HEX DECISION1
BEFORE THE HEARING EXAMINER
FOR THE CITYOF BAINBRIDGE ISLOAND
In the Matter of an Application for a )
Preliminary Subdivision for ) PLN 50622 SUB
)
THE RESERVE AT WINSLOW ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW
Creating 12 Lots on 8.6 Acres of Land ) AND ORDER
At 7340 Finch Road NE )
____________________________________)
SUMMARY
Applicant: DeNova Northwest LLC Owner : Carol L. Walters Trust
6830 110th Street 7344 Finch Road NE
Kent, WA 98383 Bainbridge Island, WA 98110
Location: 7340 Finch Road NE
Comp Plan: Open Space Residential
Zoning: R-2
Summary of Proposal: To subdivide 8.6 acres into 12 lots
SEPA Compliance: Mitigated Determination of Non-Significance (MDNS) issued
April 11, 2017. No appeals,
Public Hearing: May 18, 2017. Testimony by staff, applicant’s representatives,
and seven members of the public
Decision: The application is approved subject to conditions.
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FINDINGS OF FACT
1. De Nova Northwest LLC, seeks to subdivide 8.6 acres into 12 lots on behalf of owner
Carol L. Walters Trust/Carol L Walters, Trustee. The development is to be known as “The
Reserve at Winslow.”
2. The property is located at 7340 Finch Road, NE, within NW1/4SE1/4NW1/4 Sec. 27,
T25N, R2E, W.M. On the west is a relatively level upland area, with a gentle slope from
northwest to southwest into a depressional stream (Hirakawa Creek) that flows from the north to
south within the eastern third of the property. A wetland lies in the northeast corner of the
property.
3. The proposed building lots are located in the western two-thirds of the site. The
change in elevation is 45 feet across the 700-foot building area outside of the stream buffer. The
average slope is six percent. The steepest slope is at the southeast end in Lot 10 where the slopes
approach 15 percent. There are no geologically hazardous areas on the site.
4. The property lies to the east of Finch Road and southeast of Sportsman Club Road.
The site is zoned R-2. Properties across finch Road are zoned R-1 and properties to the
northwest across Sportsman Club Road are zoned R-0.4. Other neighboring land is zoned R-2.
The Comprehensive Plan designation for the site is Open Space Residential.
5. At present there are two single-family residences and associated infrastructure on the
property. These will be removed and the land within 10 numbered lots in the west and central
portions of the property will be graded to create building sites. Access to these lots will be
provided via a public road entering from Finch Road and culminating in two culdesacs.
6. The stream and associated buffer area on the east side will be set aside as open space
in Tract A. The detention pond will be located in Tract B, in the southcentral portion of the
subdivision.
7. The plat will meet density and lot area requirements and is conditioned to note setback
and lot coverage standards on the face of the plat. A landscape buffer will be planted and
maintained in conformance with roadside buffer requirements.
8. Water for the development will be provided by the City of Bainbridge Island’s
Winslow Water System. The applicant will provide appropriate measures regarding maintenance
of the water line.
9. Sewage will be treated with individual onsite septic systems. Runoff from impervious
surfaces will be routed to the detention pond and allowed to leave the site only after treatment
and then only at pre-project rates.
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10. The Kitsap Public Health District has approved the preliminary plat, noting that the
existing well on the property must be decommissioned, and that the stormwater pond must be
lined or set back 30 feet from drainfields.
11. The Bainbridge Island Fire District advised that the proposed location of fire
hydrants appears acceptable and that a fire flow test is required prior to the issuance of any
building permit. Subdivision approval is conditioned of compliance with the fire code.
12. The project design provides for 37 percent of the property to be placed in open space,
more than required. Common ownership of the open space by a homeowners’ association is
proposed. Fencing will be installed along the interior boundary of the open space and signs will
advise trail users that the area is protected open space with a stream.
13. No work is planned in the open space containing Hirawaka Creek. A 150 foot buffer
will be kept free of all development to protect the creek. In addition a 15-foot building setback
will be established on the rear of the lots that border the buffer (Lots 5 through 10). Stormwater
dispersion trenches will be constructed within this setback. No stormwater facilities will be
located within the buffer.
14. Environmental review was conducted under the State Environmental Policy Act
(SEPA). A Mitigated Determination of Non-Significance (MDNS) was issued on April 11,
2017. There were no appeals.
15. The MDNS contained two conditions “to mitigate recreation and transportation
impacts.” A non-motorized public trail was required along the north property line and a non-
motorized public or private southern trail was required to connect the lots to the creek-side open
space.
16. An Open Space Management Plan has been submitted for review. The maintenance
portion of the plan will need to be modified to reflect the conditions of approval for the project.
17. Two professional traffic impact analyses for the proposed subdivision were
performed The analyses concluded that the new trips added by the development are not likely to
significantly affect traffic on surrounding intersections. Delays are expected to be mild (LOS C
or better) under 2018 conditions.
18. In addition to traffic impacts, professional evaluations were prepared in relation to
critical areas. trees outside the buffer, tree retention and landscaping, ecological functions of the
buffer, stormwater drainage, and soils.
19. After review of the application materials, the City Engineer recommended approval
of the preliminary plat. She found that, as conditioned, the proposal conforms to surface and
stormwater requirements and will not cause undue burden on the drainage basin nor
unreasonably interfere with the use and enjoyment of downstream properties. She also found
that the streets and pedestrian ways are coordinated with streets serving adjacent properties and
are adequate to accommodate anticipated traffic; that the water system has sufficient capacity to
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serve the plat and water service can be made available at the site; and that the preliminary plat
conforms to the road standards contained in the “City of Bainbridge Island Design and
Construction Standards and Specifications” manual.
20. The Examiner finds that the Staff recommendations adequately address the public
testimony at the hearing, except with respect to neighboring Parcel 028. The applicant will save
as many trees as possible on building lots 9 and 10, and has adopted a septic design that will save
trees. The proposed development will not encroach on any neighbor’s well protection zone.
Notwithstanding global concern for climate change, the City’s Code authorizes the approval of
subdivisions that meet Code provisions. The provisions made for trails, particularly the
northerly trail, will aid connection between Gazzam Lake Park and Winslow.
21. As to Parcel 028 which is immediately south of a portion of the proposed
subdivision, there are special problems.
22. The first of these concerns the access and water supply for Parcel 028. The property
which is the subject of the proposed subdivision now contains a driveway and well that benefit
this neighboring parcel. The applicant and the owner of Parcel 028 have entered into recorded
agreements to resolve this problem, as follows:
(1) A boundary line adjustment will be processed so that the property to the south
(Parcel 028) will include the area shown on the preliminary plat map as “20’
Easement.” Transfer of this 20 foot strip of land from the owner of the Reserve
At Winslow to the owner of Parcel 028 will provide a permanent access for Parcel
028 outside the boundaries of The Reserve at Winslow. This also means that
when the Reserve at Winslow project is submitted for final plat approval, the
external boundaries of the project will be smaller, because The Reserve at
Winslow will no longer include the 20’ Easement area.
(2) The applicant will connect the home on Parcel 028 to the public water system.
(3) Once the new water line connection is installed, the existing well on the
subject property will be decommissioned.
23. The agreements that reflect this resolution of the driveway and well problems are
identified as: (1) “Settlement and Agreement Regarding Boundary Line Dispute” recorded under
Kitsap County recording no. 201610040258, as amended by the amendment recorded under
Kitsap County recording no 201610200039, and (2) “Agreement Regarding Public Water
Connection, Well-Decommissioning, and Driveway Surfacing,” recorded under Kitsap County
recording no. 201610040259, as amended by the first and second amendments thereto recorded
under Kitsap County recording nos. 201610200038 and 201611140389 respectively. The
application for final plat approval will include these agreements.
24. Related to the driveway issue, the present owners of Parcel 028 expressed concern
that the access easement for Lots 9 and 10 from the subdivision’s south culdesac overlaps the 20
foot driveway strip that they will receive as a result of the boundary line adjustment (BLA). In
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response, the subdivision applicants advised that they are willing to eliminate this minor overlap
by revising the easement for access to Lots 9 and 10. Further they committed to building a fence
along the eastern boundary of the BLA, preventing access to Finch Road from the new
subdivision through Parcel 028.
25. Thus, as to the access and water supply questions, there is no dispute between the
applicants and the owners of Parcel 028. The agreements described above are intended to be
incorporated into the preliminary plat approval and are to be considered a part of the long
subdivision layout made prior to such preliminary approval. The agreements therefore, do not
reflect matters in dispute during the preliminary approval process.
` 26. The second concern regarding Parcel 028 relates to its east boundary. The present
owners of Parcel 028 urged that a landscape and pedestrian access easement be recognized for
their use on the east boundary on the basis of adverse possession. The subdivision applicants
stated that any claims to adverse possession were waived and released by the above-referenced
“Settlement and Agreement Regarding Boundary Line Dispute.” Such waiver is explicitly set
forth.
27. The Staff Report analyzes the proposal in light of the Comprehensive Plan goals and
policies, and Bainbridge Island land use code requirements – in particular the decision criteria
for Preliminary Long Subdivision approval. The Report concludes, that as conditioned the
proposal is consistent with the applicable requirements. With the exception of a modification of
proposed Condition of Approval 5(E), the Examiner concurs with the Staff and adopts their
recommendations. Condition of Approval 5(E) reflects the Examiner’s determination on access
and water for Parcel 028.
28. The public use and interest will be served by the platting of the proposed subdivision.
29. Any conclusion herein which may be deemed a finding is hereby adopted as such.
CONCLUSIONS OF LAW
1. The Hearing Examiner has jurisdiction over these proceedings.
2. The requirements of SEPA have been met.
3. The Hearing Examiner has no jurisdiction over claims to adverse possession.
Nonetheless, the agreement documents appear clearly to waive any such claims.
4. As conditioned herein, the proposed preliminary plat meets requirements of the land
use code in general and BIMC 2.16.125(H) in particular.
5. BIMC 2.16.125(K) contains provisions for the modification of approved Preliminary
Long Subdivisions. Such approval cannot occur until the instant decision is made, If there are
no successful appeals, what is approved here will constitute “an approved preliminary long
subdivision,” and this approval will include among its conditions the completion of the boundary
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line adjustment, the requirement for connecting the home on Parcel 028 to the public water
system and the requirement for decommissioning of the existing well. All of this, like the
fulfillment of other conditions, must be accomplished prior to approval of the final plat. In sum,
the provisions of BIMC 2.16.125(K) are not applicable to this case.
6. Any finding herein which may be deemed a conclusion is hereby adopted as such.
CONDITIONS
SEPA Conditions
1. To mitigate recreation and transportation impacts, the plat applicant shall provide the
following non-motorized access facilities:
A. A non-motorized trail for the length of the north property boundary.
1) The trail shall be located within a 20 foot width public right-of-way or public
access easement, at the applicant’s option.
2) The right-of-way or easement shall connect the Sportsman Club Road right-
of-way to the northeast corner of the property.
3) The trail shall be constructed to provide not less than a six foot width for
the western 375 foot length (i.e. the Open Space boundary).
B. A southern non-motorized trail connection to Tract A
(1) The trail shall provide connection between the south cul-de-sac and the open
space tract.
(2) The trail shall be located within a 10 foot width private access easement (i.e.,
serving only the subdivision lots), or within a public right-of-way or easement, at
the applicant’s option.
3) The trail shall be constructed to provide not less than a five-foot width for the
length of easement or right-of-way.
C. The built trails shall provide a two-inch depth of 1/4 inch minus crushed rock
over a four inch depth of 3/4 inch crushed rock or cinders, at a minimum
D. The built trails shall consider Americans with Disabilities Act accessibility
provisions for grade.
Project Conditions
2. Except for modifications reflecting compliance with these conditions of approval, the
final subdivision shall substantially conform to the plans date-stamped received on the following
dates: Landscape plans October 25, 2016; Civil plans February 28, 2017; Preliminary plat sheets
2, 3 and 5 October 25, 2016 and sheets 1 and 4 May 4, 2017.
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3. Prior to any construction activities, the applicant shall obtain the appropriate permits
from the City of Bainbridge Island, including but not limited to clearing, grading and/or building
permits.
4. The final plat shall comply with the following conditions of the Fire Marshal:
A. The proposed project shall comply with all provisions of the adopted Fire Code.
B. A fire flow test will be required prior to the issuance of any building permits. The
flow test shall be conducted during a period of ordinary demand.
5. The subdivision shall conform to the City of Bainbridge Island Design and
Construction Standards, Surface and Stormwater Management regulations (BIMC 15.20 and
15.21) and the Stormwater Facilities Maintenance Program in accordance with the provisions of
BIMC 2.16.070G(5). The applicant shall comply with the following conditions to the
satisfaction of the City Engineer.
A. Public and private improvements, facilities, and infrastructure, on and off the site,
that are required for the subdivision, shall be completed and have final
inspection and approval prior to final plat approval unless the City Engineer
accepts an assurance device in lieu of completion.
B. The applicant shall provide the following improvements for final plat
approval:
1) Every lot corner shall be staked by a three quarter-inch galvanized iron pipe or
equivalent approved by the City, driven into the ground and marked or tagged
with the certificate number of the surveyor setting said monument. The position
and type of every permanent monuments shall be noted on the final plat.
Perimeter and public street monuments shall be 24-inches and set in concrete, or
shall be constructed of an equivalent approved by the City.
2) As shown on the proposed plan, the proposed roadway shall meet the COBI
Residential Suburban Street Standard, Drawing No 7-060 found in the COBI
Design and Construction Standards and Specifications.
3) Binding water commitment for each lot shall be submitted with final plat
application.
C. Prior to final plat application and prior to any construction activity, the applicant
shall obtain an approved Plat Utilities permit. Application for Plat Utilities shall
include a civil plan as follows:
1) Documentation of application to the Department of Ecology for a General
Stormwater Construction Permit.
2) Civil improvement plans prepared and stamped by a civil engineer licensed
in the State of Washington for all improvements required in these conditions of
approval.
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3) As-built civil construction plans stamped by a civil engineer shall be provided
by the applicant prior to final plat; if installation of improvements is assured, as-
built plans shall be provided prior to release of performance assurity.
D. Maintenance of private on-site stormwater facilities is the responsibility of the
lot owners.
1) A draft Declaration of Covenant for Stormwater System Operation and
Maintenance shall be submitte4d with final plat application.
2) The Declaration shall observe the approved language in BIMC 15.21,
Exhibit A.
3) A final Declaration approved by the City Engineer shall be recorded upon
facility installation.
E. The final plat application shall include the following:
1) An additional sheet showing the original lots with dimensions, including the
thin strip that attached to parcel 272502-2-026-2000. The sheet shall include
those improvements which are connected to and/or serve the parcel
to the south (parcel 272502-2-028-2008) and extend onto the subject property; the
encroachments of said improvements onto the subject property shall be
dimensioned.
2) Documentation showing the accomplishment of the plan for resolution of
access and water supply questions related to the Lot 028 (See Finding 28 above),
including provisions for maintenance of the water lines.
3) The final plat will reflect the elimination of any overlap between the driveway
created by BLA for Lot 028 and the access easement for Lots 9 and 10 of the
subdivision.
F. A right-of-way construction permit is required prior to any construction activities
within the right-of-way; the permit is subject to separate conditions and bonding
requirements.
G. In accordance with the provisions of BIMC 2.16.020.N, the City Engineer may
accept financial assurity in lieu of completion of improvements, in an amount
and in a form determined by the City Engineer, but not exceeding 125 percent of
the cost of completing the improvements.
1) Any such assurance device shall be in place prior to final plat approval, shall
enumerate in detail the items being assured and shall require that all such items
will be completed and approved by the City within one year of the date of final
plat approval.
2) Upon completion and the City’s acceptance of facilities, the applicant shall
provide an assurance device securing the successful performance of
improvements.
3) While lots created by the subdivision may be sold, occupancy may not be
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allowed until the required improvements are formally accepted by the City. A
prominent note on the face of the final plat shall state: “The lots created by this
plat are subject to conditions of an assurance device held by the City for the
completion of certain necessary facilities. Building permits may not be issued
and/or occupancy may not be allowed until such necessary facilities are
completed and approved by the City of Bainbridge Island. All purchasers shall
satisfy themselves as to the status of completion of the necessary facilities.”
6. If any historical or archaeological artifacts are uncovered during excavation or
construction, work shall immediately stop and the Department of Planning and Community
Development and the Washington State Office of Archaeology and Historic Preservation shall be
immediately notified. Construction shall only continue thereafter in compliance with the
applicable provisions of law.
7. Prior to final plat approval, the applicant shall install low impact fencing as defined in
BIMC 17.28.020.30 along the west open space boundary of Tract A.
8. Prior to final plat approval, the applicant shall install three signs designed to provide
protection for Open Space Tract A, and the stream and wetland within it, in accordance with
BIMC 17.12.030.8 and in a manner visible to those accessing the trail at the following locations:
The northwest and northeast corners of Tract A; the southern trail at its intersection with the
Tract A open space boundary.
9. Open Space signage and fencing must be maintained in perpetuity and required
locations of fencing and signage shall be noted on the face of the plat.
10. A final Open Space Management Plan (OSMP) shall be recorded with the final plat
and the OSMP shall be referenced on the face of the plat. The final OSMP shall meet the
requirements of BIMC 17.12.
11. Lot coverage of 20 percent shall be allocated as follows and shown on the face of the
plat” 6,200 square feet per lot and 696 square feet to Open Space tracts.
12. The following setbacks shall be noted and depicted on the final plat:
Building to building (on-site) Minimum 10 feet
Building to exterior subdivision boundary line Minimum 15 feet
Building to right-of-way (Sportsman and Finch) Minimum 50 feet
Building to other streets (Internal right-of-way) Minimum 15 feet
Building to Open Space Minimum 10 feet
Building to Trail Minimum 10 feet
Building to Roadside Landscape Buffer Minimum 10 feet
13. The plat shall provide a 25 foot width landscape buffer along the Finch and
Sportsman Club rights-of-way. Prior to final plat approval, the buffer shall be planted to full-
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screen standard (BIMCC 18.15.010.D.4 or planting assured as provided in BIMC 18.15.010.H.
The buffer shall be maintained for the life of the project.
14. The following conditions shall be listed on the final plat. Conditions 1;3;4;
applicable portions of 5;6 applicable portions of 8;9 and 10-13.
ORDER
The application for preliminary subdivision approval for The Reserve and Winslow (PLN
50622 SUB) is approved, subject to the conditions set forth above.
SO ORDERED, this _____day of June, 2017.
_____________________________________________
Wick Dufford, Hearing Examiner Pro Tempore
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