MORE DEFINITIVE STATEMENT OF APPEALI
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BEFORE THE CITY OF BAINBRIDGE ISLAND
OFFICE OF THE HEARING EXAMINER
MIKE IMESON and BOULDER GLEN, LLC,
Appellants,
v.
CITY OF BAINBRIDGE ISLAND,
ondent.
No. PLN50438 SSDE
MORE DEFINITE STATEMENT OF
APPEAL OF ADMINISTRATIVE
DECISION DENYING SHORELINE
EXEMPTION REQUEST
Mike Imeson and Boulder Glen, LLC, Appellants herein ( "Imeson ") pursuant to City of
Bainbridge Island Municipal Code ( "BIMC ") § 2.16.020(P)(1)(a) and/or BIMC
§ 2.16.020(C)(2) and the Rules of Practice and Procedure of the Hearing Examiner,
Chapter 1, Section 5, and pursuant to directive made by the Examiner at a pre - hearing
conference held in this matter on Wednesday, March 15, 2017, hereby file this More Definite
Statement of Appeal to the Bainbridge Island Office of Hearing Examiner. This Statement is
in reference to an administrative decision dated November 2, 2016 (the "Decision "), issued by
the City of Bainbridge Island Department of Planning and Community Development ( "the
City "), Gary R. Christensen, AICP, Director. Appellants' appeal is dated November 15,
2016. The Decision denies a shoreline exemption to construct a single - family residence using
the site - specific vegetation management area process set out in the City of Bainbridge Island
Shoreline Master Program ( "SMP ").
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION= 1 of 28
[90370 -11
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780 -6865, fax
Email: dennis @ddrlaw.com
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I. NAME AND IDENTITY OF APPELLANTS
AND BASIS FOR STANDING
100 Appellants: Michael (Mike) Imeson and Boulder Glen LLC. Their address is.
Michael Imeson, Registered Agent
Boulder Glen LLC
P.O. Box 10857
Bainbridge Island, WA 98110 -0857
Telephone: (206) 2354936
141 Legal Counsel: Mr. Imeson's legal representative in this matter is the Dennis
D. Reynolds Law Office, 200 Winslow Way West, Suite 380, Bainbridge Island, Washington
98110; telephone: (206) 780 -6777; fax: (206) 780 -6865.
12 Agent: Appellants' agent is:
Bruce Anderson, AVA
Cutler Anderson Architects
135 Parfitt Way SW
Bainbridge Island, WA 98110
Telephone: (206) 8424710
13 Appellants are aggrieved parties with standing to seek review and contest the
Decision because their property is the subject of the City's permit exemption decision.
Appellants are prejudiced or likely to be prejudiced by the City's actions specified below if no
relief is granted. A ruling in favor of Appellants will substantially eliminate or redress the
prejudice that the Decision has caused (or likely will cause them) for which review and relief
is requested.
II. NAME AND IDENTITY OF RESPONDENT
10 The City of Bainbridge Island, Department of Planning and Community
Development, 280 Madison Avenue North, Bainbridge Island, Washington, 98110, telephone:
(206) 842 -25450
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION - 2 of 28
190370-1)
DENNIs D. REYNOLDS LAVA' OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780-6865, fax
Email: dennis @ddrlaw.com
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III. DECISION APPEALED
3.0 Appellants appeal the Administrative Decision dated November 2, 2016. A
true and accurate copy of the Decision is attached hereto as Exhibit 1, by reference made part
of this Statement.
3.1 A true and accurate copy of City Staff's Staff Report with supporting Finding
of Facts dated October 24, 2016 (without exhibits} is attached hereto as Exhibit 2, by
reference made part of this Statement.
3.2 A true and accurate copy of Appellants' timely Appeal dated November 15,
2016 is attached hereto as Exhibit 3, by reference made part of this Statement.
33 The Staff Report states in relevant part:
• The HMP does not meet the purpose and intent of an HMP
pursuant to SMP Appendix B4; specifically, that they
should preserve, and not reduce, existing high quality
habitat buffers and shall provide habitat functions and
values that are greater than would be provided by the
prescribed buffer.
• Washington Department of Fish and Wildlife, as an
independent third -party reviewer, and the Suquamish Tribe
both expressed concern regarding the proposal and
requested that the prescriptive buffer be maintained.
• The HMP does not address why the proposed residence
cannot be located outside the prescriptive 150 -foot shoreline
buffer in order to avoid impacts.
• The proposed lot coverage is nearly 4.5 times larger than the
1,200 square feet allowed on encumbered lots. The HMP
does not address the potential to minimize impacts by
reducing the footprint of the house.
• The HMP does not adequately demonstrate that the
proposed site - specific management area assures no net loss
of the property's specific shoreline ecological functions and
associated ecosystem -wide processes. Specific functions
and project impacts are not identified, project avoidance and
minimization measures are inadequate and there is no direct
tie between project impacts, site - specific conditions and
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION - 3 of 28
I9o37a1)
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780-6777, tel / (206) 780 -6865, fax
Email: dennis @ddrlaw.com
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functions and proposed mitigation measures. Ecosystem -
wide processes — particularly those associated with forage
fish spawning and juvenile salmonid habitat — are not
addressed.
• The HMP fails to provide a link between the site
characteristics, the functions to be protected and the buffer
width proposed. The HMP proposes a 50 400t shoreline
buffer but does not provide any detail as to why this width
was chosen, no explanation of the factors relevant to the
effectiveness of this buffer width and no justification for 50
feet when recommended buffer widths in the scientific and
technical information used to develop the City's prescriptive
buffer widths range from 16 to over 300 feet, depending on
function.
• Insufficient information was provided by the applicant to
verify if the proposed development meets the shoreline
structure setback view requirement, critical areas
requirements (geologically hazardous areas and critical
saltwater habitat) and stormwater management
requirements.
• As proposed, the proposal is not consistent with
development standards addressing setbacks, shoreline
buffers, lot coverage limitations and protective measures for
critical areas and water quality provided in the Shoreline
Residential Conservancy designation policies and
regulations.
Staff Report, October 24, 2016, p.10.
3.4 The Staff Report states: "Insufficient information was provided to determine if
the proposal is consistent with the maximum height standards." (Report, p.2).
15 The Staff Report states that the proposal "... is not consistent with the 5 -foot
minimum side yard setback." (Report, p.2).
3.6 The Staff Report states: "As proposed, the proposal is not consistent with
development standards addressing setbacks, shoreline buffers, lot coverage limitations and
protective measures for critical areas and water quality." (Report, p.2).
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION - 4 of 28
[90370 -11
DENN[s D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780=6865, fax
Email: dennis @ddrlaw.com
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33 The Staff Report, p. 5, states: "Overall, the HMP does not adequately
demonstrate that the proposed site - specific management area assures no net loss of the
property's specific shoreline ecological functions and associated ecosystem -wide processes."
3.8 The Staff Report, pp 4 -5, states it is unclear how a ratio of 2:1 for mitigation
planting occurring within 50 feet from the OHWM is achieved.
3.9 The Staff Report, p. 6, states: "The HMP fails to provide a link between the
site, the functions to be protected and the buffer width proposed."
3.10 The Staff Report states at page 7, "Insufficient information was provided by
the applicant to verify if the proposed development meets the shoreline structure setback
review requirement."
3.11 The Staff Report, p. 7, states that: No additional information was provided by
the applicant to verify if the proposed development meets the requirements of SMP Section
4.1.5 or SMP Appendix B -9."
3.12 The Staff Report, p 9, states the proposal is inconsistent with setback and
height standards found in Table 4 -2 of the SMP.
3.13 The Staff Report, p. 9, states the applicant did not provide sufficient
information to verify if the project is located and designed to avoid the need for shoreline
stabilization and flood protection works "for the life of the stricture."
3.14 Mr. Imeson appeals all aspect of the Decision holding or finding by reliance on
the Staff Report that inadequate information was submitted to support the shoreline
exemption and/or related reductions of "standard" steep slope setbacks or shoreline buffers
and/or that the proposal fails to meet promulgated standard for approval.
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION = 5 of 28
[90370 -1]
DENNis D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780 -6865, fax
Email: dennis @ddrlaw.com
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3.15 The Decision appears to conclude that "standard" prescriptive setbacks from
steep slopes or the shorelines apply which must be reduced via a Habitat Management Plan
process. If so, this position is contested in this appeal; both (a) that the reduction is required
and/or(b) the information submitted was insufficient for the COBI to make a decision
3.16 Any Findings and Conclusions set out in the Staff Report dated October 24,
2016 which the City asserts in any way support the Decision appealed are also contested in
this appeal.
IV. STATEMENT OF RELEVANT FACTS IN SUPPORT OF
GROUNDS FOR APPEAL
4.0 Mr. Imeson owns an approximately 110,207 square foot parcel (which is part
of the historic Kirkman Plat) located on Bainbridge Island ( "the Property "), on the north shore
of Little Manzanita Bay. The Property's address is 6967 NE Bergman Road. The Assessor's
parcel number is 092502 -2- 060 -2009. The Comprehensive Plan designation is OSR -2 —
OSR -1. The zoning designation is R- 2/R.4. A portion of the property is within Shoreline
Management Act ( "SMA ") jurisdiction. The shoreline environmental designation is
Residential Conservancy. The aquatic designation is Priority Aquatic A. There are no
existing overwater structures on the site. Approximately 2.5 acres is upland area; the
remaining parcel area is tideland. The property is configured as a peninsula, forming a
headland. The slopes on the property are considered "stable" in state - managed data bases and
the site has "no appreciable drift." An existing gravel drive -way and 30400t wide utility
easement bisects the northeastern portion of the parcel. The driveway provides shared access
to the subject lot and adjacent lots to the northwest and east. There is an approximately 30-
foot wide mowed grass area that extends from the shared drive -way along the northern
property line approximately 180 feet. The replacement drive -way will be sited in the area
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION = 6 of 28
[90370-1]
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780 -6865, fax
Email: dennis @ddrlaw.com
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already mowed and "non- disturbed." Invasive species coverage on the parcel is
approximately 8,000 square feet, which will be removed and replaced with native vegetation
as part of project mitigation. All stormwater will be kept on -site and infiltrated.
4.1 Imeson proposes to construct a single-family home on the property, with
appurtenant structures. The proposal is a permitted use in the applicable shoreline and zoning
designations. The single-family home footprint will be approximately 4,079 square feet.
The proposed footprint is within that established by a foundation permit application
previously submitted to the City, but wrongfully rescinded by staff without proper notice as
set out more fully herein, ¶¶ 4913, 4.25. Imeson will eliminate all existing impervious area by
utilizing extensive green or living roofs and pervious driveway pavers. Development will
consist of the removal of six or fewer trees. None of the trees are located in a geologically
hazardous area, but some of the trees are located within the 200 -foot shoreline jurisdiction.
This trees are "hazard trees," that have been certified as dead or dangerous by a reputable
arborist.
4.2 There will be greater than 2,500 square feet of disturbance, but less than 50
cubic yards of grading and fill. The fill placed will be driveway gravel. The excavation
activity will be minimal.
4.3 Boulder Glen, LLC was organized in 2004, with the intent to purchase and
develop unique properties on Bainbridge Island. The Company is solely owned by Patrick
Imeson, a private equity fund manager in Denver, and managed by Michael Imeson,
Bainbridge Island resident and builder for most of the last 20 years.
494 Boulder Glen purchased the Property in February 2006. Westbound Bank, the
bank Mr. Imeson financed through, was seized by the FDIC on May 8, 2008, a step which
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION - 7 of 28
(90370 -1]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780-6777, tel / (206) 780 -6865, fax
Email: dennis @ddrlaw.com
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complicated development because of litigation related to the bank's actions on appellants'
purchase and development loans.
4.5 The purchase and proposed development of the Little Manzanita Bay parcel is
consistent with Boulder Glen's philosophy that it develops waterfront properties only when
that can be done safely, with minimal impact. The project architect retained by Imeson,
Cutler /Anderson, was hired based upon their reputation for sensitive and minimal impact to
shoreline property in its designs. For instance, for Boulder Glen's project, the Architect has
literally surveyed every tree on site to promote maximum preservation and a "walk in the
woods" feel.
4.6 At the time of purchase, Imeson had in hand a geotechnical report from Krazan
& Associates, Inc. dated August 19, 2005 indicating that the proposed home could be
constructed with a shallow foundation system and safely positioned on the peninsula
comprising the subject property. The proposed site location takes advantage of the forest
setting, as well as water and mountain views.
4.7 At the time of purchase, there was an approved BSA from Kitsap County
Health for a six - bedroom home.
4.8 The City of Bainbridge Island adopted Ordinance No. 2007 -05 in November
2007. The Ordinance addresses management of slopes within geologically hazardous areas,
including buffer setbacks. Michael Imeson was advised by City Planning Staff that a
reduction to the pre -CAO buffers for steep slopes would be dependent "on a current
geological report." Mr. Imeson engaged Krazan to update its previous assessment.
499 On April 14, 2008, an updated and revised report was submitted to the City.
That report concluded that the 30 feet from construction to the top of the steep slopes butter or
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION - 8 of 28
190370 -11
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -67779 tel / (206) 780 =6865, fax
Email: dennis@ddrlaw.com
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setback Appellants were proposing would "be sufficient to provide the required protection of
the structure and the steep slopes."
4.10 Appellants were further advised during time peri
thiod by City Planning Staff
to schedule a pre - application conference and request a buffer zone reduction based on the
revised Krazan report "prior to submitting for a building permit." The staff opinion was that
the reduction request would be approved as it was supported by geotechnical evaluation of the
safe proximity of the proposed development to the steep slopes of the Property. However, the
process was longer and more expensive than Boulder Glen was able to commit to at the time,
as it was bogged down in drawn -out negotiations relating to the conduct of the bank.
4.11 In 2013, Appellants were made aware of the pending Shoreline Master
Program Update and its potential impact on the development of the subject property. They
were informed that they would need to file for a building permit prior to implementation of
the SMP in order to protect their proposed building envelope. Mike Imeson started attending
City Council meetings involving the SMP and initiated an ongoing conversation with City
Planner Ryan Ericson, who kept him advised as to the Update. Mr. Imeson shared with
Mr. Ericson the Krazan report and Boulder Glen's intention to request a pre - application
conference to request the steep slope buffer zone reduction. Negotiations with the new note
holder were accelerated as the SMP Update process bogged down and Imeson began to
prepare to make application to the City.
4.12 In March 2014, Mr. Imeson received a call from Ryan Ericson informing him
that he and City Planner Josh Machen had discussed Boulder Glen's desired CAO steep slope
buffer zone reduction and determined that it was "reasonable" given the Krazan geotechnical
update. Further, Mr. Imeson was told that Boulder Glen could consequently forego a pre-
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION - 9 of 28
[90370 -1]
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780-6865, fax
Email: dennis @ddrlaw.com
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application conference and proceed directly to the submission for a building permit based on
the buffer of 30 feet from construction to the top of steep slopes as per the geotechnical
report. Mr. Imeson reasonably interpreted this communication as approval of the 30 46ot
CAO setback.
4.13 Based on the directives set out above, Imeson submitted a Building Permit
Application on June 20,2014, No. BLD20181 for a "foundation only" footprint approval. It
was accepted as "counter- complete" under BIMC § 2.16.020(H)(2) after give -and take
relating to how thorough the material had to be. In the weeks after submission, Mr. Imeson
checked in with City Plans Checker Dave Erbes a couple of times and was assured that things
were in process" at the various departments. In August, he received a letter from Justin
Lauritzen in the Building Department indicating that the building permit could not be issued
for the foundation plan until the plans for the building itself had been submitted.
4.14 On August 29, 2014, Mr. Imeson asked Dave Erbes again about the progress of
the permit and Mr. Erbes generated a printout indicating that drainage, geotech, and planning
reviews were all in process and that there were "no red" flags to indicate that there were any
problems or that the materials submitted had been deemed to be insufficient. The conclusion
was that the building envelope defined by the foundation plan was grandfathered in and that
the only thing needed for issuance of the permit were the building plans requested by Justin.
4.15 At some point in January 2015, Mr. Imeson received a letter from Kelly
Tayara, dated December 18, 2014, indicating that Boulder Glen had not "submitted sufficient
materials" with the application in June to allow several departments to complete a review and
suggesting a pre - application conference to address implications of both CAO and SMP
regulations. The letter referenced "zoning, critical areas and shoreline regulations." It was
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION -10 of 28
[90370-1)
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780-6777, tel / (206) 780-6865, fax
Email: dennis @ddrlaw.com
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contradictory to everything Mr. Imeson had been told previously and to Mr. Imeson's
understanding of the process. It had been six months since Boulder Glen's submission without
any indication that there was a problem.
4.16 Mr. Imeson checked the permit progress online while home on March 25, and
was surprised to see that the permit application had expired in December. He went
immediately to the Building Department and explained the situation to Greg Hiatt, who was
the staff member available at the time. Mr. Hiatt assured Mr. Imeson that the "expired permit"
would be routinely reactivated and extended. He furthered indicated that it was standard
procedure to grant an extension, but that it was his understanding that this was likely to be the
only extension granted without additional fees. He also suggested that Mr. Imeson put an
extension request to Building Official James Weaver in writing, which he immediately did.
Mr. Imeson included a request that all communications be addressed to him personally, as he
had noticed that some letters had been addressed to the property address, where they were
undeliverable.
4.17 While Mr. Imeson was discussing the matter with Mr. Hiatt, Ms. Tayara
overheard the conversation, and told Mr. Imeson that he did not have a permit at all, as he had
not provided any of the necessary materials when he submitted and did not even meet the
criteria of the Critical Areas Ordinance, let alone the SMP. Mr. Imeson explained that Ryan
Ericson had informed him that he and Mr. Machen had approved the buffer reduction and
decided against the need for a pre - application conference based on the geotechnical report.
Ms. Tayara stated that Mr. Imeson needed to talk to Mr. Machen, who was not available at the
time.
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION -11 of 28
[90370.1]
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780-6865, fax
Email: dennis @ddrlaw.com
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4.18 When Mr. Imeson met with Mr. Machen a day or two later to discuss
Ms. Tayara's letter, Josh indicated that he remembered the discussion with Ryan Ericson
about Boulder Glen's buffer zone reduction and then looked up its" permit in the system. He
was unsure what Ms. Tayara's letter was referring to, but showed Mr. Imeson that his permit
was there in the system and assured Mr. Imeson that there were no problems with it that he
could see as far as planning, geotech, and other departments were concerned, other than the
need to provide the building plans before the permit could be finalized. He also stated that the
expiration of the permit "was not a problem." Mr. Imeson's understanding from his
conversation was that the building envelope established by the foundation plan application
(and CAO buffer setback) was effectively grandfathered in ahead of the SMP, but that any
changes that reduced the buffers would fall under the new regulations.
4.19 On April 15, 2015, Leah Applewhite, a local real estate broker with Sotheby's
Realogics, discussed the property and status of the building permit with Mr. Machen, who
confirmed that the building envelope as determined by the submitted foundation plan would
be grandfathered in, but that any proposed changes that fell outside the foundation plan might
fall under the new regulations, confirming Mr. Imeson's earlier conversation with
Mr. Machen,
4.20 In July, 2015 Mr. Imeson received a letter from James Weaver indicating that
an extension had not been granted, and established a deadline for submission of all
documents, as per Ms. Tayara's letter, by August 7, 2015. Given the conversations both
Ms. Applewhite and Mr. Imeson had with Mr. Machen in April, Mr. Imeson was confident
that the discrepancy between the demands for materials and what had been submitted could be
easily resolved in a meeting and went ahead with a detailed survey of every tree of
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION -12 of 28
[903704 ]
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780-6777, tel / (206) 780-6865, fax
Email: dennis @ddrlaw.com
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Q141
significance on the property on Friday, August 7, with Architect Jim Cutler. Further,
Mr. Weaver did not specify what "additional information" was needed, nor had he checked
with Mr. Machen who may not have adequately documented directives to Mr. Imeson but
ft
clearly communicated that the foundation application was "safe."
4.21 On Wednesday, August 12 2015, Mr. Imeson met with Steve Brown, Kitsap
County Health Department, at Bainbridge City Hall and was informed that he did not know
why the pending BSA had not been approved as it appeared that Boulder Glen's septic
designer had complied with everything. Mr. Brown assured Mr. Imeson that he "would dig
into it further" when back in his office.
4.22 Mr. Imeson then met with Mr. Weaver to let him know that the BSA issue
appeared to be resolved and was informed that the building permit had been cancelled as per a
letter that Mr. Imeson was handed. He was stunned. Mr. Weaver informed Mr. Imeson that
he could appeal the decision, but that he should include the approved BSA when he did so.
There was no indication in the letter or from Mr. Weaver personally as to any deadline for the
appeal, but Mr. Imeson's understanding was that he needed the approved BSA first as it is
crucial to the proposed development of the property.
4.23 On August 13, 2015 Mr. Imeson received an email from Mr. Brown indicating
that the BSA application was still pending approval because the designer had not responded to
necessary revisions detailed in a letter dated August 13, 2014. Mr. Imeson contacted Septic
Designer Nathan Cleaver immediately, and was assured that the matter would be handled. On
Friday, August 28, Mr. Imeson was informed that the revisions were completed, and was
advised to deliver them to Mr. Brown, which Mr. Imeson did the following Monday morning.
Mr. Imeson met with Mr. Brown personally, and reviewed the revisions, which included the
MORE DEFINITE STATEMENT OF APPEAL
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[90370 -11
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780 -68651 fax
Email: dennis@ddrlaw.com
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elimination of the ADU that had created a three party well situation that was also a problem.
Mr. Brown advised that everything was in order and that Mr. Imeson should expect final
approval in about a week.
4.24 A week later, Mr. Imeson was informed that, while the onsite septic aspect of
the BSA had been approved, the well needed to be re- tested for nitrates and bacteriological
contamination. Mr. Imeson notified the owner of the well, and was informed that testing had
been ordered and results would be forwarded to the Health District when available.
4.25 On January 15, 2016 Imeson was informed that BLD20181 FND, the
foundation permit application submitted on June 20, 2014, "has expired and has been
canceled."
4.26 On May 2, 2016, Imeson made application for a shoreline substantial
development permit exemption ( "SSDE ") for the proposed home and appurtenant structures.
Between the time of application to the date of denial of the SSDE, the project architect
ema'led the City at least 18 times asking if more information was needed.
4.27 According to the City, a prescriptive 150 400t shoreline buffer applies to the
Property. Due to the configuration of the parcel, the 150 -foot prescriptive shoreline buffer
encumbers the majority of the property.
4.28 The applicants /appellants are proposing a Habitat Management Plan ( "HMP ")
in lieu of the prescriptive buffer:
The HMP (Attachment B) proposes to reduce the shoreline
buffer to 50 feet, an area of no disturbance other than buffer
enhancement; and provide a "forest protection zone," the
remaining forested area of the parcel to be conserved; and a
"mitigation zone," an 8,000 square foot area of invasive species
removal and native replanting.
(Report, p.3).
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION -14 of 28
[40370-1]
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780 -6865, fax
Email: dennis @ddrlaw.com
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4.29 The City's SMP provides for a shoreline substantial development permit
(SSDP) exemption for a single -family home and related appurtenances. See BIMC
§ 16.12.040(I)(1); 16.12.080 (Exempt Development). See also BIMC § 2.16.165(C)(2).
4.30 BIMC § 15.18.030 requires that a property owner obtain a "land clearing
permit" from the Director of Planning and Community Development (Kathy Cook) or her
designee. "Clearing" is defined to include the destruction or removal of vegetation which
includes "trees." There are several exemptions, including the right to clear "...up to six
significant trees... in any 12 month period." See BIMC § 15.18.040(A). There are additional
exemptions for (1) clearing up to 2500 square feet of land in any 12 -month period;
(2) removal of trees in an emergency situation; or (3) removal of diseased, dead or dying
trees. Ibid, Subsections B, E and F. The latter requires written verification by a qualified
arborist, landscape architect or landscape contractor. Id., Section F. A "significant tree: is
defined as.
Significant tree" means: (a) an evergreen tree 10 inches in
diameter or greater, measured four and one -half feet above
existing grade; or (b) a deciduous tree 12 inches in diameter or
greater, measured four and one -half feet above existing grade;
or (c) all trees located within a required critical area buffer as
defined in Chapter 16.20 BIMC.
(BIMC § 18936.020(223)).
4.31 On June 3, 2003, Boulder Glen's predecessor -in- interest recorded a notice of
title pursuant to the City's Critical Area Ordinance, BIMC § 16.20.1900 A true and accurate
copy of the Notice is annexed hereto as Exhibit 4, by reference made part of this Statement.
4.32 The new SMP states as to its vegetation and land clearing requirements.
"Existing buffers and setbacks that have been established through previously approved
subdivisions and indicated on the face of an approved plat shall be recognized and adhered
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION -15 of 28
[9o37a 1 l
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780 -6865, fax
Email: dennis @ddrlaw.com
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to." SMP § 4.1.3.4(2) (p.77) (emphasis supplied). Here, the Notice is tantamount to a plat
approval, because it establishes both a CAO buffer and shoreline buffer.
4.33 Mr. Imeson proposes a comprehensive mitigation plan encompassing three
"zones" on the parcel.
BIMC 16.12.030.A.3.c.114A) allows applicants to propose site -
specific vegetation management areas in lieu of standard
buffers. Given the complex shape of the shoreline and presence
of slopes, the proposed development was sited to avoid and
minimize impacts to water quality, native plan communities,
and wildlife habitat. The proposed Site - Specific Vegetation
Management Area includes the following.
• Buffer Zone 1: All existing native groundcover, shrubs, and
Significant trees within 50 feet from shoreline will be
conserved. This buffer will protect water quality of the
adjacent shoreline, as well as existing forested shoreline
habitat. Sparsely vegetated areas within this buffer area will
be replanted with a mix of native trees, shrubs, and
groundcover.
• Forest Protection Zone: All existing native groundcover,
shrubs, and significant trees will be conserved in forested
areas throughout the parcel, excluding the proposed building
and driveway footprint, plus a 15 -foot construction and
maintenance setback.
• Mitigation Zone: Areas proposed for vegetation mitigation
as a part of this proposal will be maintained as a native
multi - strata vegetation community in perpetuity. This
includes one area within the Buffer Zone 1.
The proposed site - specific vegetation management area detailed
above is designed to protect shoreline buffer functions,
including shade, insect and detritus inputs to the nearshore,
wave energy attenuation, overhanging vegetation and large
woody debris structure along the shoreline, forest structure for
wildlife, shoreline stabilization by vegetation structure, and
filtration of sediment and non -point organic pollutants (Levings
and Jamieson 2011). By establishing a minimum width of 50
feet for Buffer Zone 1, the plan ensures that the vegetation
management area will maintain a minimum standard for
protecting vegetation that contributes most directly to shoreline
functions. The Forest Protection Zone protects all existing
forested vegetation outside of the development footprint to
MORE DEFINITE STATEMENT OF APPEAL DENNIs D. REYNOLDS LAW OFFICE
OF ADMINISTRATIVE DECISION -16 of 28 200 Winslow way West, suite 380
(903 70 -11 Bainbridge Island, WA 98110
(206) 780 =6777, tel / (206) 780 -6865, fax
Email: dennis @ddrlaw.com
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conserve those functions, such as wildlife habitat, sediment
filtration, large wood recruitment, shading, and microclimate
that extend well beyond 50 feet from the shoreline edge
(summarized in Herrera 2011). Finally, by reestablishing a
native, multi - storied forested buffer in areas that presently have
sparse vegetation, the Mitigation Zone will improve marine
buffer functions within the subject parcel.
HABITAT MANAGEMENT PLAN prepared on behalf of Boulder Glen LLC, The Watershed
Company, April 2016, Section 4.2 (Site - Specific Vegetation Management Area), p.7.
4.34 The Mitigation Plan is a combination of mitigation strategies, including
avoidance, minimization, rectify, reduce, compensate and monitor expected impacts and
mitigation success.
Consistent with BIMC 16.12.030.B.2.da., the follow secti
ing on
describes the process of mitigation sequencing followed to
develop the project proposal.
Avoid
• All proposed development is limited to the area beyond 50
feet from the OHWM.
• As part of the proposed development, areas outside of the
development footprint will be designated as "Forest
Protection Zone." Vegetation impacts within this zone will
be avoided.
• All structures are located outside of a 30-foot setback from
the top of steep slopes.
• The proposed on -site septic system is located as far from the
shoreline as possible on the parcel (at least 100 feet) to limit
any effects to water quality. The proposed septic system is
also located in an area that is presently limited to
herbaceous vegetation, so no clearing will be required to
accommodate it.
• ill follow an area where existing
The proposed driveway w
vegetation is limited to mowed grasses.
• Through the use of low- impact development techniques,
including an infiltration trench and pervious pavement,
stormwater will be designed for 100 percent infiltration. An
overflow to the infiltration trench will be designed to
accommodate extreme events. This overflow will disperse
MORE DEFINITE STATEMENT OF APPEAL DENNIs D. REYNOLDS LAW OFFICE
OF ADMINISTRATIVE DECISION -17 of 28 200 Winslow Way West, suite 380
[90370 -11 Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780 -6865, fax
Email: dennis @ddrlaw.com
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water through a dispersion tee above
additional infiltration would be antic'
marine waters (Appendix Q.
Minimize
the OHWM, where
><pated before reaching
• The house is configured, located, and designed to avoid and
minimize impacts to significant trees (Appendix A). Six
significant trees will be removed to accommodate
construction of the home.
• By constructing the house on piles, rather than using a
traditional foundation, the project will significantly limit the
area of sediment disturbance, and the root structure of trees
adjacent to the house will be preserved.
• During construction, any heavy equipment within the
critical root zone of the existing trees will be operated over
an & to 10- inch -thick pile of coarse mulch (and plywood in
heavy traffic areas), to minimize soil compaction that could
damage roots. This approach to construction will retain
approximately 10 significant trees that would likely
otherwise be damaged or killed from excavation if the house
was built on a slab.
• A stormwater pollution and prevention plan (SWPP) will be
developed and implemented to ensure that temporary
construction activities do not adversely affect the
surrounding habitat and shoreline conditions.
• New driveway surfaces will be constructed using pervious
technologies to infiltrate all runoff (Appendix C).
Recti
• Existing invasive vegetation, including Himalayan
blackberry, scotch broom, and holly will be manually
removed from the site. Ivy will be removed from any trees
on the site to a distance of 5 feet out from the trunk base.
Areas of invasive species removal will be replanted with
native ground cover or shrub vegetation (Appendix B).
• Any temporary disturbance areas associated with
construction activities will be stabilized following
completion of construction.
Reduce
• The use of pesticides, herbicides, and fertilizers will be
limited over the entire parcel area consistent with standards
in BIMC 16.12.030.B.5.b and c.
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION -18 of 28
[90370 -11
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780-6777, tel / (206) 780 -6865, fax
Email: dennis @ddrlaw.com
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Compensate
• All vegetation areas disturbed through construction of the
house will be mitigated with multi - storied native vegetation
at a ratio of 2:1 for mitigation plantings occurring within 50
feet from the OHWM and 3:1 for mitigation plantings
within 50 -150 feet from the OHWM (Appendix B).
Mitigation areas were identified to first ensure that all areas
within Buffer Zone 1 achieve a minimum of 65 percent
canopy coverage, and second, to promote contiguous native
vegetation and increase canopy coverage closest to the
shoreline outside of Buffer Zone 1.
Monitor
• Mitigation areas will be maintained and monitored for five
years following installation. The areas shall be released
from monitoring requirements once all areas meet
established performance standards (Appendix B).
HABITAT MANAGEMENT PLAN prepared on behalf of Boulder Glen LLC, The Watershed
Company, April 2016, Section 4.2.1 (Mitigation Sequencing), pp.8 -10.
4.35 The Single Family Residence Shoreline Mitigation Manual is part of the SMP.
According to the Manual, there are prescribed limits on construction, which are:
Table 1. Qualified Single Family Residential (SFR) developments and associated impacts
requiring mitigation.
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION -19 of 28
19037NIJ
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780-6865, fax
Email: dennisQddrlaw.com
Maximum Size
Development Category
Structure Type
Constraints (based on
footprint)
SRF including any accessory
4,000 ft'
a
New
development
Driveway or parking area
No maximum
Accessory
Detached garage or
580 ft'
carport
Guest house or ADU
800 ft'
Note: the footprint of
Boathouse (only in upland)
200 ft2
existing SRF including all
accessory developments
with the exception of a
Patio —with or without BBQ pit
120 ft 2
guest house or accessory
or deck
Hot tub + deck / patio
120 ft'
dwelling unit (ADU)
cannot
exceed 4000 112
Sport court
200 ft
Gazebo, utility shed, well
200 ft2
house, greenhouse
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION -19 of 28
19037NIJ
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780-6865, fax
Email: dennisQddrlaw.com
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Single Family Residential Shoreline Mitigation Manual, p.4.
4.36 The Manual uses a "No Net Loss" standard. This concept is being refined and,
in practice, is very subjective. The Manual defines No Net Loss as.
Not [sic] Net Loss — As a public policy goal, the maintenance of
the aggregate total of the City's shoreline ecological functions at
its current level of environmental resource productivity. As a
development and/or mitigation standard, no net loss requires that
the impacts of a particular shoreline development and/or use,
whether permitted or exempt, be identified and prevented or
mitigated, such that it has no resulting adverse impacts on
shoreline ecological functions or ecosystem -wide processes.
Each project shall be evaluated based on its ability to meet the
no net loss standard commensurate with its scale and
character.
Bainbridge Island Shoreline Master Program, Definitions, p.248.(Emphasis supplied)
4.37 The Manual states: "Mitigation for vegetation cleared in the shoreline
jurisdiction requires replacement with an equivalent or larger area of native multistoried
vegetation (includes groundcovers, shrubs and trees). The planted areas are subject to final
approval by the Planning Director and recorded on title. The planted "mitigation" area is
"...intended to be protected in perpetuity..." (Manual, p 6).
V. SUMMARY OF GROUNDS FOR APPEAL
5.0 Appellants reallege their allegations set out in Sections I — IV of the appeal.
5.1 For the reasons set out herein, the City's Decision is clearly erroneous.
ement of Factual Errors
5.2 The Decision is in error in finding that insufficient information was provided
to support the HMP and its buffer recommendations.
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION - 20 of 28
[90370-11
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 =6777, tel / (206) 780=6865, fax
Email: dennis @ddrlaw.com
Retaining wall —new or
replacement (upland)
3.5 ft. depth and 4 ft.
height with no surchargeb
Deck (attached to house)
400 ft2
Stairs to beach
150 ft2 to 300 ft2
Single Family Residential Shoreline Mitigation Manual, p.4.
4.36 The Manual uses a "No Net Loss" standard. This concept is being refined and,
in practice, is very subjective. The Manual defines No Net Loss as.
Not [sic] Net Loss — As a public policy goal, the maintenance of
the aggregate total of the City's shoreline ecological functions at
its current level of environmental resource productivity. As a
development and/or mitigation standard, no net loss requires that
the impacts of a particular shoreline development and/or use,
whether permitted or exempt, be identified and prevented or
mitigated, such that it has no resulting adverse impacts on
shoreline ecological functions or ecosystem -wide processes.
Each project shall be evaluated based on its ability to meet the
no net loss standard commensurate with its scale and
character.
Bainbridge Island Shoreline Master Program, Definitions, p.248.(Emphasis supplied)
4.37 The Manual states: "Mitigation for vegetation cleared in the shoreline
jurisdiction requires replacement with an equivalent or larger area of native multistoried
vegetation (includes groundcovers, shrubs and trees). The planted areas are subject to final
approval by the Planning Director and recorded on title. The planted "mitigation" area is
"...intended to be protected in perpetuity..." (Manual, p 6).
V. SUMMARY OF GROUNDS FOR APPEAL
5.0 Appellants reallege their allegations set out in Sections I — IV of the appeal.
5.1 For the reasons set out herein, the City's Decision is clearly erroneous.
ement of Factual Errors
5.2 The Decision is in error in finding that insufficient information was provided
to support the HMP and its buffer recommendations.
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION - 20 of 28
[90370-11
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 =6777, tel / (206) 780=6865, fax
Email: dennis @ddrlaw.com
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5.3 The Decision is in error to the extent it finds that insufficient information was
provided to allow the COBI to verify compliance with shoreline structure view setbacks,
critical areas requirements and storm water management controls, among others cited above,
¶¶ 33-3.4, 33-3.10, 39130
5.4 The Decision is in error to the extent it finds that the HMP fails to provide a
link between site characteristics, the shoreline functions to be protected and the buffer width
proposed.
5.5 The Decision is in error to the extent it finds that the HMP does not
adequately demonstrate that the proposed site - specific management area assures no net loss of
the property's specific shoreline ecological functions and associated ecosystem -wide
processes.
5.6 The Decision is in error to the extent its finds the proposal is inconsistent with
the policies or requirements of the SMP and/or the SMA. The proposed residential home
development as mitigated does comply with the requirements of the SMP and the SMA.
5.7 The Decision is in error in finding that the proposal fails to show why the
residence cannot be located outside of the prescriptive buffer or the footprint of the home
reduced to avoid impacts.
5.8 The Decision is in error to the extent it finds that the COBI requested
information with sufficient detail to provide Imeson a chance to adequately respond.
5.9 The Decision is in error to the extent it finds that the total area disturbed is
approximately 11, 532 square feet.
5.10 The Decision is in error to the extent it finds that vegetation or site conditions
on the subject parcel are unique and essentially irreplaceable.
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION = 21 of 28
[90370.11
DENNis D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780 -6865, fax
Email: dennis@ddrlaw.com
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Statement of Legal Errors
5.11 It is error for the COBI to delegate its local decision - making authority to the
State of Washington Department of Fish and Wildlife and/or the Squamish Indian Tribe.
5.12 The Decision errors in how it interprets and applies "no net loss." NNL
cannot be imposed as a substantive standard that (1) trumps the SMA "minimization"
requirement, (2) alters the balance inherent in the SMA (3) changes provisions for preferred
uses , such as single-family homes. The SMA provides that "[a]lterations of the natural
conditions of the shorelines and shorelands shall be recognized by the department."
RCW 90.58.020 (emphasis supplied). Single-family homes are expressly recognized as a
priority use of the shorelines, which falls within allowed alterations. RCW 90.58.020;
WAC 173 -27- 241(3)0). Impacts are to be "minimized in so far as practical." RCW
90.58.202.
5.13 It is error to conclude that the proposed HMP fails to meet "no net loss"
shoreline protection standards. The City's NNL standards mandate that mitigation be
considered, including "compensatory mitigation." See BIMC § 16.12.030(B)(2)(b)(iii)(A)(2);
BIMC § 16.12.030(13)(2)(d)(i)(E). That was not done.
5.14 The Decision errors in considering the driveway as 6,378 square feet of "new
development." The driveway replaces an existing developed impervious driveway and
appurtenant grass managed area with a pervious substitute in an are already cleared and
placed into intensive management.
5.15 The Decision is in error to the extent it fails to recognize that the COBI
already approved a 30 400t steep slop buffer from the of -okhe slope.
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION= 22 of 28
190370 -11
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780 -6865, fax
Email: dennis @ddrlaw.com
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5.16 The Decision errors to the extent it allowed the Bainbridge Island Critical
Areas Ordnance to "trump" what was at the time a 50 -foot SMP buffer requirement. See
RCW 36.70a.480.
5.17 The Decision errs in failing to apply COBI Code requirements allowing Staff
to request — and the applicant provide — additional information to support a land use proposal
or request as mandated by the law. See RCW 36.70B.220.
5.18 The Decision errs in failing to consider all sections of the SMP, including
those which allow (1) construction of a single -family home; (2) use of compensatory
mitigation and/or (3) exemptions for cutting a minimum number of trees or dead and
dangerous trees.
5.19 The Decision illegally fails to consider other promulgated methods to reduce
or avoid the 150 -foot prescriptive buffer including but not limited to those applicable to
encumbered lots or view preservation requirements.
5.20 The Decision illegally applies a revocation of the building permit or
foundation footprint application; which revocation decision was made without notice to the
applicant or opportunity to contest the same, and therefore, is not binding.
5.21 The Decision violates the vested rights doctrine invoked by submittal of the
foundation building permit application.
5.22 The Decision violates the Notice of Title which is a covenant that runs with
the land and provides for a 50 400t shoreline buffer and 304ot steep slope setback.
513 The Decision erroneously concludes the proposal does not meet side -yard
setbacks, height restrictions of other bulk or dimension standards set out in the SMP.
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION - 23 of 28
[90370 -11
DENNts D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780-6865, fax
Email: dennis @ddrlaw.com
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5.24 The Decision illegally violates the doctrine of finality as to the Notice of Title
recording and/or CAO setback decision.
5.25 The City's Decision illegally imposes what are in effect permit requirements
for exempt activities. The Shoreline Hearings Board struck down a similar process when it
invalidated the SMA Rules.
Part III of the guidelines regulates exempt uses by requiring that
local governments issue letters of exemption to cover activities
that are not subject to permit requirements. Those letters must
set forth a statement that "All uses and development occurring
within the shoreline jurisdiction must conform to chapter 90.58
RCW, the Shoreline Management Act and this master
program." WAC 173- 27 =190(2)(3)(111)(A). Part IV of the
guidelines requires, in the case of exempt developments, that
the letter of exemption include conditions "where necessary to
ensure that the development does not cause significant
ecological impacts or contribute to potential adverse cumulative
impacts." WAC 173- 27- 300(2)(g)(i). Under Part IV, the
master program must include a mechanism for assuring that the
development meets the mitigation requirements of the letter of
exemption. This may include a performance bond. WAC 173-
27- 300(2)(g)(11). Local governments must also provide a means
for final inspection of exempted development and send the
results of final inspections to Ecology.
The provisions governing letters of exemption under
[Department of Ecology Guidelines] exceed the statutory
authority of the SMA. The provisions are therefore invalid.
The [required] letter of exemption operates as a permit. It sets
forth conditions and requires enforcement mechanisms for those
conditions including, possibly, a bond. These terms create a
new permitting process for activities that are specifically
exempt from shoreline permit requirements. The letter of
exemption created [by Ecology] is also devoid of the procedural
requirements of a shoreline permit, or for that matter, any other
land use permit. Additionally, the conditioned letters of
exemption do not give notice to the public as required under
RCW 90.58.140 or an opportunity to appeal the terms of the
letter of exemption under the SMA, RCW 90.58.140 or an
opportunity to appeal the terms of the letter of exemption under
the SMA, RCW 90.58.180(1), for the permitee [sic] or an
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION - 24 of 28
[90370 -1]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780 -6865, fax
Email: dennis @ddrlaw.com
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aggrieved third party. Putnam v. Carroll, 13 Wn. App. 201
(1975). Because the new guidelines [by Ecology] essentially
create a permit for activities that are specifically exempt for
shoreline permits, [they are] invalid.
See SHB Case No. 00 -037 (Order Granting and Denying Appeal, 2001); 2001 WL 1022097
(emphasis supplied).
5.26 There is a fundamental right to own and reasonably develop real property free
of arbitrary governmental actions, including application of the law without basis in law or
fact. See, e.g., Carpinteria Valley Farms v. County of Santa Barbara, 334 F.3d 796 (Ninth
Circuit, 2003).
5.27 The right to build on and/or use one's property is a fundamental attribute of
property ownership and exists without regard to zoning laws, which operate as restrictions on
the use of property. Nollan v. California Coastal Commission, 483 U.S. 825, 833 n.2, 107 S.
Ct. 3141, 97 L. Ed.2d 677 (1987) (the "right to build on one's own property — even though its
exercise can be subjected to legitimate permitting requirements — cannot remotely be
described as a' 9 overnmental benefit. "'); River Park v. City of Highland Park, 23 F.3d 1649
166 (7th Cir. 1994) ( "An owner may build on its land; that is an ordinary element of a
property interest. Zoning classifications are not the measure of the property interest but are
legal restrictions on the use of property. "); see also Palazzolo v. Rhode Island, 533 U.S. 606,
627 (2001) (explaining that government cannot extinguish a person's rights in his or her
property by regulation).
5.28 The regulatory process does not negate the very existence of property
development and use rights — a person's property rights exist regardless of the regulatory
restrictions that may burden those rights. See Nectow v. Cambridge, 277 U.S. 183, 187, 48 S.
Ct. 4475 72 L Ed. 842 (1928); Euclid v Ambler Realty Co., 272 U.S. 3659 384, 47 S. Ct. 1145 71
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION on 25 of 28
[90370-1]
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780=6777, tel / (206) 780=6865, fax
Email: dennis @ddrlaw.com
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L. Ed. 303 (1926). A property owner who submits a land use application is not requesting a
government- created benefits he or she is following the procedures required to exercise the right
to make use of private property. Nollan, 483 U.S. at 833 n.2. The City's unreasonable denial
of the SSDE violates Appellants' protected rights to maintain and protect their property and
persons who use it.
5.29 The City's SMP does not trump the SMA. The SMA is sensitive to protection
of private property rights. The Shoreline Management Act (SMA) unequivocally states that
coordinated planning is necessary in order to protect the public interest associated with the
shorelines of the state while, at the same time, recognizing and protecting private
property rights consistent with the public interest. RCW 90.58.020 (emphasis supplied).
The SMA also states that "the Legislature further finds that much of the shorelines of the state
and the uplands adjacent thereto are in private ownership ...." RCW 90.58.020 (emphasis
supplied).
5.30 In Washington, the Growth Management Act (GMA) requires that
governments plan their growth, while also protecting the private property rights of
individuals: "Private property shall not be taken for public use without just compensation
having been made. The property rights of landowners shall be protected from arbitrary and
discriminatory actions." RCW 36.70A.020(6).
5.31 The City's Decision violates statutory and constitutionally protected private
property rights and is arbitrary as set out herein.
5.32 The Growth Management Act (GMA, RCW 36.70A.020(7), provides that: "...
applications for ... local government permits should be processed in a ... fair manner to
preserve predictability." The Application in question was not processed in a fair manner.
MORE DEFINITE
OF ADMINISTRA
[90370-1]
STATEMENT OF APPEAL
TIVE DECISION- 26 of 28
DENNis D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780-6865, fax
Email: dennis @ddrlaw.com
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5.33 The SMA allows as an exempt activity construction on shorelands of a single-
family home and normal appurtenant structures. See RCW 90.58.030(3)(e)(i); WAC 173 -27-
050 (letter of exemption); WAC 173 -27- 040(2) (g).
5.34 The SMA and GMA are general laws of the state, and a local ordinance cannot
be construed or applied to conflict with a general law of the state. The Decision illegally
conflicts with the SMA and the GMA.
5.35 The Decision violates Appellants' constitutional rights, including their right to
substantive and/or procedural due process, equal protection, and the right to be free from
arbitrary or discriminatory application and enforcement of promulgated laws.
1111�11WJW10W3rl
6.0 The $530 appeal fee was tendered with the original appeal.
VII. RELIEF REQUESTED
Appellants request that the Office of Hearing Examiner, upon review:
7.0 Grant the appeal.
7.1 Reverse and vacate the Decision and remand with instructions to the City to
process the requested SSDE for the proposed single - family home development.
7.2 Grant any other further relief that is just and fair under the circumstances.
DATED this 20t1i day of March, 2017.
DENNIS D. REYNOLDS LAW OFFICE
By
Dennis D. Reynolds, WSBA #04762
Attorneys for Appellants Mike Imeson and
Boulder Glen LLC
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION - 27 of 28
19031x11
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780 -6865, fax
Email: dennis @ddrlaw.com
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CERTIFICATE OF SERVICE
I, the undersigned, hereby certify under penalty of perjury under the laws of the State
of Washington, that I am now, and have at all times material hereto been, a resident of the
State of Washington, over the age of 18 years, not a party to, nor interested in, the above -
entitled action, and competent to be a witness herein.
I caused a true and correct copy of the foregoing pleading to be served this date, in the
manner indicated, to the parties listed below:
Stafford L. Smith, Hearing Examiner
❑ Legal Messenger
c/o Debbie Rose
❑ Hand Delivered
Hearing Examiner Administrative Specialist
❑ Facsimile
City of Bainbridge Island
u�Ftrst Class Mail
200 Madison Avenue North
❑ Express Mail, Next Day
Bainbridge Island, WA 98110
Ir Email
drose@bainbrid eewa. eov
Hearing Examiner
James E. Haney, WSBA #11058
❑ Legal Messenger
Ogden Murphy Wallace, PLLC
❑ Hand Delivered
901 Fifth Avenue, #3500
❑ Facsimile
ra --hrst Class Mail
Seattle, WA 98164 -2008
(206) 447 -7000, tel / (206) 447 -0215, fax
❑ Express Mail, Next Day
jhaneyga,omwlaw.com; cmace
a' Email
e,omwlaw.com
Attorneys for Respondent City of Bainbridge Island
Joseph B. Levine, WSBA #30136
❑ Legal Messenger
City Attorney / City of Bainbridge Island
❑ Hand Delivered
280 Madison Avenue North
❑ Facsimile
Bainbridge Island, WA 98110
a-" First Class Mail
(206) 780 -8622, tel
❑ Express Mail, Next Day
2-1 Email
ilevinel7a bainbridgewa.eov, email
City Attorney, City of Bainbridge Island
DATED at Bainbridge Island, Washington, this 201h day of March, 2017.
JBrenner, il,PParalegal
MORE DEFINITE STATEMENT OF APPEAL
OF ADMINISTRATIVE DECISION - 28 of 28
[90370 -t]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780-6865, fax
Email: dennis@ddrlaw.com
BOULDER GLEN
EXMBIT 1
NOTICE OF ADMINISTRATIVE DECISION
The City of Bainbridge Island has made a decision concerning the following land use application:
Date of Issuance. November 2, 2016
Project Name & Number: Imeson Boulder Glen LLC SSDE PLN50438 SSDE
Project Type: Shoreline Substantial Development Exemption
Owner: BOULDER GLEN LLC
Project Site & Tax Parcel: 6967 NE BERGMAN RD, TA #09250220602009
Project Description: Construction of single-family residence using the site specific vegetation
management area process in the Shoreline Master Program
Project Decision: The application is denied. This proposal is subject to administrative review
under Chapter 2.16.030 of the Bainbridge Island Municipal Code. The staff
report containing the findings of facts upon which the decision is based,
including the conclusions of law derived from those facts and the conditions of
approval, is available to the public upon request. The decision becomes final
after 14 days from the date of ance, or after November 16, 2016.
W
Decision Maker: Signature Date: d
ow
x,
Q
ary W ten s e , AICP 0 ainbridge Island
Director of Planning and Community Development
Appeal Procedure: This administrative decision may be appealed by filing a written appeal
containing a summary of grounds for the appeal and paying a $530.00 filing
fee to the City Clerk at 280 Madison Avenue North, Bainbridge Island, WA
98110, in accordance with the procedures set forth in the Bainbridge Island
Municipal Code, Section 2.16.020. An appeal must be filed no later than
4:00 p.m., Tuesday, November 16, 20169
If you have any questions, contact:
Christy Carr, AICP
Senior Planner
Department of Planning & Community Development
280 Madison Avenue North
Bainbridge Island, WA 98110
206 - 780-3719 or pcd@bainbridgewa.gov
BOULDER GLEN
EX sIT 2
CITY OF
BAINBRIDGE
ISLAND
STAFF REPORT
DEPARTMENT OF PLANNING AND
COMMUNITY DEVELOPMENT
Date: October 24, 2016
To: Gary R. Christensen, AICP, Director
From: Christy Carr, AICP, Senior Planner
Project: Imeson Shoreline Substantial Development Exemption
File Number: PLN50438SSDE
Owner: Mike Imeson, Boulder Glen LLC
Project Location: 6967 NE Bergman Road
Tax parcel number 092502 -2- 060 -2009
Environmental
Review: The project is not subject to State Environmental Policy Act (SEPA) review as
provided in Washington Administrative Code (WAC 197 -11 -800).
I. Introduction
The subject property is located on the north shore of Little Manzanita Bay in the Shoreline Residential
Conservancy shoreline designation and Priority Aquatic A aquatic designation. The total parcel area is
4.5 acres, although only approximately 2.50 acres is upland area. The remaining parcel area is tideland.
The parcel is presently undeveloped. The proposed development activity includes the construction of a
single - family residence and associated appurtenance structures. Staff recommends denial of the
shoreline substantial development exemption (SSDE) application based on the findings of facts and
conclusions in this staff report and summarized in Section V (page 9).
All proposed uses and development occurring within the shoreline jurisdiction must conform to the
Washington State Shoreline Management Act (SMA) and the Bainbridge Island Shoreline Master
Program (SMP). The proposed project meets the definition of "development' as provided in the SMA
and Bainbridge Island SMP; appropriately, the applicant submitted a Shoreline Substantial Development
Exemption (SSDE) application (Attachment A) and supporting documentation to evaluate the merits of
the permit request. Compliance with the provisions of the SMP, SMA and applicable BIMC regulations is
described below.
II. Compliance with Bainbridge Island Shoreline Master Program
Compliance with applicable sections of the Bainbridge Island SMP is described in the following sections:
PLN504381meson SSDE Page 1
A. Section 3.0: Shoreline Designation Policies and Regulations
The purpose of the Shoreline Residential Conservancy designation is to accommodate compatible
residential uses while protecting, conserving, and restoring shoreline ecological functions and processes
Due to the more sensitive characteristics of these areas, a higher level of development standards is
warranted. As proposed, the proposal is not consistent with development standards addressing
setbacks, shoreline buffers, lot coverage limitations and protective measures for critical areas and water
quality.
B. Section 4.0: General (island -wide) Policies and Regulations
Table 4 -1. Shoreline Use and Modification
Single- family residential development and appurtenant structures are permitted uses in the Shoreline
Residential Conservancy shoreline designation.
Table 4 -2. Dimensional Standards
Residential development is subject to the 30 percent side yard setback and zoning requirements. Staff
measured the 30 percent side yard from an east -west orientation. Lot width is approximately 325 feet;
therefore, the 30 percent side yard setback is 97.5 feet. The site plan shows approximately 125 feet in
total side yard. The proposal is consistent with the 30 percent side yard standard.
The subject property is located in the 11-2 zoning designation and requires a 5 -foot minimum side yard.
The site plan shows a portion of the proposed residence within the minimum 5 400t minimum side yard
setback. The proposal is not consistent with the minimum zoning side yard standard.
The maximum building height within the shoreline jurisdiction is 30 feet. No elevation drawings or other
information regarding height was provided by the applicant. Insufficient information was provided to
determine if the proposal is consistent with the maximum height standards.
Table 4 -3. Shoreline Buffers
The subject property is located in the Shoreline Residential Conservancy shoreline designation on an
undeveloped lot; as such, the prescriptive shoreline buffer is 150 feet.
C. Section 4.1.2: Environmental impacts
All shoreline development, uses and activities are required to result in no net loss of ecological functions
and processes necessary to sustain shoreline resources. Compliance with the applicable provisions of
Section 41.2 are summarized in Section D, below.
D. Section 4.1.3: Vegetation Management
Site4peciflc Vegetation Management Area
PLN50438 Imeson 55DE Page 2
Development within the shoreline jurisdiction must be located and designed to protect existing native
vegetation from disturbance to the fullest extent possible, to mitigate impacts to existing vegetation,
and to meet the standard of no net loss of ecological functions and processes. Two alternative methods
may be used to meet the goals and policies of the Vegetation Management Section. Due to the
configuration of the parcel — forming a headland on the north shore of Little Manzanita Bay - the 150 -
foot prescriptive shoreline buffer encumbers the majority of the property. Pursuant to SMP Section
4.1.3.5.3.a, the applicant is proposing specific dimensional standards to meet the Vegetation
Management goals and policies as determined through a Habitat Management Plan (HMP) prescribed in
SMP Appendix 134.
Pursuant to SMP Appendix B -4:
•
HM Ps shall clearly demonstrate that greater protection of the functions and values of critical
areas can be achieved through the HMP than could be achieved through providing the
prescribed habitat buffers.
•
HM Ps are primarily intended as a means to restore or improve buffers that have been degraded
by past activity, and should preserve, and not reduce, existing high quality habitat buffers.
• HMPs shall provide habitat functions and values that are greater than would be provided by the
prescribed habitat buffers. When habitat buffers are a component of an HMP, they shall be at
least the minimum size necessary to accomplish the objectives of the HMP.
The HMP must demonstrate the following.
(1) The proposed development is for a residential use.
The proposal is for single -family residential use.
(2) The site- specific proposal assures there is no net loss of the property's specific shoreline
ecological functions and associated ecosystem -wide processes pursuant to Section 4.1.2, Impact
Analysis and No Net Loss.
The purpose of the prescriptive 150400t shoreline buffer on undeveloped lots in the Shoreline
Residential Conservancy designation is to "advance shoreline protection when future
development occurs" (Documentation of Marine Shoreline Buffer Recommendation Discussions,
Memorandum, 2011, Herrera Environmental), The HMP (Attachment B) proposes to reduce the
shoreline buffer to 50 feet, an area of no disturbance other than buffer enhancement; and
provide a "forest protection zone," the remaining forested area of the parcel to be conserved%
and a "mitigation zone," an 8,000 square foot area of invasive species removal and native
replanting.
Pursuant to SMP Section 4.1.2.4.1, all shoreline development, use and activities shall be located,
designed, constructed, and maintained in a manner that protects ecological functions and
ecosystem -wide processes and is required to utilize mitigation sequencing. The HMP provides a
summary of mitigation sequencing. The first action, in order of priority, in mitigation sequencing
Is, "Avoiding the Impact altogether by not taking a certain action or parts of an action" (SMP
Section 4.1.2.6.1.a). The HMP does not address why the proposed residence cannot be located
outside the prescriptive 150 -foot shoreline buffer in order to avoid impacts. It does state, "The
proposed septic system is also located in an area that is presently limited to herbaceous
PLN50438 Imeson SSDE page 3
vegetation, so no clearing will be required to accommodate it" (See HMP, page 8). The HMP
does not state how big this area is and /or why the residence cannot also be located in an area
where no clearing will be required to accommodate it, thus avoiding impacts.
Further, the proposed residence is 4,139 square feet with a total lot coverage of 5,172 square
feet. (Note the HMP text and site plan provide different numbers for the square footage.) SMP
Section 4.2.1.7 contains provisions for encumbered lots —those parcels that are significantly
encumbered by shoreline or critical area buffers — including allowing a building area not to
exceed 2,500 square feet with maximum lot coverage of 1,200 square feet. While this section of
the SMP is not directly applicable, staff considers 1,200 square feet a good metric when
considering the impacts of the proposed development. The proposed lot coverage is nearly 4,_5
times larger than the 1,200 square feet allowed on encumbered lots. The HMP does not address
the potential to minimize impacts by reducing the footprint of the house.
A number of actions are proposed to minimize impacts, including configuring the house to avoid
significant tree removal, constructing the house on piles to limit ground and root disturbance
and utilizing low impact development (LID) techniques including infiltration and pervious
pavement. These actions would minimize impacts relative to conventional construction
practices.
Rectifying impacts is proposed through post - construction site stabilization and invasive species
removal and replanting with native shrubs and groundcover in a total of 8,000 square foot area.
A direct tie is not made as to which specific impact invasive species removal Is rectifying and
whether or not invasive species are, in fact, already performing buffer functions.
Compensatory mitigation is proposed through native vegetation replanting for "all vegetation
areas disturbed through construction of the house at a ratio of 2:1 for mitigation plantings
occurring within 50 feet from the OHWM and 3:1 for mitigation plantings within 50450 feet
from the OHWM" (See HMP, page 9). The total temporary disturbance footprint of the house is
stated to be 5,154 square feet (see HMP, page 6); however, the total lot coverage of the house
is 5,172 square feet which likely means the total disturbance area is greater than stated. The
HMP also states the house will be accessed by an approximately 100400t -long by 10- foot -wide
pervious driveway. The conceptual drainage plan included in the HMP shows the driveway to
range from 13 to over 15 feet wide. The site plan included In the HMP shows the driveway with
a 6,378 square foot footprint.
Presuming the numbers in the HMP are relatively accurate, the total area disturbed through
construction of the house and driveway is approximately 11,532 square feet, although the HMP
proposes only to mitigate for areas disturbed for construction of the house. This may be
because the proposed driveway follows an area where existing vegetation is limited to mowed
grasses, although no rationale is provided for not providing mitigation for the driveway
footprint. The mitigation planting plan Included in the HMP shows four mitigation areas totaling
10,050 square feet. Two of these areas, totaling 2,550 square feet are separated, and likely
functionally isolated, from the shoreline by the existing and proposed driveway. A third 6,500
square foot area is located outside of the proposed 50 foot shoreline buffer with the smallest
(1,000 square feet) area located within the proposed 50 foot shoreline buffer. Given these areas
and their locations, it is unclear how "a ratio of 2:1 for mitigation plantings occurring within 50
PLN50438 Imeson SSDE Page 4
feet from the OHWM and 3:1 for mitigation plantings within 50450 feet from the OHWM" is
achieved.
The site- specihc proposal in the HMP is required to assure there is no net loss of the property's
s ecific shoreline ecological functions and associated ecosystem -wide processes. While the HMP
provides a summary of potential Impacts to shoreline ecological functions associated with
residential development (See Table 1, page 10), it does not adequately summarize the
property's specific shoreline ecological functions and associated ecosystem -wide processes. For
example, Herrera's Marine Shoreline Buffer Recommendations Discussions Memo states:
Buffers to protect the large woody debris function importont to habitot structure and shoreline
stability were suggested to be between 33 and 328 feet. However, given that trees located 300
feet landword from the edge of a bluff or bank would not immediately be recruited on the
nearshore, consideration should be given to the site's potential tree height and the current and
expected rate of bluff or bank retreat when establishing buffers for providing large woody debris.
The proposed development includes removal of six significant trees. While the configuration of
the house minimizes the number of trees removed, the HMP does not describe the property's
specific functions and processes relative to the role of significant trees in wood and debris
recruitment or slope stability. Removal of riparian vegetation is particularly important for
ecosystem -wide processes at the reach or landscape scale relative to forage fish and salmonid
habitat:
By maintaining bank stability and contributing large wood to the aquatic environment, riparian
vegetation forms and maintains habitat complexity. Riparian vegetation and large wood improve
beach stability and contribute to roughness and sediment trapping. This Includes improved
capacity of beaches to retain sand, a crucial substrate for forage fish spawning (Pentilla 2007).
The HMP notes the presence of both forage fish spawning and juvenile salmonid habitat at the
site and in the project area, but does not address how the potential impacts or proposed
mitigation will protect or otherwise affect these ecosystem -wide processes.
Interactions between riparian vegetation and the nearshore marine environment are important
to the survival and population of numerous species. The establishment of significant protection
for marine riparian areas is an important management strategy. The West Sound Nearshore
Integration and Synthesis Project was recently conducted to identify priority areas and priority
nearshore project opportunities to support the recovery of Puget Sound Chinook salmon
(Oncorhynchus tshawyscho). Out of 421 projects, protection of the subject property and
adjacent and nearby properties associated with Little Manzanita Creek was ranked eighth on the
list of Tier 1 priority projects, with Tier 1 intended to be a small, selected subset of the most
beneficial projects.
Overall, the HMP does not adequately demonstrate that the proposed site - specific management
area assures no net loss of the property's specific shoreline ecological functions and associated
ecosystem -wide processes. Specific project impacts are not identified, project avoidance and
minimization measures are inadequate, there is no direct tie between project impacts, site -
specific conditions and functions and proposed mitigation measures, and ecosystem -wide
processes — particularly those associated with forage fish spawning and juvenile salmonid
habitat — are not addressed.
PLN50438 Imeson 55DE Page 5
(3) The site - specific proposal uses the scientific and technical information compiled to support the
shoreline buffer standards of Section 4.1.3.5(3)(b), and /or other appropriate technical
information which, as determined by a qualified professional, demonstrates how the proposal
protects ecological functions and processes and how it meets the goals and policies of the
Vegetation Management Section.
Scientific and technical information supporting the shoreline buffer standards is provided in:
Documentation of Marine Shoreline Buffer Recommendation Discussions, Memorandum, 2011,
Herrera Environmental; Addendum to Summary of Science, 2011, Herrera Environmental;
Bainbridge Island Current and Historic Coastal Geomorphic/Feeder Bluff Mapping, 2010, Coastal
Geologic Services, Inc.; Best Available Science, 2003, Battelle; Bainbridge Island Nearshore
Habitat Characterization and Assessment, 2004 Battelle.
Each of the above - listed documents is referenced in the HMP; however, specific scientific and
technical information compiled in the documents is not used to demonstrate how the proposal
protects ecological functions and processes. For example, Herrera's Marine Shoreline Buffer
Recommendations Discussions Memo states.
Factors relevant to the effectiveness of marine shoreline buffers, or of a given buffer width,
include the type and Intensity of surrounding land development, influence of groundwater,
stability of slopes or bluffs, types of pollutants and their sources, vegetation dynamics (such as
type and density), and geomorphic functions of dr ftwood or other habitat features that might
affect the functions and values of the buffer (Brennan et al. 2009)0
The memo spends considerable time on the fact that the necessary buffer widths vary
considerably depending on the site - specific characteristics and the functions to be protected.
The HMP fails to provide a link between the site, the functions to be protected and the buffer
width proposed. The HMP proposes a 50 -foot shoreline buffer but does not provide any detail
as to why this width was chosen, no explanation of the factors relevant to the effectiveness of
this buffer width and no justification for 50 feet when recommended buffer widths in the
scientific and technical information used to develop the City's prescriptive buffer widths range
from 16 to over 300 feet, depending on function.
(4) The Administrator shall have the Habitat Management Plan reviewed by an independent third
party.
The City requested review of the HMP by Washington Department of Fish and Wildlife (WDFW).
WDFW staff conducted a site visit and provided comments on the HMP (Attachment Q.
Comments included:
• The location of the house and the proposed vegetation management plan does
not meet the "no net loss" standard and will result in a significant impact to a
key, limited, sensitive, shoreline buffer;
• The proposed project is disruptive to a very limited and critical shoreline
habitat. In addition, there is space available on this parcel where residential
development can occur without encroaching into the shoreline critical area
buffer:
PLN50438 [meson SSDE Page 6
It is important that we protect the few remaining areas with intact forested
riparian marine shorelines; and
• To develop a property within a critical area buffer when that parcel has
sufficient room to accommodate a residential home outside of the buffer
appears to be counterintuitive to the Shoreline Master Program,
Shoreline Structure Setback View Requirement
In accordance with SMP Section 4.1.3.11.1.b, the shoreline structure setback provisions apply where an
existing primary single- family residential structure is located within 100 feet of the subject property line.
All measurements are to the closest primary residential structure on either side of the subject property
as measured parallel to the shoreline.
The subject property is a headland. The adjoining development is located only on one side, outside the
shoreline buffer. SMP Section 4.1.3.11 does not include this particular scenario; however, SMP Section
4.1.3.11.4.c.1 and SMP Section 4.1.3.11.5.c both use the distance from the OHWM to the most
waterward portion of the primary residence structure of the adjoining property to determine the
shoreline structure setback line. As such, the shoreline structure setback line for the subject property is
determined by the distance from the OHWM to the most waterward portion of the primary residence
structure of the adjoining property to the north. The proposed development must meet the shoreline
structure setback view requirement unless a shoreline variance is granted.
This information was provided to the applicant as part of the pre - application conference (Attachment
D). Insufficient information was provided by the applicant to verify if the proposed development meets
the shoreline structure setback view requirement.
E. Section 4.1.5: Critical Areas
Geologically Hazardous Areas
The City's GIS database shows geologically hazardous areas (landslide hazard — slope greater than 40
percent) on the subject property. The site plan submitted with the SSDE application shows a steep slope
on the subject property.
The applicant was notified as part of the pre - application conference that the Geological Assessment
Report submitted with the pre - application (Krazan, 2005) must be updated to reflect the proposed
development and current SMP regulations (Attachment D). The City's Development Engineer provided
comments to the applicant on June 28, 2016 requiring an updated critical areas report and third party
review for the proposed buffer reduction (Attachment E). No additional Information was provided by
the applicant to verify if the proposed development meets the requirements of SMP Section 4.1.5 or
SMP Appendix B -9.
Critical saltwater habitat
The shoreline at the project site is mapped critical saltwater habitat (WDFW- mapped Pacific herring
spawning and surf smelt and critical habitat for juvenile salmonids). Pursuant to SMP 4.1.5.5.4, new
stormwater outfalls and discharge pipes shall not be located in critical saltwater habitats or areas where
outfall or discharge will adversely affect critical saltwater habitat.
PLN50438 Imeson SSDE Page 7
In order to approve the outfall tee as proposed on the conceptual drainage plan included with the HMP,
the applicant would need to provide a narrative showing that the following can be met:
a. There Is no feasible alternative location for the outfall or pipes and
b. The outfall or pipe is placed below the surface of the beach or bed of the water body; and
c. The discharge point(s) on the outfall or discharge pipe is located so the discharges, including
nutrients and flow, do not adversely affect critical saltwater habitats.
G. Section 4.1.6: Water Quality and Stormwater Management
All shoreline development must minimize any increase In surface runoff through control, treatment, and
release of surface water runoff so that the receiving water quality, shore properties, and features are
not adversely affected. In addition, low impact development (LID) techniques must be considered and
G
mplemented unless the site is demonstrated to be unsuitable for low impact development techniques.
The HMP states that through the use of LiD techniques, including an infiltration trench and pervious
pavement, stormwater will be designed for 100 percent infiltration but with an overflow to the trench to
accommodate extreme events that would disperse through a dispersion tee above OHWM. The
conceptual drainage plan included with the HMP shows the dispersion tee 10 feet above OHWM.
Accessory underground utilities are a prohibited use in the Priority Aquatic A designation. Prior to
approving the conceptual drainage plan, the OHWM would need to be field- verified.
H. Section 41.2: Cultural Resources
Cultural resources provisions apply to cultural, archaeological and historic resources that are either
recorded by the State Historic Preservation Office, affected Indian tribes and /or by local jurisdictions, or
have been inadvertently uncovered. A primary cultural resources policy is to prevent the destruction of
or damage to, any site having historical, cultural, scientific or educational value as Identified by the
appropriate authorities, including affected Indian tribes (SMP Section 4.2.2.2.1).
The Suquamish Tribe provided comments on the proposed development (Attachment F). The subject
property is located within the Tribe's adjudicated usual and accustomed grounds and stations ( "U &A ").
Suquamish Tribal members harvest fin fish in Manzanita Bay, primarily coho and chum salmon. Clams
were also commonly harvested all along the shores of Manzanita Bay until the area was deemed
Unclassified by the State of Washington Department of Health, it is expected that harvest will resume
when clams are safe to eat. The Tribe stated: "Any regulatory decisions that could lead to additional
contaminants or impacts in Manzanita Bay are in direct conflict with the Tribe's efforts to have future
harvest opportunities. The Tribe requests that buffers and critical areas be preserved to maintain Tribal
Treaty harvest opportunities."
I. Section 5.9: Residential Development
Single- family residential use consistent with controlling pollution and preventing damage to the natural
environment is a priority use in the shoreline (SMP Section 5.9.2 and 5.9.3.1). A summary of the
proposal's consistency with applicable residential development regulations is provided below.
PLN50438 Imeson SSDE Page 8
All residential development must:
Meet setback and height standards in Table 4 -2 and dimensional provisions of BIMC Title 18, Zoning.
See Section Ile&% above. The proposal is inconsistent.
Meet all provisions of SMP Section 4.1.2, Environmental Impacts, such that the development results in
"no net loss" to shoreline environmental functions and processes.
See Section II -D, E and G, above. The proposal is inconsistent.
Include no more than a total of two hundred (200) square feet of impervious surface is allowed in the
side yard setback outside of the Site - specific Vegetation Management Area.
The site plan submitted with the application shows less than 200 square feet of impervious surface In
the side yard setback. The proposal is consistent.
Be located and designed to avoid the need for shoreline stabilization and flood protection works for the
life of the structure.
The application materials did not include sufficient information to verify if the project is located and
designed to avoid the need for shoreline stabilization and flood protection works for the life of the
structure.
Be located and designed to protect existing ecological function in accordance with Section 4.1.2,
Environmental Impacts, and Section 4.1.3, Vegetation Management, and use low impact development
techniques of Section 4.1.6.6(3) to.
i. Minimize area of disturbance as provided in Section 4.1.4, Land Modification; and
ii. Minimize soil compaction; and
iii. Infiltrate stormwater runoff when the site is suitable for infiltration.
See Section II•D, E and F, above. The proposal is consistent.
Provide a stormwater conveyance that is designed according to the provisions of Section 4.1.6, Water
Quality and Stormwater Management,
See Section II-F, above.
Be located to protect existing views from primary structures on adjacent properties. Primary Structures
shall meet the provisions for structure setback line as provided in Section 4.1.3.
See Section llw% above.
V. Conclusion and Recommendation
The purpose of the prescriptive 150 400t shoreline buffer on undeveloped lots in the Shoreline
Residential Conservancy designation is to advance shoreline protection when future development
occurs. Due to the configuration of the parcel - forming a headland on the north shore of Little
Manzanita Bay - the 150 400t prescriptive shoreline buffer encumbers the majority of the property. The
applicant is proposing specific dimensional standards to meet the Vegetation Management goals and
policies as determined through an HMP prescribed In SMP Appendix 134. The HMP proposes to reduce
the shoreline buffer to 50 feet, an area of no disturbance other than buffer enhancement; and provide a
"forest protection zone," the remaining forested area of the parcel to be conserved; and a "mitigation
zone," an 81000 square foot area of invasive species removal and native replanting.
PLN50438 Imeson SSDE Page 9
Staff recommends denial of the shoreline substantial development exemption (SSDE) application based
on the following findings of facts and conclusions:
• The HMP does not meet the purpose and intent of an HMP pursuant to SMP Appendix B -4;
specifically, that they should preserve, and not reduce, existing high quality habitat buffers and
shall provide habitat functions and values that are greater than would be provided by the
prescribed buffer.
• Washington Department of Fish and Wildlife, as an independent third -party reviewer, and the
Suquamish Tribe both expressed concern regarding the proposal and requested that the
prescriptive buffer be maintained.
• The HMP does not address why the proposed residence cannot be located outside the
prescriptive 150 -foot shoreline buffer in order to avoid impacts.
• The proposed lot coverage is nearly 4.5 times larger than the 1,200 square feet allowed on
encumbered lots. The HMP does not address the potential to minimize impacts by reducing the
footprint of the house.
• The HMP does not adequately demonstrate that the proposed site- specific management area
assures no net loss of the property's specific shoreline ecological functions and associated
ecosystem -wide processes. Specific functions and project impacts are not identified, project
avoidance and minimization measures are inadequate and there is no direct tie between project
impacts, site - specific conditions and functions and proposed mitigation measures. Ecosystem -
wide processes — particularly those associated with forage fish spawning and juvenile salmonid
habitat — are not addressed.
• The HMP fails to provide a link between the site characteristics, the functions to be protected
and the buffer width proposed. The HMP proposes a 50 400t shoreline buffer but does not
provide any detail as to why this width was chosen, no explanation of the factors relevant to the
effectiveness of this buffer width and no justification for 50 feet when recommended buffer
widths in the scientific and technical information used to develop the City's prescriptive buffer
widths range from 16 to over 300 feet, depending on function.
• Insufficient information was provided by the applicant to verify if the proposed development
meets the shoreline structure setback view requirement, critical areas requirements
(geologically hazardous areas and critical saltwater habitat) and stormwater management
requirements.
• As proposed, the proposal is not consistent with development standards addressing setbacks,
shoreline buffers, lot coverage limitations and protective measures for critical areas and water
quality provided in the Shoreline Residential Conservancy designation policies and regulations.
Vi. Appeal Procedures
Any decision of the Director may be appealed to the Hearing Examiner in accordance with the procedures
of BIMC 2.16.020 (P).
Attachments:
A. SSDE Application with site plan
B. Habitat Management-Plan
C. WDFW comment letter
D. Pre - application summary letter
E. Development Engineer comment letter
PLN50438 Imeson SSDE Page 10
F. Suquamish Tribe comment letter
PLN50438 Imeson SSDE Page 11
BOULDER GLEN
EXHIBIT 3
Date. November 15, 2016
To: Gary Christiansen, AICP, Director
Department of Planning and Community Development
City of Bainbridge Island
From, Mike Imeson, Boulder Glen LLC
Project. PLN50438 SSDE
6967 NE Bergman Road
Tax parcel number 092502 -2 -060 -2009
Subject: Appeal of Administration Decision
This is to serve as a notice that I am appealing the decision of November 2, 2016
regarding the " Imeson Boulder Glen LLC PLN5043 SSDE ".
The principal points that this appeal is based on is as follows:
1. Shoreline Structure View requirement.
2. Geological Hazardous Area requirements.
3. Critical Saltwater Habitat requirements.
4. Land Use zoning requirement consistency.
50 No net loss to shoreline environment functions and processes.
BOULDER GLEN
EXH11131T 4
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