats off the bottom of
tidelands at low tide.
The dock is proposed to include float stops and the construction of a boat hoist
to protect the tidelands at low tide by avoiding hydraulic pumping.
iv. Precautions shall be taken to ensure containment of plastics or other non-
biodegradable materials used in pier or dock construction.
According to the application, the float will be made of wood construction with
poly tub flotation. As proposed, the project is ensuring containment of these
non-biodegradable materials.
v. A pier or dock shall not extend offshore farther than the most shoreward of
the average length of the piers on the two adjoining properties or distance
necessary to obtain a depth of four feet of water as measured at extreme low
tide at the landward limit of the moorage slip.
SSDP13500 Page 28
Only the adjoining property to the north is developed with a dock. The length
of that dock is approximately 130 feet long. The landward limit of the
moorage slip does not extend offshore farther than the distance necessary to
obtain a depth of four feet of water. In summary, the proposed dock does not
extend offshore farther than these provisions.
vi. Piers and docks shall require an approved building permit.
The project is conditioned to meet this regulation (Condition 18).
vii. Overhead wiring or plumbing is not permitted. Lighting shall be the minimum
necessary or as required by the Coast Guard.
The project is conditioned to prohibit overhead wiring and plumbing and to
observe Coast Guard lighting regulations (Condition 17).
d. Regulations - Residential
i. Pursuant to the SMP, docks shall be preferred over piers, where feasible.
The Shoreline Master Program differs from the Corps of Engineers Regional
General Permit guidance, which requires piers rather than floating docks to
reduce the shadow prism and to avoid grounding. The City’s SMP, in
contrast, gives preference to the use of docks over piers where feasibl e. The
development incorporates both floating and fixed segments; the applicant
proposes the pier with grating in order to allow the water to flow freely and to
minimize shadowing impacts.
ii. The maximum length and width of a pier or dock shall be the minimum
necessary to accomplish moorage for the intended boating use.
The length of the pier is found to be the minimum necessary to accomplish
moorage for the intended boating use. A minimum width for piers is generally
four feet, yet six feet is acceptable for handicap access. The applicant is
proposing a 6’ wide pier to accommodate such access.
To protect the fish, as suggested by the WDFW, the project is conditioned to
reduce the width of the float from 10’ to 8’ (Condition 7).
SSDP13500 Page 29
iii. The length shall not extend beyond the more shoreward of: The average
length of the two nearest adjacent docks or; the distance necessary to obtain a
depth of four feet of water as measured at extreme low tide at the landward
limit of the moorage slip or; the line of navigation.
This regulation limits the length of the dock to the most shoreward of the three
methods of measurement. The two nearest adjacent docks are located one
property north and three properties south of the subject property. The northern
dock is approximately 130 feet and the southern dock is 250 feet for an
average of 190 feet. The proposed dock at 170 feet does not extend beyond
the average length of the two nearest adjacent docks.
The length of the dock is less than the distance necessary to obtain a depth of
four feet of water as measured at extreme low tide. It does not go past MLLW.
The United States Army Corps of Engineers’ (USACE) suggested
construction limit line for Eagle Harbor is approximately 100’ waterward of
the proposed dock. It also meets the general USACE guidelines for the
placement of fixed and floating structures in navigable waters (Attachment
58).
In conclusion, the length of the dock does not extend beyond the most
shoreward of these three controlling factors.
iv. All dock elements shall be set back a minimum of ten feet from side property
lines.
At its closest point, the dock is set back 11’ from the northern property line.
As proposed, the dock is setback to exceed this minimum standard.
2. Shoreline Substantial Development Permit Process BIMC 16.12.360.E.4
After a 30 day public comment period, the Director shall issue a decision on the
application. In making the decision, the director shall consider the applicable
provisions of the Shoreline Management Act of 1971, as amended, Chapter 173-14
WAC or its successor, the master program, all other applicable law, and any related
documents and approvals. The director shall also consider whether the cumulative
impact of additional past and future requests that reasonably may be made in
accordance with the comprehensive plan, or similar planning document, for like
actions in the area will result in substantial adverse effects on the shoreline
environment and shoreline resources.
SSDP13500 Page 30
A discussion of the applicable provisions of the Shoreline Management Act, the
Bainbridge Island Shoreline Master Program, all other applicable law, and any related
documents and approvals are provided in this staff report.
According to the Nearshore Assessment this portion of the Eagle Harbor shoreline
development is primarily residential in nature, whereas the remaining portions are
commercial and industrial in nature. The assessment recommends numerous
opportunities for improving this area, one of which is to maximize light penetration in
overwater structures. The proposed pier is designed with grating to provide light
penetration. It is conditioned to provide 100% grating for 60% functional light
penetration and to mitigate for lost marshes habitat.
The Code allows the development of a single use dock and limits its size. Given the
relatively high number of docks in the area and regulations requiring environmental
sensitivity for new development as well as maintenance or improvement of existing
development, as conditioned, the cumulative impact of the proposed development
will not result in substantial adverse effects. For example, the applicant is proposing
steel pilings and a boat hoist to protect the tidelands at low tide and grating to
maximize light penetration (Condition 8)
In addition to grating, the conditions to protect the shoreline environment and
resources also include reducing the width of the float from 10’ to 8’ (Condition 7) and
that the wooden float is not coated with biocides, and not treated with creosote or
arsenic. Over-water field applications are prohibited (Condition 2).
B. Chapter WAC 173-27 Shoreline Management Permit
1. Review Criteria for All Development WAC 173-27-140
No authorization to undertake use or development on shorelines of the state shall be
granted by the local government unless upon review the use or development is
determined to be consistent with the policy and provisions of the Shoreline
Management Act and the master program.
The applicant’s dock project is conditioned to assure consistency with the Shoreline
Management Act and Shoreline Master Program.
2. Review Criteria for Substantial Development Permits WAC 173-27-150
Local government may attach conditions to the approval of permits as necessary to
assure consistency of the project with the act and the local master program.
SSDP13500 Page 31
Where necessary, the project is conditioned to assure consistency with the Shoreline
Management Act and Shoreline Master Program (Conditions 1-14, 17-22).
3. Permits for Substantial Development WAC 173.27.190
Each permit for a substantial development issued by local government shall contain a
provision that construction pursuant to the permit shall not begin and is not
authorized until twenty-one days from the date of filing of the decision.
The project is conditioned to reflect this regulation (Condition 19).
III. Chapter WAC 332-30-144 Private Recreational Docks
This section implements the permission created by RCW 79.105.430, Private Recreational
Docks, which allows abutting residential owners, under certain circumstances, to install
private recreational docks without charge. The limitations set forth in this section apply
only to use of state-owned aquatic lands for private recreational docks under RCW
79.105.430.
1. Eligibility
a. An "abutting residential owner," being the owner of record of property physically
bordering on public aquatic land and used for single family housing.
b. A "dock," being a securely anchored or fixed, open walkway structure visible to
boaters and kept in good repair extending from the upland property, primarily used
as an aid to boating by the abutting residential owner(s), and accommodating
moorage by not more than four pleasure boats typical to the body of water on which
the dock is located.
c. A "private recreational purpose," being a non-income-producing, leisure-time, and
discretionary use by the abutting residential owner(s).
d. State - owned aquatic lands outside harbor areas designated by the harbor line
commission.
2. Limitations.
a. The permission does not apply to areas where the state has issued a reversionary
use deed such as for shellfish culture, hunting and fishing, or park purposes;
published an allocation of a special use and the dock is inconsistent with the
allocation; or granted an authorization for use such as a lease, easement, or
material purchase.
b. Each dock owner using the permission is responsible for determining the
availability of the public aquatic lands. Records of the department are open for
public review. The department will research the availability of the public aquatic
SSDP13500 Page 32
lands upon written request. A fee sufficient to cover costs shall be charged for this
research.
c. The permission is limited to docks that conform to adopted shoreline master
programs and other local ordinances.
d. The permission is not a grant of exclusive use of public aquatic lands to the dock
owner. It does not prohibit public use of any aquatic lands around or under the
dock. Owners of docks located on state-owned tidelands or shorelands must provide
a safe, convenient, and clearly available means of pedestrian access over, around,
or under the dock at all tide levels. However, dock owners are not required to allow
public use of their docks or access across private lands to state-owned aquatic
lands.
e. The permission is not transferable or assignable to anyone other than a subsequent
owner of the abutting upland property and is continuously dependent on the nature
of ownership and use of the properties involved.
f. Vessels used as a residence and floating houses are not permitted to be moored at a
private recreational dock, except when such moorage is necessary because of an
emergency that immediately threatens human life or property, for the duration of
the emergency only.
The project is conditioned to comply with the recreational dock provisions of the
Washington Administrative Code. The applicant is authorized to have and maintain a
recreational dock in front of their upland property so long as they meet the eligibility
requirements of WAC 332-30-144 including: the applicant must be the “abutting
residential owner”; the project must meet the definition of “dock”; and the intent of the
development must be for “private recreational purpose”. The development is subject to
the limitations of WAC 332-30-144, including: Vessels may not be used as residences
and floating homes are not permitted to be moored at the dock (Condition 20).
VI. FINDINGS OF FACT (Bulkhead)
Proposal: A 110’ foot bulkhead that connects to the bulkhead to the abutting property to
the north and spans the length of the property.
Public Comments: Various concerns and comments about the nature of the Harbor were
raised in letters, e-mails and other communications during the comment period
(Attachments 18, 19, 21, 23, 25 & 70). The applicant expressed concern that some of the
comments were submitted anonymously, without signatures. However, the City does not
require that public comment be signed. Concerns were raised about the impact the
bulkhead would have on water quality and wildlife habitat, especially considering recent
efforts made to improve water quality in the Harbor. In addition, general concerns were
SSDP13500 Page 33
raised over a new bulkhead in the Harbor when there is little wave energy due to the fetch
of the Harbor and the speed limitations in the Harbor.
One commenter (Attachment 19) stated that “if the City is committed to improving water
quality and wildlife habitat in these waters, then further bulkheading seems a backwards
step.”
Another comment was in response to the applicant’s claim that erosion was being caused
by the rowing crews (Attachment 18). The commenter said that “these boats are designed
to be wake-free, and they do not travel in a manner that produces a wake. I spend a lot of
time in this part of Eagle Harbor, and I have not seen any evidence of any wakes from
these boats”.
Another comment of particular significance pertains to the existing beach condition on
the site. One commenter pointed out from their review of Google Earth imagery, that
there was no evidence of a sand and gravel beach prior to 2005 (Attachment 16).
Apparently the beach first appeared after being purchased by the applicant in 2005. The
commenter also pointed out that gravel beaches do not exist anywhere else in the harbor.
Staff notes that gravel beaches are not common occurrences in inner harbor, and some do
exist. However, the gravel beach appears to be limited to the subject property, despite the
bulkhead to the north and the unaltered shoreline to the south.
Other commenters pointed out that in addition to the potential creation of a beach on the
property, a drift wood bulkhead exists on the site. This bulkhead is indicated as being
first seen from aerial images in 2007. It was indicated in the report from Aspect
(Attachment 3) that the owners have restrained logs. The applicant claims that they have
only been pulled upon shore following a storm event and that the beach has existed and
was not created by their actions.
A. Comprehensive Plan Analysis (applicable policies of Bainbridge Island Shoreline Master
Program)
1. Section III C, Environmental Impacts, Regulation (10) states that: All shoreline uses
and activities shall be located and designed to minimize the need for shoreline
stabilization measures and flood protection.
The property is used as a single family residence with a guest house. According to the
report submitted by the applicant from Aspect, the single family residence is located
SSDP13500 Page 34
at its closest point to the shore at about 90 feet from the ordinary high water mark.
With a distance of about 90 feet to the shore, staff finds that the single family
residence has been located to minimize the need for shoreline stabilization and flood
protection by maximizing the distance between the residence and the shoreline.
Additionally, there is no evidence from any source that the main residence or the
guest house have sustained damage from any wave action or erosion of the shoreline
attributable to significant wave action. A residence set back 90 feet from the shore
and a guest house landward and behind it is not accessed by wave activity.
2. Section III D, Environmentally Sensitive Area Policy 1 states that: unique, rare and
fragile shoreline resources including, but not limited to, aquifer recharge areas; fish
and wildlife habitat; fish breeding, rearing or feeding areas; frequently flooded
areas; geologically hazardous areas; etc should be preserved.
Staff finds that the property meets the definition of marshes (see detailed analysis in
section 2.c. below). Marshes provide habitat for fish (Attachment 45). The subject
property is within the vicinity of two fish bearing streams, Cooper Creek and Weaver
Creek. There is documented use in the Harbor by Coho, Chum, Cutthroat, Chinook,
Pink and Steelhead Salmon, as well as surf smelt, sand lance and herring (Attachment
45 & 8). The addition of a bulkhead across fish habitat will result in a loss of the
marshes habitat. This will be caused by the physical footprint that the bulkhead will
occupy in the marshes habitat and the shadow created by the bulkhead, which could
adversely impact existing marshes or any potential increase in marshes. Marshes are
known to be sensitive to shading. In addition, a bulkhead in this location could
potentially increase wave energy, which could displace marsh habitat (Attachment
45).
3. Section VI C, Shoreline Armoring Policy #2 provides that: Because of the potential
impact on complex, littoral long shore drift systems and potential damage to other
shoreline properties, bulkhead construction should be discouraged, unless it can be
demonstrated that a revetment or nonstructural solutions is not feasible.
The City’s Comprehensive Plan and related SMP contain strong policies discouraging
the use of bulkheads, and equally strong policies encouraging soft armoring or other
non-structural solutions for shoreline protection. See BIMC 16.12 310.B.4 & 5 and
BIMC 16.12.310.C.4]. These policies were emphasized in the Stollar v. City of
Bainbridge Island decision by the state Shoreline Hearing Board in 2007. Examples
of nonstructural solutions are provided in the SMP and include bioengineering,
SSDP13500 Page 35
setbacks and buffers or any combination thereof. The single family residence is
located approximately 90 feet from the top of the bank. A bulkhead is not necessary
on this site as a 90 foot setback is an existing, feasible nonstructural solution.
2. BIMC Chapter 16.12 Shoreline Master Program:
a) BIMC 16.12.290, General shoreline modification provisions.
Shoreline stabilization and flood protection works are prohibited in wetlands and
on point and channel bars. They are also prohibited in salmon and trout
spawning areas except for fish or wildlife habitat enhancement.
A bulkhead is a structural shoreline modification. “Shoreline stabilization and
flood protection” is defined in BIMC 16.12.020 as “means taken to reduce
adverse impacts caused by current, flood, wake or wave action. These actions
include all structural and nonstructural means to reduce impacts due to flooding,
erosion, and accretion. Examples include bulkheads”.
The site has a wetland, as it meets the definition of marshes (see 2.c. below for
further discussion). Bulkheads are thus prohibited on this site.
b) BIMC 16.12.310 (B) (4) Shoreline armoring, Regulations-General:
Natural materials and processes such as protective berms, drift logs, brush, beach
feeding or vegetative stabilization shall be utilized to the maximum extent
possible.
The application is for a bulkhead for the entire length of the property. Natural
materials and processes were not proposed for this site, even though they are
encouraged by City policies and this regulation. See the Stollar v. City of
Bainbridge Island decision by the state Shoreline Hearing Board in 2007
(Attachment 43).
A comment from WDFW (Attachment 47) was submitted during the pre-
application phase of the project and shared with the applicant. According to
WDFW, this property is an “extremely low energy area, maybe the lowest on the
island” and that “no structures seem to be at risk any time soon .” WDFW
concluded that the site seemed to be an “ideal location for soft armoring, planting
and maybe even beach nourishment”.
SSDP13500 Page 36
The possibility of this site incorporating natural materials and processes also
seems feasible as three proposals for soft shore armoring were proposed and
approved in the inner Harbor in the last few years. Almost directly across and
approximately 1,000 feet away from the subject property, a soft shore project was
installed on a single family lot. Across, northwest and approximately 1,500 feet
away, a soft shore installation occurred on a lot with a condominium development
and about 2,000 feet north on the same side of the harbor a bulkhead and soft
shore project was installed on a City park site (Attachment 55).
Despite these nearby projects demonstrating that soft-shore protection was
available, the applicant has not offered any soft-shore protection measures or
alternatives. Instead, the applicant submitted a geotechnical report from Aspect
Consulting (Attachment 3) that stated that “non-structural solutions or “soft bank”
protection is not practical for certain environments. Soft bank protection is best
suited for low wave-energy environments where damage to mobile but restrained
logs is less likely and long-term sediment replacement can be performed
economically and effectively. Low energy environments retain imported beach
nourishment sediments over longer periods of time”. As noted above, however,
this site is in a low energy environment.
The Aspect report also states that “soft bank protection placed in high energy
environments with long open water fetches, such as exists at the site, requires
more maintenance and repair”. The report concluded that, “in their opinion, soft
bank protection is not feasible at the Site for the following reasons: the direct
displacement of energy on the adjacent bulkhead, wave action during high tide
events, wake action from speeding vessels and excessive sand erosion”. The
report writer claims that “the shoreline is being eroded placing upland
development at risk;” however, no demonstrable evidence supports this
conclusion. The evidence submitted by WDFW, DOE and the Nearshore
Assessment also appears contrary to Aspects report.
The evidence does not support, and Staff does not agree with, Aspect’s conclusion
that this is a high wave energy site, that soft bank protection is not feasible or that
upland development is at risk. Rather, based on the bulk of the evidence
submitted, objective aerial views of the site, and public comments, Staff finds that
this is a low wave energy site, that upland development at 90 feet back from the
SSDP13500 Page 37
shoreline is not at risk and that soft bank protection is feasible.7 Further
discussion on wave erosion and fetch is provided in 2.d. below.
c) BIMC 16.12.310 (C) (4) Shoreline armoring, Regulations Prohibited:
Shoreline hardening shall not be located on shores where valuable geohydraulic
or biological processes are sensitive to interference and critical to shoreline
conservation such as feeder bluffs, marshes, wetlands or accretion shoreforms
such as spits, hooks, bars or barrier beaches.
In determining the nature of the shoreline environment on the subject property,
the staff consulted definitions in the Shoreline Master Plan and the Nearshore
Assessment. The Shoreline Master Plan defines “marsh” as “soft, wet area
periodically or continuously flooded to a shallow depth, usually characterized by
a particular subclass (monocotyledons) of grasses, cattails, and other low
plants”(BIMC 16.12.030.(70)) This definition implies freshwater marshes, as the
vegetation species mentioned are typical upland plants. However, the SMP also
defines “marshes, bogs and swamps” as “lands transitional between terrestrial and
aquatic systems where saturation with water is the dominant factor determining
plant and animal communities and soil development. Such lands must have one or
more of the following attributes: (a) at least periodically, the land predominately
supports hydrophytes; and/or (b) the substrate is predominately un-drained hydric
soil” (BIMC 16.12.030 (108)). This definition does not include any qualifiers, like
vegetation species, to distinguish between fresh water marshes, and saltwater
marshes. Therefore, both marshes are considered captured by this definition
(Attachment 45).
As defined in the SMP, marshes are categorized as wetlands. The definition of
“wetlands” is “areas that are inundated or saturated by surface water or
groundwater at a frequency and duration sufficient to support, a prevalence of
vegetation typically adapted for life in saturated soil conditions. Wetlands
generally include swamps, marshes, bogs and similar areas” (emphasis added).
Therefore, both fresh and saltwater marshes are considered wetlands under the
City’s SMP.
To determine if the site had a marsh, Staff referenced the Nearshore Assessment
and found that it assigned a Geomorphic Class to the property, identified as
Marsh/Lagoon. According to the Nearshore Assessment, the key attributes that
define a marsh lagoon are “protected embayments, often with fluvial sediment
7 As noted above, the applicant has not allowed staff with a third party expert (such as specialists from
the Department of Ecology or WDFW) to do a site visit. Such a visit, with appropriate specialists, would
help determine if there is actual objective evidence of substantial shore erosion.
SSDP13500 Page 38
sources; substrate is composed of fines; diagnostic salt marsh vegetation; lagoons
may empty completely at low tide (extensive tide flats) and may have a residual
basin that holds water at low tide”. The Nearshore Assessment also defines a salt
marsh as a “distribution of salt-tolerant vascular plants”. Cross-referencing these
characteristics with the SMP definitions for “marsh” and “marshes, bogs, and
swamps”, and recognizing that the latter definition may include saltwater
marshes, the staff concluded that the subject property was a saltwater marsh that
is regulated as a wetland under the SMP. For si mplicity purposes, the “marshes,
bogs and swamps” designation will hereafter be referred to only as “marshes” in
the remainder of this report.
For the latest shoreline master plan update, the Department of Ecology required
that the City compile an Island wide inventory of existing conditions. This
inventory was completed by the City in 2007. The inventory also identified the
site as having a fringe salt marsh (Attachment 60).
Based on information provided to or known by City Staff (Attachment 45), and in
order to conclusively confirm the presence of marshes on the site, the applicant
was asked to clarify the environmental conditions of the shoreline. Another
consultant hired by the applicant, Norwest Marine, found that the site did not
meet the SMP’s definition of “marsh” or of “marshes, bogs and swamps”. The
staff agrees that the site is not a freshwater marsh (as concluded by Norwest
Marine); however, disagrees that the property is not a saltwater marsh. Both
freshwater and saltwater marshes are regulated under the SMP, and just because
one type of marsh – freshwater – may not be present does not mean that another
type – saltwater marsh – is not. Here, the Norwest Marine report clearly indicates
that the site does contain glasswort, a hydrophyte, which is indicative of a
saltwater marsh or marsh conditions. The report describes The SMP definition for
wetlands has two criteria for a wetland 1) that the area is inundated or saturated
by water at a frequency and duration 2) prevalence of vegetation typicall y adapted
for life in saturated soil conditions. The site has both hydrophytic vegetation and
wetland hydrology. The site exhibits the characteristics of a saltwater
marsh/wetland (Attachment 45).
Based on the foregoing, Staff finds that substantial evidence supports the fact that
the site has marshes. The applicant would not permit staff and third party field
verification of the existence of marshes; however, documented reports and other
objective evidence supports a finding that marshes exist on the site.
SSDP13500 Page 39
In addition to the evidence supporting the existence of marshes on the site, which
alone supports denial of the requested concrete bulkhead, Staff has also analyzed
other pertinent regulations regarding bulkheads which also establish that a
bulkhead should not be permitted on this site. These other regulations and
evidence relating to them are discussed separately below.
d) BIMC 16.12.310 (B) (5) Shoreline armoring, Regulations General:
Bulkheads and revetments may be allowed only when evidence is
presented which conclusively demonstrates that the following conditions
exist:
a) Serious wave erosion threatens an existing development or land; and
c) That use of natural materials and processes are unworkable in
protecting existing development.
This regulation requires that the evidence presented “conclusively” demonstrate
that both of the foregoing conditions exist on the site before a bulkhead or other
hard armoring can be allowed. As discussed below and as supported by
substantial evidence presented to Staff, neither of these conditions are established
by conclusive evidence.
Serious Wave Erosion: Under BIMC 16.12.310 (B) (5) (a), the applicant must
establish that there is conclusive evidence of serious wave erosion which
threatens an existing development or land. This condition actually contains two
related components: First, that there be “serious wave erosion” to the site; and
second, that such serious wave erosion threatens an existing development or land.
With respect to the first of these components, “serious wave erosion” to the site,
the applicant provided a report from Aspect Consulting that stated that the site is
exposed to high tide winter storm waves and wakes from vehicles travelling faster
than the 5 knot speed limit. The applicant stated that motor powered chase boats
often contain multiple riders and cause ongoing and continuous serious wave
action, resulting in further erosion and damage. Staff has reviewed the Aspect
Consulting report, as well as various other reports, including “Alternative Bank
Protection Methods on Puget Sound (Attachment 61)”, “Eagle Harbor Anchoring
and Mooring Plan (Attachment 5)” and the “Nearshore Assessment (Attachment
48)” about the nature of the Harbor and vessel usage, and finds that most of Eagle
Harbor does not have a condition of serious wave erosion.
SSDP13500 Page 40
Foremost, the applicant’s property is located in the inner portion of Eagle Harbor.
This is the least exposed and most protected part of the Harbor, and mostly
shielded from significant wave action or erosion. Various reports establish that
the inner Harbor is not an area of the Island that experiences serious wave
erosion. This area of the Harbor is inter-tidal and is primarily influenced by tidal
cycles rather than waves (Attachment 48).
The Nearshore Assessment utilized data from the Department of Natural
Resources shore-zone inventory for the Island, assigning three exposure classes to
the waters based on fetch distance and the potential wave heights that may be
generated. The three classes are as follows: ‘semi-protected’ with a fetch distance of
6 to 30 miles (10 to 50 km); ‘protected’ with a fetch of between 0.6 to 6 miles (1 to
10 km); and ‘very protected’ with less than 0.6 miles (1 km) of fetch. Based on the
USACE (2002), these distances correspond to the following significant wave heights:
0.6 mi fetch – 0.8 ft wave height. This segment of shoreline which includes the
applicant’s property is identified as “very protected” from wave exposure.
In addition to this wave analysis, the presence of glasswort indicates that it is a
low wave energy environment. Glasswort is a salt-marsh species often found in
low energy environments. Marshes do not exist where there is serious wave action
(Attachments 45 & 54).
Expert opinions also find that the Harbor does not experience serious wave
exposure. Comments from the WDFW and DOE state that serious wave erosion
does not exist, and that this area may be the most protected area on the Island
from erosion.
In terms of the claim from the applicant that vessels are producing serious wave
erosion, the Aspect Consulting report (Attachment 3) contains no data or
objective or “conclusive” evidence that vessels are producing serious wave action
or erosion. The Aspect report contains primarily conclusory statements, and the
claim of potential erosion appears speculative. For example, no data was
provided from the applicant or Aspect Consulting showing an actual or significant
erosion of the applicant’s shoreline. Furthermore, the potential for the chase boats
from the rowing team to create serious wave erosion is undocumented and
appears objectively unlikely. Again, neither the applicant nor his consultant has
provided any data or other objective and verifiable evidence that chase boats or
other vessels create serious wave erosion at this site. A speed limit of 5-knots
with a no wake zone was put into effect for the Harbor in 1996, and water skiing
SSDP13500 Page 41
was prohibited in 2006 in all the inner portions of the Harbor (Attachment 57).
These limits and prohibitions make it highly unlikely that serious wave action or
shoreline erosion will occur. Moreover, Staff is obligated to assume that boaters
and vessel operators will comply with the law, including the 5-knot and no-wake-
zone limits and the prohibition against water skiing in the Harbor.
A public commenter (Attachment 17) spoke to this issue based on his experience
as a rower and sailor in the Harbor. He stated that the catamaran hulls are
designed specifically to produce negligible wave amplitude. Another commenter
stated that the rowing team uses Wintech 16’ launches and a Solo 18. The web
sites specifications on both of these launches show that they are designed for
wakeless environments. The Wintech website states that their crafts are designed
…”especially in areas designated wakeless.” The website for the Solo 18 states
that their launches are designed to perform in “low wake and no-wake
environments” (Attachment 26).
To further investigate claims for excessive speeding and hence serious wave
energy from speeding vessels, staff placed a records request with the Bainbridge
Island Police Department on the “calls for service” (those calls made to 911)
involving boating events and then sorted through the narratives to find those
where someone was reporting a speeding boat (Attachment 62).
In the Harbor, there were 46 such calls reporting boat speeding over the 7+ years,
averaging about six per year. In that same timeframe, the Police Department
received a total of 98,348 calls for service. This is less than 0.00047 percent of
all police calls during the time period.
There is one case report dated May 27, 2009 where a person was cited for ‘Speed
Eagle Harbor over 5 knots’ (case # I09-000763). That call is not included on the
list provided because the officer initiated the call to 911 as a Patrol Check. After
making contact with a person, the officer issued an infraction for the speeding
offense. There are no other infractions in our records for that same offense. As
noted above, however, for purposes of determining the existence of facts
conclusively establishing the two conditions to be satisfied under BIMC
16.12.310 (B) (5) justifying approval of a bulkhead, Staff is obligated to assume
that boaters and vessel operators will comply with the law, including the 5-knot
and no-wake-zone limits and the prohibition against water skiing in the Harbor.
Notwithstanding the lack of any substantial evidence that boaters or vessel
operators are violating these speed, no-wake and other limits imposed on the
SSDP13500 Page 42
Harbor, Staff cannot speculate about possible infrequent future violators –
particularly where no historical evidence exists to support such speculation.
The protected nature of the Harbor with its low fetch, the imposed speed limit and
no wake limits, the prohibition against water skiing, the statistically insignificant
volume of calls reporting boat speeding, the no-wake design of the chase boats,
and other documentary evidence referenced above support a finding that “serious
wave erosion” is not occurring on the subject site. Staff finds that there is no
objective evidence – conclusive or otherwise – of serious wave erosion at this site
due to the environment, rowing or related activities, and therefore, no basis to
approve the requested bulkhead under BIMC 16.12.310 (B) (5) (a).
Threat to Development: Under BIMC 16.12.310 (B) (5) (a), there must also be
conclusive evidence that serious wave erosion threatens an existing development
(or land). “The BIMC does not define “threat.” The general definition of threat is
“to be a menace or source of danger to” (Attachment 63).
Staff referred to the Washington Administrative Code (Attachment 64) for
guidance. A standard time frame developed for shoreline stabilization is three
years. WAC 173-26 provides that hard armoring solutions should not be
authorized except when a report confirms that there is a significant possibility that
such a structure will be damaged within three years as a result of shoreline
erosion. The closest primary structure is the single family residence, and it is
located 90 feet away from the ordinary high water mark. A residence located 90
feet back from OHW in a protected harbor with very low wave activity does not
meet the “threat” guideline of three years to support a need for concrete shoreline
stabilization.
Also, there is no objective evidence that the primary structure or the guest house
has in the recent past been damaged by serious wave action or erosion. Neither
the applicant nor his consultants have provided any objective or verifiable
evidence (or any evidence at all) of damage to any structure on the property.
More importantly, there is no conclusive evidence that serious wave erosion
threatens any structure on the property. Again, Staff cannot speculate about
possible or potential future threats to structures on the property – particularly
where no historical evidence exists to support such a conclusion.
Threat to Land: Under BIMC 16.12.310 (B) (5) (a), there must also be
conclusive evidence that serious wave erosion threatens an existing either a
SSDP13500 Page 43
development (discussed above) or the land (this is contrary to the Biological
Opinion as discussed later in this report). As with the analysis of threats to
development above, Staff finds no evidence that serious wave erosion threatens
the land. The site has a zoning designation of R-4.3 and a shoreline designation
of semi-rural. The site has the density to support two residences. The site is
developed with a single family residence and a guest house. The purpose of the
semi-rural environment is intended to serve as a transitional area between the
more intensive urban environment and the lower-intensity uses of the rural
environment. This environment is also intended to protect natural resources such
as vegetation on steep banks, indigenous trees and natural beaches, banks, bluffs,
and marshes while still allowing for development (BIMC 16.12.140.E.).
As the land is supporting a residential use that is located approximately 90 feet
from the shore, neither land nor development is threatened. Again, no evidence –
conclusive or otherwise – has been offered to establish that serious wave action
threatens the land. The Aspect Consulting report contains no data or objective or
“conclusive” evidence that the land is being threatened by serious wave action or
erosion. The Aspect report contains primarily conclusory statements, and the
claim of potential erosion or potential threats to land appear speculative. No data
was provided from the applicant, Aspect Consulting or any other source showing
an actual or significant erosion of the applicant’s shoreline. The applicant has
voiced concern over the threat to Madrona tree. The Madrona tree, as indicated by
the applicant, is dead. It is unclear what damaged the tree. The applicant claims it
was due to wave erosion. However, the loss of a tree on the shoreline is not
considered a threat to land. The applicant has indicated that this is a Heritage
Tree. Staff notes that this tree is not included on our Heritage Tree list
(Attachment 65). It is clear from aerial imagery that the tree was healthy until
2006, and the 2007 aerial imagery first shows a dead madrone, the same year the
pocket beach appeared in aerials (Attachment 16).
As discussed above, and based on substantial evidence the potential for serious
wave erosion threatening the land is undocumented and appears objectively
unlikely. Again, neither the applicant nor his consultant has provided any data or
other objective and verifiable evidence that serious wave erosion has in the past or
will in the future pose a threat to the site.
In conclusion, Staff finds that there is no serious wave erosion at this site that
threatens an existing development or land.
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(c) That the use of natural materials and processes and nonstructural
solutions to bank stabilization are unworkable in protecting existing development.
As discussed above, the single family residence is located approximately 90 feet
from the ordinary high water mark. The applicant has requested a concrete
bulkhead to protect the lawn from erosion. Under BIMC 16.12.310 (B) (5) (b),
bulkheads are allowed only when evidence is presented which conclusively
demonstrates that the use of natural materials and processes and nonstructural
solutions are unworkable in protecting existing development. First, the existing
relationship of structures on the site in relation to the shoreline -- 90 feet apart, is
essentially a “non-structural solution” to any perceived or potential serious wave
erosion on the site, and this distance objectively protects the existing single family
development. Secondly, based on Staff’s knowledge and expertise, as well as
evidence in the record and examples of other properties in the area, natural
materials and processes could be used successfully to provide bank stabilization
in this low wave energy site. While the report from Aspect Consulting concluded
otherwise, it failed to analyze in any meaningful way other non-armored methods
of bank stabilization, including the use of natural materials and non-structural
solutions to the site.
The Aspect report made various claims against the use of natural materials and
non-structural solutions to the site based on 1) the open water fetch across the
harbor for storms coming from a westerly direction, 2) the maintenance demands
and expenses associated with construction of a soft structure, including possible
replacement that would be extensive and 3) that a soft structure would not provide
adequate upland protection for the site. Thus, the Aspect Consulting report
concluded that soft bank in not feasible at this site.
Again, the code requires evidence that “conclusively” establishes that the use of
natural materials and processes and nonstructural solutions to bank stabilization
are unworkable in protecting existing development. BIMC 16.12.310 (B) (5) (b).
Neither the Aspect Consulting report nor any other evidence presented to Staff
supports such a finding.
With respect to the Aspect Consulting report conclusion that the open water fetch
across the harbor for storms coming from a westerly direction somehow makes
“unworkable” the use of natural materials and processes and nonstructural as
solutions to bank stabilization are unworkable in protecting existing development,
there is no data, factual history, examples or analysis to support this conclusion.
SSDP13500 Page 45
There is no evidence or data explaining this conclusion. Moreover, other
properties in the area, which are also subject to an open water fetch across the
harbor for storm activity, have successfully used natural materials and processes,
or non-structural solutions to stabilize their shorelines (Attachment 55).
With respect to Aspects’ conclusion that the maintenance demands and expenses
associated with construction of a soft structure, including possible replacement
which may be expensive, makes the use of natural materials and processes and
nonstructural solutions to bank stabilization “unworkable” in protecting existing
development, again, there is no data, factual history, examples or analysis to
support this conclusion. There is no evidence or data explaining this conclusion.
Staff notes, too, that potential expense of the solution or maintenance costs are not
an element of the Code (see, BIMC 16.12.310), and are not a recognized
consideration for bulkhead approval. There is nothing in the Code or the SMP
that supports approval of a bulkhead based on cost or maintenance. Neither costs
nor maintenance make such structures “unworkable.” Moreover, there is
significant expense in design, construction of hard-armored shoreline structures,
such as bulkheads, and there are also maintenance costs and obligations with such
structures. Staff inquired with a local, structural shoreline developer on the
average cost of a softshore versus a rock, bulkhead. They prefaced that while
many variables are at play (i.e. access, location), the cost per linear foot for the
two is an average of $350 for hard armoring versus $250 for soft (Attachment 71).
While soft generally requires more long term maintenance than a hard structure,
in a low wave energy environment, like the subject property, it is assumed that
maintenance costs would be low.
With respect to Aspect’s other conclusion -- that a soft structure would not
provide adequate upland protection for the site -- makes the use of natural
materials and processes and nonstructural as solutions to bank stabilization
“unworkable” in protecting existing development -- again, there is no data,
history, examples or analysis to support this conclusion. As discussed above,
there is no evidence that the upland part of this site is threatened, in jeopardy or
otherwise needs protection from wave erosion. Other properties have used natural
materials and processes, or non-structural solutions to stabilize their shorelines to
provide upland protection for their properties.
Neither the Aspect Consulting report nor any other document provided to Staff
provides objective data or “conclusive” evidence that the use of natural materials
and processes and nonstructural solutions to bank stabilization are unworkable in
SSDP13500 Page 46
protecting existing development on the applicant’s property. The Aspect report in
particular contains only conclusory statements and the author’s belief that natural
materials and non-structural solutions are unworkable or require maintenance or
may be costly; there is no analysis or comparison to conclusively show that such
measures would not work. No data, no studies and no comparisons were
provided from any source analyzing the use of natural materials or non-structural
shoreline solutions in lieu of the applicant’s hard armoring proposal, and no cost
estimates or maintenance requirements for natural or non-structural options were
offered or analyzed.
As discussed above, and based on the evidence provided, there is no conclusive
evidence that the use of natural materials and processes and nonstructural
solutions to bank stabilization are “unworkable” in protecting the development on
this site. Therefore, Staff finds that there is no evidence conclusively
demonstrating that existing development cannot be protected through the use of
natural materials and processes and nonstructural solutions in this low wave
energy environment.
2. Shoreline Substantial Development Permit Process BIMC 16.12.360.E.4
After a 30 day public comment period, the Director shall issue a decision on the
application. In making the decision, the director shall consider the applicable
provisions of the Shoreline Management Act of 1971, as amended, Chapter 173-14
WAC or its successor, the City’s Shoreline Master Program, all other applicable law,
and any related documents and approvals. The Director shall also consider whether
the cumulative impact of additional past and future requests that reasonably may be
made in accordance with the comprehensive plan, or similar planning document, for
like actions in the area will result in substantial adverse effects on the shoreline
environment and shoreline resources.
Shoreline Master Plan: As was emphasized in the Shoreline Hearing Board’s
decision in the Stollar v. City of Bainbridge Island case, the regulations and
prohibitory language of the shoreline armoring section of the SMP are critical to the
determination on this application for a new bulkhead in Eagle Harbor. These
sections include BIMC 16.12.310 (B) (5) Shoreline Armoring, Regulations General,
and BIMC 16.12.310 (C) (4) Shoreline Armoring, Regulations Prohibited. In addition
to the findings in the above sections, Staff finds that: (1) This site has marshes that
meet the definition of a wetland, thus precluding approval of the applicant’s requested
bulkhead; (2) serious wave erosion does not exist on the site; (3) that neither existing
development nor the land is threatened; and (4) that the current site conditions which
SSDP13500 Page 47
include a 90 foot setback from the ordinary high water mark to the single family
residence is providing a feasible, non-structural solution to protecting existing
development.
In addition to the above, Staff finds that BIMC 16.12.290, General Shoreline
Modification provisions, and BIMC 16.12.310 (B) (4) Shoreline Armoring,
Regulations-General prohibit a bulkhead on this property due to the presence of a
wetland and that the use of natural materials and processes in this low wave energy
environment were not proposed or evaluated to the maximum extent possible.
Cumulative Impact: Under BIMC 16.12.360.E.4, the Director is also required to
consider the cumulative impacts of additional past and future requests for like actions.
As discussed earlier, approximately 50% of the remaining shorelines in the Harbor
are unmodified, and on the transverse, 50% of the Harbor is modified. With that,
50% of the Harbor could apply for some form of shoreline armoring in the future
(Attachment 6).
There is general agreement in the scientific community that placement of hard
armoring, such as bulkheads, revetments, and seawalls, along shorelines results in
sediment impoundment, beach narrowing and lowering of the shore profile. Shoreline
hardening also typically results in the removal of vegetation that occurs naturally low
on the bank, replacing it with a hard, steepened surface. Beaches become more
coarsened with hard armoring, affecting biologic processes.
As previously discussed, Eagle Harbor has historically been the commercial and
industrial heart of Bainbridge Island (Attachment 3). Past industrial practices have
degraded the water quality and reduced the ecological functions in the Harbor.
In recent years, strategic long-term efforts have been made by various agencies,
businesses, organizations and others to improve the ecological function of the Harbor.
First, the EPA has removed 29,000 tons of creosote sludge, 100,000 gallons of oil,
430 cubic yards of asbestos and capped the Wyckoff industrial site with new
sediment. The industrial shore and upland associated with the former strawberry
packing plant was restored to return some of the important historic marsh habitat.
And, fish bearing populations have been repopulated in the Harbor through
restoration efforts to Cooper Creek, which terminates in the upper Harbor
(Attachments 60 and 66).
SSDP13500 Page 48
Prior to these aforementioned and other industrial uses in the Harbor, the Harbor had
significant salt marsh complexes. The fringe salt marsh on the subject property was
identified in 2007 as the second largest continuous patch with an aerial extent of
approximately 6,400 square feet. The patch on the subject property is the fourth
largest in the Harbor (Attachment 60).
The subject property is within the vicinity of two fish bearing streams. Marshes
provide important rearing areas for fish. A proposed bulkhead through the marshes
will immediately displace portions of the marshes and the remaining stretch of
bulkhead could shade marshes and cut off its ability to spread, resulting in immediate
and long term loss of marshes habitat (Attachment 67) and consequently fish species.
The inability of marshes to spread could be exacerbated by the bulkhead as sea level
rise occurs. According to a report from Coastal Geologic Services, Inc.,
Defining Threatened in Terms of New Bulkhead Installation at Existing Development
Relative to San Juan County – Examples and Recommendations” changes in sea level
in the Sound are expected, resulting in waters reaching further landward and upward.
A bulkhead at this location could stop the marshes from spreading. Additionally,
installation of a bulkhead could cause the loss of the marshes’ connectivity by
creating a static back shore (Attachment 63).
Based on past experience and verifiable permit requests, other properties in Eagle
Harbor will apply for shoreline modification and hard-armored protection (bulkheads)
in the future. New bulkheads are currently restricted in certain geomorphic classes
and are limited to sites that experience serious wave erosion which threaten
development or land. The applicant’s site does not meet these criteria, or the other
criteria discussed above.
Recommendation:
Staff recommends approval of the boathouse/gatehouse, retaining wall and dock subject to
conditions set forth below, and denial of the bulkhead.
SEPA CONDITIONS
1. The owner / contractor is required to stop work and immediately notify the Department of
Planning and Community Development at 206 -842-2552, and the Washington State
Department of Archaeology and Historic Preservation at 360-586-3065, if any historical
or archaeological artifacts are uncovered during excavation or construction.
SSDP13500 Page 49
2. The elements of the dock that have direct contact with water shall not be treated or coated
with biocides, creosote or arsenic and over-water field applications shall be prohibited.
3. The following sound attenuation method shall be required for the driving or proofing of
steel piles with an impact hammer below the ordinary high water line: a bubble curtain
shall be installed around the pile during pile driving operations.
4. Extreme care shall be taken to prevent petroleum products, chemicals, or other toxic or
deleterious materials from entering the water and degrading water quality. If a spill does
occur, or if oil sheen or any distressed or dying f ish are observed in the project vicinity,
work shall cease immediately and the Department of Ecology shall be notified by
telephoning both of the following 24-hour numbers: 800-258-5990 and 800-424-8802.
The Northwest Regional office may be contacted at 425-649-7000 for further
information.
5. Work waterward of the ordinary high watermark (OWHM) shall not occur from
March 15 through June 15 of any year for the protection of migrating juvenile
salmonids.
6. No stock pile of materials shall occur on the beach. All creosote timbers, piles, treated
wood and other non-native material on the beach shall be removed and disposed of in an
approved upland location. Evidence of proper upland disposal shall be provided to the
City prior to final inspection of the dock.
7. The width of the float shall not exceed 8’.
8. The catwalk and gangway shall be 100% grated for 60% functional light penetration.
9. The float shall be 50% grated.
NON-SEPA CONDITIONS
10. A copy of the approved building permit with conditions and drawings shall be provided
to all contractors performing any of the authorized work.
11. The applicant shall prepare a mitigation plan to offset development in the Native
Vegetation Zone (NVZ) and in the marshes due to the construction of the boathouse and
the dock. The plan shall include a suggested replacement ratio. The plan shall be prepared
SSDP13500 Page 50
by appropriate experts, approved by the director and paid for by the applicant prior to the
issuance of a building permit for the construction of these structures.
12. The replanting recommended by the mitigation plan shall be completed within 30 days of
construction.
13. The applicant shall permanently protect the replacement area through a recorded Notice
to Title.
14. The replanted area shall be reestablished within three years and properly maintained.
15. Any future proposed clearing in the NVZ replacement area shall first be reviewed by the
City through a clearing permit with a replacement plan.
16. Prior to the construction of the retaining wall, the 50’ NVZ shall be staked in the field
and inspected by staff.
17. Overhead wiring and plumbing and to observe Coast Guard lighting regulations.
18. The applicant shall submit and obtain a building permit from the City of Bainbridge
Island before commencing work. The permit application shall include an accurate
bathymetric survey. The application shall substantially conform to the plans submitted
on July 31, 2012, with the exception of any conditions of approval (Condition s 7, 8 and
9).
19. Construction pursuant to the permit shall not begin and is not authorized until twenty-
one days from the date of filing of the decision with the Department of Ecology.
20. Vessels may not be used as residences and floating homes are not permitted to be moored
at the dock.
21. Any changes to the site plans will require review and approval by the City of Bainbridge
Island.
22. Activities to be undertaken as part of this permit/exemption may require approvals or
permits from the Washington Department of Fish and Wildlife and the Army Corps of
Engineers, evidence of those approvals shall be submitted prior to the commencement of
any construction activities.
SSDP13500 Page 51
D. Appeal Procedures:
Any decision of the director may be appealed to the hearing examiner in accordance with the
procedures of BIMC 2.16.130.
Attachments:
1. Plan Set Site Map, Sheets 1-7, date stamped July 31, 2012.
2. Plan Set Vicinity Map, Sheets 1-3, date stamped July 31, 2012
3. Aspect Consulting proposed Bulkhead and Beach Process Reconnaissance report date
stamped July 31, 2012, prepared on May 23, 2012
4. Aerial and Site photographs date stamped July 31, 2012
5. Eagle Harbor Anchoring and Mooring Plan prepared by the Bainbridge Island Harbor
Commission
6. Map of docks/piers and bulkheads in the Harbor
7. History of the Superfund Cleanup – Wyckoff Site
(http://www.pritchardpark.org/Superfund_Cleanup.html)
8. West Sound Watersheds Council Pre-Application 2007 round SRFB, Strawberry Plant
Park Shoreline Restoration Construction by Peter Namtedt Best.
9. Salmon Supplementation on Cooper Creek, Bainbridge Island Watershed Council,
Project Year 2012
10. Pre-application letter prepared on January 25, 2012
11. Pre-application checklist prepared on January 25, 2012
12. SSDP application date stamped July 31, 2012
13. Project Narrative date stamped July 31, 2012
14. Notice of Complete application dated August 30, 2012
15. Notice of application dated September 14, 2012
16. October 11, 2012 – Comment, Concerned Citizen
17. October 15, 2012 – Comment, Booth
18. October 15, 2012 – Comment, Gale
19. October 15, 2012 – Comment, Goss
20. October 15, 2012 – Comment, Hansen
21. October 15, 2012 – Comment, Shane
22. October 15, 2012 – Comment, Stewart
23. October 15, 2012 – Comment, Stowell
24. October 15, 2012 – Comment, Trafton
25. October 15, 2012 – Comment, Tsolmitis
26. October 15, 2012 – Comment, Anonymous
27. October 15, 2012 – Comment, Gerlach
28. October 7, 2012 - Comment, Gerlach
29. December 18, 2012 – Gerlach to City
SSDP13500 Page 52
30. December 18, 2012 – City to Gerlach
31. December 21, 2012 – Gerlach to City
32. December 31, 2012 – City to Gerlach
33. January 04, 2013- Gerlach to City
34. December 21, 2012 – City to Gerlach
35. January 08, 2013 – City response to Gerlach
36. Second report from Norwest Marine dated January 9, 2013
37. January 11, 2013 – Gerlach to City
38. January 11, 2013 – City to Gerlach
39. January 14, 2013 – Gerlach to City
40. February 1, 2013 – City to Gerlach
41. February 06, 2013 – Gerlach to City
42. Joint Aquatic Resource Permit Application dated stamped July 31, 2012.
43. Stollar v. City of Bainbridge Island decision by the state Shoreline Hearing Board in
2007
44. Preliminary Eelgrass and Macro Algae Habitat Survey for Proposed Anchor Sites of
Navigational Buoys in Eagle Harbor, Manzanita Bay and Port Madison Harbor, received
September 3, 3002
45. Memorandum from Ryan Ericson to Heather Beckmann re: SSDP 13500 Macro Algae
and Geomorphic Classification Study (Bulkhead) dated January 28, 2012.
46. Washington Department of Fish and Wildlife Eelgrass/Macroalgae Habitat Interim
Survey Guidelines
47. Washington Department of Fish & Wildlife, by Chris Waldbilig Comment dated October
12, 2012.
48. Bainbridge Island Nearshore Assessment Habitat Characterization and Assessment,
Management Strategy Prioritization, and Monitoring Recommendations, by Battelle,
November 2004
49. January 27, 2012 - Gerlach to City
50. February 14, 2012 – City to Gerlach
51. March 29, 2012 - Gerlach to City
52. April 6, 2012 – City to Gerlach
53. Norwest Marine Eelgrass Survey & Shoreline Designation, by Chad Croker dated
February 1, 2012, date stamped July 31, 2012
54. Department of Ecology, by Patrick McGraner , Comment dated January 8, 2013
55. Map of Softshore projects in the Harbor
56. 427 Lovell Staff report by Josh Machen dated May 18, 2004
57. Ordinance 2006-15, Vessel Speed and Wake in Eagle Harbor
58. Management of Small Docks and Piers Impacts to Navigation and Public Access, May
2005
SSDP13500 Page 53
59. 2012 Washington State JARPA application
60. Memorandum from Ryan Ericson to Heather Beckmann re: SSDP 13500 Macro Algae
and Geomorphic Classification Study (Single Family Pier) dated January 28, 2012
61. Alternative Bank Protection Methods on Puget Sound, Zelo, Shipman and Brennan, May
2000, exert for Place 18 Condominiums, pages 79-84
62. Bainbridge Island Police Department re: Speeding boats January 1, 2006 through
February 7, 2013 spreadsheet and E-mail from Barbara Seitz dated February 8, 2013
63. Defining Threatened in Terms of New Bulkhead Installation at Existing Development
Relative to San Juan County, Coastal Geologic Survey Report from Jim Johannessen
dated January 12, 2009
64. Washington Administrative Code 173-26-231, Shoreline Modifications effective January
7, 2004
65. City of Bainbridge Island, Heritage Tree List
66. Map of Restoration Projects in Eagle Harbor
67. Biological Evaluation, Submitted by US Army Corps of Engineers dated March 24, 2004
for 427 Lovell Avenue
68. December 14, 2012 – Gerlach to City
69. January 2, 2013 – Gerlach to City
70. October 12, 2012 – Comment, Schmid